Seanad Éireann debate -
Wednesday, 18 Apr 1934

Vol. 18 No. 15

Public Assistance (Acquisition of Land) Bill, 1934—Committee.

Sections 1 to 8 agreed to.

SECTION 9.

(1) Any person who or whose property is affected by a compulsory acquisition order may within three weeks after the first publication by advertisement of notice of the confirmation of such order by the Minister, apply to the High Court for the complete or the partial annulment of such order, and the High Court, if it is satisfied that such compulsory acquisition order or any part thereof was made in excess of or was otherwise not authorised by the powers conferred by this Act or that the person making such application or any other person has been substantially prejudiced by any failure to comply in relation to such order with the provisions of this Act, may, as the High Court shall think proper, annul the whole of such order or annul a part of such order.

Sir John Keane

I move amendment No. 1:—

Section 9, sub-section (1). After the word "Act" in line 2 to insert the words "or that such order would seriously interfere with the amenity of the residence of the owner of the lands proposed to be taken or with his enjoyment of the lands immediately adjoining and customarily occupied with such residence."

The object of the amendment is to secure an appeal to the courts where it is proposed to take land and by doing so to seriously prejudice the amenities of a residence. That principle is already admitted in the Acts under which land may be taken for the purpose of providing plots for labourers' cottages. If it is reasonable in that case it would appear to be reasonable in this case. One quite understands that the needs for public services must predominate, but they should not be allowed to do so in the face of manifest injustice to owners. Under the Bill as at present drafted there is only an appeal to the courts against wrongful procedure under the Act itself. There is no appeal on the question of prejudice to amenities. On that point the Minister is to be the sole judge. It would appear to me to be reasonable that a final appeal should lie to the courts, and that is the object which I hope to secure by the amendment. Those who have advised me in the matter assure me that the amendment is on the lines of the provision in the Labourers Acts. I hope the House will accept the principle embodied in the amendment.

Miss Browne

I beg to support the amendment and to say that I think it is a very necessary one indeed. Last week we discussed a Town Planning Bill, the object of which is to safeguard the amenities of the country and to preserve beauty spots to which people are attached. People's lands may be taken for these allotments, and if the owners object there is no right of appeal, I believe, to the courts.

Senator Sir John Keane mentioned that this amendment follows on the lines of a provision that is in the Labourers (Ireland) Acts. I am aware that even with that provision in the Labourers Acts a great deal of damage has been done to farms on which land was acquired for the purpose of providing plots for cottages. I have seven such cottages on my land. They are scattered all over the farm. I was not in control myself when the land for the plots was taken. I dare say that those who went before me did not realise the damage that would be done to the farm and the amount of inconvenience caused by having these cottages all over the place instead of in one field. It is almost impossible to have a corn crop in a field adjoining one of these cottages because of the amount of trespass that is done. At least half of the crop is damaged by poultry, pigs and donkeys and by the people in the cottage. All that might have been prevented if people had realised at the time that instead of having cottages scattered over a farm they should be erected in one field. In this case the Government can come along and take land for these plots. They may take land at an avenue gate, and damage an owner's property very much and yet there is to be no appeal to the courts.

Mr. Comyn

I do not know whether I understand the meaning of this Bill at all, or whether Senator Sir John Keane by his amendment proposes to destroy altogether the effect of the Bill so far as it relates to the acquisition of land which may happen to be built on. As I understand it, the Bill provides for the taking of land on which a residence is built.

Mr. Brown

For any purpose?

Mr. Comyn

In fact I was reconciling myself to the thought that the house I occupy could be taken compulsorily for the purposes of a hospital under the provisions of the statute. According to the amendment there will be an appeal to a judge of the High Court in a case where an

"order would seriously interfere with the amenity of the residence of the owner of the lands proposed to be taken or with his enjoyment of the lands immediately adjoining and customarily occupied with such residence."

What I want to know is this: if there is an appeal to the judge upon that ground, would the judge be bound to annul the order if it were found that the taking of the land interfered with the amenities of the residence? Would he have no option but to say, "True enough the taking of this land does interfere with the amenities of this house and with the use of the land adjoining this house, but this land is urgently required for public purposes and the greater necessity ought to prevail"? Is the judge to have such an option under this amendment? I think he is not.

I do not see how this amendment could be accepted, seeing that under this Bill it is competent for a public authority to take a house for public purposes such as the erection of a hospital. There is a necessity for this measure because a number of people occupying houses which they think would be suitable sites for hospitals are asking exorbitant sums for them. I do not think that the amendment, in its present form, can be accepted by the Minister. Perhaps something could be drafted which would meet the wishes of Senator Sir John Keane, while at the same time not depriving the Bill of any efficacy that it may have.

