I doubt if this section really needs explanation. It speaks for itself. It is proposed by this section to confirm that the Lay Commissioners, when hearing cases, can summon witnesses. It is also designed to provide machinery through which they can punish offenders for non-attendance on their sub-poena. Since the adoption of the Constitution, doubts have been expressed as to whether the Lay Commissioners, as a quasi-judicial body, have full powers to summon witnesses to attend before them. The main difficulty is that any power is useless, unless it is linked with power to punish those who disobey. That power is normally reserved to our courts under the Constitution. In relation to acquisition and similar proceedings, there is naturally no difficulty about attendance of owner witnesses or Land Commission officials, but it could happen that it would be necessary to call in third parties, such as persons with special local and technical knowledge, who might not be willing to give evidence. It is for the purpose of removing doubts about the powers of the Land Court to summon witnesses that this section has been introduced.
Land Bill, 1963—Committee Stage (Resumed).
The section reads:
(1) For the removal of doubt, it is hereby enacted that the Lay Commissioners may for the purposes of such of their functions as may require a hearing do all or any of the following things—
(a) summon witnesses to attend before them,
(b) examine on oath (which any Lay Commissioner is hereby authorised to administer) witnesses attending before them,
I should like the Minister to explain whether from now on it is the Lay Commissioners who will administer the oath to such witnesses. It is true to say that heretofore the registrar to the Lay Commissioners could administer the oath. The registrar is present at the hearings which take place before the Lay Commissioners and surely if the registrar is present at these hearings it should be possible for him to administer the oath. I see that under the section it is the Lay Commissioners who are empowered to administer the oath and I would like the Minister to give a little more information as to whether it is now the Lay Commissioners who are to administer the oath and if the registrar is not now to have power to do so. This is a matter that requires a little more explanation.
The Minister would be well advised to clarify the position as it is at the moment. Will he tell us why he has found it necessary to bring in the section? What has arisen in the working of the Land Commission which brought about the drafting of this section? I understand that at present the Commissioners have power to summon witnesses and take evidence on oath and that if there is a question of doubt with regard to prejury there are certain steps open to the Commissioners to take. If the Minister has discovered that there are loopholes as far as witnesses are concerned and if this section is being brought in to close those loopholes it is welcome. However, I do not think there is any use in pretending that we are going to equate this court in importance with the High Court by amending the legislation along the lines contemplated in section 8.
I do not know whether this is the proper place to question the Minister on the right of appeal by the Land Commission inspection staff against decisions of the Commissioners. It may seem extraordinary that I should ask the Minister a question like that but the fact is that when the Land Commission take steps to acquire a farm they do not take those steps lightly. They examine the position in the locality, the size of the holdings in the locality, the need for division and when they come before the Lay Commissioners they are well armed with regard to the situation. I would like that the Lay Commissioners should be empowered to cross-examine, under oath if necessary, the various witnesses who are there as objectors to the activities of the Land Commission.
I do not want to mention particular cases in the discussion on this Bill but I am afraid that the tightening up that is proposed to be done under it will not in itself be sufficient to bring about the necessary improvement in the acquisition section. I would like the Minister to give an example of what omissions there were in the previous legislation and how this section proposes to repair the omissions that have come to the notice of the Department.
This is an addition to any other power that may already have been vested in the registrar to the Lay Commissioners to administer oaths. The registrar, by direction of the Commissioners, can administer the oath at any time. There is no intention to change the practice. There have been doubts expressed by constitutional lawyers as to the power of this particular court to inflict punishment in terrorem on witnesses who have failed to attend. Some suggested that it is only the High Court that has such power. While this matter has never been challenged and issue has never been taken, it was felt that we should take the opportunity to clarify the position and ensure that where a subpoena is issued by the Land Commission and a witness does not appear, there is a procedure whereby that witness can be punished. The effect of this section is to remove these doubts, although the matter has never arisen in practice.
Will the Minister say what is meant by "witness" in this section?
Any witness attending on subpoena or otherwise.
Would it be an objector?
My understanding of the Deputy's point is that the objector would not be summoned at all. He would be there on his own behalf. This section is intended to deal with a witness summoned by the Land Commission.
Would a person whose lands were being acquired and who did not enter an objection be a witness? While the Land Commission court has to have certain powers with which I would agree, I would not like to see a position arising where a person whose land was being taken might find himself being jockeyed into the position of being a criminal. Is there any danger of that arising?
I do not think so. As far as the objector is concerned, as far as my knowledge goes, it is a question for himself whether he gives evidence or not. If an objector considers it is better tactics not to go into the witness box, he is at liberty to stay outside it. There is not the same power in this court and there is not the same practice that a witness can be called by virtue of the fact of his presence in the precincts of the court in the manner in which he can be called in a criminal court or by a district justice in his court. In this situation, it is for the objector to give evidence or not as he deems fit. The whole purpose of this section is completely different from what Deputy Blowick has in mind. It is designed to compel the attendance of a witness.
A third party.
A third party, let him be summoned by the objector or the Land Commission.
In that case I fully agree with the section.
This section is put in for the purpose of removing certain doubts that have been expressed in some quarters. It is to confirm that local authorities have the power to make cash contributions towards the cost of works undertaken by the Land Commission and from which the local authorities benefit. The Department of Local Government did express some doubt as to whether, in accordance with the letter of the law, it is lawful for local authorities to make payments of this kind. For instance, in the case of works on embankments, bridges or culverts undertaken by the Land Commission and which might incidentally benefit other people in an area, agreement might be reached between the Land Commission and the local authority that the local authority would contribute something towards work of this kind. I want to emphasise that this is purely a voluntary business. The local authority might think it good business to get together with the Land Commission to do some job of public utility. It is to remove doubts expressed by the Department of Local Government on the legality of such propositions that this section is here.
Perhaps the Minister would go a little further, if possible and tell us what kind of doubts have arisen in this matter and if the Department of Local Government auditors have queried the powers of the local authority to make payments. The Land Commission must be very much alive to any objections that have been made by local government auditors against the payment of such contributions by local authorities. Perhaps the Minister could tell us what has been the total of such payments in any of the past five years which were made by local authorities to the Land Commission. I am sure the Land Commission keep up-to-date records of such works and particularly of such payments.
I am not at all satisfied that the Minister has given the House a very clear explanation on this section. He should enlighten us a little more as to the nature of the doubts that have arisen. Have the local authorities contributed towards Land Commission works in the past without legal obligation or authority to do so, and to what extent have local government auditors queried the rights and the powers of the local authorities in making these payments? I feel sure the Minister would not take the serious step of inserting a section to regularise the matter in this Bill without having satisfied himself as to the doubts that have arisen.
There is no question of any surcharge having arisen. This is a very simple proposition. There are certain works such as those to which I have referred, embankments, bridges, culverts or, perhaps, a bit of a road which it might be necessary for the Land Commission to construct and which would be of general utility as well as serve the interests of their own tenants. It may well be in some of these instances the local authority should contribute something. Indeed, it does happen that the local authorities from time to time in small matters of this kind approach the Land Commission to go ahead and are willing to join the scheme. It is because of doubts expressed by people in the Department of Local Government about the strict legality of the local authority making contributions of this kind that this section was introduced. There was never any question of the matter being queried by the Auditor-General. This is a sensible section and one which I think the local authorities generally will welcome.
There is a point which I should like the Minister to clear up in regard to section 10. I do not want to deal with section 10 yet.
This is completely different from section 10.
I know, but where a local authority are willing to contribute and there are doubts at the moment about their legal right to do so, would that be where the project would be of public utility or would the Land Commission be responsible for the improvement or the maintenance of that project?
I know the Deputy will be arguing that on section 10.
Yes, but before we come to section 10 I want to know are we letting the cat out of the bag in section 9 and then dealing with something in section 10 in which we have handed over the powers of the Land Commission, in other words, enabling the evasion of responsibility under section 10?
No, that is not the case.
I am not suggesting the Minister has that intention. I do not want him to take the view I am looking for snags in this, but if the Minister would give me an example it might be helpful. The Explanatory Memorandum refers to "the cost of marine embankment repairs, etc., being executed by the Land Commission". Can we take it this is not an attempt to say to the local authorities at a later stage: "You have power now to contribute. Unless you contribute the Land Commission will not put up £X"? At the moment the Land Commission must bear responsibility. Under this will they be in a position to say: "We will not contribute unless you as a local authority contribute as well?"
