Skip to main content
Normal View

Dáil Éireann debate -
Thursday, 18 Jun 1964

Vol. 211 No. 3

Committee on Finance. - Local Government (Sanitary Services) Bill, 1964: Committee Stage.

SECTION 1.

Amendment No. 1 in the names of Deputies Ryan and Clinton is related to amendment No. 2. The two amendments may be discussed together.

I move amendment No. 1:

In page 2, line 11, after "dump" to insert "canal, cliff,".

In section 1 we are dealing with the definition of dangerous places and these amendments are designed to ensure that as many hazards as the public may face are named in this measure. In this connection, after the word "dump" we insert the words "canal, cliff,". Equally so, we have river, dock, pier, quay, landing slip or wharf. Loss of life owing to the existence of dangers or traps of this nature ought to be the responsibility of someone. If this is the only legislation which will deal with this matter, then someone should be given the duty of protecting members of the public from death. In view of the fact that provision is made in subsection (5) of section 2 to recoup the local authority for expenditure, I suggest that the Oireachtas ought not be deterred by any fear of rising rates in this connection in making the measure as comprehensive as possible.

I am sure the Minister will agree it is necessary that there should not be any loopholes left in regard to the number of hazards which the public face. Experience has been that over the years we have had quite a number of tragic occurrences in places which are not mentioned in this definition. We had, within the past year or two, a very tragic occurrence in Cork when the entire occupants of a car were drowned. In other cases, there were very lucky escapes when cars went into canals or rivers at dangerous unprotected points. We want to ensure that there will be an obligation on some specific body to deal with this matter and we also want to define the hazards in so far as we may be able to foresee them. For that reason, I urge the Minister to accept this amendment in regard to the definition of "dangerous place."

Mr. Ryan

We feel that the words used may not be sufficient to cover places such as cliffs adjoining the sea. In Dublin, the canal is frequently held to be nobody's baby. There are plenty of opportunities for legal wrangling as to whether or not Dublin Corporation have responsibility. Rather than permit that situation to continue, as well as serious loss of life and so on, we feel it is better to insert these words. If the Minister accepts the amendment, it will make clear beyond doubt that local authorities are empowered to look after such cases.

The words in amendment No. 2— canal, river, dock, pier, quay, landing slip or wharf—are necessary. A question may arise as to whose responsibility these places may be. I am surprised that "river" did not appear in the draft Bill. Why has the Minister confined it to "stream"? There is a very significant difference between a stream and a river from the point of view of the application of this Bill.

I support the amendment. It should be made clear beyond all doubt that a local authority such as Dublin Corporation are empowered to place necessary safeguards to prevent accidents of the kind which have occurred recently. Take, as an example, the provision of a telephone kiosk at Howth at a spot where unfortunately there have been two fatal accidents in recent years. I raised a question at a meeting of the Streets and Town Planning Committee of the Corporation. Inspection is to take place soon. I consider that it would help the Corporation if this amendment were incorporated in the Bill so that the onus is on the local authority to provide all the necessary safeguards in such places.

With the spirit of these two amendments I am in full agreement. However, I am fully assured that what is sought by the amendments is covered by the provisions of the Bill and that the inclusion of these further matters, by name and designation, will not in any way add to the strength and the power of the proposed legislation. I am assured that so far as canals, docks, and so on, are concerned, we would merely raise unnecessary conflict by suggesting, for instance, that the whole length of a canal throughout the country should be treated as a dangerous place and that the entire docks of any city or port should likewise be treated, whereas only certain specific dangerous parts should be looked after. For that, we have sufficient and adequate power in the Bill. If I thought for one moment that that is not so, Deputies would not have to put down this amendment. Therefore, I am with the Deputies in the spirit that motivated the amendments.

My advice is that we have the power to do the things that those who sponsor and support the amendment wish to do; that the amendment would not be of any assistance; and that, in fact, its insertion might weaken rather than strengthen the situation.

With all due respect to the Minister's interpretation in this matter, it seems extraordinary that "dangerous place" in the definition section means an excavation, quarry, pit, well, reservoir, pond, stream, dam, bank, dump, shaft or land that, in the opinion of the sanitary authority in whose sanitary district it is situate, is or is likely to be dangerous to any person. Why was the definition not continued to include a most dangerous situation which has arisen over the years in regard to built-up areas? It seems extraordinary to take the very odd ones where accidents do not happen so readily and to exclude the ones which have caused the major loss of life.

I am glad of the Minister's statement that he thinks there is sufficient cover in the Bill for the points we have raised. I want to suggest very seriously that it does not seem to make sense to name a number of the lesser hazards and to exclude the major ones which, in our opinion, have caused the greatest loss of life.

I should like the Minister to accept the amendment. There may be other hazards, I agree, but you have, then, the global definition "is or is likely to be dangerous to any person". Surely the hazards mentioned in the amendment are not alone likely to be dangerous but have positively been proved to be dangerous to life and particularly to the life of young persons. We ought to ensure at this stage of the measure that anything we can do will be done. I could accept the Minister's assurance if the definition section did not mention a number of lesser hazards. The Bill mentions a number of hazards but has not named the major ones.

Mr. Ryan

I find myself compelled to support Deputy Jones again in this matter. Under the ordinary rules of interpretation, it may be said that the Oireachtas having given in considerable detail the type of place it considered to be dangerous, had excluded other places, and the other places which might be ruled out under the ordinary rules of interpretation might include a canal, a cliff, a river, a dock, a pier, a quay, a landing slip or a wharf. It could be argued that because they were not specifically mentioned, it was not the intention to include them.

The use of the word "stream" instead of "river" would appear to suggest that it was not intended to apply this section to a waterway of larger dimensions than a stream. It strikes me now that a further word which should be included is "lake". It may be said that because a reservoir is a man-made lake, and a pond is a natural hole in the ground containing water, a large lake is not included. I suppose so long as a lake was situated on a river, it could be regarded as part of the river, but there are mountain lakes into and out of which a river does not flow, and they might be outside the scope of the Bill.

