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Dáil Éireann debate -
Wednesday, 17 Nov 2021

Vol. 1014 No. 2

Land and Conveyancing Law Reform Bill 2021 [Seanad]: Second Stage

I move: "That the Bill be now read a Second Time."

As Deputies will be aware, this is an important and urgent Bill. It will avert a legal cliff edge that is due to occur later this month by repealing a number of legal changes due to come into effect on that date. Those impending changes are causing serious concern for stakeholders, particularly given their implications for conveyancing practice generally and in particular for private right of way and other prescriptive easements that are essential for many farmers and rural and urban homes. I am sure Deputies will have been contacted in recent weeks regarding issues and concerns, so it is important that the Bill be passed in time.

Under Part 8 of the Land and Conveyancing Law Reform Act 2009, significant changes to the law on prescriptive easements and profits à prendre are due to take effect immediately after 30 November 2021, in just under two weeks. Up to now, the 2009 Act has applied transitional provisions, allowing court proceedings, or applications to the Property Registration Authority, PRA, seeking to validate or register a prescriptive right to be decided under the old legal rules that applied before the 2009 Act. That transitional phase will end, however, on 30 November next and, under the 2009 Act, new rules will take effect for all new claims from 1 December.

The 2009 Act was major reforming legislation that repealed a large number of outdated laws and concepts and modernised much of our land and conveyancing laws. Serious concerns, however, have been raised by stakeholders, including the Law Society and the Bar Council, about the impending changes to the law on prescriptive easements and profits under the 2009 Act. In particular, the new legal rules on acquiring prescriptive easements or profits are causing legal uncertainty. Second, the generally accepted view is that after 30 November 2021, under the 2009 Act, only user periods starting on or after 1 December 2021 can be counted as claiming prescriptive rights that are not registered, even if they have been enjoyed for many years before that. Third, the Act's requirement for registration for prescriptive easements or profits à prendre is not operating satisfactorily in practice. It has not yet been possible to register many important prescriptive rights that appear to have been enjoyed for many years without dispute. Of all the applications to date, more than 70% have been rejected and, therefore, there are issues in that regard.

Stakeholders indicate these changes risk causing unnecessary court cases to protect rights that have been enjoyed for generations without dispute, resulting in stress and legal costs between neighbours. The new registration requirement is causing widespread blockages and delays to conveyancing and problems for mortgage or farm loan approvals where a house or a land depends on an unregistered prescriptive right, an issue that arose with someone I was dealing with earlier this week. I have listened carefully to these concerns and I am satisfied that in this complex legal area, the provisions of the 2009 Act are not working as intended and prompt action in the shape of the Bill is required to avert the changes due to take place on 30 November.

The Bill will address the most pressing need by repealing the major changes due to take effect on 30 November, thus removing the deadline. To succeed in this task, it is essential the Bill can, with the support of both Houses, progress to enactment by 30 November at the latest. I have secured Government agreement to establish a time-bound review, in agreement with the Attorney General, that will identify any further changes that are desirable to the law on prescriptive easements and profits to ensure this area of law will be placed on a sustainable, long-term basis. While we are reverting to the pre-2009 law, I hope a review, which will be up and running in the early new year, will have concluded by the summer in order that we can put forward a proposal to deal with this on a longer-term footing, given that I do not believe the pre-2009 law is the way in which we need to proceed.

I am conscious the law on prescriptive easements and profits à prendre remains an ancient, technical and complex corner of our property law, dating back to 1832. Despite the arcane terminology, however, these are issues that have direct, real and practical consequences for farmers and homeowners. Common examples of prescriptive easements include a right of way to access one's home, field or a laneway that runs through a neighbour's land, the right to use water or sewerage pipes running under a neighbour's land, or the right of support between adjoining buildings in different ownership. These are just a few examples and I am sure many more could be mentioned.

I will turn to the main changes to be made by the Bill. Section 6 will repeal sections 33 to 39, inclusive, of the 2009 Act. Consistent with the strong preference of stakeholders, this will repeal the major changes to the law on prescriptive easements and profits à prendre that were due to take effect after 30 November, thereby removing the imminent deadline. The Bill sets out a number of new rules for the law on acquiring and validating prescriptive easements and profits à prendre. This follows extensive engagement with stakeholders, including the Law Society, Bar Council, PRA and Law Reform Commission, LRC.

In general, claims made after the Bill comes into operation will be decided under the judge-made law known as the doctrine of lost modern grant. While we are reverting the law to pre-2009, we are identifying one of the three areas to work under the common law doctrine of lost modern grant. This reflects the strong preference of stakeholders, which see this as the most satisfactory and familiar set of rules available, pending the more comprehensive review. Under the Bill, periods of long use that were acquired before or during the years 2009 to 2021, inclusive, will not be lost on 30 November where the prescriptive right is unregistered, as under the 2009 Act, but can still be counted in a claim made after that date. Applications based on periods of use completed before 1 December 2009, the date on which the 2009 Act came into operation, will continue to be decided in accordance with the law that applied before that date. The same is true of applications to court or to the PRA to validate or register a prescriptive right that are pending when the Bill comes into operation.

Special arrangements are proposed in respect of State-owned land, including foreshore. Under section 3, as under the 2009 Act, acquiring a prescriptive right against State-owned land after 30 November 2021 will require longer periods of use than are required in a claim against land owned by a private person. Otherwise, the general rules I outlined will apply and, under the Bill, long use before 30 November 2021 will still be counted, unlike under the 2009 Act. It will still be possible to validate a prescriptive right, either by applying to court or by registering it directly with the PRA, but this will be optional, as it was before the 2009 Act, rather than becoming a requirement to avoid losing any rights acquired through long use.

I will now address the main provisions of the Bill. Section 2 sets out the main rules that are to apply to a claim to have acquired a prescriptive easement or profits à prendre following the coming into operation of the Bill.

In a case where the prescriptive period was completed before 1 December 2009, the legal rules are those that applied before December 2009, as set out in section 2(a) of the Bill. In a case where the prescriptive period was completed after 1 December 2009, the legal rules are the pre-2009 Act judge-made rules known as the doctrine of lost modern grant, as set out in section 2(b) of the Bill. There is an exemption to these main rules for applications to the court or to the Property Registration Authority, PRA, pending when the Bill comes into operation. These are dealt with under section 6(2) of the Bill.

Section 3, as already mentioned, deals with claims to have acquired a prescriptive easement or profit à prendre over State-owned lands or foreshore, other than pending applications or claims, for the prescription period completed before 1 December 2009. The longer prescription periods, 30 years for State-owned land that is not foreshore and 60 years for foreshore, were recommended by the Law Reform Commission, LRC, in 2002. They reflect that fact that it is more onerous for the State than for a private owner to be aware of any easements or profits à prendre being exercised against its lands, especially regarding foreshore that is submerged for much of the time.

Section 4 refers to the land and the extinguishment of easements and profits à prendre. The Bill repeals the new rules due to come into effect under the 2009 Act and this section just clarifies that the pre-2009 common law rules on extinguishment will continue to apply.

Section 5 amends section 49A of the Registration of Title Act 1964 regarding the registration of a prescriptive easement or profit à prendre. The amendments remove the condition that the PRA must be satisfied that the claim meets the requirements set out in sections 33 to 38, inclusive, of the Act of 2009 and also clarifies the conditions for registering a claim regarding a profit à prendre in gross.

Section 6(1), as mentioned, repeals sections 33 to 39, inclusive, of the Act of 2009, while section 6(2) refers to applications either to a court or to the PRA that are pending when the Bill comes into operation. It provides that they are not affected by the Bill and, essentially, such applications will continue to be decided under the law stemming from the existing Act of 2009.

The care and consultation that has gone into this Bill is evident. I thank my officials for their work and for their engagement with members of the Houses and with the stakeholders. The importance and urgency of progressing this Bill for enactment before the legal cliff edge of 30 November is clear. I hope that with the co-operation of all sides of the House we can facilitate its swift passing. I am not saying that what we are going back to is the final product, but we must make progress and I reiterate that I am committed to that review which will commence in the new year. I hope it will be completed by the summer of next year and that it will give us an indication as to how we can try to deal with this issue once again.

We now move to the three speakers from Sinn Féin. I call Deputy Daly.

As the Minister said, this is a complex area. She spoke about the Prescription Act 1832, and in this regard she consulted with the Law Reform Commission, the Law Society of Ireland and the Bar Council of Ireland, all of which were of the view that the doctrine of lost modern grant was the best way of establishing rights of way or easement. A fuller consultation is needed, however. I welcome this Bill and the work that has gone into it. I have been calling for legislation such as this and stating that it was necessary to deal with the issue. It is important that it is implemented, as the Minister said, before the deadline of 30 November, and I credit those who have been campaigning on this issue.

I am not sure what the motivation was behind the introduction of the Land and Conveyancing Law Reform Act 2009. There was certainly a perception in rural areas that it was intended to benefit urban situations and transfers of land there. Whatever happened, no thought was given at the time to people who owned land in areas where their rights of way might have sometimes traversed up to 20 other folios to get to a public road. The sections being repealed were totally impractical and a nonsense and I commend the Minister for bringing forward this legislation.

Obtaining the consent of another person might sound simple, but sometimes neighbouring land could have been registered, and I have come across cases like this myself, to someone 60 or 70 years ago. The person concerned might have passed away years ago and trying to obtain consent from his or her estate or tracking down relations could prove difficult. The Act also did not consider that sales would, and did, fall through because of the delays in registering the various rights of way. It also did not consider that solicitors would be unable to certify titles to lending institutions because of the inability to state that all the rights of way had been registered on the folios. In addition, the Act did not consider that banks would then be extra careful following what had happened during the boom times and that they would refuse to sanction mortgages, thereby causing further delays, or that they would seek that extra inquiries be undertaken which, in turn, would result in loan offers going out of date.

Equally, it did not, as the Minister said, consider that unnecessary court cases would arise or that contracts would be left unsigned in markets which were fluctuating up and down. The Act also did not consider that land which had been used for agricultural purposes and rights of way would not have been registered and that rights of way for agricultural land would not apply to dwelling houses. Moreover, it did not consider that the Land Registry would raise queries, about unregistered land in particular, and cause further delays. Furthermore, it was not taken into account how impractical it would prove, in many cases, to require applicants to have to advertise in local papers for people who might wish to come forward with objections. Those sections, therefore, were totally and utterly out of touch with the reality of land ownership and the difficulties in that context in rural Ireland.

It had been the case that a statutory declaration could be given that a house or land had been used without let and hindrance for 30 years or more. If the situation was not broken, then why try to amend or fix it? The Act of 2009 had introduced the provision whereby, in effect, a landowner had to go-cap-in-hand to a neighbour to seek consent to the registration of a right of way. There may not have been any difficulties, but I came across cases where there was a shared entrance of a very small space, for example, and even though it was going to be mutually beneficial to both sides for someone to sign a consent the people involved were just not prepared to do that because they did not want to give anything away. In that way, any simmering or underlying tensions could have been exacerbated. Inevitably, as well, there was going to be a cost involved if two, three, four or five landowners had to seek legal advice, obtain folios and speak to their solicitors. It was, therefore, going to be more expensive even before the possibility that any court case was going to ensue.

Therefore, I welcome what the Minister has said. I agree with her that mandatory registration had not been working properly. I also welcome that the Minister has announced a review to take place before June of next year. That will all help. It will, hopefully, regularise the situation and allow more transactions and transfers to take place. Some of our team in the Seanad have proposed amendments. I am not going to talk about the foreshore side of things, however, and I hope that with the co-operation of all sides we can, indeed, facilitate the overturning of this difficult situation. The courts being closed during the pandemic also led to extra delays on top of the existing difficulties and the legal and practical complexities of registering rights of way were made even more difficult. I hope this legislation will go through the House speedily and I encourage that happening.

