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Seanad Éireann debate -
Wednesday, 16 May 1934

Vol. 18 No. 19

Public Business. - Public Assistance (Acquisition of Land) Bill, 1934—Message from the Dáil.


The following Message has been received from the Dáil:—

Tá Dáil Eireann tar éis aontú le Leasú 2 do rinne Seanad Eireann ar an mBille um Chongnamh Phuiblí (Tailte do Thógaint), 1934; tá sí tar éis diúltú do Leasú 1, le n-ar mian aontú Seanad Eireann d'fháil.

Dáil Eireann has agreed to Amendment 2 made by Seanad Eireann to the Public Assistance (Acquisition of Land) Bill, 1934; it has disagreed to Amendment 1, to which the agreement of Seanad Eireann is desired.

I move:—

That the Seanad do not insist on amendment No. 1, but insert the following further amendment in lie thereof:—

Section 7. To delete paragraph (d) and substitute therefor two new paragraphs as follows:—

(d) when a public local inquiry has been held pursuant to the next preceding paragraph of this section and the person by whom such inquiry was held reports that the acquisition of the lands proposed to be taken would seriously interfere with the amenity of the residence of the owner of such lands, the Minister shall refuse to confirm such compulsory acquisition order;

(e) when a public local inquiry has been held in pursuance of paragraph (c) of this section and the person by whom such inquiry was held does not report that the acquisition of the lands proposed to be taken would seriously intefere with the amenity of the residence of the owner of such lands, the Minister, having considered the report of the person by whom such inquiry was held and the objection or all the objections which occasioned the holding of such inquiry (other than an objection that the acquisition of such lands would seriously interfere with the amenity of the residence of the owner of such lands), may, as he shall think proper, either refuse to confirm such compulsory acquisition order or make an order confirming such compulsory acquisition order without modification, or make an order confirming such compulsory acquisition order with such modifications as the Minister shall think proper.

The amendment is an attempt to try to find agreement in this matter. As the matter is rather technical, I am asking Senator Brown to deal with it.

I second. The amendment is an alternative to the amendment which the Dáil asks this House not to insist upon. This amendment appeared on the Order Paper in my name about three weeks ago, when an amendment in the name of Senator Sir John Keane was carried, which referred the question to the court to decide in case objection was made to the acquisition of land on the ground of serious interference with the amenity of a residence. When that amendment was carried my amendment was withdrawn. When the matter came back to this House a week ago an objection was made, I think, by Senator O'Sullivan, and I am sure it was also in the minds of other members of the House, that perhaps reference to the court might cause considerable delay. I am not of that opinion. Nobody wants to hold up this Bill, or to delay it in any unreasonable way. This is a Bill which is badly wanted in districts where they are badly off for new hospitals and that sort of thing, and, therefore, we are of opinion that it is a Bill that ought to go through. At the same time, some of us feel that this question of an objection to the taking of land on the ground of serious interference with the amenity of a residence is one that, if possible, ought to be pressed by us to the greatest extent that we can do so, in reason. I do not think there was any serious ground for objection to the court as the tribunal for this question. In regard to delay, I do not think there was. But that has gone, and the present amendment is the one I would have moved when the Bill was here on the Report Stage.

The effect of the amendment is this, that where objections are raised to the taking of land, a public inquiry will be held under this section, and where the question of serious interference with the amenity of a residence is raised, it will be referred to the inspector, who holds a local inquiry. The inspector will report on the local evidence he will have before him. All the witnesses will be there, and he will have the advantage of seeing whether there is any ground for the objection to the taking of land because of interference with the amenity of a residence. What the amendment does is this: it says that if the report of the inspector at the local inquiry shows that there is serious interference with the amenity of a residence, by reason of the taking of land, then the Minister shall—there is no option about it—uphold that objection, and refuse to let the scheme go on. If the inspector holds, after the local inquiry, that there is no serious interference, then the matter comes back to the Minister, as it did before, and he deals with all the objections which may be made and makes up his mind what to do. This amendment has none of the objections that the other amendment had. The holding of the local inquiry is a matter of a few days, and the whole thing will be over in four or five weeks. There will not be that delay which I feel many members of the House considered would be more serious.

