Land Bill, 1963: Committee Stage (Resumed).

SECTION 8.

Professor Quinlan

I move amendment No. 14:

In subsection (4), line 25, to add "or award costs to the defendant if he is adjudged to be not guilty of such contempt".

Section 8 gives power to the Lay Commissioners to summon witnesses. As a general principle, I think it is about time we gave individual citizens some protection against the nameless officials of the State. When an individual is summoned by a State official and forced to incur expenses, if he is adjudged innocent the court which gave that judgment should have the right, if it is thought desirable, to allow him his costs. I understand that such protection is commonplace in many other countries, including England, but so far as I am aware it is not allowed here at present. With the great increase in State authority, and with the complex and ever-growing multiplicity of functions given to officials over the private lives of citizens, it is right and proper that an individual who is summoned unjustly or wrongly should have the right to recoup his costs in the same court that makes the judgment on whether he is innocent. He should have the same right as he has in an ordinary civil action to be allowed his costs. I think this is a vital measure of protection for the individual citizen.

Professor O'Brien

A person who is summoned in this way is treated almost like a criminal, and if it turns out that he has committed no offence it seems to me that it is only elementary justice that he should get his costs. I support the amendment.

Minister for Lands (Mr. Moran)

This section is for the purpose of removing doubt, because doubt was expressed. I think the amendment is based on a misunderstanding of the position. The section deals with the failure of witnesses to obey a summons, or a refusal to take an oath, or produce a document, or answer lawful questions put by the Lay Commissioners, or any other misconduct in the court. It gives effect to the ordinary provision that applies to the operations of every court. Indeed, it would be impossible to conceive any court being able to carry on without the power to summon witnesses and to make those witnesses conduct themselves before the courts in which they are giving evidence and to answer the questions they are directed to answer. The type of offence is immediately within the knowledge of the Commissioners and it is for them to uphold the dignity of their own court and to see that proper procedures are applied there.

The section, therefore, leaves it to the Commissioners to certify that the offence has taken place and, having so certified, they send the person off to the High Court to be punished. Following the precedent in section 60 of the Trade Marks Act, 1963 the function is given to the High Court to prescribe the punishment in respect of the certified offence.

The amendment carries the implication that the Commissioners are unreasonable. It is the Lay Commissioners who will be in a position to decide whether an offence has been committed before them in their own court and they certify the offence has taken place. The jurisdiction of the High Court is restricted to the question of punishment. There is another reason for this. The legal position of Lay Commissioners as having the status of county court judges was removed under the 1923 Act. The closest description one could give to them is that of legal arbitrators. At all events, it is necessary for them to uphold their own procedures and deal with recalcitrant witnesses. The mover of the amendment misunderstood the legal position. As I said, this is the procedure operated under the Trade Marks Act and the High Court will have no function in this matter except to decide on what punishment the offence merits. The actual offence will have been committed and the lay court will certify that such offence was committed. The only function of the High Court under this section will be to give whatever punishment they think fit depending on their view of the seriousness or otherwise of the offence. If you did not have something of this kind it would be, as in the case of any court, useless to have the power to subpoena witnesses if they could ignore the warning and no punishment followed as a direct result of their disobedience.

Professor Quinlan

The "High Court may, after such inquiry as it thinks proper," but might the High Court not decline to award damages or punish the individual? Is it in any way an appeal from the decision of the Lay Commissioners or is there any appeal whatever in this matter?

Mr. Moran

There would be an appeal, generally speaking, from the Lay Commissioners on a point of law. I assume that if there was some point of law arising out of proceedings of this kind in connection with an offence of this kind there would be an appeal but this is not an appeal. I want to make quite clear the purpose of the section. Where the Lay Commissioners certify that "X" has committed an offence as far as they are concerned, that is, for instance, refused to answer a subpoena to attend for examination before them, or has refused to answer questions or committed any other offence against the dignity of their court, they are entitled to certify.

They themselves cannot punish the witness but they send him to the High Court to be punished and the High Court's function under this will be to mate out punishment. The High Court in its wisdom may think the offence a trivial one and let the man go or it may think the offence merits a fine or in a severe case where a man refused an undertaking give imprisonment or give a decision as they do normally in cases where people refuse to obey subpoenas or commit an offence against the dignity of the court.

Amendment, by leave, withdrawn.

Question proposed: "That section 8 stand part of the Bill".

Mr. Cole

Arising out of the section, it seems to me that the High Court must punish in this case. They have no alternative to making some punishment, let it be, say, a fine of one penny. The way the section is worded, they must take steps for punishment. If they find on further inquiries it was purely a technical offence, would there not be some reason to change that? They may take whatever steps they consider necessary. It seems to me they have no alternative but to punish, from my reading of the section.

Mr. Moran

I am advised, and from my reading of the section, that it is a question for the discretion of the High Court to deal with matters as the Lay Commissioners send the file. The High Court may after such inquiry as it thinks proper make punishment or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court. The High Court may do it or may not do it, to put it the other way, and quite often this type of offence occurs by a recalcitrant individual who refuses to produce a document, or something of that nature, or refuses possibly to attend. Cases invariably occur in the High Court where the individual concerned gives an undertaking that he will produce the document and attend and they will adjourn it and let him go unless there is a blatant breach of the proceedings. The High Court has discretion to deal with offences under this section in the same way as they have general discretion to deal with contempt of their own court.

Question put and agreed to.

Section 9 agreed to.

SECTION 10.

Mr. L'Estrange

I move amendment No. 15:

To delete subsections (1) and (2).

I propose this amendment because I feel these subsections are most undesirable. The Minister is now taking steps to place the responsibility which should be his and that of the Land Commission on the local authorities. I think it is very unreasonable as section 10 exonerates the Minister for Lands and the Land Commission from "any obligation to cleanse, maintain, repair or restore any works..." Once the Land Commission have a responsibility, I think they should stand over it and not shift their responsibility, or at least portion of it, to the local authorities in respect of works which will then have to be maintained or kept in order by the ratepayers

We know when an estate is being divided that the Irish Land Commission are responsible for the division, for the proper fencing, drainage and for proper road making. From my reading of this, all that concerns the Minister and the Land Commission is that they seem to want to get out as quickly as they can and then shift the responsibility thereafter to the local authorities which in the majority of cases are the county councils.

We know that last year the rates collected were something in the region of £30 million but the tendency at the present time is for Governments and Departments to claim the credit for certain work and then to shift the responsibility to the local authorities or the ratepayers. This tendency has gone too far, or has gone far enough. If the Land Commission, when they are making roads, were to co-operate with the county engineers, and if the county engineers were to co-operate with the engineers or officials of the Land Commission they would see to it that the roads constructed by the Land Commission were made to a certain standard.

Those of us in public life know that once land is divided, and I have heard some one else mention it, the Land Commission just go in and out through a field and do nothing more than throw loads of gravel and make what they term roads of that. Immediately after, this is in slush and potholes and appeals are immediately sent to the county councils to take over and repair those roads. I believe it is the responsibility of the Land Commission to make proper roads. Certain specifications are laid down by the Department of Local Government to which the engineers and the local authorities must conform. I think the same rules, standards and specifications should apply to the Land Commission. Then, I think the majority of the county councils of Ireland would not mind so much taking over the roads if they were at least put in good repair before they were asked to take them over. There should be some co-operation between the county engineer and the engineer of the Minister's Department.

Mr. Fitzgerald

I believe that at the moment there is co-operation between the Department of Lands and the local authorities. In my own county a large amount of land was divided and many new roads were made. The people who made the roads termed them roads but people who had the misfortune to live on these roads could never call them such. It baffles anybody's comprehension as to why they were ever designated roads. They were the worst form of boreen that could possibly be made to anybody's house.

As I mentioned on the Second Reading the Land Commission appear to have had a mania for making these types of roads through every estate which they divide. The result was in County Meath, under the Local Government Act, the Meath County Council had to acquire all these Land Commission roads that were made since land division in the early 1930's at the expense of the ratepayers. As I pointed out, the people condemned to live on these so-called roads were ratepayers paying the same rates as if they were living on a main road. They were paying for that service but they had no service themselves. In many cases the priest, the doctor, the children going to school or people going to Mass had not good roads, and the position was deplorable. I am glad to say the Land Commission have, in co-operation with the county engineers, been providing the better type of roads, so that when the Land Commission move out the local authority can take over the road, roll it and tar it and give a decent entrance to all those people's houses. I hope the Land Commission will continue that co-operation with the local authorities and where they are able to provide new roads on the division of an estate that they will confer with the local engineer and ensure that a proper type of road, easily maintained, will be constructed. We should get away from the idea that any type of path is good enough.

Mr. Cole

I should like to ask the Minister if drainage works are at present being maintained by the Land Commission and will that work be abandoned under this section. Quite often these works are important, not only to the tenants in newly divided land but to neighbouring farmers also. Will these works be abandoned under the section?

Mr. Flanagan

As an official who has had to deal with the taking over of road works over a number of years, I agree, to a great extent, with the case made by Senators L'Estrange and Fitzgerald so far as roads are concerned but as far as the maintenance of drains and fences are concerned, and those things which are set out in this particular section, the responsibility could never remain with the Land Commission.

The Land Commission accept the responsibility for putting the lands and the farms into a reasonably good condition. All drains and waterways are properly constructed and maintained right up to the time the Land Commission hand over those lands to the new tenants. The fences are constructed in such a way as to satisfy the incoming tenants as to suitability and efficiency. After a time the holdings are vested in the tenants at which time the Land Commission have no further revenue to get from those holdings. It would be entirely unrealistic to expect that the Land Commission could continue to accept the responsibility for the maintenance of fences, drains or anything else on the land after it was vested and handed over to the tenant.

I remember, during the time the Local Authorities (Works) Act was under consideration the then Minister for Local Government, the late Deputy Murphy, who introduced this Act, called all county engineers into conference with him. At that particular conference I pointed out to the late Deputy Murphy that unless the responsibility was put on somebody for maintaining local authority works after they had been constructed then the whole Act would be a failure. That Act was a failure because there was really no way of trying to get Government money to spend on local works.

People must realise and county councils must likewise realise that once holdings are vested and new lettings are made, covering holdings and buildings, the county council get no revenue from those holdings. They were getting much more when the land was in a farm. The county council have really a responsibility which I think, in general, they are facing up to. They have the responsibility of maintaining roads particularly if those roads serve two, three or more householders. I agree, to that extent, there should be a liaison between the engineer of the Land Commission and the engineer of the county council so that roads will be constructed to the standard required for the taking over of such roads subsequently by the county council. I cannot, for the life of me, see how anybody could suggest that the Land Commission would accept responsibility in future for the maintenance of drains, fences or any of those things after the holdings have been vested in tenants.

Mr. Moran

I shall deal with a number of points raised by the Senators in a moment. First of all, I should like to point out to the House that this section is for the removal of doubt. Doubts originally arose in connection with the case made by Owen Kelly in County Roscommon. This case has become famous in the annals of the Land Commission if not in the annals of law. He was, like many other good country people, very jealous of his rights. He was prepared to back his judgment which he did very successfully in the courts. The Land Commission had vested his holding and other holdings in the neighbourhood. Mr. Kelly claimed, and the judge upheld him, that flooding which resulted from a drain, was in some way due to Land Commission operations on the estate. It is, for the purpose of clarifying the law and dealing with that kind of situation, that this section is here. Perhaps, it might not be appreciated by Senators that it is just to ensure that the Land Commission will not have such a responsibility in the future that this section is here.

In drafting this section the approach has been to give general protection to the Department from relevant litigation with certain very definite exceptions which are:

(1) The Department will still be liable, where there has been legal negligence.

That is the general law. It does not exempt the Department of Lands or the Minister for Lands from the consequences of legal negligence.

