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Seanad Éireann debate -
Friday, 30 Jan 1925

Vol. 4 No. 6

SEANAD IN COMMITTEE. - LOCAL GOVERNMENT BILL, 1924—THIRD STAGE (RESUMED).

AN CATHAOIRLEACH

The Seanad will recollect that we were discussing, at the time of the adjournment last evening, an amendment standing in the name of Senator Sir John Keane. It is No. 42 on the Order Paper, and is to sub-section (1) of Section 23. The question arose as to how far this amendment was in order. If it is an appropriation of money, it is clearly out of order, because I find that the Message from the Governor-General, in connection with this Bill, reads as follows:—

That it is expedient to authorise the payment out of moneys to be provided by the Oireachtas of any expenses incurred in connection with allowances and remuneration payable to members of consultative councils and to committees established under any Act of the present Session to amend the law relating to Local Government in Saorstát Eireann.

Therefore, the Message plainly covers only appropriation for the purpose of paying allowances and remuneration to consultative councils, and does not go beyond that. Under the Constitution, no money can be voted, in either House, unless the object has been already approved of by a Message from the Governor-General, and as this Message only approves of appropriation in respect of a defined and limited subject, it does not cover the proposal in Senator Sir John Keane's amendment. It would, if it is an

Senator O'Farrell made an ingenious suggestion to the effect that this amendment is not an appropriation of money, but is simply a declaration that when the appropriation of the Road Fund comes to be made it should be made in certain proportions. That is a very ingenious suggestion, and there may be something in it. It is certainly a suggestion that I am not prepared to yield to without having it further argued and developed, and I have only had a very brief time to look into it since yesterday. So far as I can see, under the Road Improvement Act of 1910, which was an amendment to a previous Act, the Act of 1909, there is a limit upon the power of the Minister in making grants out of the Road Fund for the construction of new roads. He is expressly limited by statute to one-third of the total amount. It might well be that Senator Sir John Keane's amendment would involve the appropriation or the application of the entire balance. That I cannot tell. It would depend, of course, on the amounts that would be involved in the construction of new roads, but what I am leading up to is this, that I am not prepared to give any definite ruling now upon the point raised by Senator O'Farrell.

In view of the importance of this whole subject matter, I suggest that the wisest course is for Senator Sir John Keane to withdraw this amendment now. I will give him leave to bring it up again, if he wishes, on Report. Meanwhile, he and others interested can look into the matter for themselves and assist me then by their views on the Constitutional question.

I am perfectly satisfied to adopt the suggestion you have made. In examining the question further I would ask you to bear in mind this submission: That the proportion you have stated, one-third, has been exceeded in past years, and that a far larger proportion of the Road Fund is expended on the purposes you state——

AN CATHAOIRLEACH

Perhaps there may be ambiguity about what you are saying, Senator. What that Act does say is this: It provides that certain charges and expenses in connection with the collection of motor tax duties and other things by county councils are to be paid out of the Road Fund. Then it goes on to say that after these charges have been paid, the Minister may allocate from the Road Fund for two purposes: maintenance and construction. There is a proviso in regard to construction as distinct from maintenance. In regard to construction, the amount to be expended out of the balance is not to exceed one-third of the total amount. When you say that more than one-third of the Road Fund has been exhausted, that would probably include maintenance as well as construction, because the Act seems to be specific in limiting the amount for construction to one-third of the balance.

The only authority I have for stating that none of the Road Fund is applied to maintenance is that of Senator Kenny.

AN CATHAOIRLEACH

There is power to apply it. All these questions show how difficult the matter is, and how dangerous it would be for us to legislate without sufficient information. There is another matter that I think may help you if you could get hold of it. As far as I can understand, there has to be in each year a published account by the responsible Minister showing the way in which the Road Fund has been applied during that particular year. That has to appear as a Parliamentary paper, and probably such a paper was issued last year. If you could get a hold of that it would, perhaps, give you some indication as to how the Act has been construed in fact in this country. You see we are in the dark as to all these important particulars, and I certainly do not think it would be reasonable or right that I should commit the Seanad to definite action in an important matter of this kind, which might involve Constitutional issues, without having the fullest information. I would suggest—Senator Kenny probably will give us the benefit of his information when we come to discuss it—that those interested would look into the law and the Parliamentary returns on the subject. Then, perhaps, we would be able to arrive at a decision on it. Meanwhile, I think the wisest course is for Senator Sir John Keane to withdraw his amendment for the moment. I shall give him permission to bring it up later on Report.

I formally ask the leave of the Seanad to withdraw the amendment.

AN CATHAOIRLEACH

On the understanding that it be brought up again on Report. I take it that the Seanad agrees to that.

Amendment, by leave, withdrawn.

As the two following amendments, also in my name, are consequential on the one we have been discussing, I ask leave to withdraw them.

Amendments 43 and 44, by leave, withdrawn.

I beg to move:—

Sub-section (1). Line 36. To delete all from and including the words "shall be" to the end of the paragraph, and to substitute therefor the words "a district charge."

This amendment emanates from the General Council of the County Councils. As Senators are already aware, under existing conditions these roads under this Bill now called county roads, but more popularly known as district roads, are district charges. Rural councils and councillors could initiate expenditure on these roads, subject, of course, to the sanction of the county councils, and in that way they had a sort of security that these district roads would not be neglected, inasmuch as the charges were to be borne by the ratepayers of the districts, and they had it thus in their own power to expend as much or as little as they thought fit on these roads. Now that the district councils are abolished, the fear is that these roads will be neglected, and I find in view of the amendment passed yesterday that this amendment of mine becomes more important, because it would appear now that when that amendment of yesterday is incorporated in the Bill, county councils will be almost compelled to maintain roads of a width of 11 feet. Yesterday, when the amendment came on, I asserted that in measuring a road you measure from fence to fence, and that a 16-foot road which can only now be characterised as a public road or accepted as a public road under the existing definition, should be 16 feet, but that so far as the actual roadway over which cars travel is concerned, it is only 10 feet, because they allow on both sides for the water table.

AN CATHAOIRLEACH

With regard to that amendment accepted yesterday, and which is to be inserted in the Bill, I think it will require to be very carefully considered on the Report Stage, and certainly a definition of the 11-foot road will have to be put in, because there is no law which regulates what the width actually of a road is, or where you take the measurements from. Supposing there is no water table, but a ditch on one side and a grass bank on the other, does the width run from hedge to hedge or where? I think it will be necessary for Senator O'Rourke, on Report Stage, to define where the measurement of 11 feet is to be taken from, because at present it is absolutely ambiguous. As the amendment stands, it is absolutely uncertain where you are to get the 11 feet from. Does it mean 11 feet clear or 11 feet from one side of the hedge to the other, or does it mean 11 feet from the water table? That will have to be made clear.

I thought it likely that there might be some misapprehension on the part of the Seanad, and I rang up the Road Board this morning and got in touch with the Chief Engineer. He said he had no doubt about the matter; that it has been the practice to measure a road from one ditch to the other, and that in effect a 16-foot road would be 10 feet. I asked him what then would be the width of an 11-foot road, and he said it would be only about 5 feet. I will leave that for the moment. The point here is that the maintenance of these roads, formerly known as district roads, and now known as county roads, was a matter of local charge and should still continue to be a local charge. Under the Bill the maintenance of all roads by the county council will be a county-at-large charge, and that is where the difference comes in. Members of district councils and of the General Council of County Councils, are of opinion that if that old practice of levying the charge for maintenance of district roads formerly under the control of the rural district councils is still leviable on districts, then in those districts, inasmuch as the ratepayers pay their own expenses for upkeep and have a certain amount of control, the maintenance of the roads will not be neglected, as they think they are apt to be when they are losing their local representatives, and that the county councils will pay more attention to the main roads and trunk roads to the disadvantage of the minor roads and by-roads.

With all due respect to the opinion of Senator Kenny, I am not at all satisfied that this matter will work out the way he suggests. I feel that if you make all those district charges for district roads, you will get indifference on the part of the county councillors who do not come from the particular districts affected, and the tendency will be to place greater burdens upon ratepayers; whereas if this be made a county-at-large charge every presentment will affect every councillor, and the tendency will be to examine the matter more closely. Of course I know it is a difficult question to decide, and from my own experience of public bodies I think that the county-at-large charge would, on the whole, work for economy, which is so badly needed by local ratepayers.

I do not think it is necessary for me to say much after what Sir John Keane has just stated. There was a great amount of argument in favour of a district charge when we had the district councils, because it was a great check on extravagance when these rural district councils knew that they were spending their own money. Now that the district councils will be wiped out, that argument no longer holds good. On the contrary, it will go in the opposite direction, because county councillors, drawn from other parts of the county, will have no particular interest in keeping down the expenditure if it is raised upon one particular area, and for that reason I think it would only lead to much greater extravagance, and, as everyone realises, it is of the greatest importance to try to keep our rates down to the lowest possible figure, for the present at all events.

I think there is a good deal in the amendment proposed by Senator Kenny. It is a matter that ought to be discussed by the Seanad before this section is passed. In counties where there are several rural districts the cost of the maintenance of the district roads varies considerably. In some districts there is a very low rate levied for the maintenance of the roads, and in others the rate is very high. By amalgamation of the expenditure and rating, as is proposed by this Bill, the result will be that districts which hitherto had a low rate for the upkeep of their roads will have to contribute for the upkeep of more expensive roads in other districts, and, thereby, their rates will be considerably increased. On the other hand, the abolition of the district councils will do away with the authority of the body that had the maintenance of, and expenditure on, the district roads. The county councils will, of course, be composed of some members representing these districts, and I think it will be their duty to see that the districts they represent will not incur expenditure which the ratepayers would be unable to pay. I have had experience of tendencies such as this on boards from time to time.

We have the case of the amalgamation of poor law unions. Formerly each electoral division had its own rate. That rate was based on the cost of maintenance of the poor from that district. When the Local Government Act came into force it made the rates a union charge, and the result was that districts which had previously a very low rate were obliged to share the high rates of other districts. In that way expenditure was considerably increased. I am inclined to support the amendment. I do not want to make any change in the rating of districts, for the maintenance of roads, where the rates are at present low. I fear that the section in the Bill, as it stands, will tend to increase the rates in places that have hitherto been worked economically.

I think there is a great deal to be said for the area of charge. The ratepayers of a district are very much interested in the area of charge. Where roads are maintained as a general charge the ratepayers of some districts feel that there is extravagance and complain that under direct labour the men are not doing the work properly. If the charge was coming off their own districts the ratepayers would soon send complaints to the county surveyor or to the county council. As the Bill does away with district councils, and as area of charge varies, I think the charge should be a district charge, or be on the county electoral area, or the district of a particular surveyor. On small roads, 11 feet in width, there is no reason to fear that there will be a water table of more than one foot or nine inches. My point is to allow a county council to repair a road 11 feet wide.

AN CATHAOIRLEACH

You mean from fence to fence?

I take the same view as Senator Sir John Keane, and I think the amendment should be passed. From my experience of county council work I found that when the road question came on, the surveyor made a declaration, and the council had before them information as to which were main and which were district roads. In fact, when it came to a question of district roads, whatever the cost, the councillors closed their portfolios and did not bother further. Where everyone in the county is interested in expenditure I think it will make for economy.

May I point out that if the amendment is carried in its present form it will read badly. The sub-section will then read:—

The expenses of maintaining and constructing county and main roads and abandoning county roads a district charge.

"Shall be."

The amendment proposes to delete the words "shall be."

AN CATHAOIRLEACH

Of course that is a clerical error. The intention is to exclude all words after "shall be."

Amendment put and negatived.

I move:—Section 23, sub-section (1), line 43, to insert after the word "but" the words "such expenses."

Amendment put and agreed to.

AN CATHAOIRLEACH

Before we pass from this Section I want to direct the attention of the Seanad and the Minister to a matter that will be very relevant to the amendment a Senator proposes to bring up on the Report Stage. I may be entirely wrong, but what troubles me about this Section is that it seems altogether to ignore the existence of the Road Fund. Section 1 expressly provides that the expenses are to be defrayed out of the poor rate.

The expenses of maintaining and constructing county and main roads and abandoning county roads shall be raised and defrayed out of the poor rate.

If that stands alone, it means that the entire cost of maintenance and the construction of new and main roads is to be borne by the poor rate. There is a proviso at the end of that Section which says that where there is any provision in a local Act, or in any Provisional Order for a contribution, this provision is to stand good. It says nothing about the public Act which provides this Road Improvement Fund. It ignores that altogether. I think it must be a mistake or an oversight in some way. It seems to me that under the Section, as it now stands, every shilling of the cost of maintaining and constructing every new road or main road is to be borne by the poor rate.

I understand—I may be wrong—that the contribution from the Road Fund is in ease of the other, or a recoupment, and that you must put the liability on the poor rate to start with.

AN CATHAOIRLEACH

Why not say, "subject to repayment as prescribed by the Road Fund Act," or something of that kind?

With all respect, I think I can suggest a reason, because the Local Government Department use this grant from the Road Fund as a whip with which to lash county councils and urban councils to carry out their orders. In fact, they make it a charitable donation, when, in reality, it is money that should be distributed for a certain purpose.

AN CATHAOIRLEACH

That is the point I am making.

And I am explaining the reason why it is being done.

AN CATHAOIRLEACH

I think this requires to be looked into. As I understand the Road Fund Acts—I do not know if they have been modified by legislation here or not—I do not think they have—the Minister in charge of the Road Fund is only a trustee and has to apply it as directed by the Act of Parliament. Under the Act of Parliament it has to be applied for two purposes; the charges and expenses incurred by the county council in raising the motor duties, and for the maintenance and expenses of roads, or the construction of new roads. It is not left to discretion; it is mandatory.

The Minister might not give any grants to a particular council, so I understand.

AN CATHAOIRLEACH

Certainly he will not be inclined to give any grant to any council if this section is passed as it stands. The section puts the absolute liability for defraying any of the cost of constructing and maintaining county roads on the rates.