I cannot understand the Minister's advisers saying that it might weaken the Bill if we put in some more words. Indeed, we may have weakened it by putting in so many. If we provided that "dangerous place" meant any quantity of water or land and left it at that we would be covering everything, but having put in 11 particular hazards and left out so many others, it could be said that the Bill was intended to apply only to those particular hazards. Unfortunately, we have come to expect a number of fatal accidents on Howth Head and Bray Head every summer, and perhaps some in Powerscourt at the waterfall. It could be argued by the owners that those places do not fall within the definition of "bank" or "land". It could be said that they are sea cliffs and do not fall within any description here. I think the general understanding is that the word "bank" would apply to an amount of land away from the water, or perhaps a bank along a river, but not a sea bank. I should prefer to see the word "cliff" put in. The Minister agrees with the purpose of our suggestion and I would ask him if he is not prepared to accept it now, to consider the matter again between now and the Report Stage.

This list of specified hazards is probably misleading. The same thing struck me when I first looked at this section. I thought we had left out some obvious hazards. We included in this Bill all the hazards which were named in the 1907 Act and we added two further specific hazards, a quarry and a shaft. By and large, they are clearly identifiable specific types of hazard as distinct from a wharf, a dock, a canal, a river, and so on, which could lead to confusion as they are not clearly identifiable. For instance, only part of a wharf would require the type of attention which we hope this measure will enable the local authorities to give.

As I say, we took the list from the 1907 Act and we added two others which are identifiable in a specific way, whereas the ones proposed in the amendments are not identifiable in a specific way. Furthermore, the words "or land" are held to be coverage for all and any hazards that may exist or may arise which are not specifically covered in the original section. By adding further to this list we would almost need to set up a special commission lest anything would be left out. To my mind, we should leave in what we have on the specific grounds I mention, and I am advised that "or land" covers fully any of the hazards mentioned in the amendments, and will probably cover hazards not mentioned in the amendments or in the Bill.

If I were not satisfied I would probably have the same approach as Deputies have adopted in these amendments. I would probably have brought in some similar amendments myself, but I am quite sure the situation is as I have said.

One point occurs to me. I am sure the Minister will appreciate that the intention is that the local authority, or the sanitary authority, will carry out inspections of places to determine what will be classed as dangerous places where dangers already exist. From that point of view, I should imagine that the part of a dock or a canal which would be classed as dangerous would be readily identifiable. Naturally some parts would not be dangerous, and some would be readily identifiable as dangerous. I should have thought the sanitary authority would have no difficulty in so far as their investigating officers were concerned in identifying the canal, or dock, or portion of one proposed to be classed as dangerous. I do not want to be doctrinaire on this amendment. Ultimate responsibility rests with the Minister and if he thinks our fears are groundless, I am prepared to withdraw it.

I am fully assured of that and I can assure the Deputy it is so. If, while it is my responsibility, it should emerge that those who sponsored the amendment were right, I shall immediately redress the matter. I am advised that it will not be so.

Mr. Ryan

We hope the Minister and his advisers are right. I suggest we should add the word "water". The question arises of land but "water" is the operative word as far as danger is concerned.

If there is no land, there would not be any danger of anyone getting near the water.

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.

I move amendment No. 3:

In page 2, lines 22 to 26, to delete the definition of "owner".

This is designed to meet a drafting point. It is to meet the problem of possible confusion in definition.

I understand this definition has been taken from previous legislation but that it is a better definition than that already there. We readily accept the amendment.

Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.

I move amendment No. 4:

Before subsection (1) to insert a new subsection as follows:

"(1) A sanitary authority shall within five years after the passing of this Act or such longer period not exceeding five years as the Minister by regulation may allow carry out a survey in their sanitary district to ascertain what places are dangerous places in their district."

The section says that the sanitary authority "may, if they so think fit". We wish to have that amended by inserting a new subsection to provide that the authority shall do certain things. As the Minister mentioned, a number of the hazards mentioned in this Bill have been brought in from the Health (Amendment) Act of 1907. Under that Act, local authorities have powers similar to those contained in this section. It was optional for the local authority to adopt those powers. Section 54 of the Local Government (Sanitary Services) Act of 1948 applied all these powers to the local authorities and one might ask at this stage what the local authorities did to protect the public as a result.

With all respect, it is not much use leaving it to the option of the local authority to do certain things when one considers the failure of the local authorities under certain statutes as, for instance, the Town and Regional Planning Acts from 1934 to 1939, to which reference was made when a later measure was going through the House. The local authorities did not fulfil their statutory obligations. They may have adopted an Act but, possibly with one exception, they did not make planning schemes.

That is the reason for this amendment. It is no reflection on the elected members of local authorities. The real authorities in these matters are the executives charged with the responsibility—county managers, county secretaries, county engineers and so forth. I should like at this stage to draw the Minister's attention to the Civil Liability Act of 1961 in which provision was made that a local authority should, within a period of six years, carry out a certain operation. In section 61 of that Act, it is laid down that the provision should come into operation on such a date not later than 1st April, 1967, as may be provided for by order of the Government.

If we impose on a local authority an obligation, say, to make roads, we should equally fix an obligation on them to ensure that inspection of such works, where there may be hazards, shall be carried out within a reasonable time. That is the request in the amendment, and I suggest it is a reasonable one—that the local authority should be compelled to do it. At the moment the section says "may".

The first thing I should like to say, in a broad sense, is that this pinpoints the situation generally in so far as any Minister for Local Government is concerned. Our system of local government as operated throughout the country is almost exclusively carried out through enactments which are permissive. They do not put a very definite obligation on our local authorities, and if and when they do, there is little if anything the Minister can do, short of abolishing the council, to ensure that orders laid down are carried out in a satisfactory manner. Attending to matters under this legislation, whether it be dangerous places, buildings or what you will, any single instance of neglect or near-neglect by a local authority could scarcely be regarded as sufficient reason for the removal of the entire body of elected members.

For that reason, there is a matter which I feel is worth thinking about between now and the time I come to the House later with a comprehensive Sanitary Services Bill. It is that there may be in that new legislation a section empowering the Minister, whether or not with some safeguards through one or both Houses of the Oireachtas, actually to direct in certain cases the local authority to do certain things and empowering the Minister, if they are not done, to go in there and have them done, charging the local authority their appropriate proportion of the cost.