This is effected by the significant parenthesis "(not being a negligent act or omission)" in the protection given by clause (b) of subsection (1)

(2) The Department will be liable where the injury is a matter of express contract.

This will clarify what was in Senator Cole's mind:

There is no question of trying to upset existing liabilities, specifically undertaken. On this point the significant phrase is "implied contract" in the protection given in subsection (1) of section 10.

This has not happened so much nowadays but it happened in years gone by where the taking over of an estate entailed taking over the liabilities of the existing landlord about embankments and so on. The Land Commission very often became liable to the county council to maintain certain works.

The next point is:

(3) Apart from negligence and express contracts the field of possible litigation against the Minister and the Land Commission is to be regulated according to whether the Land Commission are or are not in sole and exclusive occupation of the land on which the works are situated at the relevant time. If the Land Commission are in occupation, then the Department will be legally liable.

In cases where the Land Commission are in occupation pending the division of land, then the Land Commission would be liable, pending the occupation of the land. Some of the queer cases that have arisen are claims by people against the Land Commission where, as I have said, they have long parted with possession of the land and the land has been allocated between the tenants concerned. We had a rather similar peculiar experience in the case of some bogs which had been vested in tenants and in which there was a demand that the Land Commission should carry out certain works, whereas, in fact, they had no legal right to go inside the gates at all.

So long as the House is clear that this is the exception, and that the Land Commission are responsible for legal negligence as they always were, and for the natural consequences of the acts of their agents and servants in possession of the land, and that they are still responsible for their liabilities in any case of contract express or implied, then I think the doubts of Senators should be assuaged. All this is doing is removing legal doubts that arose out of a fantastic situation. The position would be, unless we made this clear, something like the situation envisaged by Senator Flanagan, that the Land Commission, once they ever touched land, would be liable in perpetuity for anything that might happen — if a man's cow fell into a drain originally opened by the Land Commission or matters of that kind. It is a question of commonsense that when the Land Commission have finished with one of those estates there should be no doubt on this matter. I would like the House to bear in mind that in the vast majority of these cases the Land Commission or the taxpayer has not alone to provide a large amount of money which will make the roads but must also fence and drain the place and in some cases pay for rehabilitation by manuring where the land is in a low state of fertility. In addition to that, the price of the land on resale in most of these cases results in a loss to the Land Commission of well over 25 per cent, so that there is a very substantial amount of subsidisation in dealing with this matter. I do not say that that should not be done. It is essential to do it in order to provide a reasonable job.

Let me come to this question of roads. There was a direction certainly in recent years by me to the officials to ensure that they will consult and co-operate with the local authority officials where they are planning to lay out new roads. I realise that in the past—and I am speaking of 30 or 40 years ago, or before the Land Commission came along or their predecessors the old CDB—certain roads that could only be described as pathways were made and they did not conform to any standards and are complete anachronisms as far as the present age is concerned. We are moving a long way from that practice, and we do try to conform with the standards that are prescribed regarding width and so on of these roads. Generally speaking, the Land Commission does co-operate with the officials, and have had no complaint on this score over the last few years. Senators will be aware that under the provisions of the new Planning Act there will have to be much more co-operation in this field and it will be essential that the local authorities will come into matters of this kind.

I want to emphasise what some Senators, particularly I think Senator Flanagan, said here, that the Land Commission are not a road maintenance authority and are not there for the purpose of maintaining any of these jobs in futuro. They are there to divide the estate and provide the necessary new roads required for the tenants under the re-arrangement scheme, and having provided them they are finished with the job. The burden of maintenance for the future must be undertaken by somebody else, and the obvious people to do it would be the local authority. Some counties are better than others, but in very many cases the local authorities recognise this and move in fairly quickly. Where there is not in these cases a legal duty on anybody to maintain such roads, I am afraid our people are very slow to carry out any maintenance works. Possibly part of the reason is that what is everybody's business is nobody's business We are not remarkable for community spirit in this direction, and the result generally is that nobody bothers to put a cart of gravel on the road or carry out any repairs until it gets into a very bad state indeed. I am hopeful that ultimately where any major roadworks are concerned we might work out some type of agreement with local authorities that immediately the Land Commission have finished with the job the local authorities would, subject to certain conditions, automatically come in and agree to accept liability for future maintenance.

I hope that I have made it quite clear to Senators that the exceptions to which I have referred cover in the main cases that should be covered and that there is no question here of the Land Commission divesting itself of any liability that any reasonable person would say they should justly keep. The section is there in the main for the purpose I have described and I think the House should accept that what has been done here is necessary for the protection of the Land Commission against unreasonable claims arising in very unusual circumstances and is, in fact, preventing the Land Commission from becoming insurers of anything that might happen on the farm for all eternity.

Mr. L'Estrange

We should take it for granted that under the new Planning Act there will be more co-operation and liaison between the Department of Lands and local county councillors and county engineers. In the past the situation was very bad in some cases. Had there been any little co-operation between the county engineer and the engineers of the Department of Lands things would have worked out much better. We would find a road going up into an estate into the side of a hill and down into a bog to nowhere, whereas if there had been co-operation that road might have provided a very useful link-road. We see various instances of it in different places that have been divided by the Land Commission, who were only interested in dividing up the land and making a roadway into it. If they had contacted the county engineer and there had been a bit of co-operation things would have worked out much better. Every local authority has a legacy of badly made roads which have become burdens on the ratepayers. I hope that in future there will be certain standards and specifications, and that the roads will have to be made to those standards and specifications. In that event, I do not think any local authority would have any objection to taking over the roads.

Senator Flanagan was not very consistent in his remarks. He condemned the Local Authorities (Works) Act. He said it was a failure, that money was wasted, and that they were not looking to the future. I think when the work was done it was the owners' responsibility to maintain the roads, just as he argues that it is the responsibility of people who get land to maintain the roads, drains, etc. I claim if he were consistent he would have to agree that when the work was done under the Local Authorities (Works) Act, when the money was spent and the drains were cleared it was the responsibility of the farmers to maintain them in their own interest.

Mr. Flanagan

That is what I recommended to the Minister and it was not included.

Mr. L'Estrange

It is stated in the explanatory memorandum:

The Land Commission, of course, will be fully responsible while the lands are on their hands. But after the allottees have gone into possession, the maintenance obligations (if any) will attach to the allottees.

When land is divided it very often happens that some one is in a hurry to get in on a particular day, and the road may be three-quarters finished, or the pump may be half sunk, or not sunk at all. Surely this will not apply in a case like that. Is there provision in the Bill for the case where roads or pumps are not finished?

Seán Ó Donnabháin

This is one of the several sections inserted for the purpose of removing doubt, but it seems to have created doubt in my mind. There is a definition of the word "works", but "roads" are not mentioned at all, unless they are included under "any works whatsoever". The rest of the definition covers every fantastic thing that could occur. I always understood that when roads were constructed by the Land Commission, and handed over, it was the obligation of the local authority to maintain them.

Mr. L'Estrange

No.

Seán Ó Donnabháin

In the definition everything seems to be mentioned except "roads". The definition includes "any river, stream, natural or artificial water course"—surely a stream or a river is a natural water course—"canal, drain, pond, lake or other area covered by water, and any natural or artificial bank or embankment." Why not put in the word "roads" if the draftsman meant that they were to be included, and when the Land Commission had finished the work, whatever kind of job they might be accused of doing, the local authorities would have an obligation to maintain them? I presume there would be certain expenses in perpetuity.

Mr. Fitzgerald

The explanatory memorandum states that section 10 removes doubts about the legal position regarding maintenance of drains and other works constructed or repaired by the Land Commission. I presume that includes wells and water supplies provided by the Land Commission for each tenant. Many representations are made to the Land Commission with regard to the water supplies that are made available to their tenants. The Land Commission spend quite a lot of money sinking pumps, but I would say that in 90 per cent of all cases it is the artesian well that is the source of the water supply. Very often on the completion of the sinking of a pump, and the provision of water, the water does not stand up to the test and is condemned. Very little effort is ever made to provide an alternative supply for the tenant. That leaves the tenant in a very invidious position.

I pointed out on Second Reading that when estates are divided and water supplies provided for the tenants, in as high as three cases out of eight, the water is unfit for consumption. Those people have been making representations, or getting their public representatives to make representations to the Land Commission, but the Land Commission go their merry way, and the people have to make do with the water supplies that have been provided. It is only proper that the Land Commission should provide an adequate water supply for each and every tenant. As we all know, a water supply is a very important asset for any farmer.

I should also like to refer to the type of fencing the Land Commission are installing. I have in mind a particular case where approximately 600 yards of a new Land Commission road were taken over and are being repaired by the Meath County Council. On one side there is the old fence that was always there, and on the left hand side there is the new type of concrete posts and barbed wire fencing which I claim is not a permanent fence on a public road. I should like the Minister to remove the doubt in my mind as to whether that is a fence. I believe there is no permanence attached to it, and I feel that type of fencing is not adequate.

I disagree with what Senator Flanagan said when he described the Local Authorities (Works) Act as a failure. I do not think he can justify his remarks. Much good work was done under that Act, and the fact that there are demands from every county council for its re-introduction is proof that the local authorities are satisfied it was not a failure.

An Cathaoirleach

We are not discussing that now.

Mr. Fitzgerald

Senator Flanagan did.

Mr. Moran

In answer to the point made by Senator L'Estrange about works which are not completed, such as the sinking of a well, or the provision of a pump, the Land Commission can do it whether or not the place is vested in the tenant, and there is nothing in the section that would prevent them from doing so. The same proposition applies to some of the points made by other speakers. The Land Commission can at any time, with the co-operation of the tenant concerned, expend money voluntarily when a proper case has been made in their view for such a proposition. I am advised that the section, as it stands, covers roads, or any of the works referred to by Senator Ó Donnabháin.

As far as water is concerned I appreciate, as Senator Fitzgerald said, how important it is and as time goes on there will be a greater demand for a full supply of water to houses and farms. It does so happen that in a number of cases, notwithstanding the advice of experts or of water diviners, the water obtained either fails in the estimated volume to reach the necessary supply, or proves unsuitable or unusable. It is no fault of the Land Commission that this occurs. It occurs with everybody who has to bore to a considerable depth for water and the Land Commission can only do their best. In some cases, and, indeed, I would imagine generally speaking, where they bore to a considerable depth and a type of water is found that proves unsuitable or unusable the probabilities are that on that holding it would probably be impossible to get the right water, which leaves the solution to some scheme like a regional scheme of the type that is becoming so widespread. From the files I have read on this matter there does not appear to be any easy solution where people, having bored and gone to the trouble and expense of doing so, find water that turns brackish or proves unsuitable. No doubt in the odd number of cases — the Senator suggests that there are three cases out of every ten but speaking from recollection I do not think our statistics will bear that out — you will meet with a failure not, perhaps, to find water but to find water that is suitable for human consumption or the purpose for which the farmer requires it.

Where the migrant is concerned and where it is part of the inducement in relation to such a holding that there is water provided or a pump put down— in some cases one pump is designed to supply two or three migrants—the Land Commission do their utmost to solve the problem. I have had a number of questions in the Dáil about this and the files were brought to my attention and I satisfied myself that they in some cases had gone to extraordinary lengths to try to solve a very difficult problem. The Senators, I am sure, are reasonable enough to realise that where there is a boring of, perhaps, 70 to 80 feet and where bad water is encountered, the Land Commission are not magicians. It is not any easy proposition to find an answer without travelling a considerable distance and then probably running into difficulty in getting way-leaves and so on to get at a supply of water. I should imagine that in the long run in an area where there is difficulty of that kind, a better scheme would be to have a small regional supply which would probably be less expensive and more likely to meet with success. At all events, I shall ask those concerned to examine the proposal.