We feel this legislation is badly needed. Many of us, including the Minister, have been contacted by people in various solicitors' firms and by members of the public that have had major difficulties and problems with things that normally would have been undertaken with great ease in the past. The legislation in 2009 was mistaken in some of the things it tried to do. I look back and I try to think of why that was. I remember being in a solicitor's office one day around 2010 and he told me how he was after dealing with a gentleman who needed to get a half-inch water pipe to go across 7 ft. of property. The man who owned the 7 ft. of property wanted €80,000 to allow that piece of pipe to go across the property. It is understandable, therefore, why people were saying that it was necessary to find better solutions in this regard. While the 2009 Act may have been a genuine attempt to do that, it actually ended up causing more problems than it solved. We all recognise that.

There are issues in this regard for people who live in the countryside, who know farmland and the various issues associated with it. In my part of the country, we have co-meadows, which means several farmers own a plot of land. It is impossible to know where someone is. There are also, of course, mountains where commonages exist. All of those issues come into play. These issues are often relate to rights of way and entrances to properties and farmland. People can sometimes be difficult and have difficulty allowing somebody else access that has existed for generations. The 2009 legislation caused considerable difficulty for many people. Moving to try to allay those fears and go back to the way it was in the past may not be a perfect solution but it is certainly an awful lot better than what we have now. While reforms may be required, we need to move with caution when we move on any of these issues. That lesson has been learned. I hope we will be able to reform what we are putting in place now to deal with the small issues that can occur at times.

I come across such issues regularly, particularly in areas where walkways run through plots of land. Greenways have now become common and practical as people want to enjoy the outdoors. I know of many cases where people who use a marked walkway have veered off it onto private land. They consider it to be open mountain that belongs to everyone so why should they not walk it? However, it is not open land; it is private property. A constituent told me about a situation where he confronted somebody who came onto his property. That person was the best part of 1 km away from the marked walkway and was walking over rough terrain with a small child. My constituent asked what the person on his land would do if the child fell and broke a leg. He asked whether he would be sued by the parent in such a scenario because he owns the land. That is the issue that comes into play. Conflicts between property rights and the notion of the open countryside need to be addressed. We all want people to enjoy the open countryside but not in areas where farmers or landowners are liable.

I have come across many instances of people who have a property that includes a private lane running from a public road. Such a lane might service several houses. Sometimes landowners may also have access to that lane and because they have been moving cattle down the lane for many years, they have put up a gate. There is sometimes a row over whether the gate was left open or closed and that can turn into a High Court case. We all try to reason with people who come into our offices. We speak to them, try to make them see reason and try to find a solution. However, finding a solution is sometimes very difficult because people are prone to taking a tough position when it comes to property in Ireland. That is probably a result of our history and the notion of a landless and dispossessed people. When people finally get a piece of land, they want to hold it tight. We can understand that but, at the same time, we must try to apply logic and good reason. We must try to ensure people have civil discourses on these issues and try to find a solution. However, sometimes they cannot find a solution and when that is the case, we must come back to the law. We must find a law that serves the common good. That has been missing since the change in the 2009 legislation. It did not serve the common good and caused more acrimony and difficulty for people. This legislation, and the changes it provides for, will go some way to addressing that. The fact that we are facing a deadline of 30 November is not good but we are where we are and we understand that. We need to deal with the legislation quickly. I hope it goes through the Houses as fast as possible and that we can deal with it in a reasonable way. I encourage the Minister and her staff to bring forward the arrangements we need to update this legislation so it can work for everyone in the common good.

I will take this opportunity to bring to the Minister's attention a matter I regard as serious and which has been ongoing for a number of years. It is an issue that arose following the digitisation of land boundaries in Ireland by the PRA, formerly known as the Land Registry. It moved to the digitisation of land maps during my first term as a Deputy. Issues with one landowner were brought to my attention in 2015. There were clear anomalies between the Ordnance Survey maps that person had and the folio they owned, on the one hand, and the digitised map, on the other. Unfortunately, in that case, because the adjoining landowner did not agree that those anomalies had taken place, it ended up in court and cost that person €80,000. That is a devastating amount. Since that person's traumatic experience, for which the PRA refused to accept any responsibility, I have come across numerous other cases in County Donegal where it is clear that the digitisation of the maps has adjusted boundaries.

As the Minister will be aware, land disputes in Ireland can be very serious. In many instances, I am advised that, thankfully, neighbours have resolved the disputes themselves and agreed that the boundaries are not right. They have gone to the Land Registry and, apparently in some instance, resolved those anomalies because there was agreement. However, where the adjoining landowners are not in agreement, it can end in serious and costly disputes. In those instances, I am not aware of any occasion where the Land Registry has accepted its digital maps contained an error.

There was a report in 2014, known as the Prendergast report, entitled, Towards the Registration of Defined Property Boundaries in Ireland. Involved in that report and supporting it were the Law Society, the Bar Council, Engineers Ireland, the Irish Planning Institute and other institutions that work with surveyors, architects and so on. It was a report of the inter-professional task force on property boundaries. It identified these issues as far back as 2014 but the PRA has never accepted any mistakes or errors have been made. That means people end up in protracted legal disputes.

Six incidents have crossed my desk where I have no doubt there was an error. In the number of instances where I have engaged with the PRA, it has not accepted any errors whatsoever. It has refused to accept them. I understand parliamentary questions were tabled to Ministers, which will be on the record of the Oireachtas. Those Ministers talked about advice, exposure to legal costs and not wanting to get involved. That is totally and utterly wrong.

I thought this was just a Donegal issue but I have received correspondence in the past week from a family in County Galway who have also gone through this experience. I have spoken to that family and they told me they are aware of families in counties Clare and Wicklow who have experienced similar trauma. That is what it is. In some cases, lines are going down the middle of a field. Obviously, that is an error. Those lines should obviously be drawn along a bank or a ditch. In some cases, there are lines going through very old houses. Clearly a mistake has been made.

I will correspond with the Minister on this matter but I want to put on the record my belief that the digitisation process in the PRA has led to serious errors that have pushed people into protracted disputes with their neighbours and in some cases, I am sorry to report, with their families. Nobody is putting their hand up and saying mistakes were made when a blind man could see mistakes were made. I will correspond with the Minister and will bring to her attention the 2014 report I mentioned and its findings. This is an ongoing issue. I spoke earlier to an architect from County Donegal. That architect advised me of approximately 20 such cases in north Donegal. Some of them have been resolved because the people involved, thankfully, had common sense and agreed that the boundaries were mistaken and the error was corrected. However, many have not been resolved and it has caused untold trauma.

The person who came to me originally faced a cost of €80,000 but nobody will accept any wrongdoing.

When I correspond with the Minister and go into detail on some of these incidents, she should not say that she cannot comment on this case or that case. I guarantee her that if she surveys her Deputy, Senator and councillor colleagues throughout the State, she will learn of numerous cases where the digitisation process has led to errors that have caused untold trauma. When she has investigated this, there will have to be mediation for the families. Ideally, the PRA would consider all the cases and accept that mistakes were made, but the reason it is not doing so and departmental officials have not asked it to do so is the risk of exposing the State to financial costs and damages. We should say we are going to put in place a dedicated mediation system though which people must resolve these issues before they end up in court.

There are many families right now who do not realise that what I have described has happened to them but who will realise it in due course when somebody opportunistically takes advantage. I have seen too many examples in my county and further examples have been brought to my attention in the past week, so much so that I decided that I would speak out about this matter today and appeal to the Minister, with whom I will correspond further, to intervene and carry out a review of the PRA's handling of this whole affair, which is totally and utterly unacceptable.

I am glad to have an opportunity to say a few words on this rather unusual legislation. First, I must refer to the Minister's final scripted sentence, which was, "Time is short – we have just under two weeks." I welcomed her back yesterday but, in her absence, I raised on numerous occasions with the Minister of State, Deputy James Browne, the fact that a series of Bills was introduced here to transpose EU directives, some of which dated back almost 20 years. We were told that we had to do it because there was a deadline or that the European Court of Justice was about to fine us. As a matter of principle, I want to make a point before I get into the meat of what I have to say: the Oireachtas now seems to be the last thing to be considered, on the assumption that, if it is told a matter is urgent, its Members will all rubber-stamp whatever is put in from of them, be it an EU directive or otherwise. Quite frankly, that is not good enough. We used to have a committee on secondary legislation in the House whereby all secondary legislation was presented. There was a schedule so people were aware of what needed to happen. As a matter of principle, I make the point that it is not good enough for any Minister to tell both Houses of the Oireachtas they have two weeks to amend legislation we have known for years has presented difficulties for years and that they should get their skates on. This is very unusual legislation. It is not unheard of, but unusual because its impact is to undo what was presented as a reforming measure enacted by these Houses in 2009. I am referring to the Land and Conveyancing Law Reform Act of that year. That is not ancient history. The proposal at the time was to require mandatory registration of so-called prescriptive easements or profits à prendre of 30 November 2021. These lovely legalistic phrases – "profits à prendre" and "prescriptive easements" – mean nothing not only to most people in this House but also to any citizen who reads them. These are phrases that have very real and profound meanings, however. Easements are private rights held by a property owner over a property of a neighbour, including the right to access farmland or a home, or the right of way to use a laneway that runs through a neighbour's land. These are not small matters; these are profound matters. Distinguished playwrights have written impactive plays on these matters in this country. Rights include the right to use water or sewerage pipes going through a neighbour's land and a right of support between adjacent buildings under different ownerships. I have come across cases in respect of each of these rights. I, and, I am sure, others Deputies, know of purchases that fell through because a right of way could not be certified by a solicitor in respect of access to a sewage pipe, or even access to a piece of land to get to a septic tank or water scheme or system. These are extremely important matters for thousands of individuals and families. They entail access to the fundamental way of living. I know from talking to the Acting Chairman, Deputy Sherlock, that he has a long list of cases in east Cork. I would say every Deputy in the House has been aware of this issue arising in recent times.

Before 2009, a prescriptive easement or profits à prendre was usually verified by a simple statutory declaration of long use. That was not an onerous task. If one had made use of whatever the right entailed for years or decades, one made one's statutory declaration and that was acceptable. One's legal right was established.

Part 8 of the 2009 Act introduced a new requirement for a prescriptive easement or profits à prendre to be verified by a court order and registered by the PRA. We are aware that an amendment was introduced by the Civil Law (Miscellaneous Provisions) Act 2011 to add that if the prescriptive right was not contested by the owner of land affected, the claimant or applicant could, as an alternative, apply directly to the PRA to validate and register that right based on long use, without the requirement of going to court and bringing upon himself or herself the legal costs that would involve.

As with many laws that are considered good at the time of their introduction, not an awful lot is done subsequent to enactment to realise their intentions. This is also the case if, on reflection, they are not considered to have been good ideas to begin with. To ensure the implementation of the legislation in question, little was done until the reality finally dawned that a date regarded as distant in 2009, November 2021, was no longer distant. It is now upon us. The effect of the wholesale ignoring of requirements, whereby none of the rights has been registered or the great bulk of them have not been, is such that we are going to face a shock to the system and a monumental legal mess in a couple of weeks. It is a monumental legal mess largely unknown to those most directly affected because most of those who have not registered the rights they assume they have were unaware that those rights were going to vanish legally in a fortnight. In a way, we are going to enact legislation to take away that awful vista from them, and they will never know it was there in the first place. Maybe that is good but it is not the best way of doing business. We are now to reverse engines to avoid the chaos.

Unfortunately, all of this is dressed up in impenetrable language. I mentioned a few of the phrases.

With all due respect to my distinguished legal colleague who made a contribution but who has now left the Chamber, he was able to reference the doctrine of lost modern grant as if it is something about which we all know. I have no idea what the doctrine of lost modern grant is. Maybe it trips off the tongue of the Acting Chairman. Apparently, it is a very important doctrine. In essence, what we are being asked to do is to revert to the old rules, but we are also told that the people who gave us the 2009 Act are going to have another go as there is going to be another review and it will report next year. Colleagues have stated that if it is not broken, do not fix it. The issue of how rights of way and easements are registered, vindicated and passed on on sale is impenetrable and a cause of enormous concern to many people. These are important fundamental issues for many citizens, so we certainly need clarity in all of these things. We do not want to make it more difficult or impossible.