No doubt, in the first instance.

AN CATHAOIRLEACH

I think it will require to be very carefully considered by the House, and looked into before it is passed on the Report Stage. I am sure that the matter has not been overlooked by the Minister or by others, but it will require some attention.

Section 23, as amended, ordered to stand part of the Bill.

Sections 24 and 25 ordered to stand part of the Bill.

SECTION 26.

(1) Money borrowed by the council of a county, county or other borough, or urban district, for the purpose of the repair of any damage (including total destruction) done to any road at any time prior to the 20th day of March, 1923, shall not be reckoned as part of the total debt of such council for the purpose of any limitation on borrowing imposed by any enactment relating to borrowing by such council.

(2) The repayment of so much as is on the appointed day outstanding of any loan borrowed before the passing of this Act by the council of any county for the purpose of the construction or maintenance of any road, shall, from and after the passing of this Act, be charged on the area upon which the expense of such construction and maintenance would be charged under the provisions of this Act.

I move:

In sub-section (2), line 16, to delete the words "appointed day" and to substitute therefor the words and figures "first day of April, 1925."

This is consequential on a previous amendment, No. 36, in Section 23.

Amendment put and agreed to.

I move:

In sub-section (2), page 13, line 18, after the word "county" to insert the words "county or other borough or urban district."

Section 23 and sub-section (2) of Section 26 make main road maintenance a county-at-large charge. This sub-section (2) extends that principle, and outstanding loans for main road maintenance now become a county-at-large charge. What I want to secure by the amendment is that outstanding loans due by urban districts should also become a county-at-large charge. I think that is only mere justice. Outstanding loans heretofore levied on a smaller area become a county-at-large charge and urban districts pay their charge in proportion.

AN CATHAOIRLEACH

You want to bring sub-section (2) into harmony with sub-section (1)?

I accept this. I think there is an omission made in the drafting.

AN CATHAOIRLEACH

I think so.

Amendment put and agreed to.

I move to add at the end of the section a new sub-section as follows:—

"(3) Notwithstanding anything in Section 23 of this Act or in the last preceding sub-section contained, any expenses incurred after the passing of this Act under the authority of the Bridges (Ireland) Acts, 1834 and 1867, in respect of the construction and repair of any bridge (being part of the maintenance, as hereinbefore in this Act defined, of the road of which such bridge forms part), and so much as is on the appointed day outstanding of any loan borrowed before the passing of this Act under the authority of the said Acts for any expenses in respect of any such purpose as aforesaid, shall continue to be chargeable and payable in like manner as if this Act had not passed, but for the purposes of this sub-section, the borough of Kilkenny, notwithstanding the Local Government (Ireland) Act, 1898. Amendment Act, 1906, and anything in that Act contained, shall, as well for the purpose of the Bridges (Ireland) Acts, 1834 and 1867, aforesaid, as for other purposes, be deemed to be part of the County of Kilkenny, and not to be a separate county borough or county of a city, and the said Local Government (Ireland) Act, 1898, Amendment Act, 1906, is hereby repealed."

This deals with loans under the Bridges Acts, and they are in a different category. They are levied over more than one county and in some places three, four or five counties contribute to those loans. The whole tendency of the Bill is to widen the area of charge for main road maintenance, but if this section applied to loans under the Bridges Acts it would have the reverse effect, as it would narrow it to one county charge. I do not think it is clear from the Bill whether these sections operate on loans obtained under the Bridges Acts and I think it is necessary to set it down clearly. It is better to do that than to leave it a moot point whether the sections operate or not. That is what I hope to achieve by the first part of the amendment— that loans now contributed to by more than one county should not be affected by these sections and should remain as formerly. In Kilkenny the principal bridge was built on an agreed basis. The borough agreed to pay one-third and the county agreed to pay two-thirds. As Kilkenny is not a county borough that seemed a feasible arrangement. For some reason for which I cannot account, Kilkenny, under a special Act of 1906, was created a county borough for the purposes of the Bridges Acts, and the loans for John's Bridge were obtained under the Bridges Acts as if two or more counties participated in the loans, although there was never a suggestion that the loans would come from anywhere but from the County Kilkenny, of which Kilkenny City is part. In future the urban district of Kilkenny will have to bear its rateable portion of all outstanding loans in the county. I think it is right that the loans for this bridge, which are a main road charge, should be spread over the whole county.

I do not think that the Seanad should agree to this amendment without further consideration. I must confess that I have been negligent in not studying this amendment more closely. Those of us who are solicitous for rural districts cannot possibly consent to placing these urban charges, which are of a character peculiar to themselves, dealing as they do with congested areas, or with more dense areas of population, upon the whole agricultural district. I would ask the Senator not to press the amendment now, but to give us time to consider it. I think we might ask leave to have the matter reconsidered on the Report Stage. I presume it will not be out of order to bring up amendments dealing with the matter on the Report Stage whatever the result will be now.

AN CATHAOIRLEACH

That would depend on the amount of discussion that amendments receive here, and whether they were withdrawn on the understanding that they were to be resumed on the Report Stage.

I feel that we rather allowed the previous amendment to go by default. This amendment is seeking still further to enlarge that principle, and we would like to have the matter brought up again on the Report Stage. We do not know the amount of these loans.

AN CATHAOIRLEACH

This is a very far-reaching amendment, because it provides that the borough of Kilkenny is to be treated as part of the whole county, not merely for charges under the Bridges Acts but for all other purposes. As to the amount of loans that may be let loose on the county, we have no information.

It is for that reason that we ask leave to allow the matter remain open for discussion in order to ascertain what the figures mean, not only for Kilkenny but elsewhere. This is a comprehensive amendment and it may be very dangerous.

Kilkenny is not alone in being liable to contribute for bridges. There are several other places besides Kilkenny, such, for instance, as the City of Limerick, which is liable to contribute to a bridge at Portumna, many miles away. I think that there is also a bridge in Waterford for which a number of other places are brought in to contribute. I think it would be unwise to pass legislation dealing with Kilkenny alone, as there are other places in a similar position.

I might mention that the levy extends over about seven counties, and it ranges from 25 per cent. each for the city and county of Waterford to about 4 per cent. for County Carlow.

I think it would be advisable, if possible, to let this matter stand over. I am not in a position now to say whether or not I could accept it. It is a far-reaching amendment and involves a great many issues that do not appear on the surface. It would be more satisfactory if this amendment were left over.

AN CATHAOIRLEACH

It is not sought merely to have the Borough of Kilkenny extended over the entire county for the purpose of liability under the Bridges Act, but for the purposes of loans. It might be well if the Seanad were informed as to the nature and amount of the loans. That really would be a tremendous proposition.

I quite realise this is a complex matter, but I think there is some misconception. As far as the Waterford bridge and the bridge in Limerick are concerned, I propose to leave them as they are. I want to impress upon the Seanad that since the Local Government Act was passed, the city of Kilkenny is made part of the county for the purpose of the maintenance of main roads.

AN CATHAOIRLEACH

What is the real object of the amendment?

A bridge was built at Kilkenny, and a special Act of Parliament was carried through for that purpose. You have given Kilkenny the temporary status of a county borough, which it is not; but for the purpose of building this bridge it was given that status.

AN CATHAOIRLEACH

You want to deprive it of that status now?

Kilkenny is now made liable for its proportion of loans for the county as a whole.

AN CATHAOIRLEACH

Does it not come to this: that instead of the Borough of Kilkenny being made liable for the maintenance of the bridge, you want the cost of the bridge to be treated as a county charge?

It is a bridge on the main road, and it should come under the maintenance charge of main roads. We have been made liable for all main road maintenance, and we have to pay our rates, in proportion, for all main roads. Why should not our main roads, including the bridge, be paid for by the county as well?

AN CATHAOIRLEACH

Are there any other charges?

I do not think there are. I would not bind myself to that, but I believe there is no other charge. I will make sure about the matter before the Report Stage.

AN CATHAOIRLEACH

It would be a great advantage to the Seanad if you would circulate amongst the members a short memorandum setting out the position. It is not easy for any Senator, in the time at his disposal, to make the thing plain.

I will endeavour to do as you suggest.

Amendment, by leave, withdrawn.

Before Section 26 is adopted. I would like to ask for further information as to what is meant by moneys borrowed for the purpose of construction or maintenance of any road. To those not intimate with the subject, sewers and all kinds of work incidental to roads might come under that heading. In that case the cost of sewers and other incidentals to roads would come on the rural district. I would ask to have the matter further considered on the Report Stage.

There is no danger of sewers being included. Sanitary matters do not come under the heading of road maintenance at all.

AN CATHAOIRLEACH

That is right. In the Public Health Act of 1898, the Irish as well as the English Act, the question of sewers and drains is treated as part of the duty of the sanitary authority, and it is quite different from the maintenance and construction of roads.

Under what heading would pavements come?

AN CATHAOIRLEACH

Pavements would come under the heading of maintenance of roads.

It is essentially an urban service, and I would like some reference to the matter on the Report Stage.

Question—"That Section 26, as amended, stand part of the Bill"—put and agreed to.
SECTION 27.
(1) The council charged with the maintenance of any road, and also every contractor for any work to be executed in pursuance of a resolution of such council shall, subject to the provisions of this section, have power and authority:—
(a) to dig for, raise and carry away in or out of any land to which this section applies any gravel, stone, sand, or other material which may be required for the construction or maintenance of such road;
(b) to dig for, raise and carry away out of any river or brook at a distance of at least a hundred and fifty feet above or below any bridge, dam, or weir, any gravel, stone, sand, or other material which may be required for the construction or maintenance of such road, where the same can be taken away without diverting or interrupting the course of the river or brook, or prejudicing or damaging any building, highway, ford, or spawning bed;
(c) to make and repair drains in or through any land to which this section applies in order to carry off water which might injure such road;
(d) to use any land to which this section applies for storing, crushing, breaking, screening, mixing, or otherwise preparing materials for the construction or maintenance of such road;
(e) to enter, subject to the provisions of this section, on any land to which this section applies in order to do anything which they are empowered to do by this sub-section;
(f) subject to the provisions of this section, and for the purpose of obtaining access to and from any land, river, or brook upon or in which any of the powers conferred on them by this sub-section are to be exercised, to enter on and pass through any land to which this section applies, lying between such land and a public road.
(2) It shall not be lawful for any such council or contractor to enter on or to pass over any land for the purpose of exercising their powers under this section, except with the consent of the occupier thereof or under the authority of an order of a Justice of the District Court, which order any Justice of the District Court is hereby authorised and required to grant on being satisfied that the exercise of the powers proposed is reasonable, having regard to the convenience and cost of any alternative method of obtaining the material, access, or facilities sought or of making or repairing the drain to be made or repaired, the character of the land, and all the circumstances of the case.
(3) Any powers conferred by this section on the council of a county may be exercised directly by the county surveyor of such county, on behalf of such council.
(4) The council or contractor by whom or on whose behalf are exercised any powers conferred by this section in respect of any land shall pay to the owner or occupier of such land compensation for the damage done by breaking the surface of or making a passage through the land, or for the loss of the use of such land during the exercise of such powers, but no other compensation whatever, except that where any gravel, stone, sand, or other material is taken from any gravel-pit, quarry, sandpit in existence and beingbona fide worked at the time of the exercise of such powers, the value of such gravel, stone, sand, or other material shall be included in such compensation.
(5) The amount of the compensation to be paid under the foregoing sub-section shall in default of agreement be determined, on the application of the owner or occupier of the land, by a Justice of the District Court whose determination shall be final.
(6) This section applies to all land except landbona fide used as a garden, orchard, or pleasure ground, or for the amenity or convenience of a dwelling-house.

I beg to move the following amendment, which is purely a drafting amendment:—

Section 27, sub-section (1), line 40, after the word "in" to insert the words "on to."

I am accepting this amendment.

I would like to touch upon the question of raising and carrying away from land gravel, stone, sand or other material. I think there is some law to that effect in being, and under it the distance over which material may be carried is limited. I do not think it is reasonable to go on to a man's land and take away from it gravel for a road two or five miles away. They could in reason be entitled, by permission, to take sand or gravel from land adjacent to the road requiring repair.

AN CATHAOIRLEACH

You have not apparently read sub-section (2), where all that is provided for.

I read that sub-section, but it appears to me the District Justice may do what he likes in that matter.

AN CATHAOIRLEACH

He has to be satisfied that the exercise of the powers proposed is reasonable, having regard to the convenience and the cost of any alternative method, or the facilities sought, the character of the land and all the circumstances of the case.

I recognise all that, but I believe the District Justice has still power to do what he likes. It is a matter of opinion as to what he will do. There should be some limit of distance. I am not sure what the old law was, but there was a limit.

In the Grand Jury days the same things had to be proved as have to be proved under this section.

But suppose they cannot get decent gravel near where the road needs repair? I am not in favour of any restriction.

AN CATHAOIRLEACH

If you are not in favour of any restriction you should move to strike out sub-section (2). It is quite evident that they have to satisfy the District Justice that their application is reasonable. If they wanted to go 30 or 40 miles, and he thought it was unreasonable, he could refuse any application. The law is left practically where it was.

Very well.

Amendment put and agreed to.

I beg to move:—

Section 27, sub-section (2), page 14, line 4. To add at the end of the sub-section the words "and in the event of any unreasonable objection shall have power to award legal costs not exceeding three guineas against such objector and to give costs to a similar amount against the council or contractor whose application shall be deemed unreasonable."

That amendment is moved in the interests of the Minister's own profession. I think that in the interests of the legal profession it ought to be accepted. The profession is not sufficiently safeguarded there at all.

I would be agreeable to accept that in principle, but I think it would be well to look into the drafting of the amendment before the Report Stage.

I object to the amendment in the interests of the ratepayers. The legal profession can very well look after itself.

Surely Senator Linehan does not suggest that the legal profession is to do the work for nothing.

You may be quite sure they will not do it.