I would have to do the same in the case mentioned by the Senator about the type of fence being erected on this particular road. I could not give any offhand answer to the Senator's allegations about this fence but I shall have the matter brought to the attention of those concerned and find out what has been provided for in what we call the budgeted estimate. Senators will appreciate that in the division of some of these estates there is, first of all, the price of the acquisition of the land, then there is the report of the schemes for either re-arrangement of migrants' holdings, and so on, and there has to be a budgeted estimate providing so much for roads, fences and so on. I shall check on what type of fence is budgeted for and whether it is considered reasonable.

Mr. L'Estrange

Senator O'Donovan mentioned other roads——

Mr. Moran

I am satisfied that the word "works" does include——

Mr. L'Estrange

It does not mention roads.

Mr. Moran

I know. It does not actually spell things out but it refers to "an act or omission of an officer... (not being a negligent act or omission) ... of any works ..." The word "works" would cover roads as well as drains.

Amendment, by leave, withdrawn.

Section 10 agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill."

Professor Quinlan

I cannot see the necessity for this section because the ordinary private landowner who has a house or property on his land is put to much greater trouble and he has to prove that he could not let it in the period. Then there is the question of reclaiming rates after they have been paid. In this case the Land Commission, to my mind, are taking a great deal of power to save what could be a very small sum. In fact, this saving is not a saving because it is being taken directly from the local rates. We all know the great heights to which rates are rising and we are conscious of many State companies which take the privilege, like the ESB and others, to be free from rates and then here we find the Land Commission taking the same power. They had it in the past but they had to reclaim and show that the house was not occupied but now it just facilitates the non-payment of rates. It is a bad example. It is desirable that the same law should prevail for State bodies as prevails for the individual citizens and it is on that principle that I appeal to the Minister to consider whether this section is really necessary or not, whether either the privilege or the advantage given to the State over the individual citizen is a wise one to grant and whether, in fact, the small saving to one State authority at the expense of another is really worth considering at all.

Mr. L'Estrange

I wish to support Senator Quinlan on that. I believe the private individual and the State should have the same rights and privileges. I think it is wrong that rules and regulations applying to the individual should not apply to the Irish Land Commission. We all know the trouble a private individual has in this regard. The Land Commission themselves should certify that such building is unoccupied at the date of the making of the rates, thus dispensing with the payment and the refund procedure. I agree it may make it much easier for the Irish Land Commission but I have no doubt that the local rating authorities will lose over this procedure. There should be no doubt about that. At the present time they pay the rates. Then, if they can prove and convince the local authorities the house was unoccupied at the particular time — say, for six months or one year — the rates are refunded. But due to various slips of certain individuals, and these things can easily happen, people may certify that a much longer period was involved when it was unoccupied. In my opinion the local authorities will lose through this section.

Mr. Moran

It is completely wrong to say or suggest that under this section any advantage is being given to a State Department, to wit, the Land Commission, over any private individual. The law here is exactly the same for a private individual as for the Land Commission. A private individual if he has an unoccupied house, even unoccupied for the purpose of repair or because he cannot get a suitable tenant, is entitled to apply to the local authority for rebate of the rates for the relevant period. He does so and he succeeds if they are satisfied that he has advertised the letting and did not get a suitable offer for it and it was closed down for repair as I have said.

The position with vacant houses is exactly the same for the Land Commission. Everybody knows that the Land Commission until they allot the lands, and the house concerned, do not send their officials in to occupy such houses. Everybody knows these houses are vacant during the period when the particular lands are being acquired by the Land Commission and the scheme for the allotment of these lands including these buildings is being put into effect. What happens at the moment is this. The Land Commission being a State body must put in their claim, and to do so in the same way as an individual taking advantage of the ordinary law that is there, to get their refund for the rates in these cases I want Senators to appreciate how much official time is taken up with this problem over the whole country with long correspondence with local authorities and sometimes disputes as to when the Land Commission do, in fact, get possession in order that the questions of the amount of the refund which the local authority must give to the Land Commission is determined. All that this section is saying is that it simplifies this procedure, that the Land Commission under their scheme must certify that these buildings are vacant. In that way it will save all this official time, save all this correspondence and ease the situation in working out the position with the local authority. They are in exactly the same position but I think this is our duty in a situation like this, and considering that the Land Commission is concerned not with one house as is the case with the ordinary individual, or two houses, but with several buildings all over the country in estates they are taking over for the relief of congestion here, there and everywhere.

Outside of getting relief for the buildings that are on them for the period which the Land Commission hold them, the people who get them will, of course, be liable for rates on them and other cases where these estates are divided. It should be unnecessary for me to point out that in many cases it entails improvements, new buildings under Land Commission schemes from which the local authority concerned will derive very considerable extra income by way of rates and increased valuations. I suggest to the Seanad that this is not only a reasonable section but an essential time-saver for anybody who realises the operations of the Land Commission scattered over the country and the amount of trouble, under the law as it stands, to which they have to go in respect of these buildings in cases where they take over estates. It would be simple if they were concerned only with one building but they are in no better position nor are they claiming to be in a better position under the law than other citizens. It is their duty and if they did not exercise it they would be in trouble with the Public Accounts Committee. It is their duty to claim these refunds under the law as it stands on buildings which are vacant throughout the whole country. This entails an awful lot of red tape, and official time and there is no reason why this procedure here should not be accepted. It is putting the Land Commission in no better position under the law than any other citizen. Surely they are entitled to that treatment.

Mr. McDonald

Would the Minister not consider paying the rates? If he is not going to pay them, it is ridiculous following the present procedure. Would the Minister not consider paying them and coming to some agreement whereby the county councils would help him out by taking over the Land Commission role and coming to some agreement in that way?

Mr. Moran

If I understand the Senator's proposition correctly, surely we could not expect the Land Commission to pay rates on vacant buildings, leave them there and not exercise their rights under the law. They would not be allowed to do it. They would have the Comptroller and Auditor-General and the Accounting Officer after them. They are not entitled to anything free, gratis and for nothing any more than anybody else. The position is that until the Land Commission take over possession, the then owner is liable for the rates and they are apportioned just as in the ordinary sale as to date of acquisition. They plead that vacant possession on that house will remain so until the Land Commission give a portion of the holding to some local man or put a migrant into it. Immediately the migrant comes in he becomes liable to the local authority for the rates on the building. All that we provide here is procedure to save all this interminable claiming of refunds, not alone from one local authority but from practically every local authority throughout the country.

Mr. Mooney

The Minister said that the Land Commission would not be in any different position from the ordinary citizen. I cannot entirely agree with that. The ordinary citizen if he has a holding must indicate to the local authority that he has made an effort to let the premises or that he would get someone to occupy the premises. In the case of the Land Commission the holding could be there unoccupied for twelve months. This is a matter which has been given serious thought by local authorities — that buildings which have been unoccupied for a period of time with nobody responsible for them would have to be written off. I should like to know are the Land Commission not in the same position as the private citizen who has a dwelling and must show to the local authorities that he has advertised to have the building occupied. He must advertise it or get somebody to stay in it or occupy it before he gets relief of rates.

Mr. Moran

The Senator has certainly a technical point. I would invite the Senator to consider what it would entail if the Land Commission had to advertise for letting for perhaps, 3, 6, 9 or 12 months some places which you find 20 miles at the back of Knocknagoshel in County Kerry or some place in my native county. It would be a waste of the taxpayers' money getting somebody to go in to that particular building. Remember land will be let while the Land Commission are preparing this scheme. It is the practice of the Land Commission to let lands for the year or two it takes them to prepare a scheme in normal cases.

I agree that the Senator is technically correct in stating that they should have to advertise these places but we all know that in 99 per cent of the cases these places would not be capable of being let no matter what advertising was done in connection with them. In actual practice, where there is a substantial house or a substantial building capable of being let, the Land Commission in fact let it if they think it will be taken for any considerable time. These are exceptional cases, the very odd cases. In the vast majority of these cases they are the type of buildings you would easily find tenants for. The practice of the Land Commission is to divide the lands as quickly as possible and it is a practice with which I thoroughly agree.

Senators will agree that it is really unreasonable to have to go through all that the law provides for the individual in the case of the Land Commission, who take over cases, large and small, all over the country continuously in the course of their operations and to leave the regulations and the law as they are providing that they must in each and every one of these cases have long correspondence with the local authorities on reclaiming land or claiming exemptions for the rates because the buildings are vacant.

The fact that the seal of the Land Commission, under this section, must be put to a certificate of the local authority will ensure that these cases are qualified, that they are genuine and that they are cases which should be exempted from the rates. On the whole, in considering the scope of the operations of the Land Commission and the increased operations which we hope to have under this Bill, this is not an unreasonable procedural question and there will not, as some Senators think, be any loss, generally speaking, to local authorities because of one case or another. Senators will appreciate as far as the period of 12 months or two years is concerned, generally speaking, there will be more new and improved houses going up.

Professor Quinlan

I am entirely satisfied. The Minister has given a very full explanation.

Question put and agreed to.

SECTION 12.

An Cathaoirleach

We may take amendments Nos. 16 and 17 together.

Professor Quinlan

I submit there are two very different concepts involved in the amendments and I would much prefer to take them separately.

An Cathaoirleach

We can take both amendments together and have a separate decision on each.

Professor Quinlan

I move amendment No. 16:

In subsection (1), lines 46 and 47, to delete "sublet or subdivided" and substitute "sublet, or subdivided into holdings of less than the equivalent of 30 acres of arable land.

Section 12 relates to the prohibition of letting, subletting or subdivision of certain holdings without the consent of the Land Commission. In this amendment I am concentrating on the question of subdivision and I am suggesting to the House that the consent of the Land Commission should not be necessary for subdivision where the area concerned is not more than 30 acres of arable land.

I cannot see any good reason why the Land Commission should come into such a question. In fact, this represents a type of development that we should be very quick to foster in this country — the voluntary subdivision of some of the larger farms — because I do not think you need very many statistics to show that the output goes up as the size of the larger farm reduces. It is becoming almost impossible today on the larger farm units to avail fully of all the advances of science and all the scope for intensification which can be availed of to the fullest on the family-sized farms. Consequently, the Government in this Bill, far from putting any obstacles in the way of subdivision, should give it positive encouragement and there should be no question at all of getting the authority of the Land Commission where the area concerned is of the equivalent of 30 acres of arable land.

We have read statements in the past by authoritative figures in our national life on the obstacles put in the way of subdivision by the Land Commission. In fact, I think Most Reverend Dr. Lucey has spoken against them on many occasions. There have been denials by the Minister concerned that there were any obstacles or any procrastination on the part of the Land Commission. I consider we are entitled to an explanation from the Minister on the procedures adopted in the case of subdivision and the reason for the delay at present in regard to them.

Now to come to the 30 acre sized farm. Thirty acres is just the upper limit. Below this limit it should be possible to have subdivision. It is reasonable that the Land Commission might be asked to pronounce on the feasibility of this. It is possible to have subdivision below 30 acres where an adequate viable unit has been created and where the local agricultural instructor certifies to this, that the conditions of the land are such that it can provide a living and also that it takes full account of any enterprises like a large scale pig unit or market gardening or other activities that considerably increase the effective output of the farm.

First, let us concentrate on amendment No. 16. I put the limit at 30 acres. In doing this I am trying by every means possible to counteract the nationally disastrous policy of the Government in pronouncing that you require 40 to 45 acres of arable land for a family sized holding. That policy cannot be condemned too strongly, and that is why in this section I want to protect voluntary subdivision from the disastrous effects of that policy.