Mr. Brown

I think my friend, Senator Comyn, rather misunderstands the effect of this amendment. The object of it is to preserve the amenities of a residence that is not taken, but where some of the land around it is taken compulsorily for whatever purposes the local authority wants it. The object is to preserve the amenities of a residence that is not compulsorily acquired. The Senator has suggested that a house might be taken for a hospital. Of course it might, but that would not affect the amenities of the house because the house would be gone. This amendment applies only where a portion of the land of an owner is taken and taken for an object which interferes seriously with the amenities of his residence. That principle was introduced into the Labourers (Ireland) Acts. It had a very good effect because the putting of a number of labourers' cottages right up to an owner's private residence would seriously affect the amenities of his residence. That is the whole object of this amendment. Senator Sir John Keane says that the wording is exactly the same as what appears in the Labourers Acts. That may be going a little too far, because I do not quite understand what is meant by the words "enjoyment of the lands immediately adjoining...." That cannot mean seriously to interfere with the money value of the land injuriously affecting a house and land for which compensation has already been obtained under the Land Clauses Act. If that is what is meant, this amendment is unnecessary, but if that is not what is meant, this is really only a synonym for amenity of the residence. If the object merely is to preserve the amenity of the owner's residence, where some of his land has been taken, I am in favour of the amendment.

Mr. Comyn

Then the entire land, including the residence, ought to be taken and there is no appeal.

Mr. Guinness

I should like to support the amendment and to relate an experience that I had some years ago under the Labourers Acts, when a proposal was made to erect some cottages on land very close to what was my home at the time, and which would have considerably damaged the amenities of the place. An inquiry was held by the Department of Local Government and an inspector was sent down to inquire into the matter. I appeared at the inquiry and explained how the land would be seriously injured if cottages were built in the place suggested. An arrangement was come to by which the cottages were built on another portion of my land where no damage would be done. If I had not the right to appeal the appearance of my property would have been destroyed. I take it that what is really meant by the amendment is to have the right of appeal to a judge, who may be an inspector under the Department of Local Government, or someone appointed to decide the question.

Cathaoirleach

In this case a High Court Judge is mentioned.

Mr. Guinness

An inspector from the Department of Local Government acted in my case.

Sir John Keane

I think the difference between us is not very wide, and that the Parliamentary Secretary may be able to meet me. Senator Brown dealt with the question of total acquisition. It is not the object of the amendment to protect the owner of a house or ground against total acquisition. It is only intended to protect against partial acquisition, where the amenities would be seriously affected. It is not intended to protect a person against anything which can be adequately dealt with by compensation. I will be frank and say that if the Parliamentary Secretary will co-operate I will meet him. I can see him saying: "This is the only place we can put this scheme for technical or for engineering reasons; that there is no alternative site for waterworks." Engineers may say that there is no other place to put these works, except in the owner's back garden or up against his lawn. Then, I take it the law should enable the owner to go to court and argue whether there was an alternative site available. If the Parliamentary Secretary would agree to a conference, what I want could be embodied in an amendment or words like "where, in the opinion of a judge, no alternative site was available." Then I would be prepared to give way. Where there is an alternative site I suggest that amenities should be respected.

Mr. Brown

The words, "except where there is no alternative site," might be inserted in the amendment.

Mr. Comyn

Is the judge to have any discretion?

Mr. Brown

Judicial discretion.

Mr. Comyn

He has not even judicial discretion under the amendment.

Cathaoirleach

I think this would require to be further considered.

Mr. Brown

Clearly, he would have to act on the evidence, because this amendment would be judicial.

Parliamentary Secretary to the Minister for Local Government and Public Health (Dr. Ward)

This amendment appears to be based on the assumption that the Minister may not continue to be a reasonable and fair-minded man.

Mr. Douglas

It could happen!

Dr. Ward

If the position is that there is a danger of some future Government electing a Minister who could not be trusted with the powers contained in this measure, I suggest that members of the Seanad cannot protect the position in that way. The points it is intended to have referred to the High Court for adjudication and decision are essentially ones that would be properly considered by the Minister, following a sworn inquiry, in determining whether a particular site should be compulsorily acquired or not. In all seriousness, I suggest to Senators interested in this amendment that the Minister, with his special knowledge, and with the assistance of his technical advisers, having all the evidence pro and con before him, is in the best position to judge the suitability of a site. What we have in mind, of course, are hospital sites, and not to utilise the powers of the Bill for sewerage or waterworks. It is because of our difficulties about hospital sites that the Bill was introduced at all. It is true to say that a provision, such as is included in the amendment, is embodied in the Labourers Acts, but it is equally true to say that it has been omitted from the Housing Acts. I submit that there is no comparison between compulsorily acquiring sites for labourers' cottages and compulsorily acquiring sites for hospitals. You have wide scope over a rural area in which to select a site for cottages, but you have very limited scope in selecting a site for an hospital. Obviously an hospital must be in the centre of population.

Mr. Brown

It is a mistake.

