Seanad Éireann debate -
Wednesday, 23 Nov 1955

Vol. 45 No. 8

Arterial Drainage (Amendment) Bill, 1955—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister for Finance (Mr. Sweetman)

The object of the Bill is to remove a doubt which has arisen in the interpretation of the Arterial Drainage Act, 1945. Under that Act, the Commissioners of Public Works are responsible for undertaking both original construction work on arterial drainage schemes and subsequent maintenance works. The Act provides that the initial capital cost of an arterial drainage scheme carried out by the commissioners shall be a State charge and that the cost of subsequent maintenance shall be borne by the county council or county councils concerned. Provision is made in Section 37 for repayment to the Commissioners of Public Works annually, by the appropriate county councils, of the amounts expended from year to year on maintenance. Efficient and economical maintenance of the large-scale catchment drainage schemes will require the employment of mechanical plant— excavators, vehicles, etc.—and of considerable quantities of small tools and supplies.

In order to carry out the various arterial drainage schemes, the commissioners have acquired a large number of excavators, machines, vehicles, tools and other equipment based at their central engineering workshop from which issues are made as required to the various works in progress. The obvious and practical course is to draw on these existing resources for the purpose of the maintenance of drainage works, in the same way as for drainage construction works. In order to arrive at the full cost of works, the normal practice is to add, to the direct outlay, charges in respect of the services rendered—the charge for tools and supplies being their recorded value and for machinery a weekly rate computed by reference to the original purchase price, the cost of servicing and overhauling the item concerned and to its estimated working life.

For the maintenance of each completed drainage scheme a local depot, combining the functions of an office and a store will be needed, and in measuring the cost of maintenance for each year account must be taken of the annual value of the premises made available for this purpose.

A doubt arises whether sub-section (3) of Section 37 of the 1945 Act in fact empowers the commissioners to include, in their statutory demands on county councils for recovery of the cost of maintenance, sums representing the value of the services rendered by engineering plant and machinery, stores or premises provided by the commissioners. The purpose of the present Bill is to remove that legal doubt.

By virtue of Section 37 as at present worded, the commissioners could buy specifically for the maintenance of each drainage scheme every item of plant, equipment or supplies required for that purpose and recover such outlay from the county council concerned. The adoption of such a course would result in inordinately heavy charges against the county councils, particularly in the first year of maintenance when the heavy initial cost of plant would have to be recovered, and in an unequal distribution of the cost of maintenance as between one year and another. The present Bill will enable the commissioners to adopt the obvious and practical course of drawing on the available pool of plant and machinery, etc.

The main provisions of the Bill are in Section 2. Paragraph (a) (1) of sub-section (1) of Section 2 covers the question of machinery and engineering equipment and supplies and paragraph (a) (2) deals with the matter of premises.

As I have stated, the purpose of the Bill is to ensure that the machinery available will be used to the best possible advantage and that it will not be necessary, as apparently it would have been—due to a mistake in the draft of the original Bill—that the councils would have to pay for the purchase of the new machinery for maintenance purposes.

Mr. Kissane

As the Minister has stated, it is apparently necessary to introduce this amending Bill to resolve a doubt that has arisen as to the payment of maintenance costs in connection with arterial drainage schemes, because that no doubt was envisaged in the parent Act, 1945. In any reference to that doubt, the question arises as to whether both Houses of the Oireachtas are taking notice of all these doubts that arise from time to time as to the interpretation of certain Acts passed by the Oireachtas. One could ask the question where is the doubt arising because, so far as I am aware, there has been no judicial or semi-judicial decision on this matter. The principle to examine is whether it is wise for the Houses of the Oireachtas to take undue notice of these contemplated difficulties which may from time to time arise in the mind of some legal luminary in some part of the country. I should like to bring this principle to the Minister's notice, because it is a very dangerous thing, as Senators are aware, to take notice of hearsay in all these matters. Senators are aware that hearsay evidence is regarded as no evidence in courts of justice, except in certain specified cases.