In looking at such a policy we have to take the over-all picture into account. That shows that of the farms in Europe in the Common Market area Belgium has 82 per cent of its holdings under 25 acres and the percentage for France is 53, for West Germany 77, and for the Netherlands 69. We with 54 per cent of our holdings under 25 acres are, indeed, very favourably placed in that picture. This shows up again the disastrous impact that this idea that nothing under 40 to 45 acres is viable can have on our national thinking. It can have the great psychological effect on our whole agricultural community. I must here quote what I think is the best that I have got on this matter, and that is the Minister himself two years ago, when he gave what I consider a very rational and fine pronouncement on what was an economic farm. It is in the NFA Yearbook, 1960, and it was considered so good and so pertinent by the Land Commission that it was published in the Land Commission Report for 1961. There are parts of this that really typify my whole argument here. I believe that the Minister meant exactly every word he said, and I know positively from experience in farm apprenticeship schemes and elsewhere that they represented the consensus of thinking in the Department of Lands at that period. The Minister said:

In my view it is as fallacious to generalise that a businessman's future success must be in direct ratio to the foot frontage or floor space of his shop as it is to lay down a standard unit of land upon which any occupant—or even the majority of them — is bound to succeed economically. All we can do is to speculate on the desirable minima in our circumstances and, due to the limited amount of land available, we must be extremely careful to cut our national cloth according to our measure. I feel that getting the area together in a compact workable unit, as is done under rearrangement schemes by the Irish Land Commission——

and as also would be done under the process of voluntary subdivision—

is even more important economically than the actual extent of the unit, as it enables the occupier to utilise his time and endeavour to best economic advantage with resultant higher output return.

The Minister then quoted from an agricultural attache who had spent nine years in Denmark and who said:

Denmark is a country of small farms—of a total of some 200,000 about a half are less than 25 acres. The typical Danish smallholder's farm would be about 15 acres, he would keep about 7 milking cows, fatten some 20 pigs a year and keep a flock of 200 hens.

The Minister was quoting from an article published in 1956 by Mr. Ronald Ede, who was British agricultural attache in Copenhagen for nine years. The Minister continued:

It is beyond doubt that the farming economy of one of our main competitors on the European market is largely based on units of under 25 acres. In Denmark, too, the minimum area considered necessary as a viable unit is as low as 8 hectares —— equivalent to 20 statute acres — but this may have to be increased somewhat. We are very fond of quoting what the Danes can produce and how well they can do it. Would the lesson to be learned not appear to be that it is not so much the size of our holdings here that matters as how we utilise them? At all events, on the foregoing figures there cannot be much realism in the view that 33 acres of good Irish land is inadequate for a viable holding.

I completely endorse the Minister's view on that. I appeal to him to get his colleagues in the Cabinet to return to that viewpoint as soon as possible before irreparable damage has been done to the Irish farming framework. The Minister also said:

If it becomes generally accepted in rural Ireland that no farmer could live reasonably on less than say 50 or 70 acres of land the psychological effect would be to turn thousands more of our young people away from the profession of farming as a way of life.

Again he is perfectly correct and we should watch very much in the future this point. The Minister gave another considered view when he said:

Indeed there is some statistical support for this view in past experience. Some few years ago the size of standard holdings for Land Commission allotment purposes was generally raised from 25 statute acres of good land (or its equivalent in land of varied quality) to 33 statute acres (or similar equivalent). About that time, too, some economists and armchair theorists began preaching the doctrine that there is no future for successful agriculture except upon large units of land completely mechanised.

It may not, therefore, be pure coincidence that the latest full Census of Population confirmed a striking acceleration in the drift from the land as borne out by the census statistics.

That was the opinion of the Minister at that period, and I want to know what influence in the past two years caused such a drastic change in Government policy. We might accept that a drastic impact might be made by a considered scientific judgment, but that is not so in the present case, because all the results published by the Agricultural Institute in the past two or three years have stressed the fact that far more could be produced out of our acres than we dreamed could be produced. The Agricultural Institute show facts and figures and experiments to prove that the case quoted by the Minister of the 33 acre Land Commission farm in Meath is not by any means a unique achievement. In fact, it is quite commonplace according to the advice and teaching of the Agricultural Institute.

It is quite reasonable to expect people to make £30 an acre, and have a family income on a 30 acre farm of £900. As long as we have people raising families in the cities on £10 or £12 a week, we cannot say that 30 acres of land which are capable of producing £18 a week is too small for a farmer to live on. There is no consistency there. This is wasting our greatest national resource and, consequently, I appeal to the Minister to exclude voluntary subdivision above 30 acres of really good arable land from this disastrous policy. If a farmer wishes to subdivide we should encourage him to do so.

Let us consider the position of a farmer with 60 to 70 acres of good land who has got two sons at home. We know that in the past it was more or less a dogma of the agricultural community that a son should not occupy a farm which was smaller than his father's farm, no matter what size his father's farm was. It was always accepted that the farm would go to one son, and something else would be done for the rest of the family. If another son wanted to go into agriculture, we had to try to procure an additional farm for him. That was before we realised what could be done by intensification. Now we try to get the farmer to see that if he subdivides his land he will have adequate capital, and he can still produce a very fine living. He can have his two sons living side by side where they can co-operate, and thereby make a greater success of the business.

I am contending that the man with 60 acres is entitled to do that if he wants to. If he gives his farm to one son, the task of getting a 40 acre farm for his other son is enormous. It is the equivalent of finding £10,000. The first son on the home farm would be left heavily in debt, and the second son would start off in a similar position. Neither would be able to work his land intensively, but if the farm were subdivided it would be quite possible to build a house under the small dwellings schemes, and the capital which would be required to intensify would be only a fraction of the capital required to acquire land for the second son. If the farm were subdivided there could be practical co-operation between the two sons. It would ensure an efficient and highly productive 60 acre unit. The two sons would be in a position to start one of the more intensive enterprises, such as pig or poultry production. Some very impressive figures were given in the public Press recently by the Minister for Agriculture in regard to poultry production.

I am appealing to the Minister to exempt holdings above 30 acres from the scope of the Land Commission in my first amendment. My second amendment seeks to delete subsection (2). The general principle is that the Land Commission, in deciding whether to give permission, should get a report from the local agricultural inspector. Some of the questions to be asked are: what type of family income does the proposed subdivision offer, and what scheme has the prospective occupant got in mind for intensification? Having got that information, the Land Commission would be in a position to approve the subdivision. If the chief agricultural officer of the county, on the advice of the local agricultural inspector, certified that the scheme would provide a family sized income, the Minister should automatically accept his recommendation.

I am afraid subsection (2) might be used in a disastrous fashion. It provides:

The power of the Land Commission to withhold their consent under this section shall be so exercised as to prevent the creation or continuance of holdings which, in the opinion of the Land Commission, are not economic holdings.

Land Commission and Government policy are tied down to the idea that an economic holding must be greater than 40 acres. I am afraid subsection (2) will be wrongfully used, and I think it should be removed from the Bill. Therefore, I commend the two amendments to the House.

Éamon Ó Ciosáin

It is hardly necessary for me to suggest to the Minister that he should not accept these two amendments because if he did he would be interfering with one of the most important provisions in the Bill. Section 12 has been inserted to make sure that people will not create uneconomic holdings. There is such a tendency on the part of people to strive for land, and there is such value set on land by people here as well as elsewhere, that there would always be a danger that subletting and subdivision would take place on a grand scale if there was not some supervision exercised by the appropriate authority, the Land Commission. Is not the main purpose of the Bill to do away with uneconomic holdings wherever they may be? Are we now, if we are to accept these amendments, to open the gate for the creation of further land slums? I would not be in favour of that.

The Senator mentioned holdings of 30 acres and tried to persuade us, as he also tried on Second Reading, that in all circumstances 30 acres could be regarded as a viable holding. I do not agree with that but I would go as far as to say that in special circumstances 30 acres could be made a viable holding. But we must remember that we are legislating for the general community. There is no use trotting out figures and drawing comparisons between what is happening in Belgium, France and Denmark because we all know that conditions of soil and climate and social conditions in those countries are completely different from our conditions. In those small countries there are big centres of population and they have a different way of living. They have different methods of cultivating the land and one could have a market garden of ten acres beside a big centre and make it a viable holding. But as I said we are legislating for the whole community and the purpose, in my opinion, which I think is right, of section 12 is to prevent people from doing an injury to themselves by creating uneconomic holdings and thus injuring the community as a whole. Therefore, I would oppose these amendments.

Mr. L'Estrange

I just want to say that I agree with what Senator Ó Ciosáin stated that in certain places 30 acres could be an economic holding. If, perhaps, it was beside the city of Dublin, Cork or Galway, or out in Rush, and you engaged in market gardening, fruit growing or vegetables it would be an economic holding but as Senator Ó Ciosáin stated the Government must take the country as a whole into consideration and, therefore, I would not support Senator Quinlan's amendment.

Senator Ó Ciosáin spoke about section 12 and the fact that it was inserted to prevent people from creating uneconomic holdings or so dividing lands that they would lead to agricultural slums. In this Bill the emphasis is on preventing the fragmentation of holdings. As far as I am concerned I agree with that, but while I do not want to discuss the Succession Bill which is going through the Dáil, I do want to say that by its very phraseology it intends to fragment existing holdings however small.

Mr. Yeats

Nonsense.

Professor Stanford

On a point of order, surely we have enough to do with the Land Bill without discussing the Succession Bill?

Mr. L'Estrange

The Senator is not always in order himself.

An Leas-Cathaoirleach

Senator L'Estrange will now depart from the Succession Bill.

Mr. L'Estrange

Certainly, but the Members of that Party should be consistent. In regard to the Succession Bill we are entitled to ask——

Mr. Moran

I object to having to discuss the Succession Bill on this measure.

Mr. L'Estrange

This Bill is to stop the fragmentation of lands——

Mr. Yeats

On a point of order, if we are to listen to Senator L'Estrange on the Succession Bill we must be allowed to deny his entirely untrue allegations. The Senator should keep to the amendment.

Mr. L'Estrange

If it goes through as it stands it will lead to the fragmentation of farms.

Éamon Ó Ciosáin

It will not.

Mr. Mooney

That seems to be the impression that the Government have decided that 45 acres is an economic farm but it is forgotten that this Bill resulted from an inter-Departmental survey carried out in the west of Ireland and that one of the recommendations was for an economic holding. In my own county, as I pointed out previously, a sub-committee which studied the Report of the Committee recommended a 45-acre farm of good land and 60 acres of Leitrim land as a viable holding. Senator Quinlan has quoted Denmark and other European countries but he did not mention the fact that within the past ten years of ten western countries, including Ireland, the percentage decline in the active agricultural population was 25 in Denmark as against 21 in Ireland and that the decline in the numbers engaged in agriculture in Denmark was 79 per cent as against 35 per cent in Ireland. Whether Senator Quinlan likes it or not the amalgamation of farms is taking place and if the Government never intervened it is already taking place in my own county. There were 10,000 holdings there originally but under the bovine tuberculosis eradication scheme there are now 8,000 holdings, which shows that the process is gradually and steadily taking place in a county such as Leitrim.

No later than during the past few days I have had young people coming to me who were reared on farms and who are now anxious to return from England but they are not looking for 15 acres, 20 acres or 25 acres; they are looking for 45 to 60 acre holdings. We must be realistic in this matter. I happened to be present at a meeting which was held in defence of the west and the preamble to the meeting was criticism of the Government and the civil servants for having suggested what was a viable farm or what people should live on, but the people themselves were stating that they could not live on those holdings. When I suggested in Leitrim that we recommend a farm of 45 to 60 acres as viable I was looked on as a rancher. There is no point in putting the onus on the Government and stating that they are forcing something on the people. This is the result of a careful study of a survey that was carried out and a copy of which was issued to all members of the Oireachtas. Surely the Government must be given credit at least. We in our county were delighted that the recommendations of that Committee are being implemented as quickly as they are now being implemented.