I am afraid there is not much prospect of reaching agreement on the basis of this amendment either. In effect, the proposal is to give to the person holding the inquiry the power to decide whether the acquisition of land would interfere seriously with the amenity of the residence of the owner. Under the Bill as it stands the decision rests entirely in the hands of the Minister. It appears to be an anomalous position, that the question of interference with the amenity of a holding should be singled out as a matter in which the Minister should not be allowed to exercise his judgment. If the Minister is competent to decide the other points that he will have to decide, in connection with the compulsory acquisition order, I suggest to the House that he should be equally competent to decide on the question of interference with amenities. The intention of the Bill was to give the Minister power to determine, with all the facts before him, whether or not a compulsory acquisition order should be confirmed. The amendment would take that important power entirely out of the hands of the Minister, in cases where the amenity of a holding was concerned, and he would be bound to accept the recommendation of an inspector, whether he agreed with the recommendation or not. It appears to me to be the duty of an inspector holding an inquiry, where there is an objection or a series of objections, to ascertain all the facts and objections that are put forward during the course of the inquiry, and to report to the Minister for his guidance in arriving at a decision. But I suggest it would be altogether wrong that the final determination of such questions should rest with the person conducting the inquiry, but should rest with the Minister. I suggest to the movers of the amendment that it is very doubtful if it is in the best interests of the owners of property that the last words should be with the inspector. Under the Bill, as it stands, there is a further court of appeal, after the inspector has made his report. The Minister has yet to determine whether the order should be confirmed: whether it should be amended, or whether he should refuse to confirm it.

That is still in the amendment.

In the second part of it.

If this amendment is carried, in so far as interference with the amenities of the holding is concerned, the inspector's words would be final. That is my interpretation of it.

That is so.

If the inspector reports that the amenities of a holding are interfered with by acquisition, say, for the purpose of building an hospital, he is the last tribunal of appeal, his word is the last word on the matter. I am suggesting to the movers of the amendment, and to those who may be interested in it, that it is very doubtful if it is in the interests of the owners of such property to have such an amendment passed, apart from the merits of the case, and that a court of appeal, other than the inspector, might be a very useful institution to have. Most people would agree, leaving aside altogether the question of the present occupancy of the Ministry, that the Minister would very carefully consider all the possible objections that could be raised, and especially objections relating to amenity of residence. He would be much less likely to come to a hasty decision or to inflict hardship or injustice upon an individual citizen than an inspector might be. At any rate, I put forward that viewpoint. If the movers of the amendment believed in that point of view, they would hardly have moved the amendment. If it were my land that was about to be acquired, regardless altogether of the personality of the occupant of the Ministerial seat at the moment, I should rather the final determination of the question to be in the hands of the Minister than in the hands of a Local Government inspector.

I think that this is a very reasonable amendment. The Parliamentary Secretary thinks that it would be better, in the interests of the owner of the land, to leave the question in the hands of the Minister. It is only taken out of the hands of the Minister when an inspector is sent down to inquire into all the facts pertaining to the erection of an hospital in the vicinity of a residence. If he comes to the conclusion, after hearing all the evidence, that it would interfere with the amenity of the building, he decides against it. If he reports in the ordinary way, the Minister has the option either of rejecting or confirming the objection. In a case of this kind, I think that the inspector is the better judge and is more likely to give a correct opinion as to whether the scheme would interfere with the amenities of a building than the Minister, who may receive hearsay evidence and have other matters brought in to influence him in his decision. I hope that the Seanad will support the amendment.

On a point of information, I should like to know if any inspector has judicial power, such as it is proposed to give him under this amendment. It seems to me that we are putting the inspector in the position of a judge. I do not know whether that is the practice or not, but I rather think that it is not.

I think it will be admitted by every member that the amenities of a man's home are a very important and a very precious thing. If any of us felt that the amenities of our homes were being jeopardised by the compulsory acquisition of land in the public interest, we should be very much concerned. It is very easy to legislate, feeling that one cannot be concerned oneself, but we should try to put ourselves in the position of the person whose amenities are threatened. It is with that that this amendment deals.

There cannot be compensation for it.

