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Dáil Éireann debate -
Wednesday, 3 Mar 1965

Vol. 214 No. 9

Committee on Finance. - Land Bill, 1963: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

I move: That the Committee agree with the Seanad in amendment No. 1:

In line 8, ",save where the context otherwise requires" inserted after "Act"; in line 12, "save where the context otherwise requires," deleted.

This amendment deals with the definition section. On Committee Stage in the Seanad, Senator Sheldon and others raised a few points on the drafting of this section, and I came to the conclusion that some verbal improvements could be made. The proposal here is simply that the customary "saver" phrase—"save where the context otherwise requires" should be moved into the place where it usually occurs, that is, at the beginning of the section.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 2:

Lines 23 to 26 deleted and the following substituted:

"every reference to purchase money shall be construed as including a reference to any redemption price of a superior interest, any resumption price, any compensation or any fund, and any residue of such redemption price, resumption price, compensation or fund, and any share in such redemption price, resumption price, compensation or fund, and any residue of such share.".

This amendment deals with another drafting point in the definition section. Here again I was impressed by Senator Sheldon who saw a slight difficulty about the wording of the last part of the section dealing with the interpretation of "purchase money". This refers to the delegation of power to the Examiner of Title for the purpose of expediting the distribution of funds in court.

These funds are of various types and it is convenient to have a general defining clause to avoid repetition throughout the Bill. It is necessary, of course, to keep the defining clause in line with previous enactments, for example, section 35 of the Land Act, 1931, and section 52 of the Land Act, 1933. I think amendment No. 2 now spells out the whole idea in unmistakable language.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 3:

In subsection (5), page 6, a new paragraph added as follows:

"( ) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made."

This amendment relates to the life annuities section. It was Senator Fitzpatrick who suggested that regulations governing the life annuity scheme, when made by the Minister for Lands with the consent of the Minister for Finance, should be laid before each House of the Oireachtas. I see no objection to this course. The regulations are those mentioned on page 5, line 40, of the Bill.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 4:

In subsection (6), page 6, line 16, "first cousin", inserted before "son-in-law".

In section 6, subsection (6) we have a definition of "member of the family" and in section 45 we have a similar definition. Senator Stanford pressed for the inclusion of a first cousin in the definition in section 45 and I accepted his point. It seems logical to keep the two definitions in harmony so on the next Stage of the Bill I put down an official amendment to bring section 6 into line with the other. This seems only reasonable. Amendment No. 24 is the cognate amendment to section 45.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 5:

In subsection (6), page 6, line 16, "and, in the case of a female vendor, her illegitimate child" added after "daughter-in-law".

Senator Lindsay was of the view that it should be possible for a female vendor to make provision by way of secondary annuity for her own child, whether illegitimate or not, and this was a perfectly valid point. Although I doubt if such a case will often arise, I am satisfied to accept the proposition as being in conformity with present day trends. Accordingly I recommend the amendment. Amendment No. 25 is the cognate amendment to section 45.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 6:

In page 6, the following subsection added:

"( ) In deducing any relationship for the purposes of this section, a person adopted under the Adoption Acts, 1952 and 1964, shall be considered the legitimate offspring of the adopter or adopters."

While this was an official amendment in the Seanad on Committee Stage, it was in fact a redrafting of an amendment put down by Senator Lindsay. The tendency of modern legislation is to give full legal rights to the adopted child and while I do not imagine we will have many such cases, I see no reason, as this is a voluntary matter, why the vendor should not be free to make provision for his or her adopted child. Amendment No. 26 is the cognate amendment to section 45.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 7:

In subsection (2), page 8, line 52, "so exercised as" deleted and "exercised solely" substituted.

This amendment deals with the withholding of consent to subdivisions, etc. Senators Ross and O'Brien expressed some doubt about the phrase "so exercised as" on page 6, line 52; they thought the subsection could be worded a little more firmly in order to limit the powers of the Land Commission to refuse consent. On further examination by the draftsman, it was considered that it would be an improvement to use the phrase "exercised solely" and this is now proposed.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 8:

In subsection (6), page 9, lines 22 and 23, "; provided that, in any case where the title has been or is acquired (whether before or after the passing of this Act) by or through possession wholly antecedent to the passing of this Act such consent shall not be required." added after "acquisition".