Dr. Ward

It may be a mistake, but when you consider the difficulty of transport, the difficulty of getting supplies to the hospital, the difficulty of getting electric power, a proper sewerage system and a proper water supply, you will be driven back to the position that you must have hospitals within reasonable reach of electric light, water and sewerage. If the matters covered by the amendment were to be the subject of litigation in the high courts we are going to have endless litigation and we are not going to get on with our hospitalisation scheme. I do not believe it will be necessary to avail of the powers of this Bill in a half-dozen cases in the 26 counties. The fact that legislation is there, if the owner of a suitable site proves recalcitrant, and that local authorities can fall back on this measure, will be sufficient to secure the acquisition of sites by agreement. Members of local authorities understand the necessity for this Bill at the present time better than members of this House who are not connected with local bodies. I am quite sure Senators know that in various parts of the country exorbitant prices have been demanded for land considered to be suitable for hospital sites. As soon as the owner of a plot of land, in an area where it is proposed to build an hospital or dispensary, gets to know that the inspector is likely to approve of the site its value is multiplied about ten times. We have either to abandon our hospital scheme or to have such legislation as this passed to enable us to acquire sites at reasonable prices. I do not think Senators need have any anxiety as to the possibility of taking portion of a man's land and leaving him with the residence or a small piece of land and building an hospital—perhaps a fever hospital—beside his door. No Minister would ever acquiesce or ever confirm an acquisition order in such circumstances. These will be essentially matters that the Minister will consider most carefully. If this amendment were passed, undoubtedly it would be availed of by a person who did not wish to facilitate us in acquiring a site, except at an exorbitant price, and it might hold up the scheme of hospitalisation indefinitely. In all the circumstances the Minister is a perfectly safe and sound judge on the question which it is now proposed to refer to the High Court for adjudication.

Mr. Comyn

Is it not a fact that under this Bill full compensation will be awarded for any interference with the amenities of a residence?

Mr. Brown

You cannot get compensation for loss of amenities under any law. Money is no compensation there.

Mr. Comyn

If portion of land is taken will not the measure of compensation include the value of the land and also injury to the person who owned the land?

Mr. Brown

No, only injury that arose from the taking of this land, but nothing for amenities.

Mr. Comyn

Would not the amendment be much better if it made provision for the granting of compensation for interference with amenities?

Mr. Brown

That is ordinary law under the Land Clauses Act.

Mr. Comyn

Under the Land Clauses Act no compensation is awarded for injury to amenities.

Mr. Brown

That is right.

Mr. Comyn

Would it satisfy Senator Brown if a clause were inserted providing for compensation in case of injury to amenities?

Mr. Brown

You could not have that.

Mr. Comyn

Anything can be done by legislation. That would prevent the taking of land where it could be shown that the amenities of the residence were interfered with. A judge has no discretion to set aside the order under the amendment.

Sir John Keane

I am with the Senator there. I am sorry the Parliamentary Secretary did not leave any door open for conference. Otherwise I see no alternative but to divide the House. I have hope that between now and the Report Stage we could hammer out some agreement. The Minister made the point that the amendment would lead to litigation. Surely that is not so.

Mr. Brown

The Labourers Acts did not.

Sir John Keane

It may do so in a few cases, but the protection of the individual against arbitrary injustice should always dominate legislation. That, I suggest, is axiomatic in legislation. I cannot see that the administration of the Act would be interfered with, if, on reconsideration, we introduced the element of no alternative site being available. I admit that the amendment in its present form can be improved. I am moving it with the idea that we should try to come together and improve it.

Cathaoirleach

If we adjourn consideration of it, the Senator could consult with Senator Brown and Senator Comyn.

Dr. Ward

There would be no harm in discussing it, but I see no prospect of being able to meet Senator Sir John Keane's view. This matter, approached from a different angle, was discussed in the Dáil in great detail. The proposition there was to exclude from the scope of the Bill glebe lands. The arguments were very much the same.

Mr. Brown

That is a different thing altogether.

Dr. Ward

The arguments advanced in favour of that proposal were the same as the arguments advanced in support of this amendment. The question is one entirely for the Senator himself, but I do not think that there is any prospect of being able to meet him in the matter.

Mr. Comyn

Would it not be better to withdraw the amendment and bring forward another amendment on Report Stage?

Sir John Keane

I shall do that in the hope that, having proved myself so entirely reasonable, I shall get Senator Comyn's co-operation in redrafting the amendment and, perhaps, his support in carrying the redrafted amendment.

Amendment, by leave, withdrawn.

Section 9 ordered to stand part of the Bill.

Sections 10 to 13, inclusive, agreed to.

SECTION 14.

Article 32 of the Schedule to the Local Government (Application of Enactments) Order, 1898, shall apply in respect of every public local inquiry held under this Act in like manner as it applies in respect of the public inquiries mentioned therein.

Mrs. Wyse Power

I move amendment No. 2:—

Section 14. To delete in line 11 the word "public" and to substitute therefor the word "local".

The wrong word was used in the section. The reference should have been to "local" inquiries rather than to "public" inquiries.

Amendment agreed to.

Section 14, as amended, agreed to.

Section 15 agreed

Title agreed to.

Bill, as amended, reported to the House.

Report Stage fixed for Wednesday, 25th April.

The Seanad adjourned at 5.55 p.m. until Wednesday, 25th April, at 3 p.m.