This whole question arises from financial considerations as between the central Government and the local authorities—the county councils. The question is that no matter what interpretation we put on it and no matter what changed circumstances might affect the payments, it seems that the county councils will have to bear the costs in any case, as they had to, I must admit, under the original Act. Under the 1945 Act, whatever costs would be considered necessary to keep the scheme in working order would have to be borne by the county council involved. There was, of course, also the difficulty as to who would determine what financial costs were necessary for the maintenance of the scheme, but I suppose that is within the province of the engineer or engineers representing the Commissioners of Public Works.

As we are referring to this question of financial obligations, I wonder is it because of financial stringency that some of these arterial drainage schemes are not being carried out to their logical conclusion. I would mention one—the Feale scheme. I understand the intention of the Commissioners of Public Works is to draw a line at a certain point, leaving out the stretch of river as between Listowel and Abbeyfeale. If that is the intention, I consider it is a very mistaken policy and I hope that the matter will be reconsidered. I am afraid, Sir, that I will not be able to go into that matter within the framework of this little Bill.

An Cathaoirleach

The Senator is quite right.

Mr. Kissane

I will then conclude by drawing attention to the inadvisability of becoming agitated about the interpretations we should put on every single thing because somebody has raised some matter and on things particularly about which there has been no judicial decision.

Mr. Hickey

I was surprised to hear about the numbers of machines that are available for these schemes. I visited one of these places some months ago and I was surprised to see the number of machines in use. I am anxious to know why so many of them are for a number of years in need of repairs.

Mr. Commons

This is a very sensible Bill, as any member of a local authority knows and I compliment the Minister and his Department on introducing it. While a county council may consider it lucky to have an arterial drainage scheme passing through their county, and while there is a rush to see who will get schemes first, it is nevertheless embodied in the 1945 Act that the county council in question must maintain the river after the deepening and so on has been carried out by the Board of Works. That is sensible. Everyone knows there is little use in spending large sums on arterial drainage and then allowing ten years to pass by without giving it any attention, letting the river choke up again, especially where the waters are not moving quickly. The sensible thing is to arrange for a scheme of maintenance and that is contained in the 1945 Act. However, in order to do this maintenance, for the cost of which the local authority is entirely responsible, the local authority would have to purchase excavators and other machinery or pay for those that would be purchased by the Board of Works.

We all know that, as time goes on, by the time that maintenance will have to be done in the first river cleaned and deepened, the Brosna, there will be at least some machines idle. These could be diverted to start the maintenance of the first rivers cleaned. The sending of those machines, or even new machines which are idle, would be a definite saving to the local authority, which otherwise would have to buy machines or pay for those which the Commissioners of Public Works would buy. That would be pretty expensive, in addition to the expense of carrying out the maintenance work. Therefore, this Bill will be welcomed by all local authorities. It will save us money. We all know that the maintenance will be a burden of some sort on the local authority but—like the land project, which is a burden on the local authority and on ratepayers in general still—it is a burden that will be welcome, because for every penny spent, there will be a saving of hundreds of pounds to the authorities concerned.

I may also allay Senator Kissane's fears. I feel sure the Minister has had good legal opinion as to the necessity for the Bill. There are sufficient legal minds in the Department of Finance to convince him that this Bill is absolutely necessary. Otherwise, we would not have it.

Mr. Cogan

Senator Commons has tempted me to intervene by his suggestion that counties which have a drainage scheme are lucky. That may be so, but I would say that counties which have not a scheme and do not need one are luckier still. The burden on the local rates in some counties where big drainage schemes are undertaken will be fairly considerable. One way of looking at the Bill—it may not be a fair way—is that if it were not enacted at all, it would be impossible for the central drainage authority to charge for the loan of their machinery. I assume that if they were precluded from charging, they would not utilise the machinery.

Mr. Sweetman

They could buy the machinery specially for the purpose and charge the purchase price. That would be much worse.