Mr. McDonald

On section 11, the Minister advocated the cutting of red tape. In this section he appears to be introducing more red tape. I think people, say, widows and those who are temporarily not in a position to work their own farms, should be allowed to set them in any way they wish even if only for a limited number of years. Senator Quinlan's amendment is, I think, a good one. Senator Mooney mentioned the bovine tuberculosis figures. I do not think they could be reliable figures from the point of view that they will give you the number of herds in the county. For example, a cow and a calf could be counted as a herd. In the case of a farm that is set and the owner has no cattle that farm would not be counted at all, so that the figures are not actually reliable from the point of view of this section.

Are we discussing only the two amendments, or are we discussing the section as a whole?

An Leas-Chathaoirleach

We are discussing the two amendments at the moment.

Mr. Moran

Firstly, let me say that I stand over everything I said, in the address or lecture Senator Quinlan has quoted, when I addressed the Agricultural Science Association. In that address I was dealing with a holding of 33 acres of good land or its equivalent. I think the Senator omitted the words "its equivalent".

Professor Quinlan

No, I insisted on that.

Mr. Moran

When you get the equivalent of 33 acres of good land in the counties we are concerned with here, that in the main would be, as Senator Mooney says, 50 or 60 acres of the kind of land elsewhere. The study we made of some migrants in County Kildare a week ago was based on farms ranging from 35 to 56 acres odd, depending on the type of land. As between the desirable holding that the Interdepartmental Committee on Small Western Farms has laid down and that specified by me, there is very little difference. They say 40 to 45 acres. I did say 33 acres of first-class land or its equivalent.

Without pursuing that line any further, the Senator's own amendments would not work from a practical point of view to start off, not that I am in any way accepting his suggested definition of an economic unit. If the amendments were accepted you would have 30 acres for a standard holding. The principle of writing into the law a specific size for a holding is something I would not attempt to do. It is a matter of policy directive from time to time and intelligent administration and is not, I suggest, a matter of law. The amendments do not suggest any machinery for checking on the equivalent value of a holding. For instance, if the Registrar of Titles in the Land Registry were confronted with a document covering 30 acres, I do not know how he would determine whether they were 30 acres of first-class land. It is extraordinary how experts, including experts from the Valuation Office, differ on the value of particular land and particular holdings. The sensible thing is to state the general principles in the law and let the Land Commission decide the particular cases by reference to their wide experience of what is regarded as an economic holding.

With regard to the subdivision of land, I must utterly reject Senator Quinlan's suggestion that there have been very long delays and that there is some kind of national policy by the Land Commission to refuse subdivision in suitable cases, or in the general run of cases. Perhaps, I might briefly give some figures without going into them year by year. Taking the totals from 1953/54 to 1962/63, the number of applications for subdivision received in the Land Commission was some 29,028 and the number sanctioned over this period was 28,397. The number refused over these years was only 631 out of the total of 29,000 cases. Taking the average for that ten-year period, the number of applications per annum would be 2,903, the average number sanctioned would be 2,840 and the average number refused would be 63. I think these figures speak for themselves and, in fact, we had an agreement with the Incorporated Law Society some time ago that, in the main, the Land Commission would aim at getting out consents to subdivisions within a period of two weeks. That is the time factor in the vast majority of these cases, except the odd case now and then that gives rise to special difficulty which entails local inquiries by the local inspector because it is a borderline case, because it will obviously create an uneconomic holding, or because of an allegation in the application that subdivision must be checked.

The Senator asked about procedure. The normal procedure is that there is a special subdivision application form which is sent in the case of a sale by both parties. It sets out the area, the consideration and the purpose of the subdivision and it must be accompanied by a Land Registry map — sales in the vast majority of cases now are subject to the Land Registry — setting out the portion being retained and the portion being sold or alienated. It is true in some cases where there is delay the parties themselves have refused to apportion the annuity. The Senator will appreciate the whole holding is subject, for the sake of argument, to, say, a £5 annuity and pro rata a portion of that annuity would have to be put on the portion being sold. If it is a small portion, the procedure generally is that the purchaser must redeem the portion of the annuity attributable to what is his purchase. In many instances on the application for subdivision the parties cannot agree amongst themselves as to the apportionment of the annuity and they leave it to the Land Commission. That, in turn, could give rise to difficulties, depending again on the quality of the land, and it may entail a special report by an officer of the Land Commission.

Let me emphasise that in the vast majority of cases — I should say in practically 90 per cent of the cases — whatever delays there may have been in years gone by, over the past three years, at all events, they have been dealt with within a period of two weeks. That is the standard practice. Senators will appreciate that it is the odd and difficult cases that give rise to the trouble. If we did not have this control of subdivision or if it was tied up in the way the Senator suggests we can well realise the impossible situation that would be created. At all events, the figures which I have quoted show that on average the number of applications refused was 63 out of 2,903. That gives a clear picture of what is involved here.

I wonder are Senators aware of some of our people's ingenuity, particularly Cork men, in dealing with this question of subdivision. I had a very abusive letter from a man in County Cork during the past week, because of refusal in relation to the subdivision of 120 acres of very good farming land. He wanted to give 25 acres to one of his sons to enable him to qualify for the best estate which was being divided in the area. That is a regular attempt in rural Ireland to cod the Land Commission and split up whatever they have for the purpose of getting an addition from the Land Commission.

Any solicitor in rural Ireland, particularly from the part of the country I come from, will be well aware of the practice where a man has two or three rent receipts for small units, particularly of small holdings adjoining each other. He will take very good care to keep one leg in the bag and have one of his sons in one of these holdings so that where land is going that particular son will qualify for any additional land. Our people are very astute in thinking out these means of improving their own lot. It would be very hard to blame them for that. The Land Commission examine the history of the applicants in the area and from their experience in congested areas are very well aware of this particular practice of people endeavouring to divide portions of their lands for the purpose of taking full advantage of any Land Commission scheme there might be in the area.

The position is that normally in these applications for subdivision, if they are genuine cases, which I must say are very few, by a farmer dividing a large farm between sons, giving each an economic unit, there is no trouble at all. A large number of cases which involve the sale of sites and transactions of that kind, generally speaking, do not give trouble. In my experience the vast majority of cases, which give trouble to the Land Commission, and which have been discussed on another section of this Bill, are cases where people have been trying to get additions to their land. Their holdings are not economic. In those cases the Land Commission must be very careful that in future years they will not be subsequently occupied and that there will not be more confusion than there already is. That is the sole purpose of stopping this fragmentation and the sole purpose of this policy. In cases where it is proposed that subdivision would entail at least one uneconomic holding, would entail, perhaps, portion being economic and another portion comprising eight or nine acres being uneconomic, the Land Commission go very carefully into these cases.

The purpose of consolidation is going on in an intensified way and will be going on in the foreseeable future. Anybody who is familiar with the congested areas will know in some cases of the fantastic price which some of these people are prepared to pay for a piece of land which is up for sale. They will put the whole family savings into it and perhaps raise money for the purpose of getting this addition to their own uneconomic holding.

I should like Senators to remember we are not thinking in the vast majority of cases of what is regarded up here, in Meath or in Kildare, of 33 acres of good type land. That type of land does not exist in the congested areas to which this Bill, in the main, refers. There is very inferior land in those congested areas. The purpose of this section, as some Senators have said, is to stop fragmentation. It is hardly necessary for me to point out that the taxpayers, not alone now but down through the years, have been devoting millions of money to try to solve this congestion problem. I would suggest it would be the height of economic lunacy, if not national lunacy, to put ourselves in the position of building up these units on one hand and on the other, fragmenting land units in other areas which will no doubt in their turn come back on the books of the Land Commission to be built up again. For all these reasons it would be impossible for me to accept these amendments as they would simply make this whole section ineffective.

Professor Quinlan

I think we have to get a number of things clear. First of all, on all occasions that I have spoken here on this I have always used the expression "acres of good land or their equivalent" and in this case I am speaking about "the equivalent of 30 acres of arable land". We are working on equivalents all through so that the Minister's first point completely falls down.

Secondly, I repeat as strongly as I possibly can that I have at no time advocated the creation of agricultural slums in this country. I have never advocated the creation of any farm unit that the Agricultural Institute would not approve of and certify as providing a decent livelihood for a farming family. By that I mean a livelihood that is at least comparable to what the labourers in the city consider their aim for a family wage in the city. We are supposed to be speaking in the scientific age, and, consequently, we should be precise and take the trouble to see what are the terms of our references and our recommendations. I am imploring the Government to make full use of the scientific facilities in this country and not to be merely content with telling OECD or some other body about the wonderful scientific organisations we have, without adding in parenthesis "whose recommendations are usually ignored by the Government, who prefer not to be encumbered by scientific judgments when making policy." I am appealing for us to get away from that stage and take our place firmly in this scientific age, and also to turn this Parliament into something that could effectively deal with this Bill, in other words where we would have an adequate Committee system, not a system where you can misinterpret your opponent's points and ignore any vital points in his recommendations. Surely in this age we in the Seanad are not the judges of what is an economic farm, and we should put the money at the disposal of the Agricultural Institute to help us in this judgment. We see how complex and difficult it is because only today we had Senator L'Estrange who thought that 40 or 45 acres was totally uneconomic. I can see his point because in the region he comes from where there probably are not sufficient facilities for adequate dairying by stock raising the return may be uneconomic, but the solution to that is not bigger units in those areas but the provision of the facilities necessary to enable them to be intensified and made fully productive.

We have had Senator Mooney's figures with regard to the west. The people there are realists, and not the Senator, because they realise that they could not give 40 or 45 acres or the equivalent to everyone and so large numbers of them have to be exported to Birmingham and Coventry. They are prepared to believe what the Agricultural Institute says, that if they get sufficient capital they can improve their lot considerably.

I am very disturbed to find that the Small Farms Report is used as a basis for this 40 to 45 acre programme of the Government. The Committee in their report have condemned this quite strongly. They have said in paragraph 10:

A land distribution policy which gives sizeable allotments to some farmers and none to others is inevitably subject to much criticism. An increase in the size of the standard holding and an attempt to bring those who have previously benefited up to the new standard would intensify such criticism.

Their solution to the problem, which is the one that I have constantly advocated, as has everybody outside this Assembly in the agricultural line, might be summed up in one of the general recommendations of the Committee which says:

Apart from the work of the Land Commission and anything that can be done to improve hill or bog grazing or to extend intensive forms of production, the weight of future efforts by the State should be directed to the possibilities of non-farm employment through industrialisation, forestry, tourist development or anything else that offers a fair prospect of success.

In other words, they look at the picture as a whole, and if a man has a farm that is substandard perhaps on a part-time basis he can find a sizeable portion of his income elsewhere. Such a person would be, as far as I can read into this section, precluded from receiving an allotment.

I am not to be taken as endorsing in any way the ingenuity of some of my Cork friends in their efforts to get a portion of land from the Land Commission.

I have suggested to the Minister that below 30 acres his judgment should be based on a report plus a recommendation made by the chief agricultural officer of the county setting out the size, the acreage involved, the type of farm and whatever other intensive features were being added to supplement the increase. Probably part time employment would come in under that heading too. That would be the rational approach for the Minister to take rather than trying to cope with the difficulty here of making a uniform decision for the whole country where we have such large differences.

One other point I cannot let go was raised by Senator Mooney, and that was the old chestnut that we are living in dire national peril because we have this appalling position of having 35 per cent of our people on the land whereas in every other developed country in Europe the percentage is much less. In Denmark they have only 22 per cent on the land. The magic figure of around 20 per cent is considered to be in equilibrium. I would like the House to see how nonsensical such pictures are in this day and age. You might as well say that England is in a position of unbalance because she has only six per cent of her people working on the land. Surely if there is any substance at all to free trade arrangements and doing what you can do best in your own area, then such figures are seen to be absolutely meaningless.