This amendment deals with existing squatters' title on sub-division. Senator Fitzpatrick made a good point about the possibility of a slight injustice being done to persons who obtain title to land by possession before the Bill is passed and who would thereafter have to obtain the consent of the Land Commission before they could have such title registered. I thought it right to accept this point and so an amendment was introduced to cover it. This amendment will exempt the type of person I have referred to, provided the whole period of possession on which he bases his claim is antecedent to the Act.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 9:

In subsection (4), page 10, line 14, after "all persons" the following added:

";provided, however, that in any case where the consent of the Land Commission under this Act is given after the attempted or purported sale, transfer, letting, subletting or subdivision, such consent shall, if the Land Commission so direct, so operate as to validate with retrospective effect such attempted or purported sale, transfer, letting, subletting or division".

This amendment deals with retrospective consent to validate a transaction occurring during the "freeze" period. Senators Ross, O'Brien and Stanford drew attention to the desirability of giving power to the Land Commission to give retrospective consent to a transaction which would otherwise be rendered null and void by subsection (4) of this section. It is possible that a transaction might take place which was carried out bona fide without consent of the Land Commission in ignorance of the fact that an inspection or acquisition proceeedings were pending; it might be unduly harsh if no post factum approval could be given it.

There is a comparison to be made with subsection (3) of section 12 which does allow for retrospective approval. I think the Land Commission should be free to give retrospective consent in any case where it is reasonable to do so and I recommend the amendment accordingly.

I am quite perturbed by the manner in which people are going to be able to ascertain, at the appropriate earliest possible opportunity, the Land Commission notice. Virtually every sale will now have to be considered by the solicitor for the purchaser on the basis that an inspection may have taken place between the period of instructing his solicitor and the contract being signed. I think this is going to need some administrative machinery for the issue of a certificate somewhat analogous to a certificate with relation to income tax. I am not clear as to the exact details that will be required but it is something to which the Minister should direct the attention of his officials so that the shortest possible notice of his order will be transmitted to the Land Registrar so that that notice will be on the folio and also that there should be the immediate issue of either a letter or some other notification from the Land Commission that no such certificate was made up to the stated date.

I am aware of the difficulties which may arise and to which the Deputy has referred. There is provision under the Act whereby the Registrar of Titles will be notified and the notice will appear on the folio. Administratively, it is my view that the Registrar must be notified forthwith and that, in turn, he will notify any sub-registrar in the district registry so that the question of this notice would appear on the folio. With requisitions of title, certainly in the congested areas and in the west, it is the practice at the moment to requisition that the Land Commission serve notice of any proceedings by them in respect of property for sale. In addition to that usual requisition, it is my belief, and certainly my intention, that the fact that a notice has issued in respect of a holding will appear on the folio, in any event. I will, however, ensure administratively that that will be so because the point has occurred to me.

While I agree that it is always the practice to issue a requisition of title, not merely in the west but everywhere else, in the terms the Minister has made, I am concerned about the case in which there may be a gap of a very short time but it may be a very vital gap during which a sale is closed and the vendor may entirely bona fide have instructed his solicitor: “No, there has not been any inspection.” The Land Commission, however, might be in a position to make an order without having an inspection of the lands or without the vendor's being aware that the inspection has taken place.

When premises are put up for sale, people inspect them. They do not put a placard on their chests, when going around: "I am a prospective purchaser, and my name is So-and-So," or "I am acting as the agent for So-and-So." I am not quite clear how it will be possible to protect not merely the purchaser but for the solicitor for the purchaser to protect himself against an action for negligence if, in the three or four days that bridge the interim period, the Land Commission send notice, say, today, Wednesday, 3rd March, to the Land Registry and the sale is closed tomorrow, Thursday, 4th March. It does not go down to the District Registrar in Galway until 5th March and it is closed tomorrow, 4th March.