AN CATHAOIRLEACH

It is obvious, and, of course, Senator Linehan will see, if the District Justice thinks that the action of the council was very unreasonable, that the District Justice should have power to indemnify the owner of the land for costs incurred in coming up to object. It is not a very large sum. He is giving him three ; that would not break the ratepayers. If a council proceeded to take sand or gravel out of Senator Linehan's land, and if the Senator objected, and this objection was upheld by the District Justice, would it not be unjust if the Senator had to do that at his own expense?

Leave it to the District Justice to fix the costs.

AN CATHAOIRLEACH

The amendment does that. It does now allow him to award more than three guineas.

Should not the word "unreasonable" be changed in the amendment? Should it not be "reasonable objection"?

AN CATHAOIRLEACH

No. The first portion of the clause you are reading deals with costs against the objector. Of course, you cannot give costs against an objector unless his objection is unreasonable. It should really be redrafted, because the proper way to do it is, in the event of the objection not being over-ruled, the District Justice should have power to award costs against the objector not exceeding three guineas. On the other hand, in the event of his acceding to the objection, it is the other way round. It would require to be revised. The principle is accepted subject to the revising of the phraseology.

Amendment, by leave, withdrawn.

I beg to move:—

Section 27, sub-section (4), page 14, line 12. After the word "through" to insert the words "or drain on to."

AN CATHAOIRLEACH

I understand the Minister accepts this amendment.

Amendment agreed to.

I beg to move amendment in Section 27, sub-section (4), "to delete all after the word ‘powers' in line 13 to the end of the sub-section."

My amendment is to give the county surveyor free access to all sorts of road material on every land. The practice hitherto, and it is maintained in this Bill, was that where any gravel pit had been worked the owner claimed a certain amount out of the gravel. I do not think that is justice. If it is continued under this Bill and with new power the tendency will be to encroach on land on which hitherto quarries or gravel pits had not been opened. These people who owned these gravel pits had a property which brought enormous revenue to them. The men who opened these quarries opened them for the distinct purpose of supplying these materials. If it is sufficient under this Bill that a man should give whatever he had in the way of road metalling on his land for the purpose of road maintenance and construction, I think this consideration in favour of people who own existing quarries should not be continued. The effect of that will be that the county surveyor will pass these gravel pits and quarries by and he will be tempted to go into lands which hitherto have not been opened up for the purposes of quarrying for gravel pits.

We all know that many people who happen to have gravel pits and quarries on their lands do not open them. In the interests of the proper working of their farm they object to allowing men and horses go through their land. Now we are going to authorise the county surveyor to go into these lands and open them up and pay no compensation. But where pits are already opened he is to give them the go-by, or if he uses the material he will have to pay, while in the other case he will not pay. In the cases of men making an enormous revenue out of supplying what is sometimes very bad road material I do not think it ought be continued, and these men should not be allowed to make an enormous revenue out of it. Where the county surveyor takes gravel out of an existing pit, or where he takes stones out of a quarry, the matter would be treated in just the some way as where he goes into lands and opens up a new quarry.

As the Bill stands it provides that if a man has an existing quarry he is to be paid compensation per load for the material taken out of it. I do not think that is fair. It is an undesirable consideration given to men who hitherto have made large sums of money out of the public, and it is a thing which this Bill should not continue. It is not just to the ratepayers at large.

AN CATHAOIRLEACH

Would not your object be met if you include in the first part the words "compensation should include the value of the material taken"?

I do not want anything to be paid for the material. I think if a man has this stuff on his land it should be given for the public use. But I think it unreasonable that one man should be paid and that another man should not.

I should like to support the principle that Senator Bennett makes very clear. I know quite a number of scandals which have arisen in this way. I knew a man who, when there was some talk of the county requiring a gravel pit for road metalling, opened a pit and sold to his neighbours two or three shovelfuls of sand to prevent the county coming in and taking the material themselves without paying him compensation. I have known that man get large sums from the county in the way of compensation. If a man who does not open a quarry or gravel pit on his land is not entitled to compensation, I do not see why a man who has opened a quarry or gravel pit and who has carried on a lucrative business there should be treated differently. I think it is very unreason able in the case of one man to give no compensation and in the case of another man to give compensation.

I do not think the omission of these words will have the effect that the Senator wishes. I do not know much about the law, but I understand in common law it has been ruled, in judgments given to me, that the owner has a right of payment for stones as soon as they are severed from the freehold, and, unless you expressly take that right away by Statute, it remains.

I only put that out for consideration from the drafting point of view, and I strongly resist the whole principle of taking away a ratepayer's property without compensation. You must look at this thing in broad outline. Where the quarries are equally distributed and the quality of the stone is more or less the same all over the country, it might not be inequitable, but it is quite conceivable that one district, or even one individual, might possess very desirable stone for the repair of roads. It is well-known that in England some counties have no suitable stone in their areas at all. They have to go some distance to procure stone by rail or barge. If this proposal is passed and you wanted to get better roads and get away from limestone, which everybody knows is unsuitable for our roads, you might have to bring stone some distance. Under this Bill it will be possible for whole counties to be preying on an owner in one district for all the stone they require. There will be enormous quantities, perhaps thousands and thousands of tons, removed from that district without payment. It has been said by a very distinguished judge "What you take, take openly, and pay for what you take." It is a fundamental right of the citizen to be paid for what is taken. If you apply that crude principle to one article what is to prevent the extension of that principle? You may require timber for road-making. Why not go into the woods, then, and cut down that timber, and remove it without compensation? I ask the House to resist that amendment and to protect the elementary rights of the citizen to adequate compensation.

AN CATHAOIRLEACH

I think if there was no express legislation on this point in the section your submission would have been right. If there was no restriction on the compensation, and any county council entered a man's land and took away material from it, the compensation would include the value of the material. If the section is passed in its present form I think the courts would probably hold that that common law right to compensation for the value of the materials, is excluded by the words of the section, because the words of the section are: "shall pay to the owner or occupier of such land compensation for the damage done by breaking the surface of, or making a passage through the land, or for the loss of the use of such land." You see there is no provision for compensation for the material abstracted.

And it goes on to say "no other compensation whatever."

The amendment seeks to exclude these latter words.

AN CATHAOIRLEACH

The object of the amendment is this: There is an exception made in favour of a person who is already working an open quarry because he is to get compensation for any materials taken from his open quarry. Where no quarry has been opened, material found there and taken is not to be paid for.

That is exactly the old Grand Jury law. Under the Grand Jury Acts you had to get an order from the magistrates, and you did not compensate for anything except surface damage and that kind of thing, when you took the materials. But if the person was actually working for his own profit a sand pit or quarry on his land, then compensation had to be paid. I have no sympathy with Senator Barrington's and Senator Bennett's idea that because there happened to be scandals in opening bogus sandpits, and because men made a profit, they should not have made, you should not pay compensation to the ordinary man. When you go in on a man's land to take his sand, why should he not be compensated?

Senator Brown has no conception of the position in the country. What really has occurred is, as Senator Barrington has told us, that a man had a worthless little bit of a pit. He gave a shovel of sand to a neighbour and he has some pal on the county council to whom he said: "Will you take this worthless stuff from me." The Minister has recognised that in his Bill. He is to have control of the quality of the material to be taken, and all I want to secure in the Bill is that if the interests of the county council require it, they shall get that material without paying any compensation. Senator Sir John Keane has taken me up wrongly. He says I wish to take away all this property without compensation. I do not wish to do so. If it is his intention that every bit of material that is taken should be paid for, I shall support him in that, but I wish to protect the principle of the Bill that material should be free to the maker of the road except for such damage as surface breaking or injury to the land by carting. That seems to be reasonable.

In the section as it stands you not only pay that compensation but you pay a man who has a pit on the roadside, compensation per load for that stuff. What will the effect be? The effect will be, if this section passes as it stands, that a county surveyor interested in the upkeep of roads will pass that pit by and he will make for another pit, breaking new ground for material, which he should get for nothing. I think the whole principle of compensation is unjust and for that reason I strongly urge on the Seanad to accept this amendment. It will make for economy, efficiency and justice.

I think we should give road authorities every facility in the circumstances confronting us for getting our roads into fair order as economically and expeditiously as possible. I think that we should give authorities under this Bill every facility for getting the best stone they can get for the maintenance and reconstruction of our roads. It would perhaps surprise Senators to know that there are shires in England which are importing stones from Ireland for road maintenance. It pays them, seemingly, to come overland get whinstone out of our quarries and pay for shipping, rail and cartage. It is an extraordinary thing, but it shows they find it economical to do so, and how very essential it is to get the best material for any work in the way of reconstruction or maintenance, no matter where we have to go for it. It is economical to do it in the long run.

We certainly have not as far to go as they have. That is all right, but you have the wording of the Bill: "sandpit in existence and being bona fide worked at the time of the exercise of such powers.” Supposing, according to Senator Bennett, that at a time when building or other local necessity demanded it, a man opened and worked a quarry, and that for the past three years it had not been worked, the local need being exhausted, would you say under that wording that he had a quarry that was being bona fide worked at the time of the exercise of these powers?

AN CATHAOIRLEACH

I think clearly not, Senator, if he had abandoned the quarry three years before.

Take the other man referred to by Senator Barrington, who, in anticipation of a demand such as would arise under this Bill, finds that he has some stone available and employs a few men to work it in view of the county surveyor coming to him. That would be clearly dishonest, but I would suggest that both of these abuses could be covered by the wording of the Bill. I certainly would put a limit of time, that a man who had not bona fide worked his quarry for six months, twelve months, two years or three years, whatever period you like, when clearly it is no longer a paying concern to that man, should be excluded. Stone for public utility and public need has the character of a mineral. In many cases mineral rights were reserved to the State. Such stone is required for public utility and need, and only when it ceases to be worked by that man and there is no local demand for it is the State entitled to step in and get the material without compensation. The Bill says “at the time.” A man may have ceased working a month before, and while at the time of the exercise of these powers the quarry may be idle, he may intend to work it again in a month's time. He may say, “I am not working bona fide at the moment, but I intend working again shortly.” It would be very hard on such a man if in the meantime the county surveyor were to take it. But if a quarry has not been open within a certain time of the exercise of the power, say twelve months or two years, it should be within the right of the county surveyor to go in to get stones. I suggest to the Minister that by re-drafting he could meet these abuses.

AN CATHAOIRLEACH

That would be met by some such words as these: "and which has been bona fide opened and worked as such for at least six months before the time of the exercise of such powers.” Is that what you suggest?

I think six months would hardly be enough.

Six months would not be enough.

I agree with Senator Sir John Keane in this matter. I really do not understand Senator Barrington's argument. It is the first part of this clause that I object to, that power should be taken to enter on a man's land, dig it up in a search for gravel and stone and take these away because the place has not been used as a quarry hitherto. Senator Brown says that this has been the law, but the conditions formerly were quite different from what they are now. At that time there were large landowners with thousands and thousands of acres, and it was more or less a matter of indifference to them if stone was taken from land occupied by a tenant of theirs. They did not care very much whether this land was taken or not. Now the state of affairs is quite different. The owner will now have perhaps only a few acres and he will be vitally concerned. The authorities could open all his land, practically throw him out and use his gravel and stone for public purposes. If the public want it they should pay for it. Why should the public have a right to take away a small farmer's gravel and stone, and not only that, but ruin his land? If a man has thousands of acres of land it does not matter, but in such a case as this it is a very serious matter and I object to it. I believe a man who has a gravel pit is entitled to compensation if his gravel is taken, but I should also give him compensation if he had not previously opened the quarry, not only on account of the damage done to the land but on account of the stuff that is taken away. I think he is entitled to it as much as any other man.

Might I emphasise the point that was alluded to by Senator Kenny and which, apparently, Senator Colonel Moore is forgetting? I think that under the provisions of the Constitution all royalties that have not hitherto been exercised are vested in the State. I do not think that trees, that Senator Sir John Keane mentioned, are royalties, but such a thing as stone which has never been worked is a royalty and therefore belongs to the State and can be taken by the State. As far as the justice of the thing goes it is obviously unfair to pay one man and not to pay another.

The principle underlying my amendment is this: This Bill seeks powers to get material anywhere, to raise it and to use it for the upkeep of the roads. I have accepted that as a just principle. Criticism against my amendment has been that that is unfair. It may be unfair, but my amendment does not change the Bill in that respect. All it seeks to do is to insure that no man shall be paid for material. If it is just to pay, let every man be paid. But this Bill discriminates in favour of a man who already has a pit, and I do not think that that is fair discrimination. Senator Colonel Moore agrees that it is not; he would pay every man. If so, let him move an amendment to that effect and I will support it. I want to have the roads kept better. I know that at present, where direct labour schemes are concerned, men are deprived of labour on the roads owing to excessive cost of material in many of these cases where land is taken. It is said that England was importing stones. I was on the Road Board for two or three years and I know that material was imported from France for Kent, where the best roads in England are. The innuendo was that if a suitable quarry was on a man's land people can come from Timbuctoo, Kerry, or anywhere else, and take material from it. They cannot. All they can do under this particular section is "to dig for, raise and carry away, in or out of any land to which this section applies any gravel, stone, sand, or other material which may be required for the construction or maintenance of such roads." They cannot export it, they can only take material for the purpose of these roads. I am prepared to admit that if the material is required by the Minister, he ought to have it, but what I have tried to explain, unavailingly apparently, is that under the Bill he may take it from Peter but may not take it from Paul. He may take it from the man on whom he will inflict an enormous injury by breaking up his land and knocking down his fences. That man is to have no compensation, but the man who has a pit at the roadside and to whom it will be no disadvantage at all is to get compensation. I do not think that is just, and I do not think it ought to be allowed.

I am rather puzzled by Senator Bennett. I do not think he really means to go quite as far as it strikes me this amendment will go. As we all know, there are quarries in existence employing large numbers of men and trading for profit. They have been exporting macadam and setts across Channel and sending them to Dublin. Does Senator Bennett really propose to go to the proprietors of the quarries and say: "Look here, you have got a fine quarry and a lot of fine machinery. We are going to take macadam from you and not compensate you?" I can hardly believe that that is his intention. Yet if this amendment is carried it will undoubtedly have that effect.