I suggest that whatever Minister is in power would be mainly concerned with giving effect to the Act by sanctioning the acquisition in contemplation. He would be advised by people who would be mainly interested in giving effect to the Act. A public, local inquiry is an additional safeguard for the individual whose amenities are threatened. For that reason, I think that the amendment ought to be accepted. It is not at all an extreme amendment, but the issue is a very important one for the individual.

I think that this amendment introduces a principle that never was accepted before. It is provided that an inspector of the Local Government Department shall hold an inquiry. The usual procedure is that the Minister makes an order on the inspector's report. I agree with the Parliamentary Secretary that, in the interests of the people concerned, it would be much better to leave the position as it is. Assuming that the inspector held the inquiry and reported that the proposed scheme would interfere with the amenities of a residence, the Minister would want to have very clear and sound reasons before he would refuse to accept the report of the inspector. I can hardly conceive a case in which the Minister, in those circumstances, would refuse to make an order in accordance with the inspector's report. If, however, the inspector reported that the proposed scheme would not interfere with the amenity of residence, the Minister, on appeal by the person concerned, would carefully weigh up and consider the circumstances before making his order. The principle of setting up an inspector of the Local Government Department as a final court of appeal ought not to be introduced. That is what this amendment seeks to do. Under the present procedure, if an inspector makes a report, the people who feel aggrieved are entitled to approach the Minister and put their case before him before the order is confirmed. I think that the Parliamentary Secretary is quite correct in stating that the position of the people interested is much safer under the existing procedure than it would be under this amendment. I appeal to Senator Brown and those supporting this amendment not to proceed with it, because it is seeking to introduce a principle that was never accepted before.

We all seem to agree that hospitals are urgently needed. If this amendment be accepted it will tend to delay the building of these hospitals. A great many of the existing hospitals are in a very wretched condition. The procedure is that the local authority selects the site and communicates with the Local Government Department, which sends down an inspector to inquire into the suitability of the site. He takes evidence for and against the proposal. All those interested can give evidence at the inquiry, and usually do at such inquiries. The doctors interested in the erection of the hospital will also be heard. Of course, we all try to select the best site. The minutes of evidence at the inquiry, together with the opinion of the inspector, come before the Minister and the Minister decides whether or not the site is suitable. If the site interferes with the amenities of any residence, even a Fianna Fáil Minister would not, I think, inflict injury or hardship on anybody by approving of the site. I appeal to the House not to pass this amendment, because it is not in the interest of the hospitals or of the people. I believe that it would delay the building of these hospitals, which are so urgently required.

I should like to emphasise that what the people interested in this amendment are really endeavouring to do is to place an official of a Department in a position superior to his Minister. The Minister would really become subordinate to the official he would send down to hold the inquiry. I do not think that any other interpretation can be placed on the amendment. A local, public inquiry is to be held and an inspector is to be sent down by the Local Government Department. Surely, the Minister who is responsible for the activities of a whole Department should not be placed in a subordinate position to the official he sends down to hold this inquiry. The proposal is that the inspector should give the final ruling. That seems to me to be rather an anomaly and, as has been stated by Senator Farren, a complete reversion of what we always understood to be the position between a Minister controlling his Department and his officials.

I agree with Senator Farren that this is the first time in which, to my knowledge, an inspector who had held a local inquiry is made the final court of appeal. He is made the final court of appeal under this amendment because the question is one of fact which can only be properly decided by an individual who has seen the spot. I take it that it is no part of the duty of a Minister to make an excursion to the locality concerned and to decide the matter with his own eyes. If he were willing to undertake that task, I should say that he would certainly be the best judge. But, with great respect, he is not the best judge, no matter how carefully he considers the report, in a case which depends on the view-jury point of view. He is not as good a judge as the man who has seen whether or not the taking of the land will actually interfere with amenity of residence. This amendment is not intended, in any sense, to place the official in a position superior to the Minister. I am pressing the amendment because I know, from long experience, that you cannot compenstate in these cases. There is no power to give compensation for injury to amenities. They are dreadful injuries because they can never be got rid of. If it would help in any way to bring about agreement, I should be willing to insert in this amendment the provision which appeared in the original amendment by Senator Sir John Keane—that this question of interference with amenity should only prevail in case there is an alternative suitable site. That would come in in the second last line of paragraph (d). The paragraph would then read:—

When a public local inquiry has been held pursuant to the next preceding paragraph of this section and the person by whom such inquiry was held reports that the acquisition of the lands proposed to be taken would seriously interfere with the amenity of the residence of the owner of such lands, and a suitable alternative site is available the Minister shall...