Even supposing, therefore, that the notices are transmitted forthwith, the position will be that there is bound to be a gap into which anybody can fall without any mala fide on any side. Something more will have to be imported into the normal requisition. The normal requisition, I think, is: “Has any inspection taken place?” There will have to be a position by which, by return of post, the Land Commission will answer the letter stating “Yes” or “No” before a certain named date.

I have been trying to visualise in practice how this could arise. I suppose it is theoretically possible. I cannot see it arising except perhaps in a sale by private treaty that was closed in a great hurry. Of course, the position would be that the Registrar of Titles would be prohibited, under the Act, from making a change, from accepting a deed, if a notice——

But the purchaser may, bona fide, have paid his purchase money.

Immediately the notice is served, from that date machinery will be devised or it is contemplated it will be, to have the Registrar of Titles enter a note on the folio. I assume we can work out a way administratively to put the duty on the Registrar of Titles to notify the registrar of the county in which the land is situate.

I think the central folio is the governing one.

At all events, I know that the practice, where there is a local registrar's office, is for solicitors to inspect the local folio there. Administratively, we should have to make some arrangement that the local registrar would, in fact, be notified, as far as the service of a notice is concerned. I would imagine that, while it may theoretically be possible, just at the moment I cannot see it working out in practice but I shall look into what may be devised to provide protection against the point made that there would, in fact, be such a danger.

How is the notice to be given by the Land Commission? Is it by publication in Iris Oifigiúil, like the provisional list?

The same notice as is given at the moment, corresponding to the section 40 notice.

That is made a long time before it is served. You wait until publication in Iris Oifigiúil and then until the prints are available.

The section 40 notice is not published in Iris Oifigiúil. At the moment, that notice notifies that the Land Commission propose to——

——to inspect. It will be done in the same way—by registered post?

It is provided for by registered post. I understand that section 29 is the service section. There are rules to be made. I think that, from a practical point of view, it will be necessary to provide for a service by registered post but where it would be practicable, it would be served in the ordinary way by an official of the Land Commission. However, it will be necessary to serve this notice by registered post to get over certain difficulties I can visualise.

In addition to service on the vendor, the Minister will prescribe administratively that it will be served as well on any known solicitor of the vendor?

Yes. I think that practice is carried out.

I think so, but I want it imported into this one.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 10:

In subsection (5), page 10, line 20, "and shall, as soon as may be after the expiry of the appropriate period or receipt by him of notification from the Land Commission of the termination of the proceedings referred to in this section, cancel such entries" added after "necessary".

This is a small procedural point, affecting Land Registry. In order to give land owners the assurance that the restrictions imposed by the section will not affect them for any longer time than is strictly necessary, this amendment furnishes positive instructions for the Registrar of Titles about the removal of restrictive entries on the relevant folios.

This could arise, for instance, where there was a bona fide sale without having regard to the notice and the Land Commission agree it was a bona fide sale. This is to enable the Registrar of Titles in such a case to withdraw the prohibition on the folio.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 11:

In subsection (2), line 45, "and extending" inserted after "defining".

This is in connection with rights of way to lakes, rivers and the sea. The amendment is only a drafting point. The word "Defining" in the existing text covers the normal case of the creation of a new right. It is necessary to add the words "and extending" to cover the case in which a right may already exist but may need to be extended.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 12:

In subsection (3), lines 48 to 50, "to define and extend or improve rights of way to and from the sea or to and from a lake or river" deleted.

I should like to refer Nos. 13 and 16 at the same time, as these three are inter-related.

On the Committee Stage in the Seanad we had a most useful discussion on the wording of section 20 and in particular on the question whether the opening two lines of subsection (3) which turn on the phrase "rights of way" were sufficiently clear to control subsection (2), which deals with rights to park vehicles and to beach, moor and anchor boats. It was thought that there might possibly be risk of conflict between the term "rights of way" which normally connotes movement and the other rights, to park and to beach, etc, which have a static concept.

On further examination by the draftsman, it was considered that it would be better to delete the words mentioned in those three amendments, for the purpose of avoiding a possible conflict in interpretation.