I undoubtedly mean to do what Senator the Earl of Wicklow suggests.

The Senator surprises me.

My desire is to make the upkeep of roads cheaper, and I think that imaginary case of the Earl of Wicklow does not exist. I know the finest granite stones at Foynes belong to Lord Monteagle, and in the last ten years not one stone has been exported.

AN CATHAOIRLEACH

This is not confined to stone. It extends to sand, gravel, and any material at all suitable to road maintenance and construction. This would be a far-reaching amendment, because I have at present in my mind a number of persons in the vicinity of Dublin who are now making a substantial income by selling sand of a superior quality to golf clubs, tennis clubs, and places like that. They are getting big prices for that sand, and that is the way in which they are utilising their land. Under this provision powers have been given to a borough or county council to go in and take any quantity they like.

Only for the roads.

AN CATHAOIRLEACH

It might be for the entire county.

There is a right under this Bill to do all these things.

AN CATHAOIRLEACH

I recognise the logic of your position. You say if you are going to compensate one, compensate the other; and if you are not compensating one, do not compensate the other.

I wish to say that the Senator is wrong in accusing me of trotting out an imaginary case. There are quarries in this country which were engaged in manufacturing and exporting up to quite recently.

At the outset I would like to point out, as Senator Brown has said, that this is not a revolutionary measure. It has been sanctioned by usage for a long period. There are good grounds for the distinction between quarries bona fide worked and quarries only opened for the specific purpose of maintaining roads. To begin with, I am not sure if the Senator's amendment would effect what he has in mind. His purpose would be better served if he suggested the deletion of the section from the word “whatever.” Otherwise it does not specifically exclude payment of compensation for other things besides breaking the surface. Apart from that, I think there are good grounds for the distinction between quarries bona fide worked and places that will not be quarries unless the county council makes them quarries. The value of a quarry depends on the demand. If the demand is there for stone it causes the stone to be valuable, and, in consequence, the quarry has a value. The quarry, has no value before the existence of the demand. Stone lying out in the Sahara desert is of no value, because it is in a place where no demand exists for it. A person owning property where stone is being worked, if the stone is valuable, is entitled to compensation for it. On the other hand, you may have a large tract of country under which there is some valuable stone or sand. There may be 100 farms under which you have the same strata of stone and sand. The county council comes to one man, picks out his gravel or sand, and says: “We will take this for the maintenance of the road.” He gets compensation for any surface damage, but the material is of no value, because there is no shortage of the material in the district. It would be inequitable to the farmers who have material of equal value to make them pay any rates for this particular material, which would have no value but for the fact that the county council is taking it. I think there is a clear distinction there, and as it is recognised by law at present I think there is no reason why we should depart from it at the present stage.

Amendment put and declared lost.

I move: Section 27, sub-section (4). To delete all after the word "powers" in line 13 to the end of the sub-section, and to substitute therefor the words "together with the value of any gravel, sand, stone or other material taken."

This is another amendment, approaching the same subject from a different angle. It is to ensure that compensation should be given in all cases. I am afraid I have not got that absolute veneration for what has been that would preclude me from ever amending an existing practice. I concede there has been an existing practice not to pay for material taken where the quarry has not been worked.

AN CATHAOIRLEACH

It was a matter of doubt for many years, and there were conflicting decisions on the subject. Some of the judges held that the owner was entitled in his compensation to include the value of the material taken. Finally, in 1913, it was settled that it was not. Since 1913 the law has been uniform and has refused to give compensation for the value of the material.

I wish first to ask the House to recognise what new conditions may produce, how it may become increasingly necessary to search for better stone, and it may necessitate counties proceeding to other counties to procure this stone, and quarries being opened which were never opened before. Is it suggested that if some owner is fortunate enough to possess this improved quality of stone, which modern conditions require, that the whole of the councils of the Free State or a number of county councils should be allowed to enter his land and remove his stone without compensation? It may be said that under the Bill this power to take is limited to one county alone. That is a matter on which I am not clear. I suggest that the Minister has power, by regulation, to authorise any county to go in and get stone in any other county. That is a point that should be safeguarded. If the stone is to be taken without compensation this power should be confined to the county in which the stone is used. Then, I think it is unjust that one end of a county should be maintaining its roads out of stone which is got gratis at another end. There would not be much injustice if those quarries were distributed equally and if everyone was sharing in the giving of this gift. Some Senators do not appreciate quality. Quality is an essential feature in the demand. Where good stuff exists everyone will want it. Look at the question of ferro-concrete roads. There you will require large quantities not alone of stone but of sand and gravel. Those materials will have to be of the best quality and can only be procured at certain places. You might have the whole of the County Dublin getting the material free from one place merely because the owner did not work his quarry at the time. If Senator Barrington's theory is right—that is, that the Constitution overrides everything—the State has power to take possession everywhere and anywhere.

I now approach the more narrow aspect of this question which arises from the words "bona fide worked.” Senator Kenny's attitude is that of a Rip Van Winkle, who has just wakened up and who does not realise what has happened during the past ten years in Ireland. It would be impossible to expect owners to have worked their quarries in Ireland during the past three or four years. It was impossible to get explosives. That alone would preclude the universal working of already-opened quarries. We know, too, that the state of the country upset any demand. Go back, then, to a date previous to our internal troubles, and we had the European War. There, again, everything was upset. All these internal development services were abandoned. All concentration was on outside issues, and it was very difficult, I think, even to get explosives in those days. The consequence was that maintenance of the roads was allowed to run down. If you are going to do justice, you will have to ante-date this question of bona fide practice to a period prior to 1914. To leave it six months or a year from now would be monstrously unjust. You will have to ante-date it to normal conditions, and I ask the House to take that view of the matter.

AN CATHAOIRLEACH

Your amendment, Senator, will delete the whole sub-section after the word "powers," because the remaining sub-section would become unnecessary if you inserted a provision that in all cases the material is to be paid for.

That would be the effect. I do not mind by what method it is achieved, so long as it is achieved.

I agree with the views of Sir John Keane on this question. We have handed over the land to the present occupiers. They are paying for it, and I think it is a scandal that their property should be taken from them in this fashion. As to the rights of the State under the Constitution to these underlying things, that is a question for the lawyers. I am not sure how lawyers in the future may interpret it, but I do say it is grossly unfair to take a man's property in this way. In the old days, the roads were made largely from broken stones and sand, taken from the landlord's quarry. The people came and took the stone away and the loss was not felt. But in the case of these small tenant owners, I hold that the county should pay for what it takes from them. Otherwise rich people in the towns may enjoy the advantage of this stuff, which is taken without payment from some poor farmer.

Before debating the question any further, I should like to have a ruling from you, A Chathaoirligh, on the constitutional point as to whether these things really belong to the people who have acquired their farms under the Land Acts or whether they belong to the State. It seems to me that we are beating the air until we have that very important question settled.

AN CATHAOIRLEACH

I have no doubt whatever that the sand and stone underneath the surface of a holding owned by a tenant farmer belongs to him and not to the State. A question might arise in the case of a vein of coal or a mineral of that kind. But in the case of agricultural land, I am quite satisfied that stone or gravel is the property of the owner.

It has been held in the case of railways, with which I have some familiarity, that gravel, which is ballast, is a royalty and that royalties are reserved to the State. It seems to me then that gravel and such things for ballast which have not been hitherto worked, would be the property of the State.

AN CATHAOIRLEACH

Have you present to your mind what the Constitution says on the subject? I do not recollect at the moment. When a question of this sort is raised and I am asked to give an opinion about it, you might at least let me know the provision of the Constitution upon which you rely.

It was Senator Sir John Keane raised the point.

Article 11 of the Constitution deals with it.

AN CATHAOIRLEACH

Article 11 states:—

All the lands and waters, mines and minerals within the territory of the Irish Free State (Saorstát Eireann) hitherto vested in the State or any department thereof, or held for the public use or benefit and also all the natural resources of the same territory (including the air and all forms of potential energy) and also all royalties and franchises within that territory shall ... belong to the Irish Free State (Saorstát Eireann) subject to any trusts, grants, leases or concessions then existing in respect thereof or any valid private interests therein ...

I think a tenant who purchased under the Land Act would be rather surprised if he were told that the stuff under the surface of his farm did not belong to him but belonged to the State.

I quite agree with your view, A Chathaoirligh, on this question. It is absurd to imagine a farmer who bought out his farm being told that because there is gravel a few inches below the surface it is the property of the State. I would not envy the State in endeavouring to assert its rights to that particular form of property. I am in agreement with Sir John Keane. Heretofore in constructing roads, stone was the chief material used. There was good stone and bad stone, and the roads in the different districts indicate the nature of the stone that was used. We are entering on a new era now, and it is certain that other methods will be used in the construction of our roads. It is quite conceivable that the old-fashioned methods may no longer be resorted to. If the public wish to take possession of something belonging to a citizen, it is only fair that he should be compensated therefor. I do not suggest that he should get an extravagant value. After all you have the district justice, or whoever the official is, to fix what is a fair value, and I think the Seanad should support Senator Sir John Keane. His amendment is quite a simple and an honest one.

AN CATHAOIRLEACH

I would suggest to Senator Sir John Keane that he should introduce the words "market value," because "value" is, after all, a very difficult thing to determine in the case of a thing that has no saleable value.

I am quite prepared to accept that, but I would go further and suggest that the Minister should bring in some form of words, having regard to the expense which the opening of a quarry or gravel pit involves. There is considerable expense involved in going into a new area and opening a quarry. If the State opens a quarry it should be allowed, as a setoff against the cost of doing that, any material it takes from the quarry.

AN CATHAOIRLEACH

If you leave it in this way: "Such compensation as the district justice, taking all the circumstances into account, should consider just." That, I think, would cover everything.

I am satisfied.

I have a good deal of sympathy with the amendment, particularly with the saving clause that you, A Chathaoirligh, have suggested. At the same time I would like to stress the point that we arc up against a very serious problem in trying to maintain our roads at all. Of course the big problem is the question of finance. That is a point on which we have had a considerable amount of discussion here as well as in the Dáil. Everyone is anxious to remove the burden from their own shoulders and to try to get it on to somebody else's, but in the long run it is the one people who will have to shoulder the burden, whether you call them ratepayers or taxpayers. The problem of road-making is becoming a tremendous difficulty. I am not in a position to find a solution for it now. The Roads Advisory Committee are trying to find a solution of it. It all turns on the question of money. This amendment would undoubtedly increase the cost of maintenance considerably. I think that at a later period it might be considered just to bring forward a provision of this kind, but at the present moment, when we do not know exactly where we stand in regard to financing these road undertakings, I think it would be very inadvisable to rush it at this particular moment.

The Minister wants to impose a plan of his own, because he does not think this is advisable. If he left the matter open it would be different. He is trying to impose a plan of his own because he says he cannot settle the matter now.

I am opposed to this amendment. The land owners, referred to by Senator Colonel Moore and others, are supposed to be suffering great hardships under the system at present in force, and which this Bill intends to carry on. In my opinion, there is no hardship on land owners when compensation is paid to them for material that is taken. I have some experience of going in on land for the purpose of getting road material. The magistrates always took into account the value of the damage done to the land. The compensation given amounted to, roughly, about £250 per Irish acre, or £1 per English perch. Surely anyone getting rid of his land at that price was not suffering much hardships.

Now, in addition to giving him £250 an acre for the land, it is proposed to pay him for every load of material taken out of the quarry or sandpit. If that is to be agreed to, it will mean that he will probably get a figure running into thousands for his acre of land. I do not think a case can be made for compensating a man for material taken out of his quarry unless, as some Senators have stated, he is working the quarry bona fide himself at the present time. In such a case as that a grave hardship would be inflicted on a man if he was not paid for the material taken out of his quarry. In the case of a man working a quarry himself and selling the material out of it for building purposes, it would break up his business, of course, if a public authority were to take over that quarry and then not give him any compensation for the material they removed. I have in mind a number of cases where quarries are being worked for the production of cut stone. It is proposed by some people that material should be taken away from a man, and no compensation given to him. It is proposed by the same people to run about and pay everyone for material, whether they use it themselves or not. I think the position as it is at present is a just and a fair one; that there should be no compensation for material taken unless in the case of quarries worked bona fide by the owners.

AN CATHAOIRLEACH

Perhaps I ought to explain the legal position a little more fully to the Seanad, because what Senator Duffy states is quite true. At least it was true up to the year 1913, and the reason for that was this. The compensation, under the old Grand Jury system, where the parties could not agree, was assessed by three neighbours. The law, as I stated, was viewed differently by different judges. Some of them held that it should include the value of materials, and others held that it should not, but in practice the three neighbouring householders, when they came to measure the compensation, included the value of the material taken. But now the matter is no longer left to the three neighbouring householders. The compensation is to be assessed by the District Justice. He will have regard to the law, as settled in 1913, and he will hold that he is not entitled to give any sum whatever for the materials taken away. That will be the position under this Bill.

I was referring to the custom that appertains at present.

AN CATHAOIRLEACH

That is being done away with now.

Yes, under this Bill.

AN CATHAOIRLEACH

The compensation is to be no longer assessed by his neighbours but by the district justice.

I was going to ask whether that custom still obtains. I understood it does up to the present. Otherwise one would like to know whether there has been any grievance arising out of this arrangement that has been the law up to the present. Notwithstanding the fact that the cost of the upkeep of the roads is more than the counties can keep pace with, instead of doing anything to relieve the position here is a fresh impost imposed by the men who complain that it is absolutely impossible to keep pace with the wear and tear of the roads under modern traffic conditions. After all, these quarry lands that may be broken into are of comparatively little use for grazing or agricultural purposes, and one may take it that the district justice will assess reasonable compensation for such land. If you buy land from another there is no reason why you should buy it down to a depth of five hundred feet. You buy a piece of land for building on its face value, and afterwards you have a right if you like, instead of building on it, to open it as a quarry or sand-pit. I do not think the person that sold it has a right to come back and claim compensation for the minerals he would never work. If compensation is paid for this, there is going to be all sorts of obstruction put in the way, and extravagant claims will be made, and the cost of the roads will be greater than they are. What the other House will do is hard to say, but if it has been the law so far there is no demand for a change, and unless it is suggested that where three householders acted justly the district justice will act unjustly, there is no case for this change.