It would be far more reasonable to take the UK and ourselves as a unit, and talk about percentage distribution there. In any case, the fact is not that we have too few people on the land, but that we have too few people in the country as a whole. If the land is our premier industry, surely ordinary commonsense suggests that we should put into that industry the work force that it requires, that is, the number of workers per 1,000 acres that are necessary to develop it.

If we look at Europe we see a different picture. Here in one of the best agricultural regions in Western Europe, we are trying to develop that industry with half the labour force of our competitors, and swallowing nonsensical figures which suggest we will not be right until we halve that force again, down to the magical figure of 20 per cent on the land. I appeal to the House to squash that nonsensical figure every time it rears its ugly head. The only figure that makes sense is the one per 1,000 acres. If we vote funds to the Agricultural Institute for scientific work, we should use their findings in the best possible way. I want to see the Government's agricultural policy based solidly on those findings. We do not want major decisions to be taken as this land policy decision was taken. There was a somersault from 33 acres to 40 to 45 acres in two years, although the whole weight of scientific evidence seems to be against that.

My amendment does not recreate rural slums. It accepts the individual's right to set himself up on a farm of 30 acres of arable land, if he wishes, without the permission of the State. Surely the individual is entitled to make that decision for himself, rather than having the almighty State make it. He can be refused that permission under subsection (2). I am not impressed by the figures quoted by the Minister of 29,000 subdivisions, and only 600 refusals. I believe at least 27,000 of those subdivisions were for building or other non-agricultural purposes. The amount related to the creation of viable family farms by subdivision would be a much more relevant figure and I take it most of the refusals were in that category.

Despite what the Minister has said, there has been a great reluctance on the part of the Land Commission to help the subdivision of a 60 or 70-acre farm between a couple of sons. That would be a much more relevant figure. I think an individual with 30 acres of arable land, or its equivalent, can make an income of at least £30 an acre from that land, and that gives him an income of £900 a year. Surely it is nonsensical for any Senator opposite to suggest that such a person is being allowed to recreate an uneconomic holding. I know it is very popular to talk about handing out things, and say a man should get 100 acres, and that the worker in the city who has £12 a week should get another £8 to bring him up to £20 a week. Those are very fine sentiments, but they cannot be achieved. I want Senators, in their thinking on the land question, to bring to bear the same standards they would use when considering a family wage in the city. The advisory services are available to the small farmer, and I cannot see any objection to my first proposition. I appeal to the Minister to reconsider it between now and Report Stage. He can get the opinion of the Agricultural Institute on the facts and figures I have given. I shall withdraw the amendment, and I intend to re-table it on Report Stage.

Amendment, by leave, withdrawn.

Professor Quinlan

I move amendment No. 17:

To delete subsection (2).

An Leas-Chathaoirleach

Amendments Nos. 16 and 17 were taken together.

Professor Quinlan

We were to have separate decisions.

An Leas-Chathaoirleach

There can be no discussion on amendment No. 17.

Professor Quinlan

I hope the Minister will be able to check on the facts and figures I have given before next Stage. I shall withdraw amendment No. 17, and I intend to re-table it on Report Stage.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendments Nos. 18 and 19 may be taken together.

Mr. Ross

Before the Minister speaks, I should like to indicate that we are prepared to withdraw our amendment No. 19.

Government amendment No. 18:

In subsection (2), page 8, line 52, to delete "so exercised as" and substitute "exercised solely".

Mr. Moran

I am satisfied in principle with amendment No. 19 as put down by Senator Ross and Senator O'Brien, but the wording suggested does not seem to fit the context. The draftsman has proposed slight textual variations.

Amendment agreed to.

Amendment No. 19 not moved.

Mr. Ross

I move amendment No. 20:

Before subsection (3), page 8, to insert a new subsection as follows:

"( ) Where an application to let, sublet or subdivide an agricultural holding has been made in writing to the Land Commission and the consent of the Land Commission has not been given or refused within two months of the receipt by the Land Commission of such notice of application, such consent shall be deemed to have been given unconditionally on the last day of that period."

While we accept the principle that section 12 is in the Bill to stop fragmentation, there seems to us to be a question of principle which has been left out, and that is why we put down this amendment. The principle is, of course, that consent may be sought from the Land Commission, but there is no time in which they must give their consent. It is a general principle in all legislation, I think, that when consent is sought from a Government Department, or a planning authority, there is a certain time in which they must say whether they give their consent. That is missing from this section.

The amendment which we have put down provides that where an application to let or sublet, et cetera, has been made in writing to the Land Commission, the Land Commission have two months in which, following receipt of that notice, to give their consent or to withhold it, but they must give their ruling within that period, otherwise the consent is deemed to have been given. The wording of this amendment is based substantially on the wording of a number of Acts, but in particular is inspired by the Local Government Planning and Development Act, 1963, section 27 and others. It is quite wrong that the Land Commission should be allowed to withhold consent indefinitely and that is why the subsection is inserted here. At one stage I was wondering whether two months was a reasonable period. If I understood the Minister correctly when he was discussing Senator Quinlan's amendment, he said that the average period of time in which the Land Commission considered these applications and took to give their ruling was two weeks.

Mr. Moran

That is right.

Mr. Ross

If that is so it seems to me that in asking for a time limit of two months we are not being too unreasonable. The amendment is put down as a matter of principle that some ruling should be given by the Land Commission within some definite stated time, otherwise the whole thing could stand off and property values could fall and the owners of land could be seriously inconvenienced and put to considerable loss.

Professor O'Brien

The whole purpose of the amendment is to try to preserve free trade in land. If a person subdivides or sublets and has to get permission from a Government Department, then the period during which he should be kept waiting should be strictly limited otherwise there is no free trade in land. The Land Commission are perfectly entitled to have a view in this matter but they are not entitled to hold up transactions in land indefinitely and that is why we have put down this amendment. After careful consideration, we came to the conclusion that two months is ample if not over-generous.

Professor Stanford

I should like to support the amendment for the reasons given by Senator Ross and Senator O'Brien.

Mr. Quigley

I should also like to support the amendment and I am sure the Minister will have no hesitation in accepting it.

Mr. Moran

I have hesitation in accepting it. It would be undesirable and, furthermore, I think it is unnecessary. I hope I have convinced the Senators as to the size of this problem from the figures I have given. On an average of 2,903 applications received over the past ten years, 2,840 have been granted each year and the number of refusals each year has only been 63 out of that vast number. That I think, as people now say, cuts this problem down to size. Secondly, over the past three or four years there have been many changes in Land Commission procedure, particularly on the legal side, with a view to speeding up different aspects of Land Commission work. Much of that has been achieved, in fact, most of it has been achieved, after full consultation with the Incorporated Law Society who represent their members' views on some of these matters and new rules have been evolved designed to expedite legal procedures in the work of the Land Commission. This is, of course, a legal or quasi-legal procedure. There was an undertaking given, because of complaints in days gone by about what was considered undue delay by the Land Commission, and that undertaking has been fully honoured over the past three years. It is that normally the consent would be out to the solicitor within two weeks of the application being received, provided, of course, that the solicitor is doing his end of the job and has set out all the relevant data with the application.

No doubt Senator Ross will be the first to admit that all solicitors are not perfect in carrying out their duties, or carrying them out expeditiously, in many cases. Normally, as I said on the discussion on the other amendment, in the vast majority of cases the consent is given within two weeks in accordance with our undertaking. There are the difficult cases, the odd case which entails being referred to the local office for a special report. They must cause some delay. Sometimes a lot depends on the urgency of the particular application and sometimes it depends possibly on the amount of pressure of work in the local office and there might be some delay but not anything extraordinary. There are also quite a number of cases in which the odd bits and pieces are left undecided by the parties such as the question of the apportionment of the annuity. In such cases Senators will appreciate that this can entail some further delay when it is left to the Land Commission to do because in many cases it will entail a special report from the local office as to the type of holding, if there is not a separate valuation on it.

Senators will also appreciate that if you take a holding the valuation of which is £20 for the whole lot there may be portion of it, perhaps, the portion which is being sold, that is callow or waste or of a very inferior quality, and to apportion the annuity on, say, six acres which might comprise the worst portion of that holding would mean, if there was not a separate valuation, nearly an inspection by the local Land Commission inspector in order to arrive at a just apportionment and one acceptable to the parties concerned. I should like to point out that outside all this if there was a case in which there was some inordinate or unusual delay what would happen is that those concerned would be into the house of the local solicitor involved and in these times very quickly. I am quite sure some Deputy would raise the matter in the Dáil by way of Parliamentary questions to find out what was causing this delay or what had gone wrong in the Land Commission. Indeed, I can say from experience that I get very many questions about matters that are of far less import in dealing with Land Commission administration than a matter where there was extraordinary delay in giving the Land Commission's consent in cases of this kind.

I suggest the amendment would be unsatisfactory in practice in respect of applications for consent to subdivision, in that the consent would be deemed to be given unconditionally, or to put it another way, would be given by default as the Senator suggests.

I can also visualise what would happen with the administration of this section by the Land Commission officials if the amendment were accepted. Surely the tendency could be that, in difficult cases which require protracted inquiries by the Land Commission to their local offices, they would refuse the consent. If they did the Senator's amendment, if it were retained here, would have no effect and this certainly would not be to the applicant's advantage. The Senator will appreciate that there could be the odd case one gets involving protracted inquiries and a simple way for them to stop this automatic consent being applied would be formal refusal to keep within the two months the Senator would like to prescribe.

Leaving aside all these considerations, I can assure the Senator that in 90 per cent of the cases that now go out there is only a question of a couple of weeks. I also know of one case that did not actually come to trial, where it was alleged that the Land Commission unreasonably withheld their consent in a subdivision. I should imagine, whether two months were written in here or not, if there were a case in which there was some extraordinary delay, the Senator, in his legal capacity, would not be slow in slapping out a writ and demanding a declaration that they were unreasonably withholding their consent. From a practical point of view, the experience I have and the figures I have given to the House, I think the Senator should be satisfied that it would be more practical to deal with the situation as it is. All the experience is that whatever complaints there may have been some years ago under this heading, these have certainly now been resolved to the satisfaction of the legal profession and, indeed, to my own satisfaction.

Mr. Ross

Up to a point, I see the Minister's point of view. Certainly the apportionment of the Land Commission annuities was a matter which I had not considered. In principle, I think the Minister is very much with this amendment but he does not want to see it go into the Bill. I do not want to see a situation arising in the section we are discussing, or anywhere in this Bill, where we will depend on the assurances of the Minister as to what the practice is at present or what the intention of the Land Commission may be. I am one of those who would like to see what ought to be the practice set down in black and white in the Bill. I know we are trying to legislate for a difficult case here. It may be, as the Minister says, if the Land Commission find a difficult case they will refuse consent to protect themselves. But, before they refuse consent in practice, if this amendment is in the Bill they will have to think seriously about it. The fact that this subsection is in the Bill will mean that they will not lightly refuse consent or will not lightly be tempted to delay. I am not talking about the present Land Commission administration but of the future where there may not be such an efficient administration. For that reason, I am still reluctant to drop the proposed amendment completely. What I would like to do, if Senator O'Brien will agree with me, is to withdraw the amendment and put it down is a slightly different form on Report Stage when I could meet points the Minister has made.

Professor O'Brien

I would agree with Senator Ross. I understand some of the points the Minister made, particularly the point of the Land Commission being tempted in a difficult case simply to refuse consent in order to avoid being rushed into difficult inquiries and so on. I feel Senator Ross is capable of drafting variations of this amendment which might be more acceptable. Therefore, I agree to withdraw the amendment in its present form and redraft for the Report Stage.