What are the Land Commission's powers in relation to rights of ways in general? Have they power to acquire a right of way for a holding that may not be entirely landlocked but where the ordinary method of access is extremely awkward, perhaps because of flooding or something like that, and where the Land Commission have no intention of taking any other action in relation to the land concerned other than this one single right of way? I am concerned with the case where only one landowner is involved. I appreciate that if there is a number, the Land Commission have that power, but in regard to the case where only one owner is so landlocked, there seems to be very great reluctance on the part of the Land Commission even to look at the situation.

The Commission take the view, which I suppose is understandable in one way, that the man must have been able to get in and out of the holding over the years. On the other hand, rivers change. What might have been a comparatively easy method of passage may have entirely changed. Neighbours change and there may have been no specific right to get in on the other side of the holding. The friendly relations may have existed but may have changed, unfortunately, and the holder concerned, in consequence of that situation, finds he has to utilise a former right of way which is virtually impossible to use in certain circumstances. In my experience, the Land Commission are not very interested where only one holder is concerned. Have they in fact power to deal with such a case?

The powers, as I have explained, up to now were rather limited but part of the provisions of this Bill confer the very widest powers on them in this regard. In the first case posed by the Deputy, as I am sure he is aware, if there is a landlocked holding or field, under common law there would be an easement of necessity between the dominant and servient tenements, if that were the position. As far as the Land Commission are concerned, their powers were limited to dealing with rights of way on lands purchased under the Land Acts. Even then they were rather restricted as set out in section 39 (2) of the 1931 Act which states:

The powers of the Land Commission to expend money on the improvement of land sold or agreed to be sold under the Land Purchase Acts shall, in addition to the matters mentioned in section 43 of the Land Act, 1923, include power to confer on the Land Commission and their licensees and to define and extend or improve ways and rights of way over any land to any land sold or agreed to be sold under the Land Purchase Acts, whether such rights of way are or are not so conferred as to be appurtenant to any Land.

That, I understand, has been interpreted to mean, certainly by the Land Commission and others, that they could only deal with a right of way created first, on land purchased under the Land Acts or with the aid of advances under those Acts, and secondly, that the right of way could only cross or join such land. In other words, if there were a piece of land intervening that was held in absolute fee simple or under fee farm grant or squatter's title or otherwise, the Land Commission could not cross that or deal with the situation under existing law.

Power is being taken in these sections which we are amending so that the Land Commission can create or extend or improve or acquire land for the purpose of doing any of these things to give a right of way anywhere over any type of land, held under any tenure or to extend a right of way where they were restricted under the former law, from land purchased under the Land Acts or lands held in absolute fee simple or under whatever title, to other lands irrespective of title to them. So, just as the prohibition about sub-division applied to about 80 per cent of land purchased under the Land Acts, that control is now being taken over all the lands. In the same way power is being taken here in respect of title to the land and the Land Commission will have the right to create or extend or enlarge rights of way. In this regard, where they take land for that purpose, they must compensate the owner.

We have also in mind the many representations made to me either during the discussions here or in my Department that many of the old rights of way are not now suitable in this day and age and are incapable of accommodating modern machinery such as tractors and it is mainly for that purpose that these powers are taken.

The short answer to the other point made by the Deputy as to whether the Land Commission have power to deal with the case where only one owner is concerned is "yes." I have no doubt that before this, possibly, the Land Commission were slow to do so because there were doubts about their powers but the answer is that they can in a suitable case exercise these rights to alleviate the position of a single owner and give proper access to his farm. No doubt when they have received the wider powers provided under these sections, they will be able to deal with many more of these cases.

Under which sections? I thought section 20 was specifically restricted to the sea or lakes or rivers?

Section 33.

This is another section to expend money——

The Deputy will recollect that it is the same form of wording as is referred to in section 39 (2) of the 1931 Act.

Is not that form of wording the trouble?

No, I do not think so. We substitute here for the former wording of section 39 (2):

The powers of the Land Commission to expend money for the benefit or improvement of any lands shall, in addition to the matters mentioned in section 43 of the Land Act, 1923,

—that is, the section which sets out all the purposes for which the Land Commission may expend money to purchase land——

include power to confer on the Land Commission and their licensees and to define and extend or improve ways and rights of way over any land——

that is the point—

to any land sold or agreed to be sold under the Land Purchase Acts, whether such rights of way are or are not so conferred as to be appurtenant to any land.