Could the Minister give us a specific instance?
I shall try to give an instance of what I have in mind. We shall say there is a rearrangement scheme and that there is a through road going to serve four Land Commission tenants who are getting houses in that scheme and that by extending that road a bit further it would serve six houses that are not in the scheme at all, a distance of a mile further. That would be a proposition on which the local authority might come to the Land Commission and say: "You continue this work and we will join in with you because we will be doing a good job for these other people."
Another instance I would say would be an improvement scheme on lands in the hands of the Land Commission and where they considered that in getting outfalls for drainage, a new culvert or bridge would have to be constructed and that apart from serving the few people on that estate with whom the Land Commission were concerned, it would also serve other people outside the Land Commission scheme. That would be another instance in which the local authority might join with the Land Commission in a joint scheme. It is that type of scheme I have in mind. It could also happen with embankments, although we will have more about these on the next section. There would be, I conceive, places where there would be portion of an embankment for which the Land Commission had liability and another portion in the same place where there was erosion or flooding and the local authority might say to the Land Commission: "Come in with us on a joint scheme and it will serve other people as well as your own people."
Let me say again that this is purely a voluntary business. It is an enabling section to enable the local authority to join with the Land Commission in suitable cases. There is no intention of relieving, nor does it relieve, the Land Commission of any existing liability for anything.
There is no doubt that the section is purely an enabling section and it could not possibly be anything else. I am strengthened in the suspicion I expressed a few minutes ago that the Land Commission can use this as a means of evading their responsibility in regard, say, to the construction of a road. The Minister has mentioned, for instance, the case of four houses being served by the Land Commission. They are putting a road in a new estate and there are six houses, according to the Minister, further on somewhere which could be linked up with the other four houses. Whose responsibility should it be to link up those houses? Surely that is the responsibility of the Land Commission. The local authority is quite willing afterwards to take over the road which the Land Commission in the first place should construct.
I want this matter cleared up. My impression of the activities of the Land Commission is that over the years they have shown the greatest neglect in regard to road construction and to drains. If it now means that they are going to evade their responsibilities even further, I would not be in favour of giving them a way out. This is what I can see happening under this section. The 1953 Act was also an enabling Act and it empowered any local authority to declare as a public road whatever road the local authority, in its wisdom, believed to be of public utility. That means that if the Land Commission are servicing four houses and proceed to link up the four houses with six others in the area, the county council or local authority afterwards can declare that road a public road and maintain it and, to my mind, the local authority are doing their job properly in that regard but they should not be asked, or the local ratepayers should not be asked, to bear the burden of constructing the link road between the four new houses being built by the Land Commission and the six other houses in the locality.
The Minister says that there is no compulsion on the local authority to make a contribution towards making that link road. Of course there is not, because if there were, there would be an outcry, but the pressure can be exerted by the Land Commission and they can say to the tenants in the six houses: "We will help with this, provided the local authority goes fifty-fifty with the Land Commission." Pressure will then be exerted by the tenants and they will endeavour to get the local authority to make the 50 per cent contribution towards the cost, when in fact at present the Land Commission have the responsibility of making that road. I do not want to see that position being changed.
Will that position change?
My belief is that as it stands now the Land Commission can say to the Roscommon County Council: "You have the authority and an enabling Act has been passed which enables you to subscribe to the making of the road between the four houses in section X and the six houses in section B and unless you are prepared to co-operate in the making of that road, the Land Commission will have no further responsibility."
Perhaps I did not make myself quite clear to the Deputy. Let me re-emphasise that this section is introduced solely for the purpose of removing doubts about whether it is strictly lawful for local authorities voluntarily to join in a scheme of mutual benefit with the Land Commission. I was dealing with the four houses and it might be better to give a clear picture and say that we have a public road south of these four houses in that small estate which I will call "X" village and with which the Land Commission are dealing; there is a by-road, not in good condition, running from the public road through the village of "X", where the four houses are to the north of the other six houses. There would be no liability on the Land Commission to deal with that portion of the road serving from the four houses back north to the six houses, but the county council might say to them: "Well, if you complete this, we will take it over by joint effort and deal with the six to bring them on to the road servicing the four and give them a clear run to the main road."
It is a joint effort of that kind that is contemplated here. It is only for the purpose of removing any doubts that the local authority could contribute with the Land Commission to a scheme of mutual benefit to their own people and the public generally and those within the particular scheme with which the Land Commission are dealing. That is the sole purpose of this, whatever Deputies may argue on the next section.
Could we say that it could refer to the sinking of a well or the provision of a water supply?
To any such project. It happens from time to time that local authorities request the Land Commission to go ahead and do certain works and say that they will be prepared to join in with them.
I take it therefore that such a scheme will be one about which up to the present the Land Commission would not do anything?
At the moment, is that the idea?
At the moment it has happened, I am advised, that some of these schemes have been done by joint effort but doubts have been expressed, in strict law, as to whether the county council as a public authority can make a contribution towards schemes of mutual benefit of this kind and the sole purpose of this is to remove such doubts.
It arises also as a result of local authorities having shown anxiety in certain circumstances to contribute and this is to remove that doubt?
That is right.
I move amendment No.21:
To delete subsections (1) and (2).
I feel that subsections (1) and (2) of section 10 are most undesirable. The Minister is now taking steps to place the responsibility which should be his and that of the Land Commission on to the local authorities. It is very unreasonable. Section 10 exonerates the Minister for Lands and the Land Commission from "any obligation to cleanse, maintain, repair or restore any works". Once the Land Commission have a responsibility they should stand over it and should not pile a good deal of their responsibility on to the local authorities in respect of works which will then have to be met by the ratepayers.
The Deputy is completely misconstruing the section. I fear that in order to deal with the amendment I shall have to deal with the section. In fact, the Deputy's amendments could be interpreted in one sense as a direct negative to the whole power and provisions of this section.
Yes.
I am afraid that to go into this in some detail will take me some time. The fact remains that this section arises directly from paragraph 16 of the Report of the Committee of Public Accounts dated 13th June, 1957. It may shock the Deputy to know, as I suspect, that his leader, Deputy Dillon, was Chairman of the Committee of Public Accounts at that time. I quote from the Report of the Public Accounts Committee of that date:—
16. The Land Commission failed to clean a drain bordering lands they had acquired and the owner of the adjoining lands took an action in 1952 for damages for flooding of his land due to the neglect of the Commission. The plaintiff was successful in his action and also in a similar action taken in 1953 after the Land Commission lands had been allotted to tenants under purchase agreements. The Accounting Officer stated that the question whether the Commission continued to be responsible for the cleaning of the drain although no longer in possession of the lands, had been referred to the law officers. The Committee will be glad to be informed of their decision.
On this point the Minister for Finance replied on 30th October, 1957, to the Committee of Public Accounts that legal advice on the complex issues involved had been received, which indicated that the position was not entirely free from doubt, that some aspects of it might require clarification by legislation and that the matter was under consideration by the Land Commission.
Again, in 1958, the Committee of Public Accounts commented as follows:
It is noted that the question whether the Land Commission continues to be responsible for the cleaning of drains although no longer in possession of the lands is not free from doubt, and that some aspects of it may require clarification by legislation. The Committee wishes to be informed in due course when a final decision has been reached.
The Minister for Finance, in December, 1959, stated that provisions to clarify the legal position were being prepared for inclusion in a suitable Bill in due course.
The Committee of Public Accounts, in paragraph 3 of their next Report of April, 1960, made the following comment:
The Committee notes that it has been decided to clarify by legislation the legal position relating to the responsibility of the Land Commission for the cleaning of drains when the Land Commission is no longer in possession of the lands.
At this point, it will be of interest to mention that the amount of the damages awarded against the Land Commission was very small—£25 on the first decree and £12 on the second decree, making a total of £37 in all, with additional costs and expenses of £84, being a total of £121. That is my recollection. This was known as the Owen Kelly's claim case and I think it arose in Deputy McQuillan's constituency. So that, financially, the particular case represented a small problem in itself. Theoretically, it carries wider implications but, fortunately, no further trouble of its kind has arisen in practice up to date.