Mr. Cogan

That would be a very unfair burden on the unfortunate ratepayer. Possibly the Minister could tell us what is to be the likely charge for maintenance. I assume that very little such work has been done up to the present, but no doubt estimates have been prepared as to the charge, relative to the total cost of each scheme. It would be a matter of interest to the ratepayers to know what the burden is likely to be.

Mr. Hawkins

I feel there is some misunderstanding about the purpose of the Bill. It proposes to amend a section of the Arterial Drainage Act of 1950 which made exactly the same provision. I am sure those who took part in the discussion then on that particular section never intended that an obligation would be placed on the Office of Public Works to purchase a set of new machinery for each maintenance area. The obligation was put in the Office of Public Works to carry the maintenance work, in the knowledge that that would be the best equipped body to do it. Otherwise, I am sure the then Minister would have placed the obligation on each county council, as it would be much more economical for the county council to purchase the machinery themselves and carry out the maintenance work than pay the Board of Works the money necessary to buy the machinery and leave in the hands of the Board of Works all decisions as to where, when and how the work would be carried out. Therefore, the purpose of the Bill is not to bring about any big change or improvement in the original Act but only to make clear to those operating the Act the intentions of this House and the other House at the time that original Act was passed.

An opportunity is taken to make it more definite that not alone will the local authority be responsible for the payment over a number of years for the machinery and maintenance costs as calculated by the Office of Public Works, but will also be responsible for contributing towards the erection and the maintenance of the offices in the various maintenance areas.

When the Office of Public Works decides to carry out general maintenance work under this section of the Bill and eventually presents its bill to the local authority—the decision to carry out the work was made by the Office of Public Works, the doing of the work was an obligation placed on the Office of Public Works and at the end of the period I assume that at some stage the bill will be presented to the local authority—I can well see the position arising where the local authority or their local engineer will not be quite satisfied that the work should cost so much. In the event of a dispute arising, I wonder if there is any machinery by which the Bill and the views of the local authority can be reconciled, or must the local authority accept the account presented and pay up, even though they may be dissatisfied with the way in which the work was carried out? These questions will arise at some stage. What I want to make clear now is that the Bill before us is just a clarification of the intentions of the House when passing the original Arterial Drainage Act.

Mr. Burke

I also should like to get some information. I understand that this Bill is brought in for the purpose of clarification. There is one development taking place in this country, that is, the widespread use of machinery by county councils. There is a tendency to do road works during the summer period, during the long dry days. Could they use that machinery— bucket excavators, soil-moving equipment and so on, which is now the stock-in-trade of a county council—in order to do the work themselves, if they thought it cheaper? Or could they let the work out on contract to some efficient contractors in the county who bought machinery and spent a great deal of money on it? Certainly in Waterford, Tipperary and Kilkenny, many of those men have done an excellent job. It might be a more efficient and more effective way to use the labour than to employ additional staff. Good labour is always scarce and it could be used in the summer on the roads and on drainage in the autumn and winter, thus giving permanency. That is a matter of policy, but it might be very important for a county council to know if they could employ men in that way.

Mr. Sweetman

I am grateful to the members of the House for the manner in which they have received this Bill. As Senator Hawkins has made clear, it is an endeavour to clarify in wording now what I believe was the intention at the time of the 1945 Act. On that subject, I find it rather difficult to follow the reasoning of Senator Kissane. Perhaps I misinterpret the Senator. I thought I saw at the back of his remarks a certain criticism of legal luminaries.

Mr. Kissane

No.

Mr. Sweetman

I thought it was employed somewhat in that respect. I would suggest to the House that the adoption of the method that was put forward by Senator Kissane would mean that there would be more litigation, instead of less litigation, that adoption of his method would mean that no Bill of this nature would be introduced until the matter had been tested in the courts. Where, on examination by the Department concerned or by anyone else, it appears there is a doubt in the actual wording of an Act, and everybody believes that the intention of the Oireachtas was clear enough, surely, it is better to put the matter beyond question by an amending Bill of this sort in this way rather than put everybody concerned to the expense of a court action? It is precisely to obviate any such expense that amending legislation of this kind comes before the House at one time or another. I must differ from Senator Kissane on that point.