The point there being that they can create a right of way over lands anywhere, whether they are purchased or not under the Land Purchase Acts and can extend any right of way over any such land.

All that is conditional upon their spending money. I am thinking of the case where no expenditure is required.

I am sorry I did not have the Deputy's experience as Minister for Lands of finding the Land Commission in a position of taking over or extending a right of way without the expenditure of money, whether by way of building a fence on it or otherwise. Even if that were so, I do not think it would stop them.

What I am worrying about is that the Land Commission, if they have to expend money, might kick at doing it but if the owner of the servient tenement is prepared to pay all the cost, then a different situation arises, and yet is seems that under this section power is not given where the man is prepared to pay all the cost that is involved.

The section, amongst other things, is intended to cover the normal case where compensation must be paid. The Deputy will appreciate that where you have, perhaps, two good neighbours, one prepared to pay and the other prepared to accept, then the Land Commission would not be required at all because the two people would work out their own problem between themselves. Under this section it is where the Land Commission must exercise compulsory powers for the purpose of creating the right of way and that presupposes the objection of the owner in some form or other to the right of way going over his land. In a number of cases I can visualise the reaction of the owner over whose land the right of way has to run, whatever his reluctance might be if he is paid for the land taken from him and if the land is going to be fenced and his holding left intact after the right of way is made, if the Land Commission say: "We are going to take over this land, leave it open and unfenced without any compensation".

There had to be compensation paid but I am visualising the case where the servient owner is prepared to meet all the costs himself.

All he has to do is refuse to pay it and he is all right.

Then the Land Commission will not budge.

There is a provision here which I did not read—subsection (3) of section 39 of the 1931 Act:

(3) Where the Land Commission confers and defines a right of way or a right of access, whether under this section or under any other provision of the Land Purchase Acts, the Land Commission shall have power to enter on the land over which such right of way or access is so conferred and there to repair or construct a road or pass and erect fences and gates and for those purposes to take all or any necessary materials from or out of such land and to provide for the compensation paid by the Land Commission for such right of way or right of access being repaid to the Land Commission by the person for whose benefit such right was conferred.

They would have power under that section to go in on my land for the benefit of my neighbour and create a right of way there, provided my neighbour was prepared to pay or contribute towards part of the cost of the facility being provided for him. I do not say in all cases but in some cases, that is a fair proposition, that the man who is getting the benefit should at least contribute something towards the cost of it because in most of these right of way cases it would not be so much the cost of the land involved——

The cost of the nuisance.

The cost of the nuisance and the cost in some of these cases of fencing properly would be out of all proportion.

It will clear away the problem of the gateway which, with modern machinery, is the biggest problem as far as right of way is concerned.

That is so, and since the discussion on this Bill, I have received a very large volume of correspondence from people throughout the country. They have displayed a particular interest in this very provision and say it is something that is very badly wanted.

If the Bill does that, there may be a lot of things that the Minister will be cursed for, but he will surely get a measure of blessing for that one.

At all events, with this amendment and the amendments that are interrelated with it, whatever doubts there may have been before this, from this on the Land Commission in any circumstances, irrespective of title to the lands or how they were purchased or the existing set-up in any area in a suitable case, will have full power to create, extend or widen a right of way, which is something which is wanted by everybody.

I have some doubt that it is so drafted, but however.

I am so advised.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 13:

In subsection (3), line 51, "of way" deleted.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 14:

In subsection (3), line 51, "adjoining" deleted and "situate within fifty yards of" substituted.

Amendments Nos. 18 and 20 are cognate amendments.

This amendment deals with another aspect of the new power to create rights of way to the sea and to lakes and rivers. As it left the Dáil, the Bill included a prohibition against the creation of such rights over land adjoining an existing occupied dwelling-house.