As the general legal position about drains had been formally queried by the Committee of Public Accounts, it was necessary for the Land Commission to go fully into the legal position. The Attorney General of the day advised the Land Commission. This matter had given rise at that time to many questions of legal complexity. I do not feel that at this stage it is necessary for me to take up the time of the House in a dissertation on the differences between non-feasance and misfeasance but let me say that the position with Owen Kelly's drains in principle arose and could arise in this way in other cases. It could arise, for instance, in cases in which the Land Commission had parted with possession of the land for years, where, when they were dividing the particular estate, they carried out a drainage work and some years afterwards Pat Murphy's cow fell into that drain and Pat Murphy could come after the Land Commission, although, theoretically, because the Land Commission had parted with the lands they were not entitled to go in on his lands, which had been divided amongst all the neighbours, without committing trespass. You have what I call an impossible legal position arising.
The net result of the legal examination, as reported by the law officers, was that legislation would be necessary to try to clear up this rather complicated mess.
There is no question whatever of section 10 passing on liability to a local authority. It simply makes the law clear that the Minister for Lands and the Land Commission have certain specific liabilities and no more. In the interests of the taxpayer who would have to foot the bill it is essential to try to make the legal position as clear as possible.
Section 10 broadly follows the headline of subsection (2) of section 51 of the Arterial Drainage Act, 1945, which reads as follows:
Nothing contained in this Act nor anything done by the Commissioners thereunder shall operate to render the Commissioners liable (save where it is proved that their officers, servants, or agents have been guilty of carelessness or neglect) for any damage which may happen to any land or other property through or by the overflowing of any river, stream, or watercourse or through or by the sudden breaking of any bank, dam, weir, sluice, or other work constructed by the Commissioners under this Act or for the maintenance of which they are responsible under this Act.
In drafting section 10 of the Bill, the approach has been to give general protection to the Department from relevant litigation, with certain definite exceptions. First, let me emphasise that the Department or the Minister for Lands will be liable where there has been legal negligence. This is effected by the significant parenthesis —and I am quoting the section, "(not being a negligent act or omission)" in the protection given by clause (b) of subsection (1).
Secondly, the Department will be liable where the injury is a matter of express contract. There is no question of trying to upset existing liabilities, specifically undertaken. On this point, the significant phrase is "implied contract" in the protection given in subsection (1) of section 10.
Thirdly, apart from negligence and express contracts, the field of possible litigation against the Minister and the Land Commission is to be regulated according to whether the Land Commission are or are not in sole and exclusive occupation of the land on which the works are situated at the relevant time.
Would that apply to river embankments and seashore embankments for which the Land Commission had responsibility on the occasion of the sale of the estate to the Land Commission?
I shall come to that when I have clarified the position. I want to make it clear that apart from the negligence as set out here, if the Land Commission are negligent while the lands are in their possession, they are still liable and are also liable under express contract. If the Land Commission are in occupation, then the Department will be legally liable. For instance, where an estate is taken over by the Land Commission and, as sometimes happens pending the preparation of a scheme, some work has to be done and people's stock are there grazing, if the work is done negligently by the Land Commission, the Land Commission are liable. They are also liable under contract, express or implied.
Will that apply to unvested holdings?
So long as the Land Commission are in possession of the lands.
Technically, they might be in possession, but the tenant is in occupation.
When the tenant is in occupation, the tenant is liable, or will be after this section has been passed into law. Where the Department are not legally liable, the complainant will have redress against the landowner or holders concerned in so far as they may be legally liable through the ordinary responsibilities of ownership. Therefore, there is no question of section 10 transferring liability for maintenance of works from the Land Commission to county councils. The fact that section 10 happens to be placed after this other section which made Deputy McQuillan suspicious is purely coincidence.
I should like to explain the position with regard to embankments. Roughly speaking, I do not think this affects them one way or the other, within certain limitations which I shall give the House. The position about embankments is that they will be all taken over by the Board of Works under the relevant provisions of the Arterial Drainage Act of 1945. There is provision under that Act for the one authority, the Board of Works, to take over all these embankments in the ultimate, and they will then be the responsibility of the Board of Works. That will be the position in the future.
As they proceed with drainage schemes, where such embankments are concerned, the Board of Works will take them over and the taxpayer then becomes responsible for them. There are some cases involving embankments that broke. When estates were originally the property of the Land Commission, certain liability attached, on the sale of those estates, for the maintenance of embankments. In many of those cases, as far as I know, the moneys that were reserved for them were in the hands of some old trusts, the income from which would be spent on the maintenance of embankments.
Those are old anachronisms as far as the practical job is concerned today, because those moneys would not be sufficient to maintain such embankments nowadays. Theoretically, the Land Commission in some cases maintain embankments or build embankments outside the estates on the theoretical ground that where there is erosion, their investment is in danger— that the holdings in respect of which annuities are charged should be protected by the Land Commission since the more that falls into the tide, the less security there will be for the holdings. Now we are back to the principle that arose as a result of the good Owen Kelly's drain in Roscommon.
Was that the one in Mount Talbot?
It was certainly in Roscommon.
Was it where a cow fell into a drain?
I am informed it was on the Kingston estate. I know it was in Roscommon because the case made legal history years ago.
Owen Kelly was alert.
I wish he had been more alert and saved the cow.
This is using a sledge hammer to kill a midge.
Owen is out of luck from now on.
There is a duty on the Department when a matter of this kind is raised, and solemnly raised at a meeting of the Public Accounts Committee and the accounting officer is directed to do something about it. It was as a result of this matter being raised and questioned at a meeting of the Public Accounts Committee in 1957 that this matter has arisen. Having been legally examined on several occasions since, and the diverse legal implications of that decision having been considered, it was felt by the lawyers concerned that there was only one way of dealing with it, that is, to bring in a section of this kind in a suitable Bill.
I feel sure that Deputies who are familiar with this type of problem will readily appreciate the queer position under legal liability that arises for the Land Commission. There might be an estate vested in tenants from which the Land Commission had disappeared for many years; yet they might be confronted with another Owen Kelly, who, I am sure, has long ago gone to his reward, and may the green sod lie lightly upon him. Wherever he has gone, I hope there are no drain troubles.
As a result of this rather peculiar decision, it was our duty to see that the Land Commission were relieved of liability in cases where they had parted with the property. It is only right that we should clear up this mess in cases where the Land Commission had parted with the property for many years—that they would not be held liable when in fact they had no right whatsoever to go inside the gate to abate a nuisance arising from something they did years before. I am sorry I had to go into so much history, but that is the real purpose of the section.
It is the epitaph of Owen Kelly's cow.
Apart from the section being a permanent memorial to the late Owen Kelly, I think it is something which is being put into legislation now which calls for closer examination. Everybody knows that when an estate is being divided, the Land Commission are responsible for the division, for the proper fencing of the estate, for proper road-making and drainage. If public money is spent on fencing and road-making, making embankments and on a comprehensive drainage scheme, it means considerable expense to the taxpayers and one would imagine that when the Land Commission carry out such work they would assume responsibility for its maintenance. When they allot the lands they fix a suitable rent to be paid by the allottee and he pays that rent while in possession. Naturally, the Commission should be responsible for the road they have made into the estate leading to their houses.
The Minister has made one reference to drainage. He said that under the 1945 Arterial Drainage Act it is intended that all minor drainage schemes will eventually come within the scope of the Board of Works and that the Board will be responsible for all drainage.
Embankments.
Embankments. If the Board of Works are to be responsible for them and if it takes them as long to assume responsibility in that case as it does to carry out the obligations they have under the Arterial Drainage Act where they consider very extensive drainage schemes for many years, it is not very encouraging. It is well known that the Land Commission have responsibility in respect of many watercourses, when they make new watercourses or initiate new drainage schemes or open a new drain. Surely, if they open a drain they do not expect a smallholder occupying the land to maintain it himself? What happens if the drainage of a townland is undertaken by the Land Commission in the first instance and it serves four or five local landowners and one or two of them for any reason are not in a position to do their part of the drainage work?