The best of neighbours may suddenly become difficult with one another when it comes to yielding a right of way. They may ask what it means, what are the consequences of it and whether it is forevermore. It might involve the laying of a pipe across a lane, but one never knows what the other landowner might do with that lane in the future. These are really difficult matters and can become matters of monumental importance on which local wars, and certainly local feuds, are often built.

The issue of rights of way is one on which we might have a more general discussion. I listened to Deputy Martin Kenny speak about common land and walking on it. Our neighbouring jurisdiction has rambling rights. There is no such thing as being able to sue if your child breaks a leg while walking on common land. You have responsibilities not to cause damage, leave litter or leave gates open, but you have a right to access the great outdoors and that is something we need to consider in any event.

Much more germane to the legislation before the House is the growing practice of the eradication of established rights of way. I can think of two such cases in my county, one current and one previous. The previous case involved a long-established right of way from a road down to the foreshore simply being extinguished by a local landowner. An existing lane was simply ploughed up and incorporated into a field and people were not allowed access anymore. That caused enormous aggravation and it was very foolish because although it was used only infrequently as a right of way, as soon as it was extinguished, by God, there was a major demand and march to ensure that right of way was vindicated. There is an existing case involving a lovely narrow coastal path fenced off by the council and so on. One local landowner said "No" and put up a monumental gate, which was electrified just in case anybody might be able to climb over it, to stop access to the next field where the right of way continues. We need a more general discussion on rights of way.

Apparently, all this is going to be reviewed again when, under the Bill, we revert to the situation prior to 2009. However, although this will settle old and existing claims and rights, a different approach might be taken in respect of new claims made after the enactment of the Bill. As the Minister indicated, special arrangements are proposed in respect of State land, including foreshore. It is envisaged there will be more onerous obligations on those applying for a right of way against the State and its property than those making a claim against a private company or individual. Why would it be right for that to be the case? One would think that if you are going to establish a right of way, irrespective of who owns the land, if you have the right of way, the same obligations would apply. Why does the Minister believe that proving a right of way against the State should be more challenging for a citizen than proving a right of way against a fellow citizen? Why are these special arrangements necessary?

As regards foreshore, it is an extraordinarily complicated area. I know a major motorway project was almost held up because a foreshore licence was required to be given to the public private partnership company for 25 years and could not be established. Eventually, we actually had to use the State Property Act to overcome that difficulty. It is to be hoped that the marine area regulatory authority will be established next year once the legislation governing it is enacted. I assume it will be the body that will deal with foreshore after that date. How does it fit into the legislative approach envisaged by the Minister? Perhaps she will give an indication in that regard when responding to the debate.

Insofar as the Bill goes, we are up against a deadline that would have, in my judgment, chaotic results if we did not undo the legislative buffer put in place in 2009 and would leave a significant number of people literally in a legal quagmire without rights they think they enjoy right now. Thankfully, the vast majority of them are largely oblivious to the fact those rights were to be taken from them a couple of weeks from now. In that context, we do need to enact this legislation.

The consultation by the Minister with the Law Society and legal practitioners is all well and good, but I ask that she consult Members of this House before the finished product arrives for us to deal with. With all due respect to legal practitioners, their business is about making money, and the usage of more opaque language, such as prescriptive easements, profits à prendre and all these doctrines of lost modern grant, is designed to ensure you have to go to your solicitor or legal practitioner for advice on how to proceed. It is like doctors writing prescriptions in Latin. It is devised as a mechanism to ensure you need to go to the professionals. All present are aware there is a legal cost for even modest adjustment in land boundaries. I have been involved in one or two such cases myself. As soon as you go to a solicitor to do that, there is no problem with it, but the clock is ticking. Even though a person may do a lot of the work himself or herself in terms of gathering title and everything else and presenting it to the solicitor, there is still a significant legal bill for the legal practitioner actually handling the conveyancing.

In the context of the review upon which the Minister is now embarking I ask her to consider that many Deputies have significant direct experience of these matters and that it might be worthwhile to speak to us in shaping this legislation from an early date through an appropriate committee, presumably the Committee on Justice, in order that we could start from first principles in terms of what is needed in a very complicated area of legislation and ensure we protect people to the best of our ability, as well as protecting individual property rights where that is appropriate, but also allow for transfer of rights in a way that is not ruinously expensive for individuals. I hope we could do that early next year and come back with reformed legislation.

We must do this to ensure we are not finding, in ten or 15 years' time, that it is not fit for purpose and we have either to, as in this case, expunge from the legal register and from legislation altogether or substantially amend. As far as is practicable, and I am not sure if it is possible, we must make the law understandable for people, whether they are farmers, homeowners or any citizens of the State, so that they can understand exactly what their legal position is. We must ensure it is not an impenetrable legal morass, that if you say the law in this area goes back to the 19th century, it already sounds expensive before you say another word. These are matters on which the practical experience of Members of the House can bring a lot of useful thought to bear at an early stage.

I welcome the opportunity to speak on this legislation. I welcome the Minister; it is her first Bill since her return. She is taking on a big beast here. For those of us who were here in 2009, there is a sense of going back to the future with this Bill. Very good reasons were laid out for the changes that were envisaged that are now being stopped. They are being stopped because they were not acted on in the intervening period. I accept the need for the legislation, because if it were not introduced, there would be chaos and a huge amount of disturbance, disruption and upset.

I, too, welcome the fact that there will be a review of the Property Registration Authority, PRAI. I listened to the debate earlier, which was slightly affirming, because I thought I had done something to the people in the PRAI because they are impossible to deal with and never get back to you. As far as they are concerned, we, the directly elected representatives of the people, are an irritant to their work. We only get involved when constituents, who have perhaps paid legal professions and cannot get a response, come to us. Really, it is one of the most frustrating Government agencies to deal with.

I will provide an example of a mapping case that I am dealing with. The original application was completed and lodged in August 2019. There was minimal progress in the following 12 months. My constituent approached me in late July 2020. We have been through the usual contact line that applicants are encouraged to use and we have submitted parliamentary questions. We have spoken to the offices of the Minister of Justice and the Minister for Housing, Local Government and Heritage, because for a while, there was a back and forth between both Ministers in respect of who was responsible for PRAI. It was like a game of pass the parcel. Meanwhile, my constituent has a family land issue that is not being resolved. Eventually, I got speaking to a human being in the PRAI. When I mentioned the word "ombudsman", suddenly there was a flurry of correspondence, but no progress. I have heard of similar experiences. If we are to proceed with a review, the Minister must start by changing the culture of the organisation, ensure it is adequately staffed, and that it is in a position to address the backlog of issues that are there.

Mapping issues are causing serious difficulties for legal practitioners and for us as public representatives. However, more important, mistakes in mapping issues are having massive consequences throughout the country. Coming from an agricultural background, the Minister does not need to be told about the importance of land and how it can assume an importance that may not be reflected in reality. It strikes me the PRAI has added to much of that frustration and worry through the many errors in mapping. Errors and human errors happen, but we should not defend the indefensible, dig in and refuse to work to correct them.

I absolutely agree with Deputy Howlin. If there is to be a review, this House needs to be involved. Indeed, I would even go as far as to say there are many former Members of this House who should be involved. For example, I think of Deputy Howlin's former colleague, former Deputy Willie Penrose. People like that, with really sensible and practical experience, need to be involved in it. Former Deputy Penrose could bring his legal expertise to the table as well. If we are to introduce the measures we have planned in the areas of housing and marine planning, and if there is an inefficient, weakened and unresponsive PRAI, as is currently the case, it will be the rock on which many of these plans will fall. The Minister must ask herself how, when the system had 11 years' notice to get itself ready, nobody saw this coming until the Law Society, the Bar Council of Ireland and various individual solicitors raised the issue within the past 12 months. Surely, within the Minister's own Department there should have been a system for measuring delivery on the responsibilities that were placed on the Department and the PRAI as a consequence of the 2009 Bill. Surely, there is a system in place across all Bills and Departments for measuring delivery on responsibilities in terms of enacting what is passed in the House. We should not have to keep coming back here with two weeks' notice to pass legislation like this.

If we are to conduct a review, it must be timely. We should go outside the usual suspects when appointing those who will conduct the review. The Government must try to envisage what these delays are doing to people. They are adding to their financial stress and worry, and they are adding to mental stress and worry. Once you get involved in legal issues around property and land, the process must be as clean and clear-cut as possible. In most cases it should be. However, delay after delay and not answering for those delays add to that stress and the cost. Surely, in this day of digital technology and all that goes with it, such delays should be left in the past.

I share the concerns and the interest around how this Bill and the review will align with the Maritime Area Planning Bill 2021, which is very important. A review in respect of the foreshore side of things has been a long time coming. It would be unfortunate if another Bill or another State agency, such as the PRAI, was not reformed and impeded the progress being made under the Maritime Area Planning Bill, which is so important. I would like to avoid a situation where we are going to the Minister for Housing, Local Government and Heritage or the Minister of Agriculture, Food and the Marine about foreshore bills when the responsibility lies with this agency. Again, it is essential this is done.

This Bill will save a lot of difficulty, inconvenience and stress. Questions need to be asked and answered as to why we got to this situation and why it was not highlighted beforehand. The Minister must commit to a major reform of the PRAI.

I welcome the opportunity to speak on the Bill today. I acknowledge the amount of work that has already been put into it in the Seanad. As someone from a rural constituency in the midlands, the issues and concerns regarding land and conveyancing can have a profound impact. I, and my constituents, want to see something that is fit for purpose, that does not have an adversarial starting point as a default and yet respects the rights of access. The Minister's Bill is welcome. We are keen for the comprehensive reform that was promised to be brought forward. I also agree with what previous contributors have said as it is of vital importance.

However, rights of way are crucial not only for access within our rural settings. Homeowners are unable to access their house either by foot or by car. Farmers need access for drainage and animal well-being purposes. The impact this has not only affects their daily lives but also their livelihoods. Following the enactment of that Land and Conveyancing Law Reform Act 2009, which has been spoken about, the position seems to have been that not only were very complex legal procedures required but an increase in cost came with those procedures. Deputy Mac Lochlainn mentioned an €80,000 bill earlier. That is not uncommon. That is something that comes up regularly. The entire process became so laden down with cost and box-ticking that, on many occasions, the ultimate outcome was that people were not able to engage with the process. Too many barriers were put in front of them. Particularly in areas like mine, these time-consuming and consistent deadlines that were involved pitted neighbour against neighbour and eroded the sense of community, because huge issues were being made of something that should have been quite easily rectified had there been a mechanism in place for people to engage in mediation and use the existing solutions that were in place before 2009.

We have raised concerns that the Bill does not fully restore the pre-2009 situation. We submitted amendments in the Seanad in an attempt to do so. It has been touched on briefly in terms of foreshore land. I understand that in some ways this is a technicality but it is very important to include it. The impact of not including it could mean we find ourselves again in this situation because we simply did not look forward with the view we should have taken. We do not want to be back here in another few years having the same conversation about where good intentions have failed due to a lack of foresight.

The Bill, although very short, will be a considerable source of relief to families, landowners and farmers who are concerned with the looming deadline of 30 November to register rights of way acquired by long use. The 2009 Act attempted to codify and update disparate and archaic land and conveyancing laws but it remains a highly complex and often contested subject.

Rights of way are necessary for people to access land for their livelihoods and even to get to residences. In an agricultural setting they are often associated with entry to land and connected with matters such as drainage. They also relate to access to the foreshore for activities such as traditional seaweed harvesting. They also relate to urban areas, particularly regarding access to utilities and communal waste systems. The Bill removes deadlines for the registration of rights of way or easements without needing to go to court which is, obviously, most welcome. However, it does not address the underlying issues and concerns.

The Department must have a very clear and detailed understanding of why registrations have not occurred over the past decade. Otherwise, exactly the same debates will happen in the House in five years' time. I urge the Minister to engage in a proactive programme to meet communities and stakeholders to understand the topics involved and make the necessary changes. As part of this, I welcome the announced time-bound review that will ensure the effective functioning of the law, but this cannot be solely a legalistic exercise. It needs to consider the perspectives and experiences of those who have engaged with the system or those who have been fearful of doing so.