In the Seanad discussion, some Senators felt that the word "adjoining" in subsection (3) would be given a narrow legal interpretation, barely protecting a few yards around the dwelling-house. Others felt that the opposite may be the case and that it may be liberally interpreted to include, say, the whole of a very large field, thus being unduly restrictive against the public and the Land Commission. Senators Quinlan and McDonald originally proposed the writing in of a definite distance—100 yards. After a full debate, it was agreed by the Seanad that it would be best to delete the word "adjoining" and substitute a definite limit of 50 yards.

This was acceptable to me as being a reasonable definition to put in here and I accordingly put in an amendment to that effect and this is the amendment I am recommending to the House. Amendments Nos. 18 and 20 follow in principle on this.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 15:

In subsection (3), line 53, "one year" deleted and "six months" substituted.

Where the section affords protection from nuisance to an occupied dwelling, it had been my view that this protection should only be extended to pre-existing houses; my idea was and is that a man might try to forestall the creation of a car-park or the like by rushing the erection of a cheap dwelling or chalet near the proposed site. Accordingly the Bill says that the dwelling must be at least a year old at the vital time.

I was pressed rather hard to remove this condition but the furthest I could go was to reduce the period to six months to which the Seanad have agreed.

The Minister has mentioned a chalet. Surely the conception of a chalet is not an occupied dwellinghouse but something that is used for odd occasions?

In County Dublin, and I am sure Deputy Burke will bear me out, there are quite a number of things that are even worse than chalets being occupied.

Mr. Burke

That is a fact.

The tinker in his tent could frustrate the intention of the local authority or the Land Commission. He could well argue that and give the Supreme Court some thought.

They would have the benefit of Deputy Burke's evidence, too.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 16:

In subsection (3), line 54, "of way" deleted.

This is a consequential amendment. It was taken with amendments Nos. 12 and 13.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 17:

In page 16, line 14, before ",extended" to insert ", defined"; and in line 16, before "extended" to insert "defined or".

This again deals with rights of way to farmland, and is purely a drafting point. It is precisely similar to the one we had on amendment No. 11. The text of the section as it stands does not clearly provide for extensions to existing rights as distinct from entirely new rights. This makes it clear that the extensions can be dealt with under this new power.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 18:

In subsection (1) (a), page 16, line 34, "adjoining" deleted and "situate within fifty yards of" substituted.

This deals with the acquisition section and has been discussed with amendment No. 14.

Question put and agreed to.

I move amendment No. 19:

In subsection (1) (b), page 17, line 45, "education" inserted before "vacation".

This also deals with the acquisition section. Senators Ross, O'Brien and Stanford held that "education" should be written in as one of the acceptable reasons for the temporary absence of a land-owner or a member of his family who might have an interest in the lands. It could apply particularly to young owners or to younger members of "family companies" owning land. No one disagreed with the view of these Senators and I accepted their suggestion. I now recommend it to the Dáil. Amendment No. 21 is the cognate amendment to section 42.

Will the Minister define "education." Would it mean a tour of the South of France?

This would be a case of lands being let where the owner, say, a minor, is away at school. This would prevent the Land Commission taking acquisition proceedings against these lands, unless in the extremely unlikely event of the Land Commission getting after lands in the occupation of a young man who is away of his own volition attending some agricultural school. I cannot visualise that happening because that is not the type of land the Land Commission go after.

There is the danger of the playboy who goes away ostensibly for educational purposes but there is no way of knowing. It could be Monte Carlo. He is no doubt learning there.

The Land Commissioners are sane practical men and I assume that for the future they will be so. It being a requisite part of their job to assess the cases which come before them, I am sure it would take some convincing to get that court to accept that somebody was taking a course at Monte Carlo.

They could say they were somewhere else. Of course, if they went to Monte Carlo, they might be anxious enough to sell to the Land Commission.

The answer is that it is discretionary power, not absolute power.

Yes. It is discretionary. I did not advert to this fact but I had experience of at least one case in which lands have been where minors were away at school.

It is reasonable.

In that context, it is reasonable.

I am still perturbed about this section. While the amendment which the Seanad has introduced does improve the situation somewhat, I still do not understand the case where in the family company the property is held by the father and mother before settlement, with remainder to the children, to the son. As far as I can see from this section, the son must go and live with his father and mother to protect the home, even though perhaps, as we all know often happens, the daughterin-law may not entirely agree with the mother-in-law. It seems to me that that type of case is caught by this section in a way that it should not be caught. As long as the persons properly entitled to the income for life are there, it should be enough.