In a sense, this matter in its own way reflects what I regard as a considerable weakness in operation of local authorities. Everything practically is permissive. At the moment we have no power except, perhaps, to abolish a council which for small isolated things would not be justified. The Minister and the House may have agreed that something should be done. A council may not carry out the matter in that way and, short of removing that council, there is no way in which the Minister or the House can ensure that what they intended here by legislation is implemented in the interests of the common good. It may be premature to mention this to the House but it is, as I know, a general defect and, while the remedy may be regarded possibly as worse than the defect, all I seek to do at the moment is to put it on record so that it can be discussed at a later stage when the general Sanitary Services Bill comes before the House.

It is the local authorities who have been seeking the powers we propose to give them in this short measure. Insisting that these bodies make a survey within five years and list all the potential danger areas will not effectively ensure the protection of those dangerous places unless and until this House is prepared to say that, if they do not carry out this work, someone else must go in and do it for them. It is in response to the prompting of local authorities that we have introduced this short Bill to enable them to deal with dangerous places and dangerous buildings. They are the real sponsors of this measure. It is they who have engendered urgency into it.

The important thing is to get the work done. Listing dangerous areas and dangerous buildings will achieve nothing. It will not ensure that these places are properly safeguarded. Indeed, the hazards are so obvious that one does not need any list. We all know they are there. Local authorities are aware of them. It is because they know the hazards that exist that they are seeking the powers we propose to give them in this Bill. A survey and a list would achieve no useful purpose whatsoever. They would have no meaning. It is the actual power to deal with the situation that is important.

Mr. Ryan

I do not think one has to resort to the radical step of abolition of a local authority for failure to carry out their duty. Any citizen or any body can bring mandamus proceedings against a local authority. It is no harm to spell the obligation into the Bill and then, if it is found that a local authority are not discharging their functions, proceedings can be instituted. It is a matter of regret that the public were not aware that the Dublin Corporation were not executing their statutory duty to inspect and keep a list of dangerous structures. Had the Corporation done that, there would have been no crisis last year because the list would have been there and would have reminded the Corporation and their officials of the immense task to be performed. There would have been a sense of duty and a sense of urgency all the time.

There is the danger that unless an obligation is imposed, a certain amount of indifference will inevitably arise. It is admitted that the commonest dangerous areas are known now but there are places which might disclose potential sources of danger, of death or injury, which are not at present known. These places should be listed and steps should be taken to make contact with the owners of property to obtain their goodwill and voluntary effort, in the first instance, and, if that is not forthcoming, to use the compulsory powers available, subsequently recovering compensation from the owners in question.

I think it is desirable to impose this obligation of inspection and the preparation of a list. Doing this would not cost the local authority anything because the cost is recoverable from the owners. The sooner this problem is tackled the better it will be. The more strict we are about the time in which hazards should be remedied the more likely it is that those responsible will take effective steps.

With regard to the suburbs of Dublin from which there is an urgent demand for remedial action, the existing hazards were scarcely known to exist five or ten years ago. I refer to these water-filled quarries. There are three or four within a few miles of my own house. These have been one of the principle reasons dictating this legislation, the quarries in Crumlin, Walkinstown and Perrystown. Ten years ago, nobody bothered about these places because there were not many children in the area. There were no houses except odd farm houses. Now the area is covered with houses and, instead of half a dozen houses ten or 15 years ago, there are thousands of houses today. Now, had the local authority anticipated the danger, steps would have been taken in time. In future, when new housing estates are being developed, the location of danger sites in the area should be listed so that, when building plans are submitted, the local authority can hold up approval of the plans until remedial action it taken to remove the danger. That is the kind of thing that could flow from the preparation of a list such as is suggested in this amendment. I respectfully ask that the matter be dealt with sympathetically.

The carrying out of this survey by statutory obligation could of itself cause a holdup in the eradication of existing known danger spots which have not been dealt with for some reason. A comprehensive survey will have to be done, not just a casual look around. It will have to include not only what can be seen from the public road but anything which might be accessible to children and even though it may be on private property. Because of the growth of population and the growing up of new families in an area, it is possible that places which might not be regarded as dangerous when the survey commenced might be a source of danger a few years later when children were growing up around the place. What would happen in that case? Would the survey have to go back on it?

While the idea is good, and the analogy drawn with a list of potentially dangerous buildings in Dublin which might have avoided certain happenings is good, I do not agree that such a list would be necessary or that it would add anything to the real purpose of the Bill, which is to facilitate the making safe of places which are obviously dangerous at present. If we concentrate in carrying out proper remedial work on these places, it is obvious much time cannot be spent on seeing what might be regarded as dangerous. In the ordinary way, I would hope to seek from local authorities their plans under this legislation to see whether in different areas obvious danger spots are being protected. In that way I think we might get as much information as we would by imposing a statutory obligation.

While appreciating the Minister's point of view, I take it that what will happen is that the engineering sections of local authorities will be in a continuous process of determining what these hazards are. In the Civil Liability Act, 1961, section 60 provides that a road authority shall be liable for damage caused as a result of their failure to maintain adequately a public road. In subsection (5) of that section the Act defines what a public road is. Anybody would think that a public road would be understandable to the ordinary individual but the Act was very specific. It mentioned all these other ancillary things as any bridge, pipe, arch, gully, footway, pavement, fence, railing or wall forming part of the road. The elected representatives in any area could not be expected to know where failures of this kind might exist. In my local authority area, I am aware that engineers, gangers and overseers are in a continuous process of bringing to the notice of the county engineer, who is the responsible executive officer, various hazards of this type. By legislation, we imposed on them an obligation to do this within a certain period of time. It was not made permissive in that case but responsibility was fixed on the local authority for damage if anybody could show that the local authority had been remiss in their obligations.

What the amendment suggests is the placing of an obligation on the local authority, taking into account that the Minister says he will be bringing in a wider Bill to cover various matters. Until such a measure is brought in or, indeed, if the Minister did not find himself in a position to introduce it at all, what would the position be? Would we go on in the same way without imposing an obligation that these things be done within a specific period? It is not the elected representatives but the executive body of the local authority who will have the responsibility.

I should like to be assured that steps will be taken to discover these hazards. In the built-up areas of Dublin, Cork, Limerick and Waterford people will know very readily where they are. As I said on Second Reading, I would hope the public would co-operate fully in this matter and that anybody who might become aware of such a hazard that could prove dangerous would bring it to the notice of the local authorities. If this is done in a voluntary fashion, well and good. But we ought to be sure that everything is done to protect the public from these hazards. If you allow it to be permissive, somebody might say they did not have to do it.