Senator O'Farrell seeks to impale me on the horns of a dilemma; but if you ask me whether I prefer that the roads should cost a little more or that a little should be saved by injustice, amounting almost to dishonesty, I prefer the slightly increased cost of the roads. The Minister said it would be a considerable increase I would like him to justify that assertion, because I refuse to accept it. The cost paid for the material is but a fractional cost of the expenses of the road; to anybody who knows anything about road-making it is a truism that that cost is only a small decimal of the total cost. The Minister, while expressing sympathy with the amendment, seeks to get out of the position, and I suggest, with all due respect, in a somewhat slovenly manner. He says there is difficulty about the finance and then he left the matter. But there is difficulty about finance for all public work, and it is largely due to the feeling of insecurity as to the rights of property, and if you do anything further, as I submit the present practice does, to weaken the rights of property, you will only aggravate the difficulty. Any measure that seeks to deprive owners of fair and just compensation for what you take will get us no further at all and will only put us back. I do hope the Minister will stand by what I believe are his innermost sympathies, and accept this amendment. If he does not I hope the House will assert its authority in the matter.

Before voting on this question may I point out that from all the discussion that took place here both yesterday and to-day, it is abundantly clear that by the methods hitherto adopted it is, as Senator O'Farrell says, absolutely impossible to meet the demands for the reconstruction of the roads by direct application of that fund. But "absolutely impossible" might be hitherto more of a relative term. What is absolutely impossible when trying a thing in one way may not be absolutely impossible by trying it in another way. Would it not be possible in some way to turn this money which is derived from the taxation of motor vehicles, which certainly is not likely to be reduced, and to hypothecate portion of that to a loan and raise a capital sum?

AN CATHAOIRLEACH

The Senator is wandering from the amendment. At present we are dealing with the question whether gravel or sand taken away from an unopened quarry is to be included in the compensation.

My reason for mentioning the other suggestion is that we have been told that it is absolutely impossible to pay the extra costs that would be imposed upon the construction of the roads by the present methods. I was pointing out that although it may be absolutely impossible to do it under the system hitherto adopted, it may not be absolutely impossible if another system was adopted.

Amendment put.
The Committee divided: Tá, 15 15; Níl, 15.

  • William Barrington.
  • T.W. Bennett.
  • R.A. Butler.
  • J.C. Counihan.
  • Sir T. Esmonde.
  • Sir J. Griffith.
  • Benjamin Haughton.
  • Sir John Keane.
  • Thomas Linehan.
  • J.C. Love.
  • Edward MacEvoy.
  • William Molloy.
  • Colonel Moore.
  • Michael O'Dea.
  • Earl of Wicklow.

Níl

  • S.L. Brown.
  • Mrs. Costello.
  • Peter De Loughry.
  • Countess of Desart.
  • Michael Duffy.
  • Sir Nugent Everard.
  • Thomas Farren.
  • Thomas Foran.
  • P.W. Kenny.
  • Edward MacLysaght.
  • James Moran.
  • J.T. O'Farrell.
  • Bernard O'Rourke.
  • William O'Sullivan.
  • James J. Parkinson.
Amendment declared carried.

AN CATHAOIRLEACH

There are 15 in favour of the amendment and 15 against. It is consequently my duty to give a casting vote. Having regard to my experience, the practice hitherto, and the change that will be involved in legislation in this Bill, if it stands as at present, I am in favour of the amendment and I declare it carried.

The Committee adjourned at 1.40 p.m. and resumed at 2.30, An Cathaoirleach in the Chair.

I move:—

Section 27, sub-section (5), line 23. After the word "Court" to delete the words "whose determination shall be final" and to substitute therefor the words "with a right of appeal by both parties to the Circuit Court."

During the discussion that took place on this section we learned that this question is a very involved one, and that the damage dono where there are large quarries might be very great. The amount involved might be greater than the jurisdiction given to a District Justice. I think it would be only fair to both parties that there should be a right of appeal to the Circuit Court.

I am in favour of the principle of the amendment and am willing to accept it. It might require some re-drafting and perhaps we could have it for the Report Stage.

AN CATHAOIRLEACH

At present the amendment would only give the right of appeal where both parties took it. The Senator means to give the right of appeal to either party.

AN CATHAOIRLEACH

So that it would read "with a right of appeal by either party to the Circuit Court."

Amendment, as amended, put and agreed to.

I move:—

Section 27, sub-section (6), page 14, line 25. After the word "ground" to insert the words "including demesne land, golf links, tennis grounds, football or hurling grounds," and at the end of the sub-section to add the words "this sub-section shall only apply where there is no existing quarry or gravel-pit."

I submit that the section is not sufficiently comprehensive, and, I think, if the words I have suggested were included there would be no mistake. The section should include golf links, tennis courts, and football and hurling grounds.

AN CATHAOIRLEACH

Would not your object be met by substituting the words "recreation" for "pleasure"? I think that that would cover it.

I am glad to believe that sport is making strides in popularity and is doing more than is, perhaps, generally realised to bring the different sections of the people together by international matches in different games in the British Isles and elsewhere. Such events as the test matches that took place in the Antipodes commanded tremendous interest amongst the public generally. I believe that games will do much more in bringing about what we all so earnestly desire, good feeling among the people in the country, than any amount of platform oratory.

The serious part of the amendment is "demesne land." I am afraid that as the sub-section stands the words might imply the demesne, but I do not think that that is meant. I do not know whether the Minister recognises that, if the section stands as it is, he could go into a demesne. I do not know whether he wishes to take that power. I think it is a very useful power, as the place might be far enough away from the mansion house to do no harm to the amenities. If Senator Haughton wishes to confine himself to recreation grounds he should strike out "demesne land."

In my county people have to go five or six miles to get proper material. There may be material in demesne land where there are tennis courts or something of that sort. In the past we know that it was a common thing for those who did not wish to have material taken from their lands to plant a few apple trees to create an orchard, or have a tennis court, or an imitation tennis court, in order to evade the law.

AN CATHAOIRLEACH

An imitation tennis court would not do, as it has to be bona fide used.

What I mean by a tennis court is one that would prevent stones being taken from the lands, or such interference.

AN CATHAOIRLEACH

If it was imitation it would not be bona fide used and would not come within the section.

What troubles me is that if demesne land is allowed to remain in the amendment, I would have to vote against it. If these words are taken out I am entirely in favour of recreation grounds.

I think Senator Brown has raised a very good point. When drafting this section I gave particular attention to this point about the amenity and convenience of a dwelling-house. I think it would be a very serious thing if a person was allowed to open a sandpit or bring objectionable machinery near a mansion, in such a way as to injure the prospect, or anything of that kind. I think these words, "amenity" and "convenience," would protect that interest if they were included. If we include the word "demesne" it will protect interests of a much wider kind. I think when the holding of the small farmer, and of the man with a small bit of ground, or a tillage plot, can be encroached upon, we should not draw the line at "demesne land," which might include a very large tract of land around a house. I think the section would be helped by the addition of the words "for recreation purposes."

AN CATHAOIRLEACH

If the Senator accepts that I think it would carry it far enough. Perhaps you could leave the section as it stands and make no change except substitute the word "recreation" for "pleasure."

I agree to that.

It might be well to add "recreation" and leave "pleasure ground" in.

"Pleasure ground" would apply to a house.

AN CATHAOIRLEACH

Insert after the word "orchard""pleasure or recreation ground."

The second part of the amendment was inserted in order that, if there was such a place in existence in the neighbourhood, attention should be drawn to that first.

AN CATHAOIRLEACH

If that is the purpose, that part of the amendment would defeat it. I do not think that part is required at all.

I agree to the deletion of the latter part of the amendment.

Amendment, as amended, put and agreed to.
Question—"That Section 27, as amended, stand part of the Bill"—put and agreed to.
SECTION 28.
(1) Where the Minister, on the application of the council charged with the maintenance of any road, is satisfied that the erection of a proposed building or other structure would obstruct the view of persons using such road so as to render such road dangerous to such persons, he may by order prohibit the erection of any portion of such building or structure within thirty yards of such road.
(2) Where the Minister, on the application of the council charged with the maintenance of any road, is satisfied that a building or other structure which or any portion of which is situate within thirty yards of a road obstructs the view of persons using such road so as to render such road dangerous to such persons, he may order the removal of any portion of such building or structure situate within thirty yards of such road and may by such order specify a time within which such removal is to be completed.
(3) No order shall be made by the Minister under the next preceding sub-section in respect of any occupied dwellinghouse at the passing of this Act unless and until the Minister is satisfied that alternative accommodation, reasonably equivelant as regards rent and suitability in all respects is available for the occupants.
(4) Where the Minister makes an order under this section for the removal of a building or other structure or any portion thereof, the council on whose application the order was made shall pay to every person having an interest in the land upon which such building or structure is situate, by way of compensation for such removal, the amount by which such interest is damaged by such removal, and such amount shall, in default of agreement between such council and such person, be determined in accordance with the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, by the Reference Committee appointed for the purposes of that Act.
(5) No compensation shall be payable under this section by a council in respect of a building or structure the erection of which was begun after the passing of this Act unless not less than one month's notice in writing of the intention to erect such building or structure was given to such council before such erection was begun, nor shall any such compensation be payable in respect of any portion of a building or other structure which was erected in contravention of an order made by the Minister under this section.
(6) If an order of the Minister under this section for the removal of a portion of a building or structure is not complied with within the time specified in that behalf therein the council on whose application such order was made may themselves comply with such order and may do all such acts and things (including entering on land) as may be necessary for that purpose and in such case such council shall be entitled to recover from the occupier of the building or structure in the District Court as a civil debt all expenses incurred by them in so complying with the order.
(7) Before making an application to the Minister under this section in respect of an existing or proposed building or structure, a council shall give not less than one month's notice in writing of the application to the owner and to the occupier of the building or structure or of the site on which the building or structure is proposed to be erected, as the case may be, and such notice may be served by posting a copy thereof in a conspicuous place on such building or structure or on such site, as the case may be.
(8) Where the occupier of a building or structure or the site of a proposed building or structure holds the same under a lease or other contract of tenancy the immediate landlord of the occupier shall be deemed to be the owner of the building, structure, or site for the purpose of this section, and in any other case the occupier of the building, structure, or site shall be deemed to be the owner thereof for the purpose aforesaid.

I beg to move:

Section 28, sub-section (1). Line 32. To delete the word "yards" and to substitute therefor the word "feet."

My amendment aims at making the distance from the road thirty feet instead of thirty yards. It is advisable to make some change in that respect. Roads may go through urban districts, and in those districts no lands may be available on which to erect a house. It might be possible to erect a house thirty feet from the road. A house erected thirty feet off the road would not in any way, I believe, interfere with the speed of motor vehicles, if the persons using them adopt ordinary precautions, keep their own side of the road, and look out for vehicles coming in the opposite direction. As the section stands, it will to some extent obstruct the proposed building of houses. It will not be always possible to provide sites at such a long distance as thirty yards from the road. Take, for instance, the case of the plots provided for labourers' cottages. The fact that the houses would have to be erected thirty yards back would, to a very considerable extent, destroy the utility of the whole scheme. There would have to be a passage thirty yards in length from the road to the cottage. It is not desirable that any obstacle should be placed in the way of any people who intend to build houses. If the section in its present form is adopted it will prevent people who may be so inclined from erecting houses.

I do not think it would be advisable to accept the amendment. In most cases these powers will be used only where dangerous corners exist at cross-roads. It is not proposed to insist on using those powers on long, level stretches of straight road. A great deal will depend on the angle and the contour of the road in order to decide whether a distance of twenty or thirty feet, or thirty yards, will be sufficient. The section leaves a certain amount of discretion with the Minister. It will not be necessary to insist on thirty yards if thirty feet will meet the requirements of the situation. Having regard to the speed of modern traffic, and to the difficulty experienced in negotiating dangerous corners at the present time, a distance of thirty yards is not by any means too much. I am afraid that a distance of thirty feet would not be adequate in order to make those corners safe for the motoring public and for the people who are more or less at the mercy of the motoring community.

If the section were confined to houses at cross-roads or adjacent to dangerous corners, possibly that might meet with agreement.

AN CATHAOIRLEACH

The section reads very like that. If the Minister is satisfied that the erection of the proposed building would obstruct the view of persons using the road, so as to render the road dangerous to such a person, he can refuse permission. He can always refuse unless he is satisfied that anything less than the thirty yards would be adequate.

I will, with permission, withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move the following amendment:—

Section 28. To delete sub-sections (2), (3), (4), (5), (6), (7) and (8).

AN CATHAOIRLEACH

You had better move the deletion of sub-section (2) first. If that proposal is not carried the others would be purely consequential upon it, and need not be touched.

This sub-section deals with the removal of an existing house which happens to be less than 30 yards from the public road. It is very undesirable that any power should be given either to the county council or to the Minister to interfere with the residence of any person whose house happened to be within that limit of the road. I dare say that the object of the amendment is to enable motors to travel at a greater speed than they have hitherto been travelling at. That object is not as important as the preservation of the right of occupants to regard their houses as their castles. They should not, under any circumstances be compelled to leave. There is, of course, the provision that an alternative house shall be provided.

AN CATHAOIRLEACH

And the occupant is also to get compensation.

The people in this country are so very fond of their old homes that no alternative accommodation would satisfy them for the house that, perhaps, they were born in.