Since the land project has been responsible for carrying out wisely some very extensive drainage schemes and the Local Authorities (Works) Act is no longer in existence—thanks to the Minister and his colleagues—I feel the Minister is relieving himself and the Land Commission of responsibility for the maintenance and repair of natural or artificial watercourses. The Local Authorities (Works) Act was responsible for carrying out the very type of scheme which would be of great importance to the type of people with which this section deals. I think this relief of responsibility is a very bad provision because what is everybody's business is nobody's and there is no use in the Land Commission shedding responsibility unless it is put on somebody else. Vast sums of public money are being spent on embankments, drainage and road making and, on the passing of this section, unless the Minister accepts the amendments I have moved, money which has already been spent on these amenities for tenants will be completely wasted.
Surely the Minister has an obligation to say on whom responsibility will rest. I understand from him it will now rest on the person in occupation of the land and the moment the Land Commission allot the holding that will end their responsibility and it will not matter if we have a recurrence of the case of the late Owen Kelly and the cow in the drain.
Owen himself can go into the drain after this.
I think this will result in greater expense which the tenant or the local authority will be unable to bear. It is difficult to get local authorities to do what they are supposed to do on scheduled roads and in regard to drainage beside main and county roads without saddling them with responsibility for drainage of concern to landowners. It might be possible to make a case if the Minister would contact the Minister for Local Government and advocate the immediate restoration of the Local Authorities (Works) Act.
That has nothing whatever to do with this section and the Deputy knows it.
I do not. That is why I am speaking on it. I look to the wisdom and intelligence of the Minister to enlighten me and I am waiting to be advised by him. I want to know who will be responsible for maintenance of works undertaken by the Land Commission when this section is passed, unless my amendments are accepted. All that concerns the Minister and the Land Commission, apparently, is to shift responsibility from themselves: they do not care where it falls. They will never have a recurrence of the Owen Kelly cow case. It is all very fine to quote extracts from the proceedings of the Committee of Public Accounts but the tenants do not care a thraneen about that and are concerned only about who is responsible for the embankment and its maintenance and for the Land Commission road.
Is it not reasonable to expect that if the Land Commission construct a new road a certain sum will be provided annually for its maintenance?
For all time?
Of course, for all time. What is wrong with that, particularly in the case of drainage, because if the Minister waits until very small drainage works on Land Commission watercourses are carried out by the Office of Public Works, he will wait a considerable time? There is no use in saying the tenant will be responsible because, to my knowledge, most allottees will not be in a position to maintain roads. They cannot do it at present. The Minister knows from his experience the big difficulty there is, in his constituency I am sure as well as everywhere else, in getting people together——
He does not know. He never tried.
——to avail of the generous provisions of the rural improvement schemes. I know that in my constituency there is considerable difficulty in getting the contributions necessary. When there is such great difficulty in getting people to contribute under the rural improvement schemes when the Department give generous grants, how on earth can they be got together to give money out of their own pockets to carry out works from which there will be no financial return for anyone—the Office of Public Works, the Land Commission, the county councils or anyone else.
This is very important, because whatever difficulties have cropped up in the past, similar difficulties are likely to crop up in the future. The Land Commission will not care because their responsibility will be over on the passing of this section. The Minister has quoted from the report of the Public Accounts Committee, and he has given the result of the legal proceedings which were instituted in the Roscommon case. The Land Commission lost.
That is why we have this section.
Since the Minister raised this case, will he tell us why the Land Commission will not carry out the drainage works required by the late Owen Kelly——
He is not dead.
The Minister said he has gone to his reward, that he is dead and prayed for. Deputy Blowick says Owen Kelly is alive. We are very pleased to hear that. That is more encouraging news than the Minister had for us. However, the Land Commission and the courts have gone fully into the case. It cost the Land Commission a considerable amount of money in legal and other expenses. Would it not have been better if the Land Commission had accepted that responsibility in the first instance, without contesting the matter in the courts, when they knew—surely their legal advisers could have informed them—they had responsibility in that case? This section will relieve any doubts that may exist as to responsibility. That is why I feel it is not right, and why I feel these two subsections should be deleted. They will cause considerable inconvenience. Once the Land Commission carry out any works to improve a holding, and continue to take rent and impose an annuity on the landowner, they should be responsible for the maintenance of those works. I think the Minister is very unwise in this matter. I make a very serious appeal to him, in the light of the difficulties that are likely to arise, to agree to the deletion of the two subsections.
To get the record right, it was either Deputy Blowick or Deputy Flanagan who introduced the cow, not I.
It was not I. I did not know anything about the case until I heard——
It is not very material, but the action was about flooding, not about a cow. The same thing would have arisen so far as the law was concerned if his cow had fallen into the drain and if the Land Commission had left it in a dangerous——
Whose cow?
The late Owen Kelly's cow.
He is alive. It is not long since Deputy Blowick saw him.
The Deputy is too prone to take what Deputy Blowick says as gospel. Time and again in this House Ministers of different Governments have made it clear that the Land Commission are not a road maintenance or a drainage maintenance authority. The same principle has been announced for river embankments, with the specific exceptions I have mentioned, such as trusts under which explicit responsibility is given. The same general policy has always operated in respect of other Land Commission works. Each improvement work has to be performed adequately and subsequently maintained, but the primary responsibility is that of the landowner concerned. The task of maintenance can be taken over from the landowner as is done by the Board of Works in respect of embankments and drains, and by the county council in respect of roads. That has been done from time to time, but for the rest, the responsibility for the maintenance of ordinary drainage works going through land is the responsibility of the owner, and always has been so. That is the law of the land.
One would imagine from Deputy Flanagan's remarks that this was a terrible imposition on the owners of property, owners who get land, or additions to their land, rearranged by the Land Commission to which, incidentally, the taxpayers contribute a very substantial sum. Generally speaking, the cost of the improvement works in this case is a very heavy item indeed, and half the cost is paid, generally speaking, by the taxpayers.
Anyone who suggests that simply because the Land Commission divided an estate or made all these improvements, they should be held liable for all time for the maintenance of the improvement works is reaching the height of absurdity, and that is what Deputy Flanagan is arguing. It is because of the legal decision to which I have referred when the Land Commission were held liable—although they had left the place years before— for flooding as a result of alleged neglect of a drain, or failing to maintain a drain going through land in respect of which they had not even a legal right of entry, that this section is here. We want to clear up that absurd legal situation.
I do not think anyone in his senses would suggest that the Land Commission should be responsible for all time for the maintenance of, for instance, fencing around farms. One might as well suggest that the Land Commission should till land they got for farmers. The section arises in the way I have described as a result of the rather peculiar legal decision, and it is to get rid of the potential liability that arises from the legal implication of that decision that the section is in the Bill.
The Minister has referred to what he described as a peculiar decision. It is a unique case of an individual winning an action against the Land Commission whose responsibility it was to prevent flooding. This case took place some years ago, and there were no disastrous results so far as the Land Commission were concerned. I have heard of no descents on the law courts by anxious tenants to test out their cases as a result of the famous victory of Owen Kelly. In spite of the fact that there have been very few cases of a similar nature—I do not know of any; perhaps there have been none—we have a very long section included in the Bill to prevent a recurrence of Owen Kelly's case.
I can only describe this as I have already described it—as using a sledge hammer to lay out a midge. It is much more serious than that. The Land Commission are using poor Owen Kelly as a scapegoat in this instance. They are out now to utilise that case to give them an opportunity to strengthen the powers they have to enable them in the future to shelve their responsibilities at an earlier stage. Every Deputy will agree that the Land Commission are noted over the years for the speed with which they shelve their responsibilities to tenants with regard to the making of roads, the repair of them, the making of drains, and so forth. I can speak with experience of my constituency. There is nothing but dissatisfaction amongst the tenants down through the years. Quite a considerable amount of land division took place in my constituency over the years. Today, the local authority—the county council—have a terrible legacy as a result, first of all, of badly made roads.
When I say I believe that the Land Commission for the ha'port of tar spoiled the job and left the roads unfinished, I mean that they got out as fast as they could. The minute they got the tenants to sign an acceptance of their holdings, that was the end of it as far as the Land Commission were concerned. I think that was wrong. They still have these powers. I do not see why this House should add to these powers to enable the Land Commission to say: "We are finished. We have nothing more to do with your area."