At least anecdotally, it appears as though uncertainty and worry over potentially losing a right have prevented people registering. It has been acknowledged this is a very complex legal area that can be very intimidating to non-legal people. We need to ensure any registration and information system is as accessible as possible. Related to this is the clear need for a significant public awareness campaign that breaks down the issues involved and explains how they are relevant to various groups in rural and urban settings where particular issues arise.

The 2009 Act makes reference to rights over the foreshore, which is an important issue in coastal constituencies such as mine in Cork South-West. In particular, there are concerns about the impact of registering traditional seaweed harvesting rights. My understanding is that the removal of the deadline of 30 November also applies to these but I would be grateful if the Minister could make explicit reference to it in her closing remarks.

The Bill is very last minute, which is resulting in it being rushed through and much of the complexity is merely being deferred. There is no need to be rushing legislation through the Houses like this. It is unacceptable. The Government and Department were aware of the deadline. If it had been dealt with earlier, even with a stopgap measure such as this, it would have prevented concern and stress in many households and communities.

I cannot discuss this issue or comment on it without mentioning our larger treatment of public rights of way. Ireland has a much stricter regime than other parts of Europe due in no small part to fears of litigation. We need to have a larger conversation about rights of way and the possibility of opening up parts of cities and the countryside for active travel networks without absolute fear of litigation being instilled in people who own land. People visiting from Scotland and other such places cannot believe there is no access to land in this way.

I encourage the Minister to work with her colleagues to develop a framework for engagement with communities on this issue. This would need to be part of a larger discussion on the cultural aspects of access and protecting landowners. While the Bill is technical and addresses a particular deadline, it raises many questions and matters that need to be examined further.

We need the Bill. I listened carefully to the speech made by Deputy Howlin, who is now the Acting Chair. He spoke about the doctrine of the last modern grant. It has been revised and is back in business as the way forward. I read the Bill and, as someone who practised law quite some time ago but not in this particular area, I found it very difficult to do so. I stuck with it to read it. I thank the Oireachtas Library and Research Service for the Bills digest. It points out there was no pre-legislative scrutiny, which is very difficult for me. The Oireachtas Library and Research Service is under pressure. We depend on it completely to educate Deputies, including me, but we are placing repeated pressure on it to produce digests without enough time. I want to say this first.

The Oireachtas Library and Research Service tells us the interim Minister for Justice made an announcement on 21 September recognising the problem and stating something would have to be done. The Minister has now come forward and I welcome it. Interestingly, on the same day, Deputy Mairéad Farrell, my colleague in Galway West who represents Sinn Féin, received a reply from the Minister of State at the Department of Housing, Local Government and Heritage in which there was no mention of the problem. It was especially with regard to seaweed, on which I want to focus. Seaweed is not mentioned anywhere and neither are the rights of the traditional harvesters. This is something I want the Minister to focus on and clarify when she wraps up. It does not appear in the Bills digest or in the explanatory memorandum. We checked with the Oireachtas Library and Research Service on the interpretation of profits à prendre.

People were consulted, and as a former member of the legal profession I am delighted the Minister put value on the legal profession and listened to it. I would have been even more pleased if the Department had met the seaweed harvesters and the organisations that have been gathering seaweed for a very long time and are facing a deadline of 30 November. Nobody has spoken to them or listened to them. We tried our best as Deputies to explain. My colleague in Galway West was doing her best to try to explain it but it is double Dutch except the part about going to a solicitor, getting advice and making sure to act before the end of November. In the Minister's speech I did not hear any reference to this either.

My interpretation is that these men and women who have been gathering seaweed for a very long time in a sustainable way can relax that the deadline of the end of November is now gone. We can use LOL to describe the Bill: It is legislation of limbo. It will introduce a limbo period. I am happy with this but I want it clarified. Deputies have spoken about rights of way, and rightly so. We also have the rights of the seaweed harvesters. They do not need to worry anymore. They can look at this legislation of limbo with lots of laughs or lots of love. They have a period of grace and they do not need to worry. I will put it as simply as this.

I am so tired of this complicated language and the effort to understand it. There is an ongoing move in the Courts Service to simplify language and make law accessible to the ordinary person because, after all, they are the ones affected by it, whether by punishment or otherwise. Nobody can read this. I cannot read it, even with my experience. Perhaps there are other people who are better than me but it is extremely difficult. The reply to Deputy Mairéad Farrell and similar replies to me make it extremely difficult.

The only thing I understood from that was to go to a solicitor. I am repeating myself again. I was caught on the spot before I got my thoughts together. There are other points I would like to make. Is the message to the seaweed harvesters on the ground that they can relax? I see the Minister is nodding. I ask that she might put that into words later.

There is going to be a review. Will it be published for everybody? Prior to that review, what stakeholders will be consulted? That is very important. Clearly, these stakeholders have not been consulted.

Am I sharing my time with two or three people, or am I in my own slot separate from other speakers?

The Deputy is speaking as part of the Social Democrats slot and she has ten minutes left.

I thank the Acting Chairman.

Deputy Howlin mentioned the State. I have no difficulty with 30 years and increasing the period of time for the State. In contrast to what was said, my experience as a councillor was that I saw State land being taken over by private interests, particularly near the sea. It was just appalling. I have no problem if it is done properly but it seems to be stuck into this limbo legislation and I am unsure why that is. I am not sure how seaweed harvesters will be affected. If we are going into the 60-year period immediately on the passing of this Bill, how does that affect the seaweed harvesters? Are they in limbo or are they not? It is clear from this that we will be going back to ground zero, back to pre-2009, when the three ways that one could register and have a right were set out. First, there was the doctrine of the lost modern grant under the Prescription Act 1832. I can see that the Minister’s colleague in the Seanad went through that Act. There were various commentaries from various experts in law, including Professor Wylie, who called it an impenetrable Act, to put it mildly. That was one of the Acts. The other two ways were by prescription and by common law. I understand that all three ways have been brought back from the dead temporarily, two for a transition period in relation to what is pending or before the courts. When the set-up under the new Part starts again, we will be looking at the lost modern grant as the way forward.

As one can imagine, I am having difficulty with this. I used to think that Kafka was difficult but Kafka is very easy compared with all of this stuff. I was caught by surprise today. I am very grateful to Deputy Howlin. My major point is in regard to seaweed and those who gather it. I am very disappointed, and it is not the Minister's fault, that we have no policy on seaweed. In the previous Dáil, my colleague and I tabled a motion with the help of Sinn Féin and other Deputies on this side of the House. I tried to make that motion as non-argumentative and inclusive as possible. We highlighted and read out all of the reports that had been done. The interdepartmental committees and the cross-party committees recognised the importance of what traditional harvesters had achieved on the ground in the first instance. Of equal importance was the potential that there is in seaweed. I do not know how many years later it is now, but we have no policy on seaweed. They were utterly forgotten within all of this limbo legislation as well. I will leave it at that. I thank the Acting Chairman for giving me opportunity to jump in here. The Minister might clarify the points I have made.

We now move back to the Government speaking slot. I do not see anybody offering.

No, this is the balance of the Social Democrats slot. The Deputy's slot is yet to come.

I thank the Acting Chairman.

We are now moving to the Sinn Féin speaking slot and I call Deputy Tully who has three minutes.

I am not speaking.

As there is no Sinn Féin speaker offering, I move on to Solidarity-People Before Profit. Deputy Boyd Barrett has 20 minutes.

I will take the slot if the Acting Chairman wishes.

I may not need 20 minutes.

The Deputy will surely find something to speak on for 20 minutes.

Like many other Deputies, I have been caught a bit on the hop with the speed of this, not just today but in catching up with the issue. I am quite happy to admit that.

I agree with Deputy Connolly on the seaweed issue. It may be of interest to people, particularly those who are Bob Marley fans, to learn that his favourite food, which he thought was going to be available in abundance in Ireland, was a seaweed dish called Irish moss which is very popular in Jamaica. He assumed that when he got to Ireland, Irish moss as a food would be widely available but he was very disappointed to learn that it was not to be found anywhere. It is an interesting point about this huge resource with many potential benefits that we do not take half seriously enough. There are many other issues about the harvesting of seaweed, how we handle it and access to the foreshore for people who gather it. I believe that Deputy Connolly is completely correct in calling for a seaweed policy. The Government should take this seriously. It may seem silly but when one looks into it in any way at all, it is a very serious point. It is a resource, a pastime, and as Bob Marley understood, a food and healthy form of sustenance. It may have impacts such as the reduction of methane from cattle that are fed it. I have named just a few possible uses.

An interesting story about rights of way that comes to mind as I desperately leaf through my notes is that one of my political heroes, Karl Marx, was propelled into political activism by the issue of rights of way. This might be a warning to the Government. If it does not want a proliferation of people like Karl Marx in Ireland as a result of disputes over rights of way, it will need to get right the issue of how we handle and register rights of way. In the case of Karl Marx, it involved a campaign over the enclosure of woodland which had previously held rights of way for farmers, rural workers and people in rural areas of Germany. They had enjoyed completely free and unfettered access to woodlands to gather deadwood and to hunt for animals for food and sustenance. As part of the enclosure, commodification and privatisation of the common land and the forests, the previously free and unfettered access to woodlands became hampered by people fencing off particular lands and forests. This became a very significant area of dispute. There were pitched battles in Germany in the 1840s over access to woodlands and to what had previously been seen as common areas. It was that particular issue which politically radicalised Karl Marx and set him on the road to becoming, essentially, the pioneer of modern socialism. If the Minister does not want more revolutionaries, the Government may need to get the issue of rights of way right.

Obviously, I am not in a rural constituency, although a small part of my constituency is rural as one heads up into the Dublin Mountains and the border with County Wicklow. Some of the issues that are more familiar to people in rural areas have, nonetheless, an impact in my constituency. The foreshore issue has such an impact. For example, there was a right of way off Sorrento Terrace in Dalkey which was used for access down towards the foreshore facing Dalkey Island. When this was fenced off, it caused absolute uproar in the area. Our failure to delineate rights of way properly results in disputes. I understand that landowners have rights and concerns.

The responsibility for these things becoming very problematic, and rights of way not being fully protected, registered and mapped, ultimately lies with the Government. If it was more proactive in ensuring these things were properly mapped, there was a registration process and we did not end up with people engaging in protracted pitched legal battles and disputes between neighbours and within communities, it would be a good thing.

I am aware that we seem to be far less thorough than many countries in Europe in guaranteeing the rights of people to access rights of way and common land and to ramble freely across the country. In Germany, people have the right to roam freely in forested areas as well as unenclosed land like heaths and marshes. The freedom to walk and run in Austria's forests is enshrined in federal law. In Switzerland, people have the right to roam under the civil code, which extends to forests and pastureland, whether private or publicly owned. Swedish people have a right to enjoy nature everywhere, except in private gardens close to people's homes and on cultivated land. However, in Ireland things are far more restrictive. Something has to be done about that.

I think I am correct in saying that Sport Ireland Outdoors is responsible for waymarked trails in Ireland. There are about 40 waymarked trails, which seems to be a very low number when one considers the degree to which people have rediscovered the importance of walking in the countryside, on coastlines and in forests during the Covid pandemic. There are a few waymarked areas in my area, including the Wicklow Way and the Dublin Mountains Way. Due to the fact they are marked, people know where they are and people make a lot of use of the trails, which is a very good thing. They are a real boost to the available amenities for people. They enable healthy exercise, which has numerous benefits. Walking is a healthy and positive activity.

However, it appears a remarkably low number of trails and rights of way have been marked. I understand Ordnance Survey Ireland maps do not include references to rights of way, something which occurred to me recently during the campaign on Killegar Wood, which is a Coillte forest. As a result of a tip-off we received from walkers, we discovered it was being advertised for sale even though it is part of a marked walkway, the Dublin Mountains Way. Were it not for walkers who use the route regularly, I would never have heard about it and the matter would not have been raised in the House. Coillte would not have been forced to have to justify itself, and subsequently agree it had made the wrong decision and abandon the sale. As a result, a public amenity forest, right of way and marked trail have been saved from potential privatisation. Those who know where the trail is and use it regularly have done a huge service to the people of the area. Following the tremendous response to the campaign, many people have asked about the location of the walkway and have said they want to go there. I did not say this last week because we were so pleased to have stopped the sale, but the woodland should be developed as a community woodland.