I made it clear both in the Seanad and here that this section has been designed to get after specific types of cases that are met with in practice, and that it was essential to get a definition of what we would call a residential holding. With all the devices that are available under company law, the section had to be drafted as it was to get after the type of land we have in mind. There is the large farm which under a company or some businessman or group of businessmen is carried on as a hobby, by people who do not live on the land and have no intention of doing so. What the section does in such a case is to make that land vulnerable before other lands for acquisition for the relief of congestion. That power was accepted both in the Seanad and in the Dáil as being reasonable. The section does not mean that in every case of a family company the Land Commission go after the land. Such is not the case; such has not been the case; and such will not be the case in the future. Every Deputy knows that the kind of land the Land Commission go after, generally speaking, is land with a long history of bad user; generally it is outside the congested areas. This section is designed to make vulnerable the type of large holding that is non-residential in the common acceptance of that expression.

It was necessary for our purposes to define that type of land as being land on which the owner was not living or within a distance of three miles of it. In order to provide in law against known practised evasions in this field, we had to define this section in order to make such lands vulnerable. The section as drafted now is also necessary to deal with another aspect of land we thought it desirable to get after—land in the congested areas that has been let and is non-residential, again in the common sense of that term. In a number of these cases, the owners have gone for many years but they have close relations living in the vicinity of the land, possibly in the same parish, and if we did not have this three-mile qualification, a member of the family abroad would be able to transfer to another member of the family or to a member of another family living not so far away from these lands. Again, to make these lands vulnerable it was necessary to draft this section.

Deputies must assume, as, indeed, it is admitted on all sides of the House, that the Land Commission will act as reasonably in the future as they have acted in the past. I pointed out that there has been power since 1923 for the Land Commission, if they so desire, to repossess any holding which was subdivided or sublet for a period of 12 months. They did not do that. They could take it over and sell it out. Irrespective of the user of the land, they could walk in on a landowner who had no other way of living where there was congestion in the immediate vicinity and take over his land. In practice, they have not done that. With the exception of one instance of which I know, I am not aware of any case where the Land Commission interfered with the ordinary working farmer in a congested district. The House must assume that no such thing would happen in the case posed by Deputy Sweetman.

Invariably the Land Commission get after the badly-run lands, lands with a history of bad user over a long period, lands which have been let or have been non-residential for a long period. It has been the experience of practitioners in the Land Court that wherever there is an objection to Land Commission acquisition and, as part of the objection, the objector gives even a half-hearted promise that he is prepared to mend his ways, the Land Commission lean over backwards to facilitate him. In fact there have been many complaints about the Land Court adjourning cases for two or three years to enable these people to come back. Many of them do not live up to their undertakings.

I am pointing to this because it is accepted procedure in the Land Commission that anywhere they think there is any hope at all of the owner taking up residence, they give him every opportunity of doing so, if he is prepared to do so. The House should not assume that the practice of the Land Commission would be interfered with here. The Land Commission would be quite happy to see these lands put into full production by these people if the people were prepared to come back and use them. All the section does is make these lands vulnerable before the Land Commission would be forced to proceed for the acquisition of further land in the area.

Nobody is interested in defending the faked case. It does not deserve sympathy. What worries me is that there is no means under this section by which the Lay Commissioners can act, if they are absolutely satisfied that the case being made by the objector is a genuine case of a father and mother living there and the son having some interest in the family company but not wanting to live in the house while the father and mother are there.

The Deputy misconceives the law. It is not mandatory on the Lay Commissioners at all. Indeed, as the Deputy knows, in every case the family history is very carefully considered by the Lay Commissioners. They are particularly conscious of their duty and of the fact that they are the absolute arbiters as far as questions of fact are concerned. In such cases in the past they have always been reasonable.

They have not got the power now.

On this I disagree with the Deputy. If the Lay Commissioners are satisfied about the genuineness of the facts, I do not think they would authorise acquisition.