The Minister knows that in my constituency there is an estate named Moate Park which is a tourist attraction. People come to see that locality. It is a beautiful area. The Land Commission divided that farm of land in the past few years. The roads in that estate were in good condition prior to the Land Commission's arriving on the spot. Today, the roads on that estate are almost impassable. There are huge pot-holes on the roads. Vehicles of all sorts have to skirt the road and use the side of the road to pass: it is absolutely scandalous. The local authority, I hope, have got the Land Commission before they got time to get out. My latest information is that the Land Commission had agreed to investigate at this stage the possibility of putting those roads into a reasonable state of repair before the local authority would take them over. I am afraid that if section 10 were now in operation the roads in that estate would be left as they are today and the local authority would be saddled with the responsibility of providing whatever moneys might be necessary to put those roads into the state of repair in which the Land Commission should leave them. Does anybody think it is right for this House to allow the Land Commission to evade their responsibilities further in that regard?
I do not think Deputy Flanagan meant to convey that the Land Commission should be responsible for all time for the maintenance of roads. I do not subscribe to that view. I believe the Land Commission should put the roads into a state of repair that will meet with a certificate of approval from the county surveyor of the local authority. If the technical expert of a local authority is prepared to certify to the county council that he has found a road to be in a suitable condition as a result of the Land Commission's activities, I think that at that stage a local authority should accept their responsibility and take over the road then and declare it to be a public road. It would be wrong to try to saddle the local authority with the taking over of that road until it is put into a state of repair that should be the responsibility of the Land Commission.
We have this position in most counties that the Land Commission finish their work—roads, drainage, and so on—and move out. I shall not deal with the drains at this stage. I shall deal with the roads. As Deputy Flanagan said, what is everybody's business is nobody's business. The result is that when the Land Commission move out the road is there. The local authority are not notified by the Land Commission that they have finished in the area and that the road is in good shape. I have never known local authority officials anxious to find fresh roads to take over. One has to lead the horse to the well. Officials are not anxious for further work as far as roads are concerned. They will not go to the Land Commission and ask: "Are you finished with that estate yet? We are very anxious to take over that road."
On the other hand, the Land Commission do not even say to the local authority: "We are about to finish here within the next three months and we shall have this road in a good state of repair. Will you move in now so that there will be no hitch in the maintenance?" There is a difficulty there that must be solved and it will not be helped by section 10.
I should like the Minister to comment a little further on that issue. The law is clear enough as to the way the Land Commission can evade their responsibilities. They know themselves exactly how far they must go and how far they may be responsible afterwards. There is no good at this stage in bringing in a new section to make the position still worse as far as the tenants and the local authority are concerned. There would be more co-operation all round if the Minister said he is prepared to see that that co-operation to which I have referred is brought about rather than to bring in a section which will give the Land Commission an opportunity of saying to the local authority: "We quote you section 10. We are finished with you here."
It might seem, as the Minister has suggested, that when the Land Commission hand over a farm, a house, buildings and amenities of various kinds to a farmer it would be the height of absurdity, to use his own words, if the Land Commission were saddled with the responsibility of maintaining these things in saecula saeculorum. Nevertheless there are certain amenities which of their very nature and importance, and primarily by reason of their cost, it would seem to be outside the ability of many farmers to maintain and to provide for in after years. In the absence of any State aid or specific grants towards the maintenance of drainage, roads, water supplies, and so on, it is only reasonable that the Land Commission would accept responsibility in these specific matters.
I am concerned about the lack of regard on the part of the Land Commission in respect of the handing over of farmhouses, outhouses, and the provision of amenities to which I have referred. In many instances, the Land Commission are niggardly in their approach and would seem to be almost guilty of dereliction of duty in relation to this matter. I have known many farmers who were allotted land, houses and outoffices, who refused to occupy farmsteads because of the state of dereliction in which they were left by the Land Commission. The normal, decent amenities were not provided. Fireplaces were not provided; cement floors in kitchens were not provided; a proper access to the farmhouses was not provided. The outoffices were derelict.
Farmers, in the circumstances I mention, should have some redress against the Land Commission. To whom can a farmer appeal in these circumstances if the Land Commission fail in their duty in the first instance? What redress has a farmer if a decent house is not provided, if adequate repairs are not carried out to outoffices, if proper boundary fences are not erected, if a decent access path is not made to the homestead? It would appear that the Land Commission under this section are taking power virtually to foist on the farmer whatever they think desirable, while they opt out of any legal responsibility. That is not good enough.
With regard to roads, the road should be up to the standard stipulated by the county engineer. It should be brought up to the minimum standard required as to width, durability, and so on. It is not good enough to provide a mere gravel pathway for a community of Land Commission tenants and expect the local authority then to take that road in charge. It is not good enough to provide water and other amenities unless the Land Commission also take reasonable steps to maintain these amenities. Some of these amenities are very costly and the average farmer could not possibly maintain the amenities on his own. Unless the Minister can indicate what State aid will be available to maintain these, providing them is a waste of money.
I appeal to the Minister to reconsider this section. I appeal to him to give the House an assurance that houses, outoffices and amenities of a certain standard will be provided. If they are not up to the required standard, then I suggest the tenants should have a right of appeal. An arbitrator should be appointed, competent to decide whether or not a house is properly repaired. That is done in the case of cottages which are being vested. If a tenant is not satisfied with the repairs carried out, he has the right of appeal to the Minister for Local Government and the Minister will send a neutral engineer to determine whether or not the cottage has been adequately repaired. If he decides it is not repaired to his satisfaction, he makes a recommendation and the local authority must carry out the additional repairs stipulated. There is no such redress under this Bill for the Land Commission tenant.
I agree with the Minister that it would be absurd to spoonfeed people and maintain forever boundary fences and do the ordinary repairs that one normally expects the tenant himself to carry out. The Minister is quite right in that, but there are more important amenities being provided by him and, if he allows these amenities to become derelict because of inability on the part of the tenant to maintain them, then it will be so much money wasted. I appeal to the Minister to reconsider the section.
I am afraid the Minister has misunderstood slightly the opinion I expressed. I certainly do not advocate that the Land Commission should be responsible in saecula saeculorum for the maintenance of all fences, drainage, embankments and repairs to Land Commission houses. The Minister said that, if that were to be done, then one might as well till the ground. What I am concerned with is the work which will be outside the bounds of possibility for any smallholder to undertake himself. I, therefore, move the deletion of subsections (1) and (2) of this section to ensure that the works done by the Land Commission will be maintained by the Land Commission and not left to the allottees. Subsection (1) specifies any work whatsoever and includes any river, stream, natural or artificial watercourse, canal, drain, pond, lake or other area covered by water, and any natural or artificial bank or embankment carried out by the Land Commission before subdivision.
I trust I have made myself clear to the Minister. Surely the Minister does not expect for one moment that, in the case of a defective canal, for example, causing serious flooding to a holding allotted by the Land Commission, one or two smallholders should be responsible for carrying out the drainage improvements necessary on that canal. The same argument holds good with regard to ponds, streams, rivers, or lakes, artificial or otherwise. If the works were necessary before the land was divided, then it is reasonable to assume their continued maintenance will also be necessary for the proper enjoyment and utilisation of the land when divided into holdings. Works of the kind to which I have referred should, when carried out by the Land Commission in the first instance, be subsequently maintained by the Land Commission. The Land Commission should not disclaim all responsibility.
I am in complete agreement with Deputy McQuillan and Deputy Treacy when they ask for a certain standard in relation to Land Commission roads. Such a standard is not only necessary but desirable. With regard to the houses provided by the Land Commission, those in my constituency are a credit to the architects, engineers and everybody concerned. Everybody knows that the tenant of a Land Commission house is responsible for the repair and maintenance of that house. It is a different day's work, however, when it is a question of lands being flooded or there being no way of getting in or out of the lands. Surely it must be agreed that public money would be wasted if there were not some curb on wasteful expenditure?
Not alone is it a question of watercourses and embankments being maintained but, if they are not maintained by the Land Commission, they will steadily deteriorate. I am quite satisfied of that. If those works deteriorate steadily, there will be requests to the Land Commission for their maintenance. The Land Commission will disclaim all responsibility; and the local landowners will not be in a position to undertake major works. What will happen in the case of a number of farmers suffering from flooding from a drain made by the Land Commission in the division of a holding when one or two of the landowners are not in a position to provide labour, time or money to do the drainage work? The last thing we want in rural Ireland is legal proceedings between neighbours for the maintenance of a watercourse or some such matter. That is not the spirit of our people.