I cannot agree with this amendment. I do not believe it is intended that motorists should travel at any greater speed now than they have been travelling at. I believe the section is intended for the safety of the people who live in those houses. I have in mind a house on the border of the Counties Cork and Kerry at which, to my own knowledge, three people were killed. Two were visitors who were riding a motor cycle and side car, which dashed against the house, and they lost their lives. Such an obstacle as that should not be permitted on a public highway. Perhaps it might be easier and cheaper to remove the road away from the house? At any rate the road should be quite clear for motorists and all other users.

I hope I will not be out of order in calling attention to the words made use of some generations ago by William Pitt, afterwards Earl of Chatham, touching on the sanctity of the home. The words were to this effect: "The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the winds may blow through it and the storm may enter; but the King of England with all his forces dare not cross the threshold of this ruined tenement."

AN CATHAOIRLEACH

Are you sure William Pitt used those words?

I think so.

AN CATHAOIRLEACH

I think I heard something like them before.

I was going to suggest that we should have those words copied out and handed to the genial Minister for Local Government and Public Health, who turned me down so graciously with regard to lodging houses the other day. They will be useful when it comes to the question of ruthlessly interfering with dwelling-houses.

The intention of this section is to apply it principally to walls. The mere fact that compensation will have to be granted when a house is removed, and that alternative accommodation will have to be found for the people who have been deprived of their dwellings will constitute, in itself, a sufficient safeguard against the arbitrary use of this section. It certainly would render the provision of this Bill with regard to roads very unsatisfactory if this section were to be deleted. The object of this section is more to protect pedestrians and the persons living in or near a dwelling-house than to protect the motorists. Senator Linehan seems to imagine that my whole object in framing this Bill was to enable motorists to go at a greater speed than they can at the present time. I can assure him that that was not my object at all. It was more to protect pedestrians and the persons using other means of conveyance than in the interests of motorists and motor-car owners that this section has been drafted.

Amendment, by leave, withdrawn.

AN CATHAOIRLEACH

That disposes of the amendment as affecting the remaining sub-sections.

I beg to move:—

In Section 28, sub-section (2), page 14, line 36, after the word "structure" to insert the words "not used for religious purposes."

This section gives power to remove any obstruction. That would include a church. I want to know if churches or houses intended for religious purposes could be removed. I do not suppose it was intended that churches should be removed.

I am afraid if this amendment were passed that its power would be a very wide one. Its purpose is very widely framed. A person selling rosary beads in a little shop in a country town might seek to have it construed that his house was performing or serving a religious purpose. Or, perhaps, it might be argued that the wall around the graveyard which might constitute a menace to the public might come within the definition and that it could not be touched if this amendment were accepted. I do not think that in this country there is any danger of a structure used for religious purposes being interfered with. The Senator seeks to impose a very wide limitation by this amendment. I do not think the Senator should insist upon pressing it.

Would the Minister be satisfied to insert in the Bill that he would exclude churches?

AN CATHAOIRLEACH

I think such a phrase as "churches not used for public worship" might meet the case. As it stands at present the Bill would include schoolhouses, meeting houses, church halls, and things of that kind. It is very wide, but if you put in the words "not used for purposes of public worship" that might meet the situation.

I think the section should be allowed stand as it is. Surely, in the name of goodness, no Government in Ireland elected by the people of Ireland are going to pull down churches.

I withdraw the amendment with the permission of the Seanad.

Amendment, by leave, withdrawn.
Amendment standing in the name of Senator Barrington: "Section 28, sub-section (6), to delete all after the word ‘purpose' in line 8, to the end of the sub-section," not moved.

I beg to move:—

In Section 28, sub-section (6), page 15, to add at the end of the sub-section the words "and the District Court shall have full jurisdiction to deal with the same, notwithstanding that the amount thereof exceeds £25."

I beg to call attention to the fact that the jurisdiction at present of the District Justice does not reach beyond this figure of £25. It is in order to cover that I am moving this amendment.

AN CATHAOIRLEACH

Of course it really is not necessary, because this Act of the Oireachtas will just have the same effect as the Courts of Justice Act. This Act of the Oireachtas gives jurisdiction, and therefore the District Justice has jurisdiction under the statute. It is not really necessary to press this amendment. This is subsequent to the Courts of Justice Act, and it provides in this particular case that the District Justice is to have jurisdiction.

Amendment, by leave, withdrawn.

On sub-section (6) I meant to have an amendment moved which is not on the amendment paper. I had other amendments practically the same as this. As my amendments were based on the same principle I ask the permission of the Seanad to be allowed to move an amendment on this section. Sub-clause 6 gives the Government power to remove houses within 30 yards from the road and have them put back. To enable them to do that they have to go through certain forms. One is that there must be a certain amount of compensation. I think the clause dealing with compensation is rather vague. I will be guided by you on the matter. If you assure me that the compensation is to be paid I am quite satisfied. But if compensation is to be paid you will find that there will be an amount of litigation. The person whose house is to be removed will have to go to the District Court, and there go through a complicated system of law. After the court has made an order that the house is to be removed, if the person fails to carry out that order, the duty will devolve upon the council to do the work themselves. They would then have to do the work themselves, which they would have done in the first instance if there had been no objection. I would ask that sub-section (6) be amended in this direction. Some people may object that the county council should enter into a man's land willy nilly. That would not be the case, because before making the application to the Minister he would have to be notified, and he would have the ordinary recourse to law.

If a house has got to be removed, if the public interest makes it necessary that it should be removed, I think it is a great hardship to ask a man, if he is a poor man, to go to the trouble of hiring servants and possibly of going to the bank to get some money to enable him to remove this house or structure. There is a great chance that he will fail to do that, because he is not conversant with all the necessary details. Local authorities have at their disposal a great number of trades people of every description, and they would be in a position to remove it in the most expeditious and economical manner. I think it would be reasonable that the council should remove such obstruction, giving at the same time a person interested an opportunity of appealing to the District Justice if he thinks that the removal is unjust. The Minister very courteously spoke to me on the matter, and he was of opinion, I think, that under this particular section no compensation is to be paid. He said to me that he would go as far as possible to enable compensation to be paid. I ask you, sir, to help me. I think, as the section stands, it would fail unless the Acquisition of Land clause at the end makes it clear.

AN CATHAOIRLEACH

As regards your first point, I do not see in this section any provision in sub-section (4) giving compensation to the occupier where he holds under contract of tenancy, and yet he will be the person, of course, who will be inconvenienced by having to clear out. There is no provision for compensation for him. The occupier is only to get compensation where he is not holding under lease or contract of tenancy but is himself the owner of the place.

Would not that be met by inserting the words, in line 52, sub-section (4): "shall pay to every person having an interest in the land on which such building or structure is situated or in such building or structure...?"

AN CATHAOIRLEACH

That is what I was going to suggest—or in the building or structure itself.

That, of course, would make it much plainer and simpler, but it would not relieve a man who is in the position of having his house shifted of doing it himself. After all it would be a great convenience if you were told to pull down a stable or anything else if the people requiring that to be done did it themselves. Nobody would be inconvenienced. I think that is much simpler than asking a man to go into court, asking that compensation should be awarded to him, and then seeking compulsory powers for a local body to do work which could be done in the first instance by a much simpler process.

AN CATHAOIRLEACH

That is on the second point.

AN CATHAOIRLEACH

As regards the first point, the position is more peculiar than I thought it was, because while the occupier of the building or structure is to get no compensation if he is in possession as a tenant he is nevertheless to be liable to recoup the council for all expenses that they have been put to in the removal of the structure in the event of the order to remove it being disobeyed. I think there is some omission there. I think subclause (4) should include compensation to the occupier as well as to the owner of the land.

I agree with Senator Bennett on this point. I think the county council should be made to remove these structures. When a railway company has to remove a house in the construction of a railway, they have to build another house instead, and I think the authorities should be compelled to do the same thing here. The building of a wall may cost £5, but the legal procedure involved in getting compensation would probably cost about £10. I think that we should make it compulsory on the county council to build the wall or house, as the case may be.

It might be better to leave this amendment over to the Report Stage. I have discussed the matter with Senator Bennett and we agreed the draft was defective as regards compensation. Of course, the point as to whether the county council should rebuild the wall or not, is a moot point, and people will have different opinions on it. In a great many cases a man whose wall is taken down would prefer to rebuild the wall himself if he got compensation from the county council. It would not be necessary except in exceptional cases for him to go into court. However, that is a matter in which I am in the hands of the Seanad and I do not think it matters very much.

I am quite satisfied to leave it over to the Report Stage if the Minister so wishes, and if he will bring in an amendment which will meet the case equitably. I do impress upon him, however, that my amendment would meet the case in a much simpler and more economic way than any that could be devised.

There is also the question of compensating a person whose house has been taken down. I take it that it is intended that sub-section (3) should cover that, but I do not think it refers to it. It simply says: "No order shall be made by the Minister under the next preceding sub-section in respect of any occupied dwelling-house at the passing of this Act unless and until the Minister is satisfied that alternative accommodation, reasonably equivalent as regards rent and suitability in all respects is available for the occupants." Alternative accommodation may be available but it does not necessarily follow that the people whose houses had been pulled down had not suffered considerable loss as a result of that, and I think there should be some compensation if the owner of the land is to be compensated.

It may cost them £20 to move.

AN CATHAOIRLEACH

That is what I have in mind. That is what we have to look into, and the Minister, I am sure, will consider that in connection with your other point and deal with with it on Report.

I am quite satisfied if it is dealt with on the Report Stage.

Amendment, by leave, withdrawn.

I move:—

In sub-section (7), line 19, after the word "notice" to insert the words "shall be served by personal service or by registered letter."

Sub-section (7) provides that one month's notice must be served by the council on the owner of the dwelling, and it goes on to state: "and such notice may be served by posting a copy thereof in a conspicuous place on such building or structure or on such site, as the case may be." I propose to delete these words and to insert those in the amendment. If the owner of the building is available, I do not see why he should not be served personally. The notice could be stuck on the building and torn down a few hours afterwards, and the owner might not know anything about it.

I would like to support this amendment. I think it is very reasonable. In these days notices are pulled down by innocent schoolboys, or offending schoolboys, half an hour after they are put up.

The only trouble is the difficulty in finding out who the owner is in many cases.

Generally speaking there is no trouble in finding the owner.

AN CATHAOIRLEACH

It could be amended: "and such notice may, in cases where the owner and occupier cannot be ascertained."

Where the owner can be found he can be served personally.

AN CATHAOIRLEACH

"Where the owner or occupier cannot be found." Will that do?

That will do.

AN CATHAOIRLEACH

After the word "notice," in line 19, you amend the section in this way: "and such notice may, in any case in which the owner or occupier cannot be found, be served by posting a copy thereof."

Does that mean that where the owner can be found he must be served personally?

AN CATHAOIRLEACH

He will be served by notice in writing. The first part of that clause says: "a council shall give not less than one month's notice in writing to the owner and to the occupier."

Amendment, as amended, put and agreed to.
Section 28, as amended, put and agreed to.
SECTION 29.
(1) A hedge or tree shall be deemed to be prejudicial to a road within the meaning of this section if and when the hedge or tree—
(a) shades the road to such extent that the maintenance of the road is thereby made unduly difficult or expensive, or
(b) causes an obstruction on the road, or
(c) obstructs the view of persons using the road so that the road thereby becomes dangerous to persons using it.
(2) When a hedge or tree is prejudicial to a road, the county surveyor or the urban district council (as the case may require) may by request in writing served on the owner and on the occupier of the land on which such hedge or tree is growing request such owner and such occupier within twenty-one days after the service of the notice to trim or cut such hedge or tree so that it will no longer be prejudicial to the road, or, where such course appears to be necessary, to cut down and remove such hedge or tree.
(3) A request under the foregoing sub-section may be served on an occupier of land and, where any difficulty arises in ascertaining the name and address of an owner of land, on such owner by posting such request or a copy thereof in a conspicuous position on the land.
(4) If an occupier of land on whom a notice is served under this section could not but for this section lawfully comply with the request without the consent of the owner of the land or of a superior landlord the following provisions shall apply, that is to say:—
(a) the owner or any superior landlord of the land may within ten days after the service of the request on the owner apply to a Justice of the District Court for an order annulling such request, and such application, when notice thereof has been served on the occupier of the land and on the county surveyor or urban district council by whom the request was served, shall operate to suspend the request for one month or until the said application is disposed of by the Justice which ever shall be the shorter period;
(b) on any such application as aforesaid the Justice of the District Court may, if he is satisfied that the request is unreasonable or that compliance with it is unnecessary or unduly prejudicial to the applicant, either annul altogether or amend in such way as he thinks proper the request;
(c) where a Justice of a District Court on the hearing of such application as aforesaid either refuses the application or amends the request, the request in its original form or as so amended (as the case may require) shall be deemed to have been served on the date of the order of the Justice and shall have effect accordingly;
(d) if neither the owner nor any superior landlord gives notice, within ten days after the service on the owner of the request under this section, of such application as aforesaid to a Justice of the District Court, the occupier may at the expiration of such ten days comply with the request without the consent of the owner or any superior landlord, and in such case no action shall lie by or on behalf of the owner or any superior landlord for or in respect of anythingbona fide done by the occupier for the purpose of complying with the request;
(e) the person whose consent is necessary to the cutting down of a tree required by a request to be cut down may by notice in writing served on the occupier at any time before the request is complied with claim such tree, and in such case the property in such tree when cut down in compliance with the request shall vest in the person by whom such notice was served and such tree when cut down may be removed by him.
(5) Where a request under this section is not complied with within twenty-one days after the same has been served on the owner and on the occupier, the county surveyor or urban district council by whom the request was served may apply to a Justice of the District Court for an order that the request be complied with and on the hearing of such application the Justice—
(a) if he is satisfied that the hedge or tree mentioned in the request is prejudicial to the road and that compliance with the request is reasonably necessary, shall order the occupier of the land on which the hedge or tree is growing to comply with the request within fourteen days; and
(b) in any other case may either refuse the application or amend the request in such manner as he thinks proper and order the request as so amended to be complied with by the occupier within fourteen days.
(6) Where an occupier of land fails to comply with an order of a Justice of the District Court under the foregoing sub-section within fourteen days from the date of the order the county surveyor or urban district council on whose application the order was made may himself or themselves comply with the request or amended request to which the order relates and may do all such acts and things (including entering on land) as may be necessary for that purpose, and in such case the said county surveyor or urban district council shall be entitled to recover from the occupier in the District Court as a civil debt all expenses incurred in so complying with the said order.
(7) Where a Justice of the District Court makes an order under this section requiring an occupier to comply with a request or amended request which requires a hedge to be cut down and removed and the justice is of opinion that the removal of the hedge will be unduly prejudicial to the owner or occupier of the land unless a suitable fence is erected on the site of the hedge, the justice may fix a sum as a reasonable contribution to be made by the county council or urban district council towards the cost of the erection of such suitable fence and may order such sum to be paid by the county council or urban district council to the occupier (or, if the justice so thinks fit, to the owner), and the payment thereof to be treated as part of the expenses of maintaining the road.
(8) Nothing in this section shall authorise a county surveyor or urban district council to trim or cut any hedge at any time between the last day of March and the last day of September nor authorise any person to be requested or ordered to trim or cut a hedge between those days.
(9) Where the time limited by a request or order under this section for trimming or cutting a hedge expires between the last day of March and the last day of September such time shall be deemed to be extended to the following seventh day of October.
(10) Where an occupier of land holds that land under a lease or other contract of tenancy, the immediate landlord of the occupier shall be deemed to be the owner of that land for the purpose of this section, and in any other case the occupier of the land shall be deemed to be the owner thereof for the purpose aforesaid.
(11) So much of the Summary Jurisdiction (Ireland) Act, 1851, as relates to the case of a public road being prejudiced by the shade of any hedge or tree, or to any obstruction being caused in any public road by any hedge or tree shall cease to have effect.