Mr. Moran

I shall have another look at this matter. At the moment, I am convinced of the reasons I have given but we shall see what we will do on Report Stage.

Amendment, by leave, withdrawn.

Business suspended at 6 p.m. and resumed at 7.15 p.m.

Mr. L'Estrange

I move amendment No. 21:

In subsection (3), page 8, line 55, to delete "letting, subletting or".

Subsection (3) provides that any attempted or purported letting, subletting or subdivision of agricultural land in the State shall be subject to Land Commission consent. The Minister has stated that this does not apply to conacre lettings but there is no specific mention in the Bill of it. I claim if this passes, without amendment, or without any specific provision being written into the Bill in matters of conacre lettings they will be subject to the granting of permission by the Irish Land Commission. This is an unwarranted intrusion into the private affairs of farmers. Some farmers, through sickness, perhaps, through death in the family or through economic circumstances, are not in a position to farm their own land as the majority of them would like to and they have to let their lands. This is a very serious action and it is a very serious subsection.

Every farmer loves to own land, to use it and to stock it to the best of his ability. It is only when you have such economic circumstances prevailing that they are not in a position to do that that they have to let their land. There is no use in the Minister telling us that conacre lettings are not covered by the Land Commission restriction on lettings. I think it was Senator Ross, who, earlier on, stated that the practice should be set down in black and white.

We should remember if this comes before a judge in any of our courts of law the judge will not go beyond what is in the Bill. He will not look up the Seanad or Dáil debates and he will not be influenced by what the Minister for Lands said in the Seanad or in the Dáil. If there is any doubt at all—and I believe there is doubt-then it should be put right. There is no legal provision in this country to stop, say, a shopkeeper or a carpenter letting his workshop. There is no legal provision to stop any man from subletting his factory. A doctor or a dentist may sublet his surgery. We are entitled to ask why have we one law for the farmer or the owner of land and another law for the rest of the community.

We on this side of the House do not agree with any big farmer letting his land for a long number of years, not working his land properly nor we do not agree with a business man in a town or a professional man buying land to have it as an investment and letting it for a long number of years. We do not agree with that policy. We agree that where any man who has land bought as an investment then lets it, the State should have the authority, and, indeed, I think has, to take it from him. You can have the case of a widow with a young family and nobody in the family able to buy or sell cattle or know anything about tillage or harvesting. That woman will have to let the land for a number of years until some of her sons grow up and are in a position to take over and manage and stock the land themselves. Again, some farmers may fall into bad health and have to let their land for a number of years. They may have to let it to pay off a debt. We also have the case of young farmers—and I know many of them—who may have the price of the farm but only the price of the farm and have to let the land for four, five or six years to get capital together to stock the land.

To put an end to all doubt and to settle it once and for all the Minister should have some specific exceptions written into the Bill itself. In this country we have for a long time cherished the right of letting and of free sale. There must be conacre lettings for the convenience of the people I have mentioned who because of sickness, financial or domestic circumstances are not in a position to use their own land as they would like to for their own use. We all know that there are adequate provisions elsewhere in the Bill to control undesirable forms of conacre. I believe that conacre lettings for these purposes should be specifically exempted in this section.

Mr. Moran

I do not regard this amendment as being at all acceptable, because if it were accepted it would mean that while a man could not give a permanent transfer of part of his land without the consent of the Land Commission he could validly give a long lease of it, which would make nonsense of the whole subdivision control. Senator L'Estrange has been setting up a number of theoretical cockshots for the purpose of knocking them down. I have stated time and again in the Dáil that conacre lettings or lettings for temporary convenience under a year are outside the provisions of this Land Bill as they were, in fact, outside the provisions of every Land Act that was ever passed in this country since the foundation of the State and before it, because such a letting cannot create or is not a tenancy within the meaning of the Land Acts when it is for under one year. All that is involved in such lettings is, as they are set out in many of the old agreements and, indeed, in present day agreements in the country, simply the right "to eat the grass of the land concerned."

Might I point that out to the House again because this untruth has been repeated over and over again in the hope that a number of people in the country would believe it, that from the passing of this Act 11 month lettings cannot be made? We have all these tears shed for the poor widow with the young family and so forth, which is completely irrelevant to the particular provision in this section. Again, let me emphasise that this is not a question of what I have said or what anybody said in the Dáil or in the Seanad, as was quoted, and irrelevantly quoted, by Senator Ross in regard to interpretation of a different section of the Bill. This is not a question of practice. It is a question of law, and law that has been well defined and set out down through the years. These lettings for temporary convenience, or 11 month lettings, are not within the scope of the Land Acts.

I had better put on the records of this House that by definition at lines 32 to 45 on page 9 of the Bill, the meaning of "holding" is restricted to certain tenures, all of which are upwards of year to year lettings. Seasonal, or conacre, or 11-month lettings, being less than year to year lettings, are clearly outside the scope of the definition of "holding" as set out here, and are automatically excluded. This point turns on line 46.

Again, in contrast with the provision of the 1946 Act, section 40 of the Land Act, 1933, did not mention conacre or agistment, although that Act also dealt with holdings "held under a contract of tenancy expressed to be made for temporary depasturage, temporary convenience, or to meet a temporary necessity ..." The Supreme Court held that an agistment holding was outside the scope of section 40 of the 1933 Land Act. That is in the decision on Fitzpatrick v. Behan, Irish Reports, 1944, at page 295. So, here Senators are not taking my word, but the word of our own Supreme Court, as well as the previous decisions given down through the years since the 1881 Act to the effect that 11-month lettings, or lettings for temporary convenience, or temporary depasturage and agistment are not within the scope of the Land Act.

Let me again refer to the relevant provision of the 1923 Act which deals with the prohibition of subdivision and letting. Subsection (1) of section 65 is the law here, and has never been repealed. The section provides:

Where the Land Commission have after the date of the passing of this Act made any advance for the purchase of a holding or parcel, the proprietor thereof shall not subdivide or let the holding or parcel without the consent of the Land Commission, and every attempted subdivision or letting in contravention of this provision shall be void as against all persons, and on any such contravention the holding or parcel shall at the option of the Land Commission vest in them.

Since 1923 has anyone argued under that provision that it is illegal to make an 11-month or a temporary convenience letting? According to Senator L'Estrange, the wording of the section would indicate that no one can make an 11-month letting of land. Indeed, as I have already said to the House, long before 1923 it was legally recognised that the eatage of grass, as I describe it, was outside the scope of the Act, and did not give rise to any rights, equities, or claims under the various Land Acts. The same is still the case.

I am not prepared to put a section in this Bill indicating to anyone who knows anything about the Land Acts that I, for one, was not aware of the law about the 11 month lettings that every legal schoolboy — let me put it this way — has been aware of for the past 50 years. Temporary convenience lettings are completely outside this provision, and I have put on the records of this House the law on the matter, and the decision of our own Supreme Court. I do not think it is necessary to deal further with this continued attempt to try to sell the idea that conacre lettings or 11 month lettings are being brought within the terms of this Land Bill.

Amendment, by leave, withdrawn.

Mr. Ross

I move amendment No. 22:

In subsection (4) (b), page 9, line 15, to delete "urban development" and substitute "building purposes".

This amendment is put down because it is very hard to understand what is meant by "urban development" in section 12 (4) (b). Subsection (4) provides:

Subsection (1) of this section shall not apply to any holding which is not subject to purchase annuity or other payment payable to the Land Commission, and either—

(a) the whole of such holding is situate within the boundary of any county borough, borough, urban district or town, or

(b) the Land Commission certify under their common seal that in their opinion such holding, by reason of its proximity to a county borough, borough, urban district or town, is required for urban development.

I should like the Minister to clarify what is meant by "urban development". It may be that this is specifically drafted to cover something such as a building estate or an industrial estate. I do not know, but the amendment is put down to cover all building purposes, and I think it is clearer than "urban development", though it may not be what the Minister had in mind in drafting this subsection.

Mr. Moran

The subsection was inserted as a result of representations made on behalf of people who have land in suburban areas, and expect it to sell in multiple building lots. The phrase "urban development" has been deliberately used with the idea of covering not only speculative building but also road widening, industrial development, public building, and all the other features of urban growth. The Senator may be thinking in terms of the local authority only being concerned here, but all kinds of things may arise, such as certain amenities, for instance, the provision of parks, swimming pools, holiday camps, or what have you, which might come through private promotion outside of any question of local authority building. Therefore, we felt we should not confine it to building alone, and put in this expression which, as the Senator will appreciate, is much wider. That is the reason for it.

Professor O'Brien

May I suggest that the subsection might be clarified by putting in words to the effect of "required for urban development or building purposes" because there is a type of urban development which does not involve building, and there might be a type of building which is not strictly urban development.

Mr. Moran

I appreciate that, and I shall look at the point between now and Report Stage. We had something like Senator Ross's point in mind at first, but we changed our minds because we felt this expression would be wider and more suitable.

Amendment, by leave, withdrawn.

Mr. Ross

I move amendment No. 23:

In subsection (6), page 9, line 21, before "be" to insert "(subject to section 52 of the Registration of Title Act, 1891)".

This is an amendment to subsection (6) which provides that:

Where but for this section a title to a part or parts of a holding would be acquired by possession, the consent of the Land Commission under this section shall be required to such acquisition.

It seemed to us that it excluded section 52 of the Registration of Title Act, 1891 because under that section no acquisition of title merely by adverse possession is possible without an order of the courts. The mere fact that someone is on unregistered land for a long period does not give him good title unless he gets an order from the court. Therefore, it would seem that this subsection should be subject to section 52 of the 1891 Act.

Mr. Moran

The purpose of the Senator's amendment is not quite clear to me. It seems likely that its purpose would be to exclude from section 12 any adverse possession cases which were validated by order of the circuit court by section 52 of the 1891 Act. I do no think the Senator has adverted to the fact that section 52 of the 1891 Act has been repealed and substituted by section 49 of the 1964 Act which radically alters the law. Under the more recent enactment, section 49 of the 1964 Act, it is now possible for a person to apply without by-passing the court. It is possible to apply to the Registrar on proof of possession and get registered there. It provides that, subject to the provisions of section 49, the Statute of Limitations, 1957 shall apply to registered lands as it applies to unregistered land and it goes on to say:

(2) Where any person claims to have acquired a title by possession to registered land, he may apply to the Registrar to be registered as owner of the land and the Registrar, if satisfied that the applicant has acquired the title, may cause the applicant to be registered as owner of the land with an absolute, good leasehold, possessory or qualified title, as the case may require, but without prejudice to any right not extinguished by such possession.

(3) Upon such registration, the title of the person whose right of action to recover the land has expired shall be extinguished.

And section 24 of the Statute of Limitations, 1959 is amended by the substitution for section 52 of the Act of 1891, of section 49 of the Registration of Title Act, 1964. The position will be here that under the new section which has changed the law from the old section 52 of the 1891 Act, unless this provision applied we could have a peculiar situation that I was rather surprised to discover did happen under the old 1891 Act. I found some cases that where people applied for subdivision on lands to which the previous law applied and the Land Commission in their wisdom refused the application, some bright genius thought up the idea of forgetting about the Land Commission, putting a fence around the portion he was refused by the Land Commission and squatted on it for the statutory period, thumbing his nose at the Land Commission and the law as it was.

We cannot allow that backdoor to be opened and, therefore, it will be necessary for such people and for the Registrar of Titles to ensure that they have got consent of the Land Commission in subdivision. That is the reason for this and when Senators understand if they will agree that this door should not be opened for the purpose of fragmentation in a case in which obviously the consent to subdivision should be refused by the Land Commission.

Mr. Ross

I should like to withdraw the amendment but I should like to have a look at the law.