Then there is the question of Land Commission roads. At present these should be made so that they will carry heavy machinery, combine harvesters, reapers and binders and tractors. If you are to have heavy machinery of that nature on Land Commission roads, you must have a good foundation and a good surface. It does not do to put a load of gravel on a soft surface. There has been no improvement in recent years on these Land Commission roads and I must say that if they were brought up to the same standard as the Land Commission houses and building, there would be little cause for complaint. I doubt if any responsible county engineer would provide a certificate that these Land Commission roads could be handed over to the local authorities to be kept in repair.
The Land Commission have not been generous in the amount of money spent on making roads and their roads are not up to the same standard as those made by the local authorities. This is something the Minister should have a look at. When an estate is divided, the Land Commission have the responsibility of putting up embankments and other works. Any group of smallholders would not be able to do such work unless there was somebody to help them and the Land Commission should hold on to responsibilities of this nature.
It is most unreasonable that because of one law case, we should have a section inserted in this Bill which will have a bad effect on Land Commission work all over the country and which will cause annoyance and inconvenience to those who are to receive allotments of land. By the inclusion of these two subsections, the Minister is not having due regard to the amount of taxpayers' money which has been spent on these works and I would ask him to reconsider carefully this aspect of these two subsections. The Deputies who have spoken on this matter have made a good case as to why the Land Commission should hold on to the responsibilities they have. The explanation given by the Minister that the Land Commission lost one case in Roscommon is no reason why the whole country should be harnessed with these two difficult subsections. I ask the Minister to accept the amendments because I honestly feel that he has not presented the House with a satisfactory explanation as to why action of the type envisaged in the subsections is needed.
It goes to show a great deal of pride on the part of the Land Commission. They went to court and lost a case in Roscommon and then they come along to take the greatest revenge they can. On the first occasion on which the Minister has an opportunity to bring in a new Land Bill, they set out to make sure that they will never lose a court case again. The explanation given by the Minister is not a satisfactory one and is very vague. I know he is going to say a few words on this and I would ask him not to lose his temper but to approach the matter in the practical way in which Deputy McQuillan and I have approached it.
I am not going to be provoked now but let me say this to Deputy Flanagan, that when he says he never advocated that the Land Commission should carry out maintenance work in perpetuity on these farms, he should read the Official Report to-morrow.
The Minister is not entitled to misrepresent me.
The Deputy has repeated this ad nauseam and I do not propose to take up the time of the House in dealing further with the matter. The short answer about drains affecting three or four farms is that there are rural improvement schemes in existence and the law as it stands is that adjoining riparian owners must keep their sections of the drains clear. The Deputy's argument is that where the Land Commission allot certain lands to farmers and, 20 years after, one farmer's cow gets into an outfall and in an effort to get the flies off his tail, shoves a whole lot of mud into that outfall, the Land Commission should then send down a man specially with a shovel to clean that outfall. Is it Deputy Flanagan's policy that this should be done at the expense of the taxpayer? The Lord give me patience to deal with these matters.
Let me say that as far as Deputy Treacy is concerned he is talking about something to which I am a complete stranger. I have no knowledge whatsoever of the type of housing to which he refers. All I can say is that if he would give me particulars privately of what he has in mind, I shall look into the matter. Let me make it clear we had here in this House a model of the standard type of new house the Land Commission are erecting for migrants and it earned the approval of every Deputy. These houses are erected by the people themselves with special financial assistance from the Land Commission. Therefore I am utterly at a loss to understand what type of case Deputy Treacy complained of here.
May I give the Minister the facts of the case?
If the Deputy would pass on to me the full facts, I shall be very glad to look into the matter. It is certainly news to me and if the Land Commission have some liability when I investigate it, it will certainly be dealt with, but I just cannot understand how such a case could arise.
To deal with some of the points made by Deputy McQuillan in regard to Land Commission officials visiting local authorities, there is very close liaison between Land Commission officials and the officials of the local authorities. It is standard practice that where roadmaking is being done by the Land Commission, they meet the necessary specifications laid down to enable these roads to be taken over ultimately by the local authority. I do not know offhand the exact measurements specified but they meet the standards required.
May I also say that under the new Planning Act there will be mandatory consultations in respect of buildings and so on between the officials of the local authority and the officials of the Land Commission? Therefore I cannot visualise the situation in respect of which the Deputy expressed fears. Let me repeat that under this section the Land Commission are still liable for negligence in respect of any work carried out by them while they are dealing with an estate and in possession of these lands. Where the injury is a matter of expressed contract, the Land Commission are still liable. The only purpose of this section is to deal with the potential liability arising from the decision in the Owen Kelly case that somebody could come back years after the Land Commission parted with the land and claim there was non-feasance or malfeasance on the part of the Land Commission in connection with some work they carried out in improving the land when the land was being divided.
If we were debating this matter until to-morrow night and expressing all the fears that have been expressed here, with Deputy Flanagan continuing with his flights of imagination, it would still not change one iota the simple purpose of this section. That should be accepted by every reasonable Deputy. It is here in the House as a result of the unanimous recommendation of the Committee on Public Accounts, that raised the case of the good Owen Kelly back in 1952.
On this question of the standard practice in connection with roadmaking to which the Minister has referred, he states there is a procedure now in operation whereby the Land Commission, having made their roads and being about to leave the locality, hand over these roads in a suitable state to the local authority. I should like the Minister to satisfy the House on this point: is there a standard practice laid down by the Department of Local Government in relation to these roads or is it a matter for each local authority to decide in what state the roads must be before being taken over by the local authority? Again, who initiates the question of the takeover? The Minister says consultations take place. Who initiates the consultations? Is it the local authority that will have responsibility or is it the Land Commission when they are finishing have the responsibility of notifying the local authority they have the road ready for taking over?
While I accept the Minister believes that the standard practice is to hand over the roads in a suitable state, meeting the requirements of the local authority, in actual fact, that is not the position, as I can prove to him without a shadow of doubt. I do not want to repeat what I have said about the road in Moate Park. There is no doubt that the Land Commission have not fulfilled their responsibility there because the road is in a dreadful state and the Land Commission's first reaction was to say: "We are finished there". Only for the fact that they were still caught with their lorries moving through the estate in connection with timber, we would never have had the chance of pinning the responsibility on them.
I do not know how we stand at the moment but I do know that section 10 gives them a way out. If the Minister is able to assure this House that as far as the Land Commission's activities in future are concerned, they will put all the roads in the various estates into a proper state of repair, up to the requirements demanded by the local authority, then I shall accept that as a fair proposition on the part of the Land Commission. The position varies in different local authorities. I understand quite a number of local authorities are not anxious as it is to take over roads. What is the position as far as the Land Commission are concerned? Will it be the position that when the Land Commission have made a road and the tenants have signed over for their holdings, that road will be nobody's business or will it be up to the tenants themselves to repair that road under the rural improvements scheme? If it is, then you are going to have a lot of dissatisfaction and a waste of public money because of a lack of maintenance over the years. Naturally you will have the tenants saying: "This road is a public road; other people are using it and why should we have to subscribe to it?" What I want the Minister to do is to bring in a standard practice that will apply in every local authority. If there were any way in which the Minister could do it, I would like to see it being mandatory on a local authority, wherever the Land Commission had brought a road into a proper state of repair, to take over the road.
After all, under the Drainage Acts, if the Board of Works complete an arterial drainage scheme, the onus is on the local authority to put up the money for the subsequent maintenance of that scheme. I believe that where the Land Commission put a road into a proper state of repair, and by that I mean the proper width, steamrolled and tarmacadamed, and hand it over to the local authority, there should be no possibility of any query on the part of the local authority as to their responsibility——
That would seem to be a matter for decision by another Minister.
The Minister has already brought in the Minister for Social Welfare, for instance, in this Bill and has taken powers which I felt would normally be the responsibility of the Department of Social Welfare. In fact, what the Minister is doing is getting rid of these powers to make the position still more unsatisfactory. Nobody wants to be awkward about this but I can assure the Minister that the criticism which I put on record ten or 15 minutes ago about the conditions of roads in my constituency will not be forgotten for some time. As a public representative, I must bring this home to the Minister, and in view of the fact that we have this rare opportunity now, we must make the fullest possible use of it, to ensure that we will not have a continuation of the present unsatisfactory state of affairs as far as road maintenance is concerned. I am not satisfied yet, until I hear further from the Minister, who lays down the road standard; secondly, what happens roads in areas in which the local authority are not using the Local Authority Act, 1953, and also what does the Minister think of the proposition to have these roads tarmacadamed when the Land Commission move out of the locality.