When we discussed forests last week, it was noted that there is a commitment to develop community woodlands in forest policy, but the delivery on the establishment of community woodlands has been pitifully poor. A very small number have been developed. In the case of Killegar Wood, a popular outcry, spearheaded by walkers, led Coillte to abandon the sale and reconsider the use of the forest. In the conversation I had with Coillte, it hinted that it would move towards biodiversity usage and the development of a community woodland. That should be happening on a much more proactive basis across the country in a systematic way. We should be identifying, mapping and properly registering land with the State, possibly via local authorities, taking a proactive lead to identify where rights of way are located and making sure they are marked and the public is aware of them. There should also be a way to deal with any possible dispute that may arise because, as I want to repeat, I understand that landowners and so on have legitimate concerns.

I welcome that the Bill is dealing with the possible cliff we were going over at the end of the month. I commend Senator Alice Mary Higgins, who I believe was instrumental in ensuring the Government was made aware of the need to do this. Beyond this Bill, we need, in a far more proactive way, to understand the vital importance of rights of way, access issues, rambling and so on. That is needed even more after Covid with the rediscovery by many people of the importance of walkways. We need a proper system to protect them and deal with disputes in a manner which is the least onerous on people in cases where there may be disputes over those particular things.

I welcome the fact that the Bill is before the House and will bring a bit of legal certainty to this matter. It is something I raised in the Minister's absence yesterday. I welcomed her yesterday and congratulate her on the birth of her baby.

I have a question mark over the approach taken. It seems to be all duck or no dinner. Deputy Calleary outlined in 2009 the many reasons put forward for the proposed changes, and I can only imagine that they were along the lines of what Deputy Boyd Barrett has stated, namely the need for legal certainty. If there is a right of way, people should know that it exists. People need to know to whom the right of way accrues. Is it a public right of way that anybody can use or is it a private right of way that accrues to the owners of another property nearby that they pass over in the case of rights of way?

At the moment, there are rights of way by prescription and there may be public rights of way by prescription. Certainly, there are public rights of way that are not registered. Most would have been acquired through lost modern grant. A purchaser of a property may not necessarily know whether there is a right of way over that property. I presume these changes are being proposed with a view to bringing about legal certainty so that people can look a map, such as a Property Registration Authority map if necessary, and know whether there is a right of way.

That was what was proposed. Obviously, it was not very well advertised and a lot of people who enjoy rights of way did not register them. Something had to be done. The matter is now being resolved in this manner, which is simply to repeal the provisions. I understand this involves sections 33 to 39, inclusive. That goes back to the old system which does not require lots of people to institute legal proceedings against their neighbours, which is a good thing. They will not have to institute them between now and the end of November, with all of the chaos that would cause. The courts are already backlogged enough because of the measures taken in response to Covid-19 without adding that burden to them.

Why is it all duck or no dinner?

Could the deadline not have been pushed out and perhaps well-advertised, rather than just abandon the reforms that were sought to be introduced in 2009?

The other striking matter is Coillte, public rights of way and rights of way over public lands. Coillte lands are not public lands. They are owned by a State entity called Coillte. I believe we must re-imagine and re-question what Coillte and the land estate owned by Coillte are for. I can give an example. There is a wind farm proposed on Coillte lands not far from where I live. It is at the top of Slieve Bernagh and is called Carrownagowan. It takes in a number of townlands including Drummod, Coolready and Inchalughoge, but locals would know it as the congo. It is planted. In fact, Coillte put an amazingly ugly scar on Slieve Bernagh. It was a fire break, and Coillte just went in with diggers. I do not think it even had planning permission - it was 15 years ago - and it just cleaved into the mountain and dug everything out of it over an area that is about 10 m wide. It goes right up from the base. All soil was taken out so that fires could not spread. All the land is planted by Coillte and people walk it regularly. It is scenic. If one goes to the other side of it, one looks down onto Lough Derg. If one stays on the east side, one looks at the plain that the Shannon once flowed through as it went out through the Fergus delta rather than cutting through Killaloe-Ballina. Many people walk the land now. Coillte does not block that, but it does not do much to facilitate it.

As part of the promise to the local community, it is going to give a little money here and there. It is the usual stuff that developers do. Perhaps the State might act more gracefully or graciously, but this is the way Coillte is approaching this. It will give a little money to a GAA club here and some money to a GAA club there. It will open a visitor centre if it gets planning permission for the wind farm. What is stopping it doing any of this now? What is stopping it giving money to GAA clubs now? It is making money out of the area. It has vast areas planted. They are effectively dead. It is a monoculture Sitka spruce plantation, like the vast majority of plantations owned by Coillte. It will clear fell it and it will be like something from the "Mad Max" film by the time it is done with it. Nothing will live in it. There will be neither a squirrel nor a deer. Coillte will rape the countryside, as it does. It is not doing anything wrong; it is just doing what it is required to do by the law of this land, which is made by this Parliament. It will carry out its mandate and rape that mountain. It will give nothing back, not even a goalpost to the GAA club and certainly not a visitor centre because by the time it is clear felled, it will be the last place in the world one would want to be unless one is filming a post-apocalyptic film such as "The Road". That is what Coillte is about at present.

It has a couple of PR exercises. It has a new type of forestry in Connemara - Deputy Ó Cuív probably knows more about it - that is more sympathetic to the environment and so forth, but it is still just a tokenistic presence. The main focus of what it does is the monoculture Sitka spruce plantations. I have just spoken about the one on Slieve Bernagh. There is another on Slieve Aughty which is just across the valley in which I live. It stretches from Scariff up to Gort over to Loughrea and back. I have invited the Minister of State at the Department of Agriculture, Food and the Marine, Senator Hackett, to come and see the environmental destruction that has been wrought on the side of Slieve Aughty, but she visited the Irish Seed Savers Association instead. If one is looking for a PR shoot, one would go there. The Irish Seed Savers Association is great and what it does is fantastic. I would go there for my photograph rather than go to look at the handiwork of Coillte. However, we have to examine what Coillte does in terms of our environment and the impact it is having. It is not just Coillte. Coillte happens to be State owned, so it is within our remit or capability to address that. There are many large-scale private forestry owners who do the same, but their private property rights are guaranteed by the Constitution. It is not just in terms of the environment, but in terms of the amenity that forestry is in Austria and most countries, as Deputy Boyd Barrett said, and that it could be in Ireland. There is a tourism potential for this that is not being exploited. Aside from tourists, this is an amenity for our people and it is one that must be examined and exploited into the future.

Thank you, Deputy. I do not mean to pick you up, but perhaps you might reflect on the use of the word "rape". I do not think you realised-----

I meant it in a-----

I certainly did not mean it in the criminal law sense of the word, but in a different sense.

I will leave it with you.

No, I would like to withdraw that word.

Thank you very much.

Thank you for bringing it to my attention. However, it is the wanton abuse of the environment that has been entrusted to Coillte.

I call Deputy Cathal Crowe.

I welcome the Minister and congratulate her on the birth of a little girl, I believe.

Okay. It was one or the other. I congratulate her again and it is great to see her back. Well done on taking maternity leave. That was an important thing to do and showed how this House should function.

Fianna Fáil fully supports the Land and Conveyancing Land Reform Bill 2021. It is very important because there is currently a huge backlog of applications to PRA for prescriptive right-of-way registration. The authority simply will not get to all of them, so it makes sense that we prolong this process and allow it to be pushed out further. We also must scratch our heads and think about whether this is the right process. Prior to 2009 the process by which one could register a right of way was by getting a statutory declaration verifying long-term use of a particular passage to get to a piece of land. Since 2009 that has to be nailed down through a court order. Again, we are clogging up the court system and we must ask ourselves whether that is the right mechanism to do this. It is a double-edged sword. If one is claiming a right of way, the simpler one makes it, the more positive it is. However, if one is trying to defend against a right of way declaration, one certainly wants the backing of the legal system to support one in that regard.

I will refer to one or two other points. One is the Lissadell House Supreme Court case in 2013, which was Cassidy and Walsh v. Sligo County Council. I do not wish to comment on that case, but since that decision was taken by the Supreme Court there has been largely a hands-off approach taken to public rights of way. County councils run for the hills if a community group puts in a submission for a public right of way because they fear the same legal and cost exposure that Sligo County Council encountered in 2013. There are public rights of way, and other Members have mentioned them. Many of them have not been registered thus far. The only public rights of way one will see mapped and coloured yellow on the PRA website are the public rights of way we call local roads or access roads into council-owned land. Local authorities and the State collectively have ignored hundreds of public rights of way around the country and we have not provided a proper mechanism by which to register them.

I will finish by painting a picture, and I am sure rural Deputies can relate to this. Some graveyards are at the side of a road. When there is a funeral the cars pull up, the gate is opened, the coffin is brought in and the funeral happens within the four walls of the graveyard. However, there are many rural graveyards that are located at the top of a hill, surrounded by farmland. They are like islands. Many of them date back to the 17th and 18th centuries, when the landowner of the parish would have gifted a parcel of land to the diocese or perhaps the local authority - it was the public health authority at the time - at the petty sessions courts for burial plots. These parcels of land exist like islands. Cattle graze the lands around them. There are dock leaves, ferns and rushes, and one has to go from the public road up through farmland to get to them. Most of these graveyards do not have registered public rights of way, but they have rights of way and we must acknowledge that.

I have seen two very messy scenarios in County Clare, in my parish, in fact, where individuals were told, "You do not have a right of way through my precious land to get to the burial ground". How in the name of God did we bury grandparents, great-grandparents and all the past generations and how will we bury the future generations? There are many people in my parish who in the coming years, sadly, will be buried in that burial plot. Are we supposed to helicopter them in? Are we supposed to interface with young bulls and cows in the field because that is what is there at present? Over the winter months do we interface with a round feeder that is piled high with silage and with cow dung all around it? The right of the people to go to the place where they have buried their loved ones is enshrined in every country and it must be enshrined in this country. Where there is a burial ground on the side of a hill or in the middle of a farm field we must recognise wholeheartedly, in the State and in the judicial and legal system, that the people have an indisputable right of way.

No farmer, landowner, prospective developer or person applying for planning permission can deny them that opportunity. That needs to be tightened up and copper-fastened. It is not covered in the Bill.; rather we are dealing with procedural stuff and the mechanisms for registering rights of way.

A significant loophole is being left. Governments over the past 90 years have ignored this; we need to deal with it. I can see other Deputies from rural areas nodding their heads. These types of burial grounds are everywhere. It is fine saying, "Sure Johnny and Mick always got on; they were always able to walk up along there." That may have worked for previous generations, but we are slowly moving on. With the passing of one generation, the crowd that comes after them can make it quite difficult. They lean back on the law and say, "Look, here's my PRA map. There's no yellow colour on that. There's no registered right of way so I'm digging my heels in and to hell with you." That is happening too often in rural areas. We need to tidy up the law in that regard.

The Land and Conveyancing Reform Law Reform Act 2009 was a significant modernising law, which brought our land law into the 21st century. It repealed 150 pre-1922 Acts, including one from 1285. However, there was a serious flaw in the 2009 Act relating to transitional arrangements on easements. It was amended by the Civil Law (Miscellaneous Provisions) Act 2011. The 2011 Act extended the period within which prescriptive easements required under the old law could be registered for a further nine years. I hope the new Bill will simplify the process for registering rights of way. The current law means that, in some cases, complex legal procedures must be undertaken to establish proper rights of way. This can lead to unnecessary expense as well as delays in progressing sales of land and homes.

There are issues with mortgages where banks have asked for proof of access rights that are onerous for property owners to provide. Rights of way are essential particularly, although not exclusively, in rural areas and must be protected. For homeowners they can often allow access to a home by foot or by car. For farmers they can affect access, drainage and many other issues relating to farming. Failure to address this issue could lead to land and homeowners not having proper access to their own homes, which has the potential to flood the courts with cases. This Bill does not fully restore the pre-2009 situation and Sinn Féin will table amendments to address this.