I think they would be bound to.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 20:

In subsection (1) (a), page 19, line 51, "adjoining" deleted and "situate within fifty yards of" substituted.

This amendment has been discussed with amendments Nos. 14 and 18.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 21:

In subsection (1) (b), page 20, line 55, "education" inserted before "vacation".

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 22:

In subsection (2) (a), page 22, line 33, "with." deleted and "with, and the determination of the application for such consent shall be an excepted matter for the purposes of section 12 of the Land Act, 1950." substituted.

Throughout the earlier stages of this non-nationals section, when considering the question of who will make the decision on the actual application for consent, I have thought of this as the sort of important function crucially affecting private interests which should be exercised by the Lay Commissioners. The section has been discussed on this basis. I thought it better to have this matter made clearer, to spell it out in actual words as an excepted matter. The Seanad entirely agreed with this view. It is a question of removing any doubt about it.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 23:

In subsection (2) (b) (ii), page 22, line 37, "the legal personal representative, as such," deleted and "a person as legal personal representative" substituted.

This again is a drafting amendment. My attention was drawn to a High Court decision given in 1923 in Marry v. Drew, 23 Irish Reports. Because of that judgement, there is a risk that the phrase “legal personal representative, as such” may be given a narrower meaning than is intended. Unless the alternative wording agreed by the Seanad is substituted, the position could be that the exemption from control conferred by clause (ii) of paragraph (b) of subsection (2) on page 22 would apply only to the personal representative in the case of a lease or tenancy but would not apply in a case of realty or registered land. In relation to section 45, a technical distinction like this would be senseless and the amendment will make it quite clear that the exemption will apply to all legal personal representatives.

Including administrators virtute officii?

Yes. This is based on the interpretation of "legal personal representative as such" in the context of Marry v. Drew. The learned judge in that case said:

I come now to the words "executor as such". In a sense everything that vests in an executor vests in him "as such". Therefore, the words must have some special meaning. I think they can only refer to a passing to the executor virtute officii, with the aid of any special enactment such as the Local Registration of Title (Ireland) Act.

Question put and agreed to.

Amendment No. 24 was discussed with amendment No. 4.

I move that the Committee agree with the Seanad in amendment No. 24:

In subsection (2) (c), page 22, line 50, "first cousin," inserted before "son-in-law".

Question put and agreed to.

Amendment No. 25 was discussed with amendment No. 5.

I move that the Committee agree with the Seanad in amendment No. 25:

In subsection (2) (c), page 22, line 50, "and, in the case of a female deceased person, her illegitimate child" added after "daughterin-law".

Question put and agreed to.

Amendment No. 26 was discussed with amendment No. 6.

I move that the Committee agree with the Seanad in amendment No. 26:

In subsection (2), page 22, the following new paragraph added:

"( ) In deducing any relationship for the purposes of this subsection, a person adopted under the Adoption Acts, 1952 and 1964, shall be considered the legitimate offspring of the adopter or adopters."

Question put and agreed to.

I move amendment No. 27:

In subsection (13), page 25, line 40, "Dáil Éireann" deleted and "each House of the Oireachtas" substituted.

Senator Fitzpatrick introduced this amendment on the Committee Stage in the Seanad. I felt I should extend the same courtesy to Seanad Éireann as I extended to Dáil Éireann and, therefore, I accepted the amendment.

In the other House, the Minister took advantage of the fact that I was not present to make some personal observations about me and my personal business. It would be very easy for me to reply in kind in this House but the Chair is aware that I never deliberately transgress the rules of order and, even though certain of these amendments would give me a very facile opportunity of having a very unpleasant crack at the Minister, I do not propose to avail of the opportunity to break Standing Orders.

I broke no Standing Orders in the other House; neither have I done so here. I replied to allegations made by the leader of the Deputy's Party in the other House about my Party.

Question put and agreed to.
Amendments reported and agreed to.
Ordered: That a message be sent to the Seanad accordingly.

Mr. Burke

It has been a long passage.

The repeal of certain provisions in it will not be so long. I think we will have Deputy Burke on that occasion but not certain other people.

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