I do not think I need to go over all this ground again. The Deputy is well aware that once the Land Commission finished with all these roads, they were the responsibility of the tenants and it was up to the local authority if they got them to take them over, or if they themselves got a minor relief grant or any other grant, to maintain them when they went into disrepair. Once the Land Commission did them, they were finished with them. What is happening now is that there is consultation in such cases about the roads between the officials of my Department and the officials of the local authority. As far as I know, generally speaking the responsible officials of the local authority specify the standards they require before taking them over. So far as that is the position, our people endeavour to comply with it.
Could the Minister say if the standard of the road that is laid by the Land Commission is comparable with the standard of the road provided by the local authority in each area?
I say that it is, in the case of the type of road I am thinking of. To give an instance, in a number of roads laid down by the Land Commission——
Do the Land Commission in, say, Mayo, lay a road having regard to the importance of an area, to the same standards as the Mayo County Council?
Yes, they lay it according to the standards laid down to enable the county council to take it over. It is up to the tenants concerned, or the council concerned, to take these over. I am sure the Deputy has had experience of local authorities. From my experience on county councils, there is always a list of cul de sac and other roads waiting to be taken over by the local authority. My recollection is that all these applications for roads to be taken over would generally be put back until one specific meeting of the county council, around budget time, and then the council decided on the number they would bring in. That was the procedure on the Mayo County Council in my time and I am sure a similar procedure is followed in other counties.
At all events, let me say that it is the Land Commission's practice, where it is necessary, to make these roads to the specifications required by the local authority so that ultimately if the local authority so decide, they can take them over. If in this Bill I were to take any mandatory power to tell local authorities what to do, I can well imagine what Deputy McQuillan's contribution would be on that issue as well as the contributions from practically every other Deputy and I do not propose to enter that field. Let me emphasise that in regard to anything the Land Commission do negligently on estates after the passage of this section, the legal liability will still be theirs. It is to clear up the Gilbertian situation that the Land Commission can be made liable for a nuisance on lands they have no legal right to enter that this section is here.
The Minister has been talking about Land Commission roads but actually the roads we want to see something done about are the ones that will be laid by the Land Commission in future. One of the biggest snags is that when the Land Commission develop an area, for some extraordinary reason they run a road into the middle of a field without any hope of its ever becoming a link road. The local authority of which I am a member have on occassions made representations to the Land Commission to have a road laid in a certain way so that eventually they could develop it as a useful link road. In Meath, we have been using to the very fullest extent the Local Government Act 1953 —which incidentally is referred to there as the McQuillan Act—and it is used to the extent that every road with two or more houses on it is taken over as a public road.
That is the cul de sac road?
Yes, in fact any road including the Land Commission roads. The extraordinary thing is that the county council have extreme difficulty in adapting the Land Commission roads to ordinary use, for two reasons. The first reason is that they run them out into the fields and, in most cases, they cannot be developed as link roads even though a slight alteration of direction and a matter of two hundred yards would make them very useful link roads. The second reason is that the standard of bridges erected by the Land Commission over drains and the standard of surface put down over the boggy parts of these roads is very bad.
The Minister may be correct when he says that there is an improvement. I am quite prepared to agree that over the past few years the standard of these roads has been improved very considerably, particularly with regard to width, but the Minister would be doing a very good job if he adopted the suggestion made by Deputy Corish and Deputy McQuillan that a standard should be laid down which must be met. If he does that, the country will gain because if the roads are properly made in the first instance the excessive expenditure which has to be met at a later date, usually by the taxpayer, will not arise.
I know that when the Land Commission are dividing an estate and decide to build a number of houses and to connect them by roads it is sometimes not easy to site the houses in such a way that it will be easy to accommodate each house with a road which can be used as a link road but there are many cases where it is possible to do so. I have in mind one case in the area which has now been transferred to Deputy Boylan's constituency of Kildare, in south Meath, where an old road runs in from the south side a distance of nearly half a mile. It is quite a good type road. There are a number of houses on it. When the Land Commission were dividing a neighbouring estate, they ran another road in from the opposite direction within 100 yards of it and, for some extraordinary reason, they gave the intervening land to somebody who will not agree in any circumstances to the linking of the roads. If the Land Commission had possession of that land, it would have been an easy matter for them to link the two roads and it would have been a very useful road and would have taken miles off the distance local people have to travel from one side of the area to another. Because of the fact that the Land Commission have not that intervening field, the position is very awkward.
I would suggest that the Minister could solve all these problems by laying down that it is not a question that there should be co-operation between the Land Commission officials and the local authority officials but that there must be co-operation. I am quite sure that the officials of at least one county council are not entirely satisfied that they are getting the co-operation that they have asked for from time to time from Land Commission officials responsible for developing roads. I am not trying to blame the Minister who is trying to pilot one of the thorniest Bills through the House and I can understand his exasperation when everyone cannot see things as he sees them but it is only right that we should put problems to him so that before the Bill becomes law, he will have the opportunity of improving the Bill considerably. The matter I have referred to is a case in point. It will save everybody concerned a good deal of annoyance and money if the proper co-operation can be secured.
Let me say that I believe the Miniister is perfectly right when he says that the Land Commission should not be held responsible indefinitely for land they have handed over to somebody else. That would create an extraordinary situation. The Minister is correct when he says that there should be a period after which responsibility should pass to the new owner. Having said that, I should like to say that particularly in the case of roads and to a lesser degree in the case of drains, if the Land Commission do not do the job properly in the first instance, they should be forced to carry the responsibility which has fallen on them, not exactly because of their negligence, but because they have not done the job properly.
There is another section of the Bill which we will come to that perhaps may solve the difficulty Deputy Tully has in mind when he talks about the recalcitrant landowner who has a field between two roads and will not allow the roads to be connected, because I am taking the opportunity in this Bill, under certain sections, to modernise rights of way and I am taking certain compulsory powers where the circumstances justify it, to create rights of way, irrespective of the title to the property concerned.
All I can do is to repeat that I have given a direction to my officials in matters of this kind to consult with the officials of the local authority. That should normally work. No instance has been brought to my notice of lack of co-operation or of my direction being ignored. Surely, where houses are being built and roads are being constructed by the Land Commission, if there has been prior consultation with the officials of the local authority, that is as far as any Minister for Lands could reasonably be expected to go? Unless there is something radically wrong, things should work out satisfactorily when that consultation takes place.
Do we take it that what happens when the road is improved and the Land Commission are finished in the area is that they notify the local authority?
No. I am talking about the type of case where this arises— when a scheme is ready that entails houses and roads, my people consult with the local authority as far as that plan is concerned. As far as the housing is concerned, when the new Planning Act comes in it will be mandatory on my officials to consult the local authority on such schemes.
What is the position supposing the Land Commission decide to construct a road in a certain way and the local authority senior officials say: "We do not think that is the right way. It would suit us much better if you did it in some other way"? Is there any way of solving that problem if the Minister's officials say, as I understand they have said in at least one or two cases: "We are putting it this way. It suits us better"? Is there any way of getting around that problem?
There is always a way of getting around a disagreement as between reasonable men.
The way that Owen Kelly did.
For instance, if the officials of the Deputy's local authority disagree with my officials and they reach deadlock, I have no doubt that the officials of his local authority will make him or the manager aware of it and that the matter would not be allowed to rest there. Taking the other point of view, I am quite sure that all my officials have not heads on them for the sole purpose of keeping their lugs apart. They will not go straight up against a local authority. If there is deadlock, they will let me know.
That is reassuring. I was under the impression that some of them had.
I think the officials are doing their job in so far as they are given power to do it. Money is the problem in finishing these estates properly. I want the Minister to know that in the local authority area with which I am familiar the local authority officials have proved to be reasonable men. That means that there is only one group that has proved to be unreasonable, that is, the Land Commission. It is in headquarters that we have this deadlock because the local authority has been told by the Land Commission: "We have no responsibility. We are finished in these estates and will accept no responsibility whatever." They moved out of those estates without as much as a "by your leave" to the local authority officials who, unless they were posted on the roads each day, could not possibly find out when the Land Commission were finished.