I am concerned about the effects of this legislation on the rights of periwinkle and scallop pickers, seaweed harvesters, seagrass harvesters and bait harvesters. The measures relating to the foreshore land also have the potential to affect these categories of individuals. I would like the Minister to commit to examine this issue as part of any review in the area.

We need a fit-for-purpose system that is non-adversarial and respects rights to access. The new enabling Bill is welcome, but we are keen for the more comprehensive reform that has been promised to be brought forward. We also want amendments implemented so that the pre-2009 situation is more fully established.

I welcome the Minister back to the Chamber. I congratulate her on the birth of her baby.

I welcome the Bill, but it should have been introduced a long time ago. I wish to address some issues in my constituency. I live in a rural constituency and the issues I come across create considerable anguish and expense. People have needed to go to the courts to define something that should be very simply done by another process. An independent dispute-resolution system needs to be set up to address disputes as they arise. Solicitors may not like what I am saying because there is a business there to be done. It is important for us to simplify the process by which disputes over rights of way are addressed. Any dispute between two people should be brought into a process with an independent arbitrator making a simple adjudication on it in the first instance. We should not make it more cumbersome but, instead, make it simpler and give comfort to people such that if they feel their right of way is being taken away there is a course of action they can take that will not cost them a fortune, possibly involving taking out a loan, to try to defend their rights.

I know of couples who have been in dispute with a neighbour over a right of way and it has put years on them. Sometimes these things happen. As other Deputies said, it is a generational thing. John and Pat might have had a great relationship with no paperwork and they all worked together. However, once it is handed down to the next generation there could be a different attitude. A dispute may arise over something very peripheral and the next thing is somebody is refusing another person the right. It can happen with graveyards that someone will not allow other people to get into the graveyard and we need to dispense with that kind of issue.

I often come across issues with the PRA. I get responses from it when I submit a query, but the system is wrong if the query must come through a Deputy to find an answer. It is broken if we need to rely on that. Increasingly solicitors are sending me queries because they cannot elicit a response from the authority. That is wrong and we need to resource the authority to do the job it is supposed to do. In this age of digitalisation, we should be able to do our maps in a quick, efficient and accurate way. However, it seems to be a cumbersome, detached system that does not interact with the public and with people who want to get registrations completed.

Normally the registration of properties and rights of way does not come up until something is wrong. It could be that somebody is selling a property or land and when the solicitors do the due diligence on the properties, it is not clear whether there is a right of way to access the property. This needs to be taken out of the system and all rights of way need to be mapped. It will take time, but we need to start it.

Human errors happen. Surveyors may draw up a map and human error happens. The PRA makes errors, but the problem with it is it is so entrenched in the way it does things that it does not actually interact with surveyors or solicitors to get the problem sorted as quickly as possible. I am aware of a case that has been going on for approximately five years without resolution. I have been told the PRA cannot give a timeframe for when it might be resolved, causing anguish for the property owners. It is unbelievable that in this day and age we cannot even elicit a timeframe for a simple query to be answered.

Why are we discussing this matter today? We have had 11 years of notice that we need to do something with the law and we now need to do it within two weeks. I support what the Minister is doing, but there is something fundamentally wrong with rushing legislation as important as this, which can have such an impact on people's lives when it is enacted. Hopefully, it will be a positive, but we do not know because we are going to enact the legislation and see how it works. It is too long to wait 11 years to do something and then do it in two weeks. The due diligence required on legislation such as this cannot be done in two weeks. It is not the Minister's fault, but somebody needs to be accountable for not getting these things right in a timely fashion. It reflects what is happening in the PRA. There does not seem to be any timely way that it can work to get things done to a timetable. This legislation is probably proof of that because we are here today with a deadline of two weeks and our backs against the wall.

Regarding forestry, most people believe Coillte is a good organisation and I agree. However, the public should have more rights to use Coillte lands as an amenity. I agree that the types of tree we have planted over the past 20 or 30 years are not good for this country. I recently had occasion to visit County Leitrim to see the situation at first hand. What is going on there is terrible, but that is a separate issue.

The right of way people enjoy for public amenities should extend to Coillte lands and other publicly owned lands, even if they are semi-State companies.

I support what the Minister is doing but there is a hell of a lot more for us to do to resource the PRA, so there is no excuse. I ask for a commitment on putting in some sort of a dispute resolution mechanism to solve the question of legal rights of way in a very timely fashion. That, in itself, would be a major positive for people who find themselves in dispute.

Cuirim fáilte roimh an Aire go dtí and Teach and I congratulate her on the birth of her son. I welcome this legislation because if it had not been introduced, we would be going over a cliff at the end of the month. This must be the beginning of moving forward on this matter because as we move through generations and life gets more complicated, the question of rights by long-established usage becomes a vaguer and more difficult concept. The reality is that as long as people agree, we can all keep away from the courts. When people disagree, ultimately the courts are the only place for resolution.

A previous speaker stated we could set up an arbitration board. My understanding is no matter what kind of arrangement like that is put in place, everybody ultimately has a right to go to court. A civil court is the ultimate arbitration board in the State and everybody has the right to go there to defend or vindicate whatever they believe is their right. Unfortunately, people are often more than willing to go to court over property rights and people get very possessive over even small pieces of property. We also see all the time how people can get very possessive where others try to take possession where people have traditionally walked.

As I live in the countryside, I am familiar with the matter. In most places, people could go anywhere as people were fairly easy-going. There were many mass paths and so on. It is interesting to record that in a book written about the Cong area in the 19th century, it was well recorded that local people put up with every kind of hunger, privation and whatever else until somebody happened to close a mass path. It may have been the Guinness family, or in other words, the big house. It is very odd that under a previous owner a similar position arose around Ashford in the present generation, and it just shows how deeply these issues run within communities and so on. Therefore, the idea that the old arrangement was ideal is a rather innocent view of life.

We have experienced in recent times people trying to take possession, perhaps buying a home and not going with local habits, if I can put it that way. They may try to exclude people from going to beaches, piers or other such places. It can become a matter of serious dispute within communities. At the end of the day, those with the deepest pockets are in the best position to fight these matters. The idea of moving forward with the subject of the legislation is therefore very important, and I hope when we pass this very necessary Bill so it will not be mandatory to register these rights of way to hold on to them, the matter will not be left at that. We must deal with the issue and make the process as easy as legally possible. Where people are of different views on rights, I do not foresee that cases will be prevented from winding up in court. I would like to see a Solomon to come up with a plan to achieve that but I cannot see how it would be done. Where there is agreement, the process should be as simple as possible and go straight to the Property Registration Authority. Where there is a dispute there could be dispute resolution but, unfortunately, the courts are the ultimate dispute resolution process.

I real when we started working on rural recreation, this matter came to the fore. Many people were positive about allowing recreational use across land but it took just one objection for people to be blocked from opening a recreational path. There would then be an argument that it had always been used in a particular way and so on. Again, we would be back to the question of whose right would be vindicated; it is an unsatisfactory position.

Following the 2009 and 2011 laws, issues arose as a consequence that may not have been foreseen. I see this as a learning exercise so we can now address all these matters. Every problem should lead to a solution now that some issues have arisen because of the law. I am not talking about those we are doing away with in this legislation, as other issues arose. It is time for us to deal comprehensively with the matter. We must try to establish a clear right that will not be expensive for future generations to vindicate time and again. That was the purpose of the 2009 law but I fully agree that in the end it did not give enough time to people and the process became very complicated.

The idea that it would not be useful for the vast majority of these to be written down, recorded and established is a rather innocent view of the way the modern world has developed. Encouraging people to establish these rights and have them recorded is something we should definitely work towards and seek to implement. I welcome the Bill but I see it as the first step. We must be very clear that this the beginning rather than the end of a journey. This entire complex matter must be addressed comprehensively.

Sinn Féin missed a slot but its Members are more than welcome to use it. There is another slot further along for the party as well.

I will need a maximum of three minutes.

There are three slots of three minutes each. There are three names in front of me now sharing three minutes so I am just pointing out there are other slots.

I take this opportunity to bring to the Minister's attention, as others have, a matter arising relating to the Land Registry. This is where a mistake has been made with what is registered with the Land Registry compared with what is contained in the deeds of the original contract for a home. If everybody complies, the process is quick, smooth, efficient and relatively painless, without much cost. I have an example where a neighbour is not inclined to co-operate, which forces a person who has done nothing wrong in buying a house into the possibility of going to court. It is not that person's mistake.

The mistake is with the Land Registry. That seems to be the only recourse. I have submitted parliamentary questions on this and made inquiries. In this scenario, the only people who will benefit from this are the lawyers, as the Minister will be aware. This is of no benefit to the homeowners or, indeed, the Land Registry or the process. It baffles me that they should have to go to court. Given what was under discussion, it was appropriate to bring that to the Minister's attention. This will end up costing a lot of money simply to rectify something in the event that people want to sell their homes and a big chunk of their driveway, essentially, on paper, according to the Land Registry, belongs to their neighbour, when it does not. They did not buy it.

I want to use this opportunity to put this on the Minister's agenda. It is an issue that requires attention because it cannot simply be the case that the only recourse people have is to the courts on a matter as important as the space taken up by their house, which they have paid for and should be entitled to enjoy the benefit of.

The Bill removes deadlines for the registration of easement, or, as most people call it, right of way. Under current legislation, certain rights of way had to be registered before 30 November 2021 to avail of a registration scheme. The Bill will remove current statutory deadlines for the registration of rights of way, in particular. The Rural Independent Group welcomes this Bill and will support it. In fact, many Deputies within our group have been calling for the removal of the deadline date to register a right of way, as it was causing a great deal of stress and anxiety in rural communities.

This matter was a cause of great concern for many rural dwellers. If the concerns we relayed to the Government were not acted upon, a large volume of unnecessary court cases to protect rights, which have been enjoyed for generations, would have been taken. Equally, the entire matter had the potential to cause a lot of bitterness between neighbours, expensive legal costs, and additional court backlogs.

I welcome the decision taken by the Government, which essentially means the law applicable to easement and right of ways will largely revert to the common law that applied before the 2009 Act. I welcome the fact that a full time-bound review to identify the most appropriate long-term strategy for rights of way will be undertaken. However, common sense, workability and practicality must be at the heart of any revised solution.

The cost of solicitors to register rights of way is a major concern to people who were ringing my office. They were worried about the cost and how far it would go before they would find out exactly how much it would cost them, and the time it would take to get this done in the courts. The courts are tied up with quite a lot already and do not have the time to deal with these issues as well. The difficulty was always going to be between neighbours who were sometimes friends, which is a massive concern, and relations could have turned very bitter regarding rights of way. It has happened down through the generations. There was a strong possibility that it could happen again. It could have turned out that there were planning issues, and everything could come into play here.

I listened to different Deputies speaking in the Chamber today. A lot of them made an awful lot of sense. Deputy Cathal Crowe mentioned the surrounds of graveyards and no public right of way to old graveyards. That may not be used that often but it can be used sometimes. Even though it is a slightly different issue, the condition of some of those graveyards today is scandalous. It is sad when I think of the number of people who contact me about this. There is one in Castletownbere. The engineer does not seem to be interested in getting someone in there to clean it up. It is sad that hard-working people have lived their life and when they died, their burial place was neglected because it is not a graveyard that is used every day of the week.

On right of ways, we have heard quite a lot about woods and Coillte and forestry. I raised the issue of Ballymartle woods in Cork yesterday, which badly affects the people of Kinsale, Belgooly and Riverstick. I raised it with the Taoiseach, and, in fairness, he cannot come back to me that quickly. Coillte has come back to me and has stated that it will not sell all the land. It intends to sell some of the land. The people of Ballymartle are adamant that those woods will not be sold. We had a situation, about which Deputy Boyd Barrett spoke earlier, in Enniskerry where a sale was stopped. I plead with the Government to step in here. Coillte is a State agency. People use those forests and wooded areas for walks. Green areas and amenities are good for their mental and physical health. I would like Coillte to meet with the people of Ballymartle and allay those fears and, maybe, withdraw the sale of those woods. Perhaps it should consider giving some of the woods to the local community.