I agree fully that the local authorities are as much concerned about the safety of the public as we are but the obligation is on the Legislature to ensure in the circumstances at present prevailing, in so far as possible, that the responsibility is put on somebody to do what is required. The responsibility to this House is on the Minister in regard to legislation which provides for the safety of the public. I want to suggest to the Minister that he ought to put, fairly and squarely, on the local authority the obligation to ensure that what he has in mind for the protection of the public would be carried out within a reasonable period of time.

I should like the Minister to consider this matter in that way. Amendment No. 5, if I may say so, deals with somewhat the same thing, without putting in a specific period of time. At least, it would put the obligation on the local authority. I should be very much obliged if the Minister would reconsider the matter.

Reverting to the suggestion that it would be just as well if I were to ask local authorities what they are doing about certain things and what their programme is, may I say that on the specific question of unprotected quarries, I issued a letter to all local authorities on 3rd January last setting out what we would do for them, what help we would give in this legislation that we were proposing to introduce and, in conclusion, asking that I be furnished on or before 29th February, which was six or seven weeks later, with a report by each sanitary authority on any works carried out by them, the cost thereof, and so on.

That letter related only to quarries. We got a good return from a very widespread section of local authorities. Discussion and negotiation followed and contact has since been maintained with them. I feel that that type of thing applied to the broader field covered in this Bill would be as effective and would not have all the tags attached to it that a statutory obligation to do a certain thing within a specified time would entail.

If the final responsibility is on the Minister in this matter there is not much point in the Minister saying at any time to the local authority: "You must do this by the law of the land" if, as would be the case under this legislation and every legislation that I know of, no power is given to the Minister or to this House to do other than say: "You must do it". There is no effective way in which the Minister can ensure that it is done if any local authority for any peculiar local reason do not do a particular job which this House thinks should be done.

There are several matters in respect of which we said it must be done but we could not follow that up. That is why I proposed earlier this evening that on a suitable occasion, which probably would be in connection with the general sanitary services codification Bill which will be coming in, there should be a special provision inserted so that the Minister, on the direction of or with the acquiescence of, the House, by some formula or other, would be able to pick out something that the local authority were not doing, although the law says it should be done, and whereby the Minister, on behalf of the House and the Government, could see that it is done if it is not being done.

Until we get around to considering that broad general principle, the placing of a statutory obligation on a local authority to do something will not attain the end which is in the mind of Deputy Jones and in my own mind in relation to these matters. The request made in connection with quarries a few months ago has given a good return without any of the tags that would attach if a statutory obligation were imposed as proposed in the amendment. I would suggest, on that account, that we should wait until we get a look at this other idea and consider in a reasonable way whether we might require to take specific power to ensure that the things this House says ought to be done are, in fact, done and if the local authority fail to do them after a reasonable warning or after discussion with them, there might be power taken to see that some agency on behalf of the Government was empowered to do it for them and charge them the appropriate share of the cost when the work was finished. I would prefer to leave it this way until we get a chance of looking at that overall situation.

Would that be anywhere in the immediate future?

We are working on the Sanitary Services Bill, which is a pretty big measure, as the Deputy may realise, and we have been working on it for a number of years. We hope to be able in the not too distant future to bring it to light but I could not even at this stage hazard a guess as to how many months it will be or whether it will be next year. I am optimistic that we shall have it in the not very distant future.

The Minister did make representations to local authorities in regard to quarries.

Does he intend to do something on the same lines in regard to these other hazards?

That is what I am suggesting that we shall in the ordinary course be doing. If I am asked a specific question, the answer is that I do intend and shall, in fact, follow up the same lines and try to find out what local authorities are doing, if they have a programme, and what activity is proceeding about it. I undertake to do that. I intend to do it.

I think that will meet what we have in mind and, on that understanding, I withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In subsection (1), line 27, to delete "may, if they so think fit" and substitute "shall".

When dealing with amendment No. 4, I mentioned that if the Minister could not accept the specified time, he would, at least, put the obligation on the local authority. I mentioned the two amendments at the one time and said I hoped the Minister could accept them. I said I was withdrawing both amendments on the Minister's assurance that he will send out to the local authorities the type of instruction referred to.

Amendment, by leave, withdrawn.

I move amendment No. 6:—

In page 2, subsection (1), line 32, after "owner" to insert "(which word means, in this section and in sections 3, 7 to 10 and 18 of this Act, any person (other than a mortgagee not in possession) who is for the time being entitled to sell or otherwise dispose of the fee simple of the land in relation to which the word is used or any term of years for the time being subsisting in respect of the land of which the unexpired residue exceeds one year)".

This is consequential on amendment No. 3. It has to do with this definition of "owner". It is on reconsideration from a drafting point of view that we propose this change.

Amendment agreed to.

I move amendment No. 7:—

Before subsection (2) to insert a new subsection as follows:

"(2) It shall be the duty of the sanitary authorities, pending the prevention of a place from being a dangerous place, to erect such and so many signs and notices as will give adequate warning of the existence of a dangerous place."

In this question we are dealing with an interim precaution in regard to dangerous places. I feel that whatever time and money might be spent on this effort would be well worthwhile if it succeeds in saving even one life, and I would ask the Minister to accept it in that spirit because that is the reason for the amendment.

I have no fault to find with the idea behind the amendment but in fact the power is being given in the Bill to erect any or all of these signs, whether as a semi-permanent method of trying to make dangerous places safe, or as an interim measure prior to certain specific works being carried out. That can be done and has been done under the 1907 Act but in this Bill we are quite satisfied that this type of signposting can be done, and we do not require to have the specific provision in the proposals.

Mr. Ryan

It occurs to me that the various local authorities have been putting up such signs for years. Perhaps it has been without statutory authority but it is refreshing to think that they have done something when it was the right thing to do. In any event, it has been done and I suppose it is not necessary to provide——

They have the authority already.

Mr. Ryan

Does the Minister know the source?

The 1907 Act again, and this is no less strong, and indeed we hope that it is much stronger than that Act was.

Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.

I move amendment No. 8:

In subsection (1), page 3, line 49, to delete "may, if they so think fit" and substitute "shall".