He would have to report not only regarding interference with the amenities of the land proposed to be taken, but he would have to satisfy the necessities of the locality by showing that there was a reasonable and suitable alternative site.

Would you say that he would have to satisfy the Minister?

Yes, because that alternative site would also have to be seen by the inspector. He would have to see the site and satisfy himself that it would be suitable. I would be willing to add words to that effect. I am of opinion that the person who holds the local inquiry and uses his eyes and has heard the evidence and seen the place is a better judge than any court or Minister.

I do not think there is much need to delay the House by any further discussion upon this motion. The principle of it is entirely objectionable and there is no use labouring the matter. It has been touched upon by many other speakers. It would mean placing the Minister of a Government Department in the humiliating position of being subordinate to one of his own officials. As to the suggested further amendment, I do not think that gets away from the big principle at stake in that issue. Even if it did it is not clear who would determine upon suitability of the alternative site.

The inspector.

Is it to be understood that the inspector would be the final tribunal in that matter too? If that were so it may come to the position of Ministers depending upon inspectors in the future. If the inspector is to determine, and the Minister is to have no power, what need is there to have Ministers at all? The main objection is the objection on principle. Senator Brown talked about Ministers not being able to go down and see those sites for themselves. That is so, but Ministers have to determine many important questions without being on the spot. The inspectors are the eyes and ears of Ministers. All the facts are brought out by the inspectors. I do not think it is necessary that Ministers should be on the spot to be able to estimate to what extent the amenities of a holding are interfered with by the erection of a building on a hospital site.

I am afraid I will have to ask the House to divide. The Parliamentary Secretary talked about the principle affected by this motion. Under the Constitution we make a man's house inviolable, but in this Bill you would put a fever hospital, perhaps, right up against a man's dwellinghouse. I think you should allow the man on the spot to investigate all the circumstances and allow his opinion to prevail. I would prefer an appeal to the courts, but we gave way on that point. We must, however, insist upon this motion and, therefore, I shall have to press it to a division.

I want to suggest an amendment that I think would get rid of the deadlock——


I am afraid I cannot accept any further amendment.

Perhaps I should explain to the House that the procedure here is unusual. The procedure is that if the House does pass this motion a message goes to the Dáil saying that we do not insist upon the former amendment, and we ask them to assent to this further alternative.

It is very doubtful that the local authorities would agree to this amendment. It would take power out of the hands of the local authorities as well as out of the hands of the Minister.


Inasmuch as the addition suggested to the amendment does not make it appear any more acceptable to the Parliamentary Secretary, I shall put the amendment as on the Paper.

Question put.
The House divided: Tá, 19; Níl, 16.

Bagwell, John.Bellingham, Sir Edward.Bigger, Sir Edward Coey.Blythe, Ernest.Brown, Samuel L., K.C.Browne, Miss Kathleen.Counihan, John C.Douglas, James G.Duggan, E.J.Fanning, Michael.

Garahan, Hugh.Gogarty, Dr. O. St. J.Griffith, Sir John Purser.Keane, Sir John.Milroy, Seán.Moran, James.O'Connor, Joseph.Parkinson, James J.Staines, Michael.


Chléirigh, Caitlín Bean Uí.Comyn, Michael, K.C.Connolly, Joseph.Duffy, Michael. Moore, Colonel.O'Neill, L.O'Sullivan, Dr. William.Phaoraigh, Siobhán Bean an.

Farren, Thomas.Foran, Thomas.MacEllin, Seán E.MacKean, James. Quirke, William.Robinson, David L.Robinson, Séumas.Toal, Thomas.

Tellers:—Tá: Senators Brown and Sir John Keane; Níl: Senators Quirke and Comyn.
Question declared carried.
Message to be sent to the Dáil accordingly.