I would like to talk about the different walks, including the Sheep's Head walks. I should not name people, but James O'Mahony was probably the first person to mention rural walks and the Sheep's Head Way, which won the best walk in Ireland in 1996. Why would it not have? When one walks the Sheep's Head Way through Kilcrohane and Durrus and looks out across the Mizen and Beara peninsulas, it is as though one is entering into heaven. James O'Mahony led that charge many years ago. He spoke to people when they did not understand what a walkway would be like going through their farm. I made that fabulous walkway along the Sheep's Head Way. We need to commend him and others that are doing so.

I warmly welcome the Bill. It is certainly an issue that I and other people have campaigned long and hard for. For example, many solicitors in County Kerry contacted me. Their offices were closed because of the pandemic, which was necessary for the protection of people's health, but when they and their staff came back to work, they were up against it with their workload. They also had the impending deadline of 30 November by which they were being requested by their customers to register these rights of way. I very much welcome the fact that the Bill will remove this deadline and allow for a simpler system to be used. That is most important.

The problem the Bill tries to fix is when buying or selling land property, important to know the rights of way or easements attached to the land and property, and who, other than the owner, can access the land or property. The Law Society pointed out that a typical semi-detached house in the suburbs of a city or town would have a number of the deemed easements or right of support, often an easement, for the use of a combined sewer, combined surface water and drain, a right to light, a right to easement for overhanging gutters, etc. It also noted that easements in rural areas cause problems, for example, where there are too many owners who would be required to join in a deed of grant of the easement. It is not unusual to have up to eight or nine owners of part of an access road. The Property Registration Authority also had issues.

The major issue the Bill aims to fix is that the transition period in which the registering of easements, without the need to go to court, which was due to end on 30 November, is to be taken away, and that is warmly welcomed. I know solicitors and their clients welcome it. The one thing that we all want, when a person is buying or selling or wants to rectify their properties when they are making wills and dealing with their personal affairs, is for the whole system to be streamlined, easy and user-friendly. Most importantly, we want it to be cost-effective. We do not want people to have to incur large bills. Our solicitors in County Kerry, for example, and in the rest of the country are busy enough. They are not looking for work. They are looking to create an account for a person dealing with the registration of their properties or their rights of way.

Everybody welcomes this Bill. It avoids adversarial situations in which people have to go to court where there may be a dispute or a problem, or any type of ill will in dealing with a situation. It would be great if we can streamline it and have it workman-like and cost-effective. For these reasons, I welcome this Bill.

If Deputy Mattie McGrath was here, he would warmly welcome this Bill.

Like me and others in our group, he has continually said that the deadline should be extended.

When talking about Deputy Mattie McGrath here this evening, it is only right and proper to wish him well in his recovery. We all look forward to the day when he will again be in his seat here, from which he has served with distinction for many years. He has always been diligent on behalf of the people. When a person is ill and in a bit of difficulty, we all want to stand shoulder to shoulder with him or her. We are all thinking of Deputy Mattie McGrath this evening and every evening he is not here. We look forward to him being back in the driving seat very soon.

This Bill is very much to be welcomed. There was a problem, it was identified and the Government listened. As the Minister knows, I will attack when needed but I will thank, compliment and say "well done" when something is done well. In this case, I say "well done" to the Minister, to her Department and to the people who saw the sense in bringing forward this Bill to rectify an issue about which we were all worried and concerned. It is very easy to attack but it is also very easy to thank the Minister very much for what she is doing. I have already welcomed her back to her position privately but I now do so publicly.

In 2009, legislation relating to rights of way was temporarily sorted. Since then, many people faced last year's dilemma as there are serious flaws in the 2009 Act. The Rural Independent Group made several recommendations to Government to defer the looming deadline to register the easement of rights of way by the end of November this year. We welcome that common sense has prevailed and that there is now a commitment to conduct a time-bound review to see what is the best interim strategy with regard to rights of way.

There were two errors in the amendment made. One related to access to homes through rights of way where the council did not have a charge on the access road. The second related to farms that can only be accessed through rights of way the council does not own. The system originally seemed good as it did not involve an application to the Circuit Court, but easement of rights of way can only be acquired on registration of a court order. A right of way has to be registered with the Land Registry. This has proven very difficult in many cases. One example of this arises where several people live on a stretch of roadway that is not public and one of these people decides to sell. Each person on the roadway must then agree to open the right of way to the new buyer. If they do not, the matter has to go to court, pitting neighbour against neighbour and resulting in anxiety, stress and considerable cost. Sales of such properties have fallen through and properties have been sold at greatly reduced prices. If people do not validate their position regarding a right of way, they will find themselves in a very difficult position when selling their property or raising a mortgage.

In a village in County Limerick, a person was living in a house that was built by the county council before it became Limerick City and County Council. The owner passed away and left the house he had bought off the council to his four children. The four children are housed and decided to sell the property and divide the proceeds between them. They then found out that, when the county council did its land conveyancing many years ago, it left out a small strip of land, 6 ft deep and the width of the house, between the front wall of the house and the main street in this particular village. This has resulted in considerable costs for the family. They have gone back 87 years and have found out that no member of the family had owned the land the council originally built the houses on. They have lost three sales as a result of this strip of land still not being registered correctly. I am talking about a strip 6 ft wide and 20 ft long. The county council has put in wheelchair access on this land for the person who lived in the house and has done maintenance within the house but this issue has fallen through the cracks. The council should have bought the property back in light of the mistake it made in its land conveyancing. It has put the family through an awful lot of stress and anxiety because of this mistake. The price of this house has actually reduced by €50,000 because the family want to sell it and have been told it could take up to seven years for this to be sorted out. There are people on housing lists waiting for houses. Considering the number of people who have tried to buy the house, it is unbelievable that this could happen.

Deputy Crowe mentioned graveyards earlier. There are an awful lot of graveyards in the middle of fields where I am from. I refer to the likes of Ballynakill and Anhid. There are an awful lot of graveyards within the county area where people going to see their deceased loved ones have to rely on rights of way. I have visited many of these graveyards where my own family members are buried. I am thankful to the people who let us use these rights of way but it should be a legal right.

I, too, congratulate the Minister on the birth of her child and wish her well for the future. I am glad the deadline of 30 November has been set aside. I called for this when I was first elected to the House in early 2016. I also called for it numerous times this year here in the Chamber. I told the Taoiseach that things were not working as they should as a result of Covid and the coronavirus and asked him at least to extend the deadline to account for that period. This is better. The Government is going to do something more and I appreciate that. I realise it will not be very easy.

The deadline was wrong in many ways. First, not everyone knew about it. Those who did were very worried about it and did not know what to do. Whatever rules are made next June, they need to be publicised so that everyone will know about them. There needs to be a lot of interaction in here, out there and everywhere to ensure that we get it right. Whether determined by long usage, which we are now reverting to for the interim period, or by another method, there will be people today, tomorrow and every other day seeking to rectify their situations. I know of an incident where a Dublin couple bought a house in rural Kerry and, after six or seven years, wanted to sell it. They had to get the signatures of 14 people along the road before the sale could go through. There have been disputes and rows over rights of way. They have been a recipe for rows that lasted years and years. I know of one case not too far from where I live where one of the people involved in the dispute over a right of way lost some of his faculties and was never the same man again after that serious row.

Having to institute legal proceeding against neighbours or having to get them to sign documents is all wrong. I advise neighbours to go as far as they can towards agreement. People should ask their neighbours if they mind them registering rights of way over their land. They should go that far because letters from one neighbour to another were coming out from solicitors' offices and that was very hurtful and caused rancour and dispute in respect of rights of way.

The deadline was also wrong in another way. People had to have been using these rights of way for 12 years. Some people may have been using them for ten or 11 years by this 30 November.

As a result, they would not have been able to register them, which would have meant they would have had to have gone back to the start to regain their long use status. That aspect of the 2009 Act was wrong.

There is an awful lot of work to be done to ensure we get this right. Disputes over rights of way and boundary ditches have been keeping the courts busy for a long time. We need to get it right. It needs to be advertised and some allowance needs to be given for submissions to be made, whether independently, by parties or whatever, to see how the new system will operate. Many people must be allowed to have an input to ensure we get it right this time. Issues such as the width of the right of way and so on need to be sorted out because otherwise there will be a need for more court cases, which are very costly for whoever loses. We should avoid that and have some simpler system in order that people will not have to resort to that.

I thank the Government for acceding to my request to extend the deadline until next year when it will bring forward a new proposal.

This is not the first interaction I have had with the Minister in the past while but I do not think I have welcomed her back to the House, so I do so now. She now has one of the most difficult jobs anyone has ever had, not to mention the difficulties that relate to ministerial office.

There is general agreement across the House regarding the fact this legislation is necessary, given we are about to hit a cliff edge. Even so, it was pointed out by some of my colleagues, and we have proposed amendments relating to this, that the Bill will not necessarily get us to the point of pre-2009 as regards rights of way. We all want a review, best practice and a non-adversarial system in respect of arbitration, which, as has been generally acknowledged, works perfectly as long as everybody is willing to work alongside one another. Insofar as we can, that is what we need to put together.

We have all dealt with many legacy issues relating to rights of way. Some of the issues that were mentioned relate to badly recorded information on the Land Registry by the PRAI and the significant issues that has caused for homeowners and others. I have encountered issues where strange anomalies have happened, such as a small piece of ground that seemed to be owned by a homeowner being taken in charge by the council, where it did not matter until it mattered. In trying to get such issues sorted out, people can involve themselves in a considerable level of bureaucracy and may not necessarily get to point B without a great deal of pain, difficulty and time. These are all issues we need to deal with.

In the context of rights of way, access points and so on, the issue of mobility we hear about in respect of planning sounds great and we all want to live in a world of active movement and travel. We need to facilitate people in walking or whatever mode of travel they choose, but we have seen the difficulties this has caused, particularly in certain housing estates and so on where it has created rat runs. We need an overall way of dealing with this. In this context, there is the issue of insurance and the associated difficulties, and the Minister needs to move forward with the duty of care legislation, which is badly required at this time.

I welcome the Minister back to the House, as other Deputies have done, and wish her and her family well in the years to come.

This is an important and urgent Bill and I support it in its intention to remove the current statutory deadline of 30 November 2021 by which to register easements without the need to go to court. The potential impact of not extending this deadline is very worrying and could see those who currently have rights over State land being deprived of those rights or at least having no means of registering them if an application is not made before 1 December 2021. This legislation is badly needed and is essential for farmers as well as those in rural communities such as Donegal.

The 2009 Act introduced a requirement for a prescriptive right to be verified by a court order as well as being registered with the Property Registration Authority, PRAI. In 2011, however, an amendment was made that allowed the claimant to apply to the Property Registration Authority to validate and register his or her right based on long use provided that the prescriptive right was not contested by the owner of the land affected by it. This provided a much simpler process and made it far easier for people to register easements. It proved to be a much better system than the previous one and we should continue to allow the PRAI to validate as well as register rights to allow for a simpler, cheaper and more effective process.

If we were to keep this deadline in place, we would face an unprecedentedly large increase in the volume of unnecessary court cases to protect rights that have been availed of for years. It would cause unnecessary solicitor costs, court costs and added court backlogs, as well as unnecessary stress between families and neighbours. This would be especially complicated in instances where there are many landowners in one area and would give rise to unnecessary disputes in such instances. It is clear that, should the Bill not have passed before the transitional phase ends on 30 November, there would have been a negative impact not only on our courts but also on citizens who have potentially enjoyed their rights for generations and those citizens who wish to register easements in a simple and cheap manner in future.

As well as this, the Law Society of Ireland has highlighted other issues of great concern regarding the coming statutory deadlines. It has stated, "If an application to validate rights over State land is not lodged before 1 December 2021, no application can be made to validate such rights for another 18 years, even where someone had been exercising those rights for 50 years or more." The prospect of this is incredibly worrying. In a country that is going through a housing crisis, the last thing that is needed is another barrier to allowing people to buy and sell property. If applications cannot be made to validate rights, this could have the effect of making property unsaleable. This will, of course, most significantly impact on those in rural and isolated locations such as Donegal.