As the section is drafted at present, it says that the sanitary authority "may, if they so think fit, give a notice to the owner" and we want that changed so that they shall give a notice to the owner. In this we are dealing with the property rights of people. That is the first point. Secondly, a livelihood may be involved as livelihoods are involved in some of the smaller buildings in this city which require to be demolished. Thirdly, a dwelling may perhaps be in question as dwellings are at present in this city. In this connection, I might recall, that Article 44 or 45 of the Constitution says that the dwelling of every citizen is inviolable and shall not be entered save in accordance with the law. Therefore, the least any person is entitled to get is a notice so that he may have an opportunity of defending the stand he takes in regard to his property. If we leave it "may, if they so think fit", we are leaving the discretion solely to the local authority, but I suggest that where the rights of the property-owner or the person who occupies such premises or the person whose home is being invaded, it is not a question that they ought to get this notice but that they have a right to get it.

I am afraid that I read this amendment at first in a rather different way from the way Deputy Jones now puts it to the House. He feels that the amendment proposes to give the owner some right that he had not enjoyed up to the present. I do not think that is actually so. Subsection (1) of the Section says that they "may, if they so think fit, give a notice to the owner who occupies or is entitled to occupy a dangerous structure" and so on, "within such period specified in the notice as the authority may consider appropriate." If they do not get a notice, they do not have to carry it out. The idea of "shall" really confused me. I feel there is a different approach from what is intended. It is only after they have got this notice that these things should be done and if the authority did not wish them to be done, then there would be no notice. As I say, I am rather confused by the manner in which the Deputy has approached this amendment. It does not seem to add up to me but I have put a different interpretation on it.

I cannot support the amendment, much as I should like to, particularly as it has been tabled by Deputy Jones who is a very sensible man. It would be very difficult for the sanitary authority at times to discover the owner. I believe that as far as dangerous structures——

There is an escape clause there. It is not very easy to make it out.

Mr. Ryan

If they cannot find the owner, they can pin a notice on the premises.

Is there a period during which they must leave the notice before they proceed to take down the structure? I believe in any case that the sanitary authority or the local authority should be given all possible powers to ensure that dangerous structures will be removed. I do not know what saver there is, but as far as I can read it, the owner who is entitled to—even though he does not— occupy the building must have the notice served on him. If it is obligatory on the local authority to do that and they cannot find the owner, then in the event of great danger, the structure may have fallen down by the time they have found them.

Mr. Ryan

The 1890 Act was also permissive and said that the Corporation "may make a complaint to a justice" about a dangerous building. I think this is part of the problem that has reached crisis proportions in this city, the fact that it was permissive and the Corporation did not avail of the permission to take action in relation to dangerous structures. It is important that we should make it obligatory for the future, and Deputy Jones is quite right. It is true to say that for the past couple of years, while an effort was being made to overcome this problem, it has now reached crisis proportions and the Dublin Corporation and other local authorities may be acutely aware of the moral obligation that lies on them to avail of the permission, but after that the situation may well arise where there is a dangerous building and the Corporation do not use the power given to them.

It should be open to any occupier concerned about a dangerous building, or to an adjoining occupier to take action by bringing mandamus proceedings against the Corporation to compel them to use the power in this Act to serve the necessary notice on the owner and set the necessary machinery in motion. We ought to learn by our mistakes, and the mistakes that have arisen are that local authorities have not availed of the permissive powers in relation to matters where they should not be given discretion at all but where the obligation should be to move and to move in time.

That is all right, that they should move and move in time, but this, in my opinion, provides for delay, maybe fatal delay in many cases.

Mr. Ryan

Against what Deputy Corish says, section 18 (2) provides:

Where the owner of the place or structure to which a notice under section 2 or 3 of this Act relates cannot be ascertained or found by reasonable inquiry, the notice may be given to the owner by posting it at or near the place or structure.

That should be sufficient. The notice can prescribe the time which the technical experts believe is the maximum which can be allowed and if the owner does not move—it may well be, if he does not, that he has not read the notice but unfortunately that is something he will have to bear—either because he is absent and by his absence has allowed the danger to arise or is present and has reglected to prevent the danger arising, I think it should be sufficient to post the notice up on the premises.

It is not a question of attempting to evade responsibility in the matter or trying to delay the process. This can involve a person dwelling in a place like this. It could be a small shopkeeper whose premises it is proposed to acquire. It could be a person with a property right. Therefore, before the local authority proceeds to do certain things, they should give him notice of their intention to do so. Here it is permissive. We are asking that, instead of its being permissive, they "shall" give him notice. This could concern a very old person living in a tenement room who would find that somebody was about to demolish part of the building. It is because of these considerations that we put down this amendment.

The Deputy took me completely on the wrong foot. We took an entirely different interpretation of the intention here. As regards the case the Deputy has now put before the House, there can be no requirement to do any of these works outlined in the subsection unless there is a notice. If they do not send a notice, nothing is happening. Therefore, the question of putting "shall" into that context does not arise.

If anything is to be done, notice must be given.

Amendment, by leave, withdrawn.

I move amendment No. 9:

Before subsection (2) to insert a new subsection as follows:

"(2) A person upon whom a notice under subsection (1) of this section in relation to a dangerous structure has been served who is aggrieved by the terms of such notice may within 21 days from the service upon him of such notice and upon notice to the sanitary authority by whom the notice was given apply to the District Court to annul or vary such notice, and the District Court may by order:

(a) (i) direct the person to carry out, within such time as the Court may consider reasonable and shall in such order specifically limit, and authorise the sanitary authority if the person does not comply with the order of the Court, to carry out, such works as in the opinion of the Court may be necessary to prevent the structure from being a dangerous structure, or

(ii) authorise the sanitary authority to carry out such works as aforesaid, and

(iii) prohibit the use of the structure or any part of it for such purpose or purposes as may be specified in the order."

As amendments Nos. 10 and 11 would appear to be consequential on No. 9, these three amendments may be taken together.

I want to suggest that the section as drafted is misconceived. Subsection (2) authorises the sanitary authority to demolish a house if, in their opinion, it is necessary to do so. The sanitary authority can do that without a court order and then there is the right of appeal to the court provided in subsection (5). Before such an appeal takes place, the sanitary authority has already demolished the building. They can lawfully do that under subsection (2). All we are asking here is to put the horse before the cart again by providing that when the notice is served, the aggrieved party can then appeal to the court and the court can decide the matter at that stage. The amendment does not take away any of the powers of the sanitary authority.