Apart from that, the various Departments operate, and are bound to operate, within the law as they are advised. If they are advised—by the Attorney-General in the last instance —that there is a doubt, Senators will agree with me that it is not for them or for me to overrule that doubt, but rather to be advised by people competent to give that advice and to avoid unnecessary legal proceedings. That is what is done in this case.

The Senator mentioned the Feale drainage scheme. I trust that you, Sir, will not consider that I am diverging too far in making a passing reference to the point raised by Senator Kissane, a very passing reference. The principle of the arterial drainage plan is that a river will be surveyed and examined; that a scheme will be prepared; and that then the scheme will be exhibited, so that all local people interested can see what is proposed to be done and what is not proposed to be done. That procedure was followed in respect of the Feale. The work which the Senator had in mind, although he was not able fully to develop his point because of the limited scope of this Bill, was never included in that scheme.

Notwithstanding the fact it never was so included, I had the matter examined within the past six months. I am afraid the position is that the upper reaches of the Feale are so torrential in character and the nature of the terrain is such that it is not feasible to produce a practicable scheme within the framework of the Arterial Drainage Act, 1945, or any extension of the work under the existing scheme.

The original Act gives the commissioners power to make certain minor variations and deviations such as may become necessary in implementing on the spot what was on paper beforehand, but the work there would be of such a major nature that it would hardly come under the heading of minor variations. In any event, from an engineering point of view, because of the torrential character of the upper reaches, it would be most difficult, if not impossible, to operate the scheme within the framework of the Act as visualised.

The Senator need not have any doubts or worry that any similar work is being cut off for reasons of economy. If he looks at the Estimates he will see that this year a sum of £416,000 is provided, compared with the sum of £377,000 last year. In addition, I have provided out of the National Development Fund a substantial sum for other arterial drainage work which could not be done under the ordinary Estimate.

Senator Hickey asked me for details about machinery and so forth. I am afraid that, without notice, I could not give him the details of the number of machines available. I would ask him and other members to realise that, in respect of any arterial drainage scheme, it is necessary to have very large machines to do certain heavy types of work. You require large machines and, at the next step, medium-sized machines, then smaller ones and so on. The whole lot have to be utilised as a unit. If you have not the very large machines, you cannot do the job that requires a very big span or depth, as is the case in places on the Corrib. While you must have those big machines for that sort of work, it would be entirely uneconomic, when you have done the heavy work that may be necessary, to utilise those machines for work for which the smaller ones are better fitted.

It is inevitable, therefore, that there will be periods during which certain types of machines will not be actually working on a job because the work being done is not of a type for which they are best fitted. Nevertheless, if they were not in the general picture and pattern, the work as a whole could not be done.

Senator Commons and Senator Burke dealt in slightly different ways with the question of maintenance. Senator Burke made the suggestion that individual county councils should do the maintenance, but members of the House will appreciate that the major arterial drainage schemes affect more than one county council. It is essential that there should be an overall uniform pattern of maintenance or else work that was being done by one county council in one way might not be done so satisfactorily by another and the whole scheme might fall down on that account. I am quite satisfied that uniformity of pattern is necessary. That was one of the reasons why the parent Act of 1945 was framed so that the Commissioners of Public Works would do the job.

Question put and agreed to.

Agreed to take the remaining stages to-day.

Bill put through Committee; reported without amendment; and received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. Sweetman

I omitted one point mentioned by Senator Hawkins in respect of premises. It will be, we believe, almost always the case that the maintenance depots to which we refer in this Bill will be the workshops which we constructed originally with the drainage work itself. It will merely be a question of keeping them on. In the majority of cases, we do not visualise that there will be any specific construction work as, perhaps, the Senator visualises.

Question put and agreed to.