What is more, the Law Society went on to state, "If an application to register rights over foreshore is not made before 1 December 2021, it cannot be made until 2069 i.e. 60 years from 2009." This is a crazy prospect and I am glad it is being addressed in section 3 because that is important, especially for the rights of seaweed harvesters. Those rights would be frozen and the action is welcome. When those rights are freed up again after the examination of rights, will that include only those rights registered since 2009 or will it include all those that were registered before the freezing took place? The Minister needs to clarify that or, if that is not possible, she might revert to us on it later. The right to harvest seaweed is vital along the west coast and the issue needs to be addressed.

It is clear there is a need for more comprehensive reform in the area of registering easements. Academics have pointed out deficiencies in the current law and the need for reform in this area, and I welcome the Minister’s commitment to addressing that. Nevertheless, I recognise the urgency and importance of passing the Bill before the legal cliff edge and hope it will pass speedily through the House.

I welcome the Minister back to the House. It is great to see her and I wish every happiness to her and her new family. She is straight back with a bang, so let us get down to work.

An interesting aspect of the Bill is that very few of my constituents have contacted me about it specifically. While there are all the ongoing issues, I was surprised, given it will have such an impact on so many people, that more people have not contacted me about it.

The truth is that the Land and Conveyancing Law Reform Act 2009 has been hugely significant for most of those who own commonage on the Ox Mountains, share back laneway access to their homes in one of the smaller towns in my constituency or that of Deputy Pringle, or have fishing rights, a right to light, turbary rights, a right of way across a neighbour's land to access their own land, rights to water or rights to access sewer pipes through a neighbour's land. With a few exceptions, many of them were blissfully unaware of the freight train heading down the tracks straight towards them. It is not the case for everybody, but it is for anybody and everybody relying on prescriptive rights, easements or profits à prendre, which, of course, allow people to take produce from other people's land, such as in the case of turbary rights or fishing rights, as a consequence of a gentleman's or gentlewoman's agreement and where they have simply been doing what they have always done. It might well have been what their fathers and grandmothers did as well, without validating or registering those rights. All or many of those people could have ended up facing possible court cases, protracted legal wrangling, delays by banks in the granting of mortgages and delays by solicitors in sorting out wills. It was a recipe for disaster. It did not impact everybody, but it did impact many people.

What I found really astonishing was that so few people were aware of the situation. In fact, I was unaware of it until this legislation was introduced in the Seanad. We are all aware that this legislation was a recipe for disaster. It was not just a potential problem; in many cases, there is the certainty of the spectre of neighbour versus neighbour conflict. Today's work is urgent because we are repealing those parts of the 2009 Act that would have led us into a legal quagmire with extortionate costs and never-ending delays. In that context, we are doing a good thing. Claims made after 30 November will be dealt with in, basically, the same way as those made before the 2009 Act came into force. There are some changes, but nothing major.

What we are attempting to do today, therefore, is not to fix the overall issue, because many of the issues which arose pre-2009 remain. We are, however, trying to prevent the creation of further problems that would have come about because of the 2009 legislation. I refer to the circumstance surrounding access to land and rights of way. People think this issue just affects rural areas. It effects urban areas just as much, and many of my colleagues have referred to this aspect. It also does not just impact private land but public land as well. All these issues are hugely complex. I do not pretend to understand the legislation or, indeed, all the issues, but we know that some agreements in this regard go back generations and, as I have said, often with no formal documentation, but just gentleman's or gentlewoman's agreements.

In cases in which those agreements were made perhaps 100 years ago, it can now be very tricky to establish the rights concerned. People want to do the right thing, but, equally, they are concerned about ownership. People are worried that if they grant formal rights in this context that they might dilute their ownership and their ability to sell or lease their land. In that context, I am pleased to hear that the Minister is setting up a time-bound review to establish any further changes that may be desirable to the law on prescriptive easements and profits à prendre. Like many other Deputies, however, I have concerns about the rushed nature of this part of the process. There has been widespread consultation with stakeholders, and I have no doubt that much time and effort has gone into producing this draft repealing legislation. In my view, though, and that of several speakers, the assessment of this legislation by this House has been rushed. We are part of this process, even though sometimes it might seem as if we are separate from it.

Nobody disputes that this legislation is urgent. That we are setting out to eliminate flaws in the legislation from 2009, and hopefully all the flaws in that regard, demonstrates the need for proper and due process in this House. That will not guarantee success, but it moves the likelihood up a notch. The truth is that the Minister knows that our role and our job is to make our contribution to amending and shaping legislation. The Minister may or may not take on board our views on legislation, but that is our role. It is not just to rubber-stamp legislation. We will, of course, do as expected and support the passing of this Bill. We do so under pressure and in a hurry, however, and I think we all agree that is not a good way to operate.

Having said that, I support the repealing proposals in this Bill because they will make a difference to so many people, even though they do not know it. Thankfully, perhaps, many will never know it. One issue I wish to raise is my concern that the requirements for a person to establish prescriptive rights, easements or profits à prendre on State land are much more onerous than on private land. Why is this the case? The State is a juggernaut. The Minister and I know this. Those who do not know this are in for a rude awakening if they take on the State.

I read the documentation, and it states "that it is more onerous for the State than for a private owner to be aware of any easement or profits being exercised against its land – and particularly so regarding foreshore [...]". I just do not buy that. I do not want anyone to try to tell me that anything is more difficult for the State than for an ordinary individual. In addition, if even, initially, an unexpected claim is made against the State, the whole apparatus of the State, which I have described as a "juggernaut" and that is what it is, is there to defend its and, yes, our interests. Therefore, I do not support the premise that the State needs greater protection than the ordinary person. We have often heard about "competence creep" when it comes to institutions attaching greater powers to themselves. In my view, what is happening here is "possession creep" or "acquisition creep". We can call it whatever we like, because when it comes to rights being exercised on State lands, it is considerably more difficult for an individual to establish easements or rights of way. I have a real issue with this provision and the rationale provided in the documentation that I received does not satisfy me in any way.

I started by referring to the fact that surprisingly few people contacted me about this issue in recent times, although a few people did of course do so. This tells us clearly that we need an information campaign in this context. Such a campaign is not just required for the public, but also for everybody concerned in the legal profession. I refer to ensuring that those dealing with this matter and those affected by it will be aware, and fully aware, of how current or impending legislation can significantly impact their lives and the rights they exercise on property other than their own.

I support this Bill as a necessary and essential first step but we need to see evidence of ongoing work to streamline, where possible, the current legislative framework. We need to ensure that the general public are fully aware of this, insofar as we can. Not everybody will be fully aware but there needs to be a proper awareness campaign so that people have a sense of some of the implications of this or any future legislation we pass in this House.

Because this legislation has been rushed, I simply have not had time to look at the issue of seaweed rights. I know my colleagues, including Deputies Pringle and Connolly, spoke about the issue. When I was a Member of the European Parliament, I was significantly engaged with the matter. I heard Deputy Pringle say he was reasonably satisfied with some of the proposals in the legislation. I need to have another look at them. It is certainly a matter that needs to be dealt with as soon as possible. I again welcome the Minister back to the House.

That concludes the first round of the debate. Only one Member has indicated for the second round of the debate and that Member is not present, so I will move to the Minister.

I will try to respond to as many comments and queries as possible. Where I cannot or do not, Deputies can, of course, come back to me. I am grateful for what has been the overwhelmingly positive response to this legislation and the support for its passage through the House as quickly as possible. I take on board the comments about, and frustration at, the timeframe involved. There has been a considerable amount of engagement with stakeholders to ensure this legislation is as complete and informed as possible. I take on board the comments, particularly with regard to the review and the requests for further engagement with Deputies, either though the Joint Committee on Justice or in another format. That engagement will feed into the terms of reference and the review itself.

There is agreement that the previous Act of 2009 has, in general, been very successful in progressing and modernising outdated and old law. At the same time, the particular piece of the Act we are addressing has not worked in the way it was intended. The motivation behind it was to make an old and complex system easier but the opposite has transpired. The amendment in 2011, taking into account that difficulties were already arising, extended the deadline to 2021. It also got rid of the issue around the court but even since then, what has transpired is complex. We know, as I said earlier, that approximately 75% of those who have tried to register have failed. As Deputy Harkin has just outlined, many people do not realise this is something they must do. It was not the intention of the previous Act but that legislation has not worked and that is why we are looking to amend it here.

A number of issues have been raised specifically with reference to public rights of way. I stress that this particular Bill is very specific to private rights of way. The issues raised by Deputies Mac Lochlainn and Canney and others relating to the PRA are matters for the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien. I undertake to relay to him some of those concerns relating to the PRA and public rights of way, which were addressed in a number of different contributions.

Deputy Howlin mentioned the transposition of EU directives. To veer off slightly, the only point I would make about that is that there is generally an enormous amount of work and engagement between officials in Departments and the Commission. There is a lot of back and forth and a lot of time elapses in that regard. By the time directives come to the Dáil, there is a huge amount of pressure and in many instances, fines have already accrued so there is an urgency around it. I appreciate that allowing Deputies as much time as possible is preferable.

I have dealt with the issue of extending the deadline. I am happy to engage with Deputies on the review through the committee to make sure the terms of reference are clearly set out and everybody has involvement in that.

I will deal specifically with State-owned lands and foreshore, before moving to the issue of seaweed. The Law Reform Commission recommended the longer 30-year and 60-year prescription periods for the State-owned lands. Perhaps some people do not agree with this point, but the reason for it is that it is more difficult for the State than for a private person to be aware of any prescriptive use affecting what is often a widespread and very fragmented portfolio. It is not the same as an individual with a farm or piece of land. People can see and know what is happening on their land and where there is a private right of way. The difficulty particularly applies with regard to foreshore because, by its nature, such land is often submerged and difficult to see or access. There is also a public interest in ensuring effective State control over the foreshore. Even in my discussions with Senators, there is sometimes a crossover in the discussion of private rights on beaches or foreshores as opposed to public rights. I stress that this Bill deals only with private access.

Seaweed harvesting is done under a licence. Where it is done under traditional rights, it can be a profit à prendre and that is specifically covered in this Bill. I assure the Leas-Cheann Comhairle and all the Deputies who raised this matter that anyone who exercised traditional seaweed harvesting rights for the traditional period of 20 years required to establish a right before December 2009, when this Act was initially brought in, will retain those rights under this Bill. The time period will not start from scratch. It will not be the case that as of 1 December, the clock will be set back. Anyone who had not established the 20 years before that date will have the full period they have established taken into account. It will not be erased, so to speak. The Bill does not set back the clock. Nobody will lose any established rights they had before this legislation. If anything, this Bill actually strengthens the rights for those who have established rights over 30, 40 or 60 years. It does not in any way take away from them. In fact, it strengthens those rights for them whereas the Act we are repealing would obviously have had significant negative consequences for many such people.

Many Deputies mentioned uplands, issues around mountain access and Coillte. They are matters for the Minister for Rural and Community Development. I will bring those issues back to her.

Questions were also raised about the difficulty in the language. Some Deputies observed that arcane and technical terms arise in this area. Through my officials, Ms Madelaine Dennison and others, we have tried to make the explanation as easy as possible. We obviously have to make sure that we are accurate in our language and that the correct terms are used in the Bill. I agree that legislation in this area should be made much more understandable. We are talking about everyday life. I mentioned a case earlier whereby a family is, essentially, not able to sell their home at the moment. It is a house that has stood down a laneway since the 1800s and because of the complexities of registering and the difficulties that have arisen among different landowners along the route, they simply cannot sell their house. For all of the language, the complexities, the Act from 1832 and everything else, it boils down to people being able to sell their homes. That is why this legislation is desperately needed now to ensure the situation does not become even more complex for those individuals.

I hope the review will start early in the new year. What we are now putting in place will allow for that in a transitionary period. The reason the 2009 Act was brought in originally has not disappeared. There are still complexities here and the review will consider how we deal with them. In the interim period, I thank all Deputies for their support in progressing this legislation as quickly as possible. It is extremely important that we do not end up facing the cliff edge. We must rectify issues that are arising and causing great concern for many people. I again thank the Deputies for their support and commit to bringing back some of the issues they have raised to my colleagues where our remits cross over regarding issues of public rights of way.

Question put and agreed to.