This is just the reverse of the procedure we propose here. Where a person is uncooperative in regard to any of these matters under section 3 which could be quite urgent and in regard to which time might be the essence of the whole operation, we feel it is only reasonable that the local authority be presumed to have the power to do these things, unless and until the owner of the property says: "No; I will not allow you to do this, that or the other". At that stage we provide that without any more delay the local authority may prosecute their case in court and the person who did not co-operate in order to avert this danger which existed as a result of the condition of the property must defend himself as to why he would not co-operate. This is preferable to the dangerous delays which could be caused in certain specific cases through the amendment which Deputy Jones proposes. That is the net difference between the two approaches.

Considering what we wish to have done under this proposal, I believe we are entitled to allow the local authority, on whom the onus is really placed, to do these things. They should be presumed, as it were, to be active in the interests of the common good and that it should be rather for those who oppose that effort to defend their action than to put in the dock those who are going ahead to do something which we feel we should give them power to do and which is in the public interest.

I do not know if the Minister heard me on this point. What use is the right of appeal to the court provided in subsection (5) if, before the appeal takes place, the sanitary authority may lawfully, under subsection (2), have demolished the building? Under subsection (5) you say that a person on whom notice in regard to a dangerous structure has been served may appeal to the court but under subsection (2), the sanitary authority may lawfully enter and demolish the building if they think that requires to be done. The individual on whom the notice is served has the right of appeal within 21 days but when that time is up, he may find the building already demolished.

I want to suggest quite reasonably that at least a person should get an opportunity of defending his rights, whether he is a dweller in the building or has property rights or is employed there. I am sure the Minister will agree that on occasions people who have been in hospital, for instance, have come back to find their premises disconnected by the ESB. It would be too bad if a person who might have a genuine right in a case like this were to find there would be no use in going to court to sustain his rights to a building already lawfully interfered with by the sanitary authority under this section. What we want the Minister to do in this amendment is to reverse the process, to serve a notice giving the person an opportunity of going to the court and then getting the sanitary authority to deal with the matter as the court has decided. This is not taking away from the sanitary authority to deal with the matter as the court has decided. This is not taking away from the sanitary authority the powers that are being conferred on them by the section but it seeks to reverse the order in which things are done. Would the Minister consider that between now and the next stage of the Bill?

Subsection (2) should be considered as standing on its own which is what it undoubtedly is, and to imply that operations under it would seem to nullify any other safeguard that may be enshrined in other sections is not to take full cognisance of the purpose of the subsection. It is an emergency section which really only comes into operation when there is immediate danger to life. Obviously, we need such a power. Its use, of course, is governed pretty strictly by the terms I have mentioned—immediate danger to life. If such a situation exists, we cannot await the normal procedure that might be held to be necessary in regard to private property in ordinary circumstances. This is an emergency provision and I would ask Deputies to bear that in mind. In fairness, it should not be allowed to confuse us in looking at other parts of the section.

I do not wish to do that but I am sure the Minister can see the point I am making, that circumstances can arise where the process I have been speaking about could happen and the person upon whom the notice is served could find, within the 21 days available to him to appeal to the courts, that the building is demolished. If we write it into legislation at present, that right will be there.

I fully accept there would be occasions under subsection (2) when that could happen. The subsection can be brought into play to bring about such a situation only if there is an immediate danger to life. It may seem to flout other subsections but I think it is necessary. It stands on its own because if there is immediate danger to life, we cannot wait and ask for directions at that stage.

Would the Minister undertake to look at this again between now and Report Stage because I am advised that you could have situations arising in which the person's right to appeal within 21 days would be voided by reason of subsection (2).

There is no provision for an appeal nor is there time for any such appeal. That seems to confuse the issue also. There is no appeal by the person served with notice.

Mr. Ryan

We all understand the human anxiety that exists in relation to dangerous buildings but it must not be allowed to continue—a panic operation like that carried out in the past year. Last week I was accused by Deputy Timmons, on loan to the House from the Irish Press, of making wild, exaggerated statements when I said the whole process of the law in relation to dangerous buildings was ill-used and abused.

I stand on what I said last week and give as my authority the decision of the learned President of the High Court this morning who made absolute an order of certiorari against Dublin Corporation in respect of premises against which the Corporation moved about a year ago, as far back as July 1963. Those premises have since been mentioned twice in the district court. They are the subject of circuit court proceedings; they were mentioned on five different occasions in the High Court. One conditional order of certiorari in respect of them was made several months ago. That order was made absolute. While those legal proceedings were going on the Corporation brought other proceedings against the premises in the district court in an attempt to get another order against them. That order was made and now after over a year of legal wrangling, the learned President of the High Court this morning supported what I maintained here last week, a contention for which I was pilloried by Deputy Timmons who must have had great pleasure in seeing his accusations enshrined in the newspaper.

At the end of it all, it gives me very little satisfaction that I was proved right by the learned President of the High Court. I do not think we should lightly deprive persons of rights of this sort. Of the 71 shopkeepers who have been evacuated from allegedly dangerous buildings over the past year, 71 received no compensation. I know of only one who had an opportunity and means to have the matter challenged and his is now a test case for the others. But their rights have since been extinguished. Whatever chance they had of preserving or maintaining them before, they are gone now. I think I am right in asserting that the whole process of the law is being used in a panic way to obtain objects which were never intended and that rights are being obliterated which should never be obliterated. Therefore, I think Deputy Jones is quite right in pressing for maintenance of the rights of owners and occupiers in relation to property.

There have been many of those cases where only a portion of the building was considered dangerous, but, as I said last week, the Corporation insisted upon getting orders condemning the whole premises. They did so, despite the fact that their own experts had said only portion of the buildings was dangerous. If the Deputy wishes, I can make one of these orders available for his inspection, where they insisted on getting the whole premises demolished, despite the fact that only portion of it was considered dangerous. These orders were made for demolition of the whole premises, despite the fact that they would wipe out the rights of the shopkeepers who had been there for 25 years.