I move the deletion of sub-section (2). I admit that in certain cases it may be necessary to cut down a few trees, but it seems to me that sub-section (2) might refer to plantations along the roads. I think we will all agree that too many trees have been cut down in this country. There is another matter which perhaps the Minister would take into consideration. Most of the land in the Free State is held by tenant purchasers. Supposing one of these were to get a notice from the county surveyor to cut down a tree, and an order is made against him to do so, under one of the Land Acts he is prohibited from doing so without the consent of the Minister for Lands and Agriculture. If the Minister refuses to give his consent, whom is he to obey? If he refuses to cut down the tree he is prosecuted by the county surveyor; if he obeys he will probably be prosecuted by the Minister for Lands and Agriculture.

The Senator has put up a conundrum that I do not think I am in a position to solve. Perhaps you, Sir, with your great legal experience, will be able to find the solution. But I think it would be a mistake to delete this sub-section. At present these overgrown hedges and trees constitute a very grave danger to users of the roads, not merely motorists, but all people travelling on them. They constitute a source of inconvenience in three ways. To begin with, tall trees overhanging the roads in many cases keep the surface soft, and make it very difficult to keep the roads in repair. Secondly, they obstruct the view of people coming round corners; and, thirdly, there is the danger of having one's eyes torn out by brambles. It is very necessary that this power should be given. Of course we cannot make omelettes without breaking eggs, and in some cases individual rights may be infringed a very little, but if we balance the amount of good that will accrue from putting this section into operation against the loss that may occur to individuals, I think that everybody will agree that the benefits greatly outweigh the losses. If this clause is deleted it would scarcely be worth while continuing the rest of the section.

At present the county surveyor or the county council has power to make an order for the trimming of hedges, but not for cutting them down. I do not see that they need any more power.

That is only for the purpose of preventing injury to the road itself.

AN CATHAOIRLEACH

This sub-clause (2), Senator Brown, appears to be aimed solely at the injury to the roads. The owner gets "within twenty-one days after the service of the notice to trim or cut such hedge or tree so that it will no longer be prejudicial to the road."

He certainly has that power already, there is no doubt about that. But I think this was intended to do more than that.

AN CATHAOIRLEACH

I think instead of "trim" the words should be "cut down."

The present power, I think, is only to compel trimming.

Prejudicial in that sense is governed by sub-clause (c) of sub-section (1): "obstructs the view of persons using the road so that the road thereby becomes dangerous to persons using it."

AN CATHAOIRLEACH

I would like to hear that discussed. I think it would be very difficult to maintain that contention.

"A hedge or tree shall be deemed to be prejudicial to a road within the meaning of this section"——

AN CATHAOIRLEACH

That covers it. This sub-section (2) appears to apply only to trimming.

Does it take away from the county surveyor the power to cut down these hedges? I do not think you could carry out county council work at all if the council do not have that authority.

AN CATHAOIRLEACH

I think the only change made here is this: There is already power to cut down hedges or trees where they are prejudicial to the road. But prejudicial to the road in the existing legislation would have a very narrow view. It has not been extended to cover the cases (a), (b) and (c), so that in the future there would be jurisdiction which did not exist before to compel the trimming of a hedge where it causes an obstruction to the road, obstructs the view of persons, and so on. It enlarges the reasons for which the county surveyor may cause any hedge to be trimmed or tree to be cut.

It gives power to remove also, which is most important.

If this amendment were passed it would put us in the position in which we were before the previous Act was passed. Does Senator Butler want to give the county surveyor no authority to act?

He wants to strike the sub-section out of the Bill.

I think it is a very necessary sub-section.

The real difficulty seems to be (a). Nobody who owns trees will object to them being cut down, because they are an obstruction to the view, but there are many places where there are new or old plantations along the side of a road, and this power may be used by some arbitrarily-minded county surveyor to cut down rows of trees. Trees are scarce enough, and any power that could be used for that purpose I would oppose. Consequently I think the amendment ought to be passed.

Amendment put and declared lost.

AN CATHAOIRLEACH

I think that disposes of the next, to delete sub-clause (3).

Might I move that sub-clause (a) be deleted, for the reasons which I gave?

This is the existing power that the Senator proposes to remove, the power that has been in existence for I cannot say how many years, and I might say that the view of our head Roads Engineer is that all the roads should be planted with trees, but that they should be planted in suitable positions. I think it would be a very serious thing to interfere with this existing right of cutting down timber where it prejudices the road-users' point of view.

In view of that, as I only suggested the amendment on the spur of the moment, I had better withdraw it.

I move:—

Section 29, sub-section (5). To delete all after the word "necessary" in line 41 down to and including the word "days" in line 44, and to substitute therefor the words "may order that the necessary work be carried out by the county surveyor or urban district council by whom the request was made."

This provision is not quite as innocuous as it appears. The hedge and all that appertains to it will have to be removed. That will be a very big job. It will be more difficult than the erecting of a house. The Minister may not realise that, but to take a fence back twenty yards is a very serious operation. The same principle should apply in this case as in the other case, and the work should be done by the local authority. That would be only reasonable. The uprooting of a fence and the replanting of it in another place is too big a task to impose upon a man without proper compensation. I think this matter should be considered on Report.

This work is not in the same category as the removal of a wall. After all, if we place the onus on the local authority of cutting down all those hedges that obstruct the view on roads, the county council will have to hire a special staff for the purpose. In one of his recent reports, our chief engineer said it would be a good thing for the country if those responsible for the maintenance of roads would stop gardening. I think that if we accepted the Senator's amendment it would lead to a great deal more of this abuse. Ample compensation can be given under the section to the owner to compensate for the removal of those hedges and I think that that should be quite adequate to safeguard the interests of the private owner.

Are you quite satisfied that he will be compensated.

Sub-section (7) deals with that.

I am quite satisfied. I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I move:—

Section 29, sub-section (6), page 16, line 51, after the word "within" to delete the word "fourteen" and to substitute therefor the word "twenty-eight."

Fourteen days is not sufficient time to give to have the work carried out.

I think the notice provided under the Bill is ample. First of all there is notice of twenty-one days. Then there is a hearing in the District Court. After that, there is notice of fourteen days more. In all, the notice amounts to nearly two months. I think that should be ample. This is one of the matters which we have to pay attention to, because you cannot cut a hedge except at certain times of the year without endangering its subsequent growth. If we allow too long a time to elapse it will be impossible to put the section into operation at all.

Amendment, by leave, withdrawn.
Amendment 58 (Senator Bennett) not moved.

I move:—

Section 29, sub-section (6). Page 16, line 58. After the word "expenses" to insert the words "which the District Justice shall consider-reasonable," and to delete line 59.

Under the Bill, an urban district council or a county council would be able to spend any money they liked in carrying out the work. I propose to restrict that by inserting the words "which the District Justice shall consider reasonable."

I have no objection to the amendment.

Amendment put, and agreed to.

I move:—

Section 29, sub-section (8). Page 17, line 9. After the word "hedge" to insert the words "or tree."

We can accept that amendment.

Amendment put and agreed to.
Section, as amended, put and agreed. to.
SECTION 30.

I move:—

Section 30. Immediately before section 30 to insert a new section as follows:—

30.—(1) In this section the word "animal" means all cattle and swine and also any horse, ass, mule, sheep or goat, and the young of any such animal.

(2) Every person who permits any animal belonging to him or in his charge to wander or stray on a road shall be guilty of an offence under this section, and shall be liable on summary conviction thereof to the following penalties, that is to say:

(a) in the case of a first offence a fine not exceeding one pound for every animal in respect of which the offence is committed more than one hour after sunset and more than one hour before sunrise a fine not exceeding two pounds for every such animal, and

(b) in the case of a second or any subsequent offence to a fine not exceeding five pounds for every animal in respect of which the offence is committed, or where the offence is committed more than one hour after sunset and more than one hour before sunrise a fine not exceeding ten pounds for every such animal.

The reason for this amendment is the growing evil of straying cattle on the roads. In many parts of the country the cattle practically live on the roads. That is the case in regard to one of the counties that I know best in the west of Ireland. With the increase in motor traffic, that is a very real and growing danger. The present law is altogether insufficient for the purpose of suppressing this evil. The maximum fine under the old Petty Sessions Act is 2s., and the procedure is very technical. The section which it is proposed to add defines "animal" in such a way as to include all animals except dogs and cats. Sub-section (2) provides a maximum penalty of £1 where the animal strays in the daylight, and £2 where the animal is straying at night. That is for the first offence, and Clause (b) for the second offence brings the maximum penalty in the day time up to £5, and at night time up to £10.

Should not the word "jennet" be added. I do not think under the wording that it would come under the section. In my district there is a jennet which is continuously living on the roads.

It is quite clear that this amendment is put down in order to allow motorists further to increase their speed. There is an extraordinary penalty put on here for allowing a goat to stray on a road. It is a fine of £5. It is not meant to be recovered as a civil debt, and the unfortunate owner of the goat would have to go to prison if he could not procure £5.

AN CATHAOIRLEACH

He might disown the goat.

It seems to me that the common people are to be ignored altogether and that nothing must stop the motors. I am surprised that the extreme penalty of the law was not put on to keep those animals off the road. In very many cases goats are useful for the purpose of supplying milk to the occupiers of cottages adjoining the roads. I daresay sometimes the goats are fed on the roads. In that way they supply milk to the family. I think that is a more important thing than even the extra miles per hour of a motor car. This amendment would make the Bill repugnant to all the cottiers in the country.

I have another objection to this amendment. As it stands, if a beast strayed out on the road—we all know that will happen— and was taken by Civic Guard, the owner is subject to a penalty of a pound. If we are to accept the amendment I think there should be some clause protecting such a man. The goat is a little harmless animal. If you tried to ride over a goat on a bicycle you hardly could. I have done a lot of work on bicycles and I know that a goat can hardly be ridden over. Senator Linehan's plea for the cottiers' goat ought to be considered. Every cottier has a little goat which grazes on the hedge. Those poor persons get their grazing and always will from the outside of the hedges.

I agree with what Senator Linehan and Senator Bennett said about the goat. If you were going in a motor at about 55 miles an hour you could hardly run over him.

I cannot find any reasonable cause for this amendment, nor can I understand the attitude taken up on the question by Senators. It seems strange to me that the fact that a goat, belonging to a very poor person, strays on the road is classified as a serious crime according to the penalties here. Some people have large demesnes with roads through them and have cattle and sheep feeding on those demesnes and straying on these roads. No remarks about those are passed. If you go out to the Phoenix Park you will see hundreds of cattle and deer grazing there. They are not considered an obstruction, but when a poor man has a goat which gets on the road, although he runs the risk of losing his goat through an accident, he also will be almost hanged for having his goat at all there.

Under the old Brehon laws of this country, which were founded on equity and justice, the fine for the trespass of a goat was 3/- and for the trespass of a hen 3d. If you can confine a goat to the road it is all right, but I do not think there is a more harmful or destructive beast than a goat. It will graze a hedge out of existence and it will ring a tree in one night. If goats were spancelled properly, so that they would not go into adjoining plantations, I would be in favour of exempting them from the scope of the amendment.

I cannot agree with the sentiments of Senators Bennett and MacLysaght. I think a goat is a desperate animal on a road. Have these Senators ever seen two goats tethered on the road and both pulling in opposite directions? I have often had to stop my car owing to such an event. That is my experience of the Kerry goats at least. I think goats are the most objectionable animals in creation.

My objection is not altogether to their being on the road, but I find that they come into people's gardens. The goat is a most wonderful animal. She can produce milk from ivy and the bark of holly trees. I live in a place called Terenure. We have several goats there owned by people living in cottages. The goats are let loose on the roads to stray into people's gardens and to destroy all their plants and shrubs.

AN CATHAOIRLEACH

I think they sometimes come down to Miltown.

I see they stray down the road to Rathgar. I feel strongly in favour of this amendment.

I consider the penalties imposed by this amendment are too heavy. If we reverted to the old penalties of something like 1/- or 2/- for the first offence, and then a scale going up it would be reasonable. As Senator Bennett pointed out, this can be made a terrible hardship, because in several cases someone might leave a gate open and cattle might stray out on to the roads. The Civic Guard comes along then and the owner is prosecuted under this law and fined to the extent of £20.