Can the Minister say whether the local authority engineers in Roscommon are at liberty to go to the Land Commission and say: "There have been three estates in the past three years where we believe you have left the roads in bad condition, or at any rate they have deteriorated since because you did not notify us you were leaving and did not make the necessary finances available so that these roads could have been put back into a proper state of repair"? As the section is drafted, it can be quoted ad lib.
I do not think so. I shall not comment here on one particular case that I know nothing about.
Amendment No. 22 has been ruled out of order on the ground that it would impose a charge on public funds.
A good deal has been said so far on the section, so very little remains for me to say at this stage. However, I would strongly urge the Minister to introduce an amendment on Report Stage inserting a provision whereby, on the completion of each Land Commission job, whether it be road making or bridge construction, the Commission would notify the local authority that they were leaving the district. The amendment could provide that the Commission would supply to the local authority details of the work, including, possibly, dimensions of roads and so forth, and that the Commission would notify the authority that they could inspect the works within a period of 21 days, for approval or otherwise. The amended section could also provide that allottees would have an appeal to the Minister. After all, the section may have serious consequences and it is quite evident if one reads what the Explanatory Memorandum on the Bill states in relation to this section. It says:
The Land Commission will, of course, be fully responsible while the lands are on their hands, but after the allottees have gone into possession the maintenance obligations, if any, will attach to the allottees.
After the Land Commission have proceeded to allot the lands, works like the construction of bridges or the provision of rights of way may arise. The bridge might have to be built over a county council maintained stream. Then the allottee finds himself saddled with complete responsibility for the maintenance of these works.
The allottee may be told by the Land Commission that he must take over the work. He signs for them but may find, after signing, that a job has not been carried out in a satisfactory manner. A cottage tenant who tries to vest his cottage, if he is not satisfied with the state of repair of the building, has a right of appeal to the Minister concerned over the head of the local authority and that Minister may send an impartial official of the Department to inspect the premises and determine whether or not they are in proper order for vesting.
Therefore, I suggest it is not too much to ask that a smallholder given an allotment would have a similar right in regard to works on the holding for which he is to be made responsible. I suggest the allottee should be given a period of at least three months within which to appeal to the Minister for Lands. The Minister, as in the case of cottage vesting, could then send an impartial official to inspect the works concerned — they might include drainage, fencing, and embankments — and determine whether or not they were in such a state of repair that the allottee could justify be asked to maintain them. We are only reasonable in asking that machinery be set up for an appeal by the allottee to the Minister so that the allottee would not be saddled unjustly with maintenance responsibility. Of course, the Land Commission will take care not to give a certificate, after the case of Owen Kelly——
Is he dead?
There is a certain amount of doubt about that. I am afraid his rest cannot be so good.
He will certainly turn in his grave tonight.
There could be another court action over this if we are not careful.
He will be back again. There will be another Bill.
I am sorry there are not more men like him. He is the one man who succeeded in waking up the Land Commission from their slumbers. I have no doubt that he obtained a very great reward for his deeds in this life. I am not asking too much in seeking the right of appeal to the Minister so that not alone will the Minister be satisfied that justice is done but that it will be seen to be done to the allottee. I feel the Land Commission will be washing their hands completely of this and that the allottee will be saddled with the great responsibility of trying to maintain what he may not be financially able to maintain. The Minister should give the matter a little more consideration. Those of us who are critical of the section would be prepared to let the matter rest, at least for tonight, if the Minister gives a guarantee that he will look into this before the Report Stage so that an allottee may have a right to appeal if he does not get his property in the condition promised by the Land Commission and in a condition enabling it to be described as in a first class state of repair.
I ask the Minister to notify the local authority in the case of works being completed by the Land Commission so that the County Manager may consider providing in the following year's estimates adequate provision for the maintenance of the Land Commission works for which the Land Commission will no longer be responsible on the passing of section 10 of this Bill. Many local authorities would be only too glad to assist residents or allottees by taking over the roads knowing that, in addition to paying the Land Commission annuity on the holding, these allottees in the main would be substantial ratepayers of the local authority and would be entitled to good roads. If officially notified, I think the local authority would make a report that the road concerned was suitable for taking over and responsibility for its maintenance for all time would then rest with the local authority.
We are not asking the impossible and I feel that if the Minister examines the matter between now and the Report Stage he will see the wisdom in the argument advanced here to give the allottee a right of appeal to him as a person who will see that justice is done.
It would be well to have provision in the Act for the appeal even if it meant saving only one tenant enormous inconvenience and expense by saddling him with an obligation to do something beyond his capacity, something which might be handed over to him purporting to be in first-class order, and which he discovers is not the case. Yet, once he has signed, the Land Commission have no further responsibility. All I seek is the right of appeal which can be determined in the same way as matters are decided by the Minister for Local Government on appeal.
This is democracy and I suppose I must deal with the arguments—if I may so describe them— made here that we should deal with this matter in the same way as an appeal about the repairs to a labourer's cottage. We are dealing here with presents of lands costing thousands and thousands of pounds to the taxpayers, particularly in the case of migrants' holdings. Deputy Flanagan, on behalf of Fine Gael, asked me to consider inserting a section on the Report Stage to ensure that the Land Commission, having done so much in connection with land division will be liable for all these things and also having local authorities brought in to check their work to ensure that roads are tarmacadamed to these Land Commission houses, to ensure their bridges are built and their fences all right for all time and that the tenant should have a right of appeal in all these things.
Certainly, I accede to the Deputy's request—I shall consider this position between now and the Report Stage of the Bill. I think he has not gone quite far enough. I must also consider providing swimming pools and multicoloured umbrellas under which these people can recline when the weather is fine. I also think there should be provision in this section making it compulsory on the Minister for Lands to send every one of these tenants, their heirs and assigns, a Christmas card——
A Christmas box.
I accept Deputy Blowick's amendment. I assure Deputy Flanagan I shall consider this seriously before the Report Stage of the Bill which, quite obviously, it is the Deputy's intention, we shall never reach.
The Minister might get the whole Bill tonight.
The Minister is holding it up himself now.
The Deputy accused me of that already. It is his imagination. Under this section it is intended to make it quite clear that the Land Commission need not pay rates on unoccupied buildings pending allotment. Under existing law, in general, under section 14 of the Local Government Act, 1946, owners of buildings can claim from county councils to be recouped on rates paid on buildings which are vacant for the purpose of undergoing repairs, etc., or letting. Recoupment may turn on whether the owner is bona fide unable to obtain a suitable tenant at the maximum rent permissible under the rent restrictions Act. Because existing law does not quite fit the operations of the Land Commission disputes have arisen with the local authorities. It would be impractical for the Land Commission to try to let houses for the year or two they are normally on hands before disposal. Accordingly, agreement has been reached between the Departments of Finance, Local Government and Lands that the Land Commission should be specifically exempted. The purpose of section 11 is to provide a practical solution of a problem which, while not very important, has been giving rise to considerable trouble between local authorities and the Land Commission in respect of rates.
Had the Land Commission not got that privilege—to call it that—just like any private owner at present, that if the house is empty rates are not chargeable? My view is that this section is completely unnecessary. If the local authorities refused to accept that the Land Commission building was empty and insisted on rates being paid when there was nobody in the house I could understand.
The position in law, as far as I know, is the same for the Land Commission, as for anybody else and where a building is vacant, if the local authority is strict in its approach it will make you produce evidence of your attempts to let the building and ask you to show that you failed to get a tenant. In that way although Land Commission buildings may be unoccupied there has always been trouble between the Land Commission and the local authorities in respect of such buildings which may be vacant for a comparatively short time, a year or 15 months, while a scheme is being prepared. Now, the local authority will not lose anything because when this Bill passes it is proposed that immediately the tenant is put into occupation of the land and buildings he will be liable to the local authority for rates from that date. This clears up an awkward position administratively because the Land Commission, for the short periods that these buildings are unoccupied, are not in a position to prove to the local authorities that they attempt to let these buildings or that it would be a practical proposition.