Deputy Jones is asking that the person may within 21 days apply for the right to have the matter examined in the district court. We have no reason to be unduly alarmed about any possibility of danger in the future. I do not think we are likely to have a repetition of the collapsing of buildings. We are not likely in the future to wait for them to be in a grievously dangerous position before taking action to have them inspected. As soon as the possibility of approximate danger arises, the necessary steps will be taken to have the premises condemned and ultimately demolished.

In those circumstances, 21 days should not give rise to the type of collapse or danger which the Minister has in mind. Deputy Jones's amendment in that regard is well worth accepting. I give no less authority for our submission in this regard than over a year of litigation cases in different courts and under different judges. Instead of having that involved legal process in the future, we ought to have the safeguard which Deputy Jones proposes.

As far as I can see the Deputy wants to have this both ways. We want this legislation very badly. There are certain things we need to do. In that event we have presented here ways of requiring owners of property to do certain things. If the owner fails to do them and does not agree with our decision, we can compel him. We are asking the local authorities to ask him to do certain things in a certain way under this Bill. If he does not do so, they bring him to court. The penalties set out are not imposed by anybody but the court. It is only when the person is brought to the court and it has been indicated clearly that he has not carried out this work that the penalties operate. They are operated then only at the discretion of the court.

I cannot see anything whatever wrong with that approach to these matters, nor do I see that we are in any way taking away the rights of owners of property or private individuals, or putting them in an unduly difficult position. The owner of property is asked to do these things by the local authority only when they are necessary to be done for the purposes of this Bill. If the owner does not do them—he may refuse to do them—he is brought to court by the local authority who ask him to do these things. That is where the penalties are outlined. He is asked to do this work and if he does not do so, penalties are imposed. It is again the court who apply the penalty and it does not follow that it is the result of any action or decision by the local authority.

Subsequent to that, if these works are not carried out, the court has discretion and power to enable the local authorities to do these works themselves. I do not see why any exception can be taken to the general particulars in this section. Subsection (2) is an emergency subsection and it is not to be confused with the general operation of the section as a whole.

I do not accept what Deputy Ryan says in relation to statements made last week when he states here that the Dublin Corporation officials got court orders for the demolition of entire buildings. He made a statement here last week, and repeated it today, that on receipt of a demolition order, they had the entire premises described as dangerous and had it demolished. I do not want to go from this House without saving that that is not so. If Deputy Ryan was at one of the meetings, he would have heard Mr. Culleton, the supervisor of the dangerous building section, when he outlined the steps taken by the Corporation in this grave matter. I do not accept that they go into court to seek complete demolition orders. They do not do so unless they are necessary, on the basis of their technical experience and the professional advice which is available. Secondly, I want to refute the charge that the Corporation failed in their obligations in relation to this matter. They dealt with it in the best way possible.

Mr. Ryan

I admit I was in error in saying the Corporation failed to do anything for 15 years. That was an understatement on my part. If Deputy Timmons went to the trouble of reading the report which he got seven months ago covering the period 24th June 1963 to 5th July 1963, he would see on page 22 of that report:

It emerged from the inquiry that Dublin Corporation had never complied with section 29 of the Housing (Miscellaneous Provisions) Act, 1931. This section provides for inspection of its district by a local authority with a view to ascertaining whether any dwellinghouse therein is unfit for human habitation, and provides that for that purpose it shall be the duty of the local authority to comply with such regulations and to keep such records as the Minister may prescribe. Regulations were prescribed by Statutory Rule and Order, No. 5 of 1936, the Housing (Inspection of Districts) Regulations, 1936.

If we take the year 1936, we find for 27 years Dublin Corporation failed to fulfil their statutory obligations. If that is a wild and exaggerated statement, it was made by the inspector who sat at the sworn inquiry last year. Deputy Timmons may want to pillory the inspector of that inquiry as well as the learned President of the High Court in their views. They join with me in making these statements.

Deputy Timmons has not been present at many of these court cases but I have heard evidence given on orders made by the Dublin Corporation in which they clearly state this, that and the other portion of a building is dangerous. In evidence, they state the other portions of the building are not dangerous but the condition always has been there. This condition has been upheld by the High Court. The condition always has been that the order had been made in respect of the whole premises. Those orders in the hands of people like the Dangerous Buildings Section of the Corporation were used only to remove the danger. When those orders were made available to other owners, through the insistence of the Dublin Corporation that the whole building be condemned, the private owners of buildings used them to demolish the whole building, including the shops, which were safe for the people living there.

I can understand this problem as Deputy Timmons does not. This is not meant as a personal criticism of him. This is a distinction which can be seen only by people who have seen the operation of these orders. The Corporation used these orders to remove the danger in the buildings and they were made fit. The danger in most cases was only in the upper storey and when they removed that, they invariably left the shop premises there if those premises were considered safe. That was not what was happening in many cases where these orders were made available to the owners by the Corporation and where the Corporation insisted on getting an order in respect of the whole structure where a partial order would have been sufficient.

If Deputy Timmons doubts me, I will make available to him a file containing affidavits galore by both the Corporation and the people involved. He will see where orders were given by the district court condemning the whole building and he will see the whole history in which the owner of the property tried to use that order to remove portion of the building which was not dangerous but where there were tenants whose rights to compensation the landlord tried to deny.

You are not going to make a bad situation any better by applying bad law. It is only by acknowledging the rights of ownership and the rights of tenants to compensation, if they are disturbed, that you will have better legislation in the future. If this House does an unjust thing, the poor people will not be able to bear the cost or the anxiety of court proceedings, but in some cases persons of some small substance may be able to do so, and we will be back in this House in another year or two arguing for remedial legislation. It would be better now to do the just and proper thing and make legal remedies available to people who may be hurt by local authorities. That is all Deputy Jones is asking.

The Minister has spoken of section 2 as an emergency section. In section 2 (a), we set out the power of a sanitary authority to carry out such works as will, in the opinion of the authority, prevent the place from being a dangerous place and to do certain things in the interests of the safety of any person. Perhaps it would have been better if we had said "where a danger is imminent in respect of any such building". What I seek in this amendment is that before subsection (2) we put in another subsection to give the right to a person on whom a notice is served in respect of a dangerous structure that if he is aggrieved, he may, within 21 days of the service of the notice, go to the district court and ask to have the notice annulled or varied.