I have a great deal of sympathy with Senator Linehan's contention. I believe a large number of cottiers almost depend for their subsistence on goats, and they have no other place to graze on but the country roads.

I do not see any particular hardship in this amendment any more than in the amendment which provides for the removal of trees and even houses which obstruct the view. If you pull down a man's house to give a good view of the road there seems very little to be said in favour of the goat. The whole argument in favour of the goat seems to me to centre on her agility in getting out of the way. One might calculate wrongly the way the goat intended to go and then a serious accident might happen. I think the amendment is a desirable one. The penalties are maximum ones, and they can be made small. I think straying animals are a terrible pest and should be removed. Not only are they a danger to traffic but they are a nuisance. They are continually straying into gardens and destroying trees.

I have been pestered by flocks of twenty or thirty goats coming in and barking every tree, holly especially. There has always been a law against trespass on roads but no one carried it out. Around my place flocks of cattle, sheep, and all sorts of animals trespass about the road, but no one ever turns them off and no one is likely to turn them off. I think that these rules and regulations are perfectly futile, because the goats will live on the roads no matter what regulations are made.

I do not know whether or not Senator Colonel Moore's contention is right. I have gone to the police barracks myself and complained about the trespass of goats. The police told me they had no power to do anything unless the goats were actually caught in my garden. I know another inhabitant in my neighbourhood—a lady —who also complained. She became very indignant when she discovered that there were nine policemen in the barrack and that there were nine goats straying on the road. Surely the nine policemen should have been able to deal with the nine goats, but as a matter of fact nothing was done.

AN CATHAOIRLEACH

Of course it would be necessary, Senator, to catch them in the act.

It seems to me that the penalties proposed to be imposed under this section are enormous for such a trivial offence. The goat, after all, is the poor man's cow. In cases such as these, much lighter penalties should, I think, be provided.

I think the amendment is a reasonable one. I think, too, it is a very good amendment. Proof of that is to be found in the fact that all the argument has centred around the goat. Senator Kenny made reference to the jennet, but that animal does not appear on the list at all. A jennet, I understand, comes under the definition of a mule, so that it is not necessary to include jennet here at all. Anyone aware of the conditions that prevail in the country at the present time must realise the terrible nuisance that these animals are on the public roads. The present laws are very inadequate for dealing with them. As Senator O'Farrell pointed out, the penalties mentioned here are maximum, and it is to be assumed that the District Justice will use his discretion in fining people who are brought before him and found guilty of the offence of allowing animals to stray along the public roads. I think it is high time that drastic measures should be taken to prevent this terrible nuisance. Goats, whether they are agile or not, are undoubtedly a great danger to the public. In the majority of cases, as Senator O'Sullivan pointed out, two goats are spancelled together, and in these cases you usually find one goat trying to go one way, and the second goat the other way. Incidents of that kind constitute a great public nuisance. We all know, too, that the goat is a very poisonous animal. The branches of a tree or anything like that on which it lays its tongue dies or gets badly injured. On the whole, I think there is a great deal to be said in favour of the amendment, and I am willing to accept it.

Would I be in order in moving that the penalties be reduced by half?

AN CATHAOIRLEACH

If the amendment is carried, you can then move your amendment.

Senator Brown suggests to me that I ought to add to the amendment the word "permits." We all know that at times it is impossible to prevent cattle and horses from breaking away from the lands on which they are grazing. They may get on to the roads and wander for miles. In such cases it would be a great hardship on the owners to be prosecuted and fined heavily, and hence I think the safeguard suggested by the addition of the word "permits" ought to be adopted.

I think the word "permits" implies knowledge. It is a word that has been used in the Petty Sessions Act, and I do not know any other word that you could substitute for it. Before the amendment is put it might be well to add to the definition in Clause 1 of the proposed new section the word "jennet."

Amendment put and declared lost.

AN CATHAOIRLEACH

I would suggest, Senator Brown, that on the Report Stage, you would introduce an amendment making it plain that this applies to actual knowledge on the part of the owner of the animal. I think many Senators found difficulty in regard to that.

I will try to do that.

With regard to my amendment to Section 30, I think it could be dealt with better under Section 31.

AN CATHAOIRLEACH

I think so, too. I will take it as soon as we come to Section 31.

Section 30 was agreed to and added to the Bill.

SECTION 31.

(1) The Minister may make regulations prescribing:—

(a) the nature and quality of the materials which may be used in the maintenance and construction of roads:

(b) the size, shape, colour, and character of the signs to be erected on roads for the purpose of—

(i.) indicating the places to which the road leads, and the distances to such places,

(ii.) indicating the distances on the road,

(iii.) warning persons using the road of dangerous portions thereof,

(iv.) guiding traffic on the road with a view to minimising the risk of accidents;

(c) the places at which the several signs hereinbefore mentioned are to be erected;

(d) the conditions upon which such signs as aforesaid may be erected or retained on land adjoining any road by the owner or occupier thereof;

(e) the signals by which persons using roads can indicate their intentions to other persons.

(2) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after the regulation is laid before it annulling the regulation, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done under such regulation.

(3) The council entrusted by this Act with the maintenance of any road—

(a) shall not use in the maintenance of such road any material of a nature or quality contrary to regulations made under this section, and

(b) shall erect and maintain on such road such and so many of the signs prescribed by the regulations made under this section and in such places as shall be necessary to comply with such regulations, and

(c) shall not erect on such road any sign in contravention of such regulations.

(4) The expenses of a council in erecting any sign in accordance with such regulations as aforesaid on any road and of maintaining such sign shall be part of the expenses of the maintenance of that road.

(5) If it appears to a Justice of the District Court that any sign such as is referred to in this section is erected or retained on land adjoining any road contrary to any regulation made under this section, he may on the application of any police officer or of any officer of the council to whom the maintenance of such road is entrusted by this Act, order the removal of such sign, and, if he thinks it advisable, by such order authorise such officer to enter on such land for the purpose of removing such sign.

(6) If any person, without lawful authority, removes, defaces, or otherwise injures any such sign as is mentioned in this section, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds or, at the discretion of the court, to imprisonment for a term not exceeding one month.

I beg to move:—In Section 31, sub-section (1), to delete paragraph (a).

I do not think it is desirable to take away from the discretion of the county councils, especially in the case of minor county roads and bye-roads, what material they should use on them. The traffic on some of these roads is not very great and it is really of very little importance what class of material is put on them. I therefore move the deletion of this paragraph so that it may be left to the discretion of the county council to select the material they shall use, particularly on the roads I have referred to.

I cannot agree with Senator Linehan on this question. I think the Minister should have full power to prescribe the kind of material to be used on the roads. In my own town soft material out of a quarry, that was condemned twenty-five years ago is being put on a road there. The material is not suitable for the traffic on that road, and I think it is an outrageous waste of public money to be putting material of that description on a road. This is a matter on which the Minister should have absolute control and it certainly should not be left to the discretion of the county council.

I desire to support the statement made by Senator O'Sullivan. I know a case in which stones, locally known as clay slate, were put out on a road. Owing to the action of the sun they became a kind of gravel and soon after you had nothing but a heap of mud. I have known councils to go to the expense of steam-rolling with that class of material. I think it is absolutely essential that this matter should be left in the hands of the Minister.

I would like to know from the Minister what exactly he means by the words "nature of the materials." That is an expression that I think, would need to be explained. It might mean that nothing would be used on the roads except stones; on the other hand it might be contended that the expression meant that nothing could be used on the roads except cement. I would be prepared to give him the power as far as the quality of the material is concerned, but without some explanation the term "nature of the materials" may have very far-reaching effects and should be explained.

I thought we were going to get some assistance from those who favour government on democratic principles. During the weekends we hear democracy lauded to the skies, and the principle preached that the people should be trusted, yet when we come to a matter of legislation here we see all sorts of attempts made to impose unreasonable conditions. I do not stand for any absolute doctrine of democracy; perhaps if Senators heard my private opinions upon that matter they would be horrified. But in a matter of this kind, where there is no real sin and no real extravagance being committed, they must be allowed to use their own discretion. How can you expect to get any education or self-consciousness developed, if the Minister thinks there is a certain danger being perpetrated, comes in and nips the tendency in the bud, not realising that instruction only comes through a process of making mistakes. Apart from that altogether, people who pay money should be allowed to call the tune, and that is the ground on which I challenge the wisdom and the right of this power on the part of the Minister to interfere. These rural districts are very badly off, and they cannot afford these things, and a centralised government has no right to impose upon them expenses which they cannot afford, being, as they are, self-governing and autonomous institutions. If, in their discretion, they consider that a limit should be imposed upon expenditure on roads, they should have full control as to how that expenditure should take place, and for that reason I support the amendment.

Possibly the Minister had in view a road scheme of a general character which undoubtedly must be arrived at. In order to make for uniformity of standard for main roads or trunk roads under any such scheme it is necessary the Minister should have control. At the moment every county surveyor has his own particular fad both as to repair of roads and the sort of materials to be used, and when it comes to improving and strengthening the foundations he also has his particular fads. The result is that if you go through the counties of Ireland you can always tell where one county boundary crosses another, because of the different methods of road construction. It is, therefore, very essential that in any scheme that is ahead of us uniformity should be observed as to method of construction and method of surfacing, because otherwise the overhead charges will be the same, even if you use bad material.

Under the new scheme if a standard is not set to secure that uniformity which should prevail along trunk roads they will be found to vary between one county and another. You will find the road has held up well in one county, while it has gone down in another, because in the one county the surveyor, whether for the purposes of economy or otherwise, used local inferior material, whether in the foundation of the road or in the surfacing, whereas if he had gone three or four miles further at a little expense he would have as good a road as that in the neighbouring county. That is what is in the Minister's mind when he seeks this power and I suggest that he should take further power than that in paragraphs (a) and (b). Paragraph (a) speaks as to the nature and quality of the materials which may be used in the maintenance and construction of roads, and (b) of the size, shape, colour and character of the signs to be erected on the road. I say there should be another paragraph (c) as to the methods of maintenance and construction of the road——

AN CATHAOIRLEACH

We have not come to that; we are dealing with an amendment to delete paragraph (a).

I am in favour of giving the Minister powers under this sub-section. The reason for giving these powers is that some councils have very indifferent county surveyors and assistant surveyors. I have seen in a county close to me, 20 or 30 men and a steamroller rolling material, and they might as well have been rolling turf. Where there is an efficient county surveyor it will not be necessary to interfere, but in other counties it is very necessary to have powers such as contained in a section like this.

I want to ask for information. I want to know whether this sub-section gives the Minister power to say what class of road shall be made. There is an important question: whether or not the use of concrete roads would be an advantage. I want to know whether, if this section is passed, the sub-section will give the Minister power to insist upon a county council laying down concrete roads in certain areas. As I read it I think it gives that power and I am asking for information.

AN CATHAOIRLEACH

I think it is quite plain it would.

I may say it was not my intention in drafting this section to look for that power. It was impressed upon me at one time that I should use a method which would enable me to have roads maintained or constructed of concrete and I refused to have it. The main motive in introducing this section is to enable me to prevent the use of soft limestone and that kind of material of which Senator O'Sullivan spoke.

AN CATHAOIRLEACH

Leave out the word "any" and leave in the words "quality of the materials." If the word "any" is added it would be open to the objection of Senator Farren.

While I am not opposed to giving the Minister power to insist on people in the country carrying out the necessary work, I am opposed to giving the Minister power to override the elected representatives of the people in the spending of money provided for maintaining the roads in a proper state. A difference of opinion may arise between two surveyors—between the surveyor of a county council and the surveyor from a Government Department—as to the class of road most suitable in a certain area. I am of the opinion that, in certain circumstances, there should be a serious attempt made to try whether these concrete roads would be a success. In certain areas I believe that they would be a success, and would prove to be less expensive to repair than macadam roads, but there are certain areas, and particularly rural areas, where you could not possibly adopt concrete roads. They would be all right in cities, where there would be a tremendous amount of motor traffic, but in rural districts, where farmers' carts are the principal traffic, concrete roads would not be suitable in winter months. There would be very great danger of slipping in frosty weather, and for that reason I do not think it would be well to give the Minister power to override the decisions of county councils as to the class of roads. I do not object to give him power to specify the proper material but I object to giving him power to say "this shall be a concrete road instead of a macadam road."

I have heard Senators referring to the use of material, and, from my experience, it is not always the class of material used that is responsible for bad roads. If a road is not properly made, no matter what material it is made from it will crack up. I am prepared, as I said, to give the Minister the necessary power to see that proper material will be used in the roads. I will not go so far as to give him power to say what class the road shall be.

I object to the word "nature."

AN CATHAOIRLEACH

Would it be sufficient if you had in the words "standard and quality."

I agree to that.

Would it not be desirable to say that trunk roads should be made from certain materials.

AN CATHAOIRLEACH

That is the question at issue.

The different county councils might dispute about that, and the Minister would not be able to settle the question unless he had power to say what material should be used on trunk roads. I think it is generally recognised that in future all trunk roads should be made of concrete.

As we are discussing main roads and trunk roads I should like to say that I would give the Minister every power. I am strongly in favour of what are called national roads being regulated by a central authority, and local roads by the local authorities. If there is any idea that this may devolve into a system of main, trunk, or national roads, I would be in favour of giving the Ministry every possible power. Therefore I shall vote for the words as they are.

I wish to point out to the last speaker that this clause covers every road. After the discussion, I will be satisfied if the power given to the Minister be confined to main and trunk roads and let the bye-roads be dealt with by the county council.

I do not think that bad material should be allowed on any road. I think that the quality of the materials ought in all cases to be regulated by the Minister. I do not think it should be optional with the Minister to dictate the use of, say, cement instead of stone. I think it would be well to delete the word suggested.

I agree to the words "standard and quality."

AN CATHAOIRLEACH

The clause would then be amended by deleting the word "nature" and inserting the word "standard."

Amendment, as amended, put and agreed to.
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