There are three alternatives then set out which the court may decide to operate. I said briefly when moving the amendment that there was not in it any lessening of the powers which the sanitary authority would have. The first alternative is that the district court may, by order, direct the person to carry out, within such time as the court may consider reasonable and shall in such order specifically limit, and authorise the sanitary authority, if the person does not comply with the order of the court, to carry out, such works as in the opinion of the court may be necessary to prevent this structure from being a dangerous structure. The second alternative is that the court may authorise the sanitary authority to carry out such works and the third is that the court may prohibit the use of the structure or any part of it for such purpose or purposes as may be specified in the order.

That bears out what Deputy Ryan has been saving as being decided in the courts this morning. What we are trying to do by this amendment is to ensure that the legislation will not be wrong in this respect. I again urge on the Minister that he should consider the acceptance of this amendment. It is a very reasonable and fair one and does not weaken the powers of the local authority in any way.

The only thing I have to say is that the proposals in the amendment would actually weaken the position as we have it. The Bill is being brought in to strengthen powers which we already regard as being too weak and my advice is that this amendment would weaken these powers rather than strengthen them. I have looked at this amendment in a very sympathetic way. I have been looking through all the amendments to see whether any of them would be acceptable and up to this point have not found one that is acceptable. This amendment would not help the present position: instead it would weaken it.

I must accept what the Minister says when he states that he has considered the amendments sympathetically but we consider that the rights of the individual vis-á-vis the local authority are of very great importance. The fact is that there could be a miscarriage of justice if a person who was aggrieved found himself in the position that he would have no redress in the matter because of the fact that certain things had taken place. Bearing in mind the anxiety of everybody to give the sanitary authorities all the necessary powers, at the same time, I feel there is an obligation on this House to protect the rights of any individual who may be aggrieved. Would the Minister consider this matter between now and Report Stage?

If I were diplomatic, I should say that I would, but I have considered it so much already that I would be misleading the House by giving the impression that there might be a change of mind.

All I can say at this stage is that I will withdraw it and put it down in like terms on Report Stage.

Why withdraw it then?

I will have it further considered.

Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.

Amendments Nos. 13 and 14 might be taken with amendment No. 12.

I think we should take them separately.

They are all the same.

Mr. Ryan

We might be able to agree on them without discussion later, if we take them separately now.

The same time can be spent on the three together.

Acting Chairman

It is agreed then. to take the amendments separately.

I move amendment No. 12:

Before subsection (7) to insert a new subsection as follows:

"(7) This subsection shall apply to a person who:

(i) is tenant of a dangerous structure or any part thereof and is required to vacate such structure by reason of the service of a notice under subsection (1) or paragraph (a) of subsection (9) of this section or by reason of a Court order made under paragraph (b) of subsection (9) of this section,

(ii) was not by virtue of his tenancy under legal obligation to prevent the structure from becoming a dangerous structure,

(iii) became tenant of the structure or any part thereof not less than six months before service of a notice on the owner under subsection (1) of this section."

In subsection (7) we are dealing with costs and expenses in relation to proceedings in the district court which are called by the sanitary authority under the section and where they are not paid by the owner of the structure within 14 days. The local authority may claim the amount together with the rate of interest and they may recover it by sale by the local authority of any material resulting from works carried out or by a simple contract debt.

The amendment is designed to deal with the position of a tenant who might be entitled to some kind of compensation. In this case the authority might move in and take over from a person who is the owner of a property. I mentioned here on Second Reading that there was a danger that a person on whom an order might be served by reason of a structure being deemed to be dangerous, or about to become dangerous, might very well say at that stage that he was not in a position to do certain things. Therefore, the local authority might move in and do these things for him and charge him with the amount for doing the work. In fact, as set out in the subsection, they might, being unable to recover the costs from him, proceed to sell any materials which they might salvage from such a building or use them. The position then is that, in regard to a person who is a tenant of a dangerous structure which the owner has demolished, or whom he is required to get out of this building as a result of court proceedings, or where the local authority has carried out these works as a result of a court order, there is an obligation to provide the tenant with compensation. These things have been defined, and according to these definitions, in this subsection, he must be the tenant of this building. Secondly, he must not have been liable for maintenance of the structure in the tenancy agreement and, thirdly, he must be a tenant for six months. These things are laid down in the subsection. The compensation which is proposed in the Rent Restrictions Act of 1960, paragraphs (a) and (b) of section 29 are the same as those in section 23 of the Landlord and Tenant Act, 1931.

Views have been advanced on this under financial stringency whereby the owner can be relieved of his possession of the building and it is the same as vacant possession. There is a further case under the Rent Restrictions Act, 1960, where the landlord required the premises because it would not be proper for the tenant to remain in possession. In this case we often have premises being occupied as a business premises. In paragraph (c) we have the kind of case where the premises were used for business purposes and where the premises on the granting of a new tenancy would not be subject to the Rent Restrictions Act, 1960.

In all of these cases, under the Rent Restrictions Act of 1960 or under the Landlord and Tenant Act of 1931, the financial circumstances of the landlord were not the prime consideration. Where the landlord regained possession of the premises, the presumption is it is always a valuable asset to him. We can have, in the case I mention, the position arising that you can have a landlord availing of the use of the local authority for the repossession of valuable sites. It would be manifestly unfair either to the local authority or the tenants. In the first instance, it would be unfair to the local authority who had to do the work which the landlord would have to do, or, in the second case, it would be unjust to the tenant who will suffer as a result of the repossession of these buildings.

If the property is of the slum type, and has been cheaply obtained, some people might say that the amount of compensation payable in these circumstances might be beyond the resources of the landlord. In any event, the compensation would be related to the rent which is paid. If the rent is small, the compensation paid is small; if the rent is large, there is no reason why the compensation paid should not be fair and reasonable. I have heard it said that it might be unfair to property owners to expect them to provide an amount of compensation in cases like this. Under the provisions of the various Acts I have quoted, it is laid down very clearly what would be paid. If, for instance, a person paid 1/- weekly or 1/6 weekly on foot of the tenancy of a building, the compensation payable would be certainly under £12 at the present time.

Progress reported; Committee to sit again.
The Dáil adjourned at 5 p.m. until 3 p.m. on Tuesday, 23rd June, 1964.
Top
Share