Mr. Moran

I hope my law is right.

Amendment, by leave, withdrawn.

An Cathaoirleach

Amendments Nos. 24 and 25 seem to go together and may be taken together.

Professor Stanford

I move amendment No. 24:

To add to the section a new subsection as follows:

"( ) An agistment, conacre, or grazing letting is not a letting within the meaning of this section."

In view of what the Minister said on amendment No. 21, I ask the permission of the House to withdraw this amendment. If there is any yielding on Senator Fitzpatrick's amendment, of course, that would be a happier position; his is more widely drawn and it would be more effective.

Amendment, by leave, withdrawn.

Mr. Fitzpatrick

I move amendment No. 25:

To add to the section a new subsection as follows:

"( ) For the removal of doubt it is hereby declared that an agistment, conacre or grazing letting is not a letting, subletting or subdivision within the meaning of this section."

The object of this amendment is to put beyond doubt the fact that any agistment, conacre or grazing letting is not a violation of section 12 of the Bill. I know the Minister has adopted the attitude both here and in the other House that section 12 is not intended to apply to agistment, conacre or grazing lettings. I also know he has gone further and said that it does not, in fact, apply to such lettings. There is grave concern throughout the country in regard to this section. Farmers and others are worried and they believe that if this Bill becomes law they will not be entitled as of right to let their lands in this way in the future. Not alone are farmers and landowners apprehensive about this situation, but lawyers are divided on the question.

Lawyers hold different views; some take the view that the section does not apply to the type of letting covered by the amendment; others take the view that such lettings would be a breach of the section. That is an unsatisfactory state of affairs. Lawyers are sometimes accused of wanting to have legislation put through the Houses in a vague sort of way so that it will give rise to litigation in the future. That, of course, is an unfair charge to make against the legal profession but whether that charge can or cannot be made, my purpose in moving this amendment is merely to put the matter beyond doubt. If the Minister says it is not intended that this section should apply to this type of letting and that it does not apply to it in law, what is the objection to writing into the Bill "for the removal of doubt it is hereby declared that an agistment, conacre or grazing letting is not a letting, subletting or subdivision within the meaning of this section?" Surely it can be no harm to put the matter beyond doubt. It will leave people's mind at ease. The Minister quoted a number of decisions of the superior courts. I should like the Minister to tell us whether those decisions were given by the courts on the issue as to whether or not lettings of this type were sublettings within the prohibition against sublettings contained in the earlier Land Acts, or whether they were, in fact, decisions on the question of whether or not those lettings were sufficient to entitle a tenant under them to the benefit of the Land Acts. I think they were given on the latter basis. If so, they have no great bearing here.

Another point that strikes me about this matter is that it is obviously the intention of the Land Commission to tighten up the land law, to apply it in such a way that they will have greater powers to acquire land and greater powers to bring holders of lands to task for misusing the land or for not complying with the strict letter of the law. In particular, section 35 would appear to be framed with this object in view. If that is going to be the approach of the Land Commission to holdings of land in future, then I think it behoves this House to make sure that what we believe will be the law when this Bill becomes an Act will, in fact, be the law. I do not think that is an unreasonable attitude. I know the Minister will quote and say that down through the years a conacre letting has never been regarded as a subletting. I can see that a con- acre letting has never been sufficient to enable a holder under it to go to the Land Commission and apply to have that holding of land bought out under the Land Purchase Acts. I can see that has been the law.

I think there is a different point at issue there. I do not wish to put the matter any further or take up the time of the House on it until I hear the Minister, beyond saying my appeal is merely an invitation to the Minister to put in black and white in the Bill what he says is the law. I do not think that is an unreasonable approach from this side of the House.

Mr. McDonald

I support Senator Fitzpatrick on this amendment because there is an amount of disquiet in the country on this question and because it would affect the more unfortunate sections of the farming community. The Minister said this was always the law and, therefore, since there are at least eight other sections for the purpose of removal of doubt in this Bill, I cannot see that there should be that great objection to adding this one. The entire system of conacre lettings in this country is one of considerable magnitude for various reasons. Personally, I think the ideal way of conacre lettings would be if they could be let not for 11 months but possibly for a period of two or three years. In that way the land would be looked after better because, under the 11 months system, farmers are inclined to get as much as possible out of the land, whereas if they were assured of having it for a second year, getting a root crop and stubble this year and were assured of having it the next year they would look after the fertility of the soil a little better.

I think it is not unreasonable for us to ask the Minister to insert this subsection for the removal of doubt, to leave no uncertainty in anybody's mind that it is within the law for widows or farmers who are having difficulties to set their land temporarily on the 11 months system without any fear of their land being acquired by the Land Commission.

Mr. Yeats

I do not like attributing motives to people but I cannot help feeling that the doubt which is supposed to exist with regard to conacre is one that has been made for purely political purposes by certain people in Fine Gael. The provision against subletting is nothing new, of course, as we have already been told. It has existed at least since the beginning of the century. The main enactments at present in force are the 1923 Act which forbids the subdivision or subletting of land on which advances were made under the Act, and the 1927 Act to which the same applies regarding land divided under the 1923 Act. The only difference is that where the advances have been paid back the prohibition ceases. Until now about 80 per cent of all agricultural land in the country has been covered by this prohibition. There is no new principle involved at all. As the Minister has already said, during the whole period of 60 years or more these provisions have been in force. The question has never been doubted that conacre has not been covered and we all know that farmers all over the country have been giving land in conacre year after year and neither the Land Commission nor anybody else suggested that they were doing anything illegal. It is only now in the present Land Bill that this has been raised for purely political purposes. Senator Fitzpatrick knows well that conacre is not covered by this Bill but he comes here and raises these doubts.

Mr. Fitzpatrick

Put it beyond doubt; that is the way.

Mr. Yeats

I am on safe ground in saying that Senator Fitzpatrick knows well that conacre is not covered by this section. Unwittingly, he told us so on the Second Reading of the Bill. He was discussing section 25 which deals with the question of residence, the main point of the section being that where landholders let their lands in certain circumstances the Land Commission will be able to take them over.

Mr. Fitzpatrick

If I were discussing that under section 25 I was far from the point.

Mr. Yeats

It is section 35. Senator Fitzpatrick said there was no prohibition on people letting land year after year. Of course, he went on to say he was really getting at the heart of the matter because, after all, you could let the land and be covered by section 35. Senator Fitzpatrick at that time was not dealing with the provisions of section 12. It seems to me the farmer could go on for 20 years letting his land and yet not be covered. It never occurred to Senator Fitzpatrick that conacre could possibly be covered by the Land Acts.

I do not really know what the case was about. It was not directly under the subdivision section. It was about a man who was taking land on conacre for 50 years. During the greater part of the 50 years he remained in occupation of the ground and as I understand it the main point at issue was, in the circumstances, whether he was the tenant. The only question was whether, in fact, the nature of his application was conacre or not.

Mr. Justice Murnaghan set out very clearly the distinction between the two forms of agreement. He said:

There has been, for a very long time, a clear distinction between two forms of agreement:— (a) where land was let by the owner to another person in such a manner that the possession of the land passed from the owner to that other person and (b) where the owner retained possession, but granted the grazing or some other form of user of the land, to the other party.

In each of these cases a contractual relationship existed between the parties; the former was a contract of tenancy, the latter merely a contract, not of tenancy, but for grazing or other purposes.

I think the matter could possibly be put clear. This was in the Supreme Court as recently as 1954. It merely expressed views on the matter which had not been in any legal doubt for generations.

Mr. Quigley

I support Senator Fitzpatrick in his amendment. There was a great deal of doubt and frustration among people in my part of the country about this section. This amendment should be inserted in the Bill to prevent any doubt in the matter of conacre lettings. This matter was debated for a long time in the other House and it has been debated for quite a while in this House. The Minister should accept this amendment.

Mr. Mooney

I accept not alone the assurance already given but the assurances given time and again since this Bill was first introduced that the daw is as it stands. There was nothing against anybody letting land heretofore and there will not be now. The purpose of the Bill is to relieve the agitation in respect of holdings which are let over a period of years where the owner is absent either in America or England and has no expressed intention of coming back. I know from personal experience, and the Minister will be able to bear me out, that there must be more letters in the Land Commission in regard to this matter than in regard to any other.

Mr. Fitzpatrick

When anybody in Roscommon talks about letters there is only one.

Mr. Mooney

The law as it stands excludes lettings and as far as public uneasiness is concerned if there has been any doubt — I do not believe there is — it has been created by the political Party of which Senator Fitzpatrick is a member. We have the sob story about the widow brought in and everything else to give more power to the argument put forward by the Opposition on this particular matter. I consider the propaganda that was brought in in regard to this particular section was solely political propaganda and not propaganda in the interests of the people whom we are led to believe they are worried about. I accept the assurance of the Minister. I believe we should have this particular power in the Bill. This Bill should have all the power it is necessary for it to have.

Mr. L'Estrange

There were rumours of thousands of letters in the Carrick-on-Shannon area.

Mr. McAuliffe

I was certainly worried about this section of the Bill when it was printed first because there is a considerable amount of letting in the county I come from. Some of the letting is due to family circumstances, some through lack of title, some through intestate property and some because people, through force of circumstances, have to leave the country.

The Minister, when speaking in the Dáil on this section, said it was his intention to bring people home from London and Paris, the absentee landlords, to take up this land or else the Land Commission would step in and take it. I know there is nothing further from the Minister's mind because the people who are in London and Paris are very few indeed.

The people he is after here are the people who are forced out of the west of Ireland through economic circumstances, and who have houses on their farms. They have no immediate prospecr of coming home to live on those farms because they could not earn the same amount of money they are able to earn in America, England, or other countries at the present time. He certainly wants to take up this land to give it to people in spite of the fact that many of the people who have left there are working in England or other countries, that they are holding on this particular land, not for what they get out of it but because they think in their old age they may return and live there. They may erect a new house there. In most of the countries where those people work there are good social welfare benefits. Those people are getting good wages and are saving their money. It is for that reason they hope that the day will come when they will return and erect a new house and settle down there in their old age.

This is a Bill that has given quite an amount of worry to the people who have been letting land. If you ask the auctioneers in the country if they have the same number of lettings this year, or the same number of requests to let land, I can assure the Minister that there has been a big percentage drop. The Minister I must say is at fault here

Mr. McAuliffe

We are dealing with because he has laid it down fairly well in his speeches in the Dáil that the lists of people who have been letting land for the past five years must be sent in immediately to the Land Commission. In his reply on the Second Reading of the Bill the Minister said that if there were people who had been letting land for a period of say, five years and if they showed signs of coming back and working the land he certainly would not use this particular Bill to take the land from those people.

I do not think there is anything genuine about that because I know of one person who got a warning last year that the land might be taken from him—an 80-acre farm in Westmeath. He was called before the Lay Commissioner today. Naturally, he did not go because last year when he got this warning his family came to his aid and he stocked his land. A few weeks ago he made an application to the planning authority to erect a house and hayshed on that land and there was very quick action on the part of the Land Commission when that application was made. The reason he did not go before the Lay Commissioner was that the Land Commission had offered him a price of £10,000 for the farm, whereas there is a man next door who is prepared to give him £14,000. I do not think that the Land Commission or anyone else has a right to take a farm from anyone under the market value.

We have other people in our vicinity who are absentee landlords too. They are the aliens, quite a number of whom have come in here but are not living in this country. They have managers in their farms, they give a fair amount of employment and make very good use of the heifer scheme. Some of them have up to 400 heifers and that is a very good year's work. The Minister cannot include these people in the class of absentee landlords for the simple reason that they purchased the land during recent years at inflated prices and the Minister and the Land Commission are not prepared to give them the price they paid for the land.

An Cathaoirleach

The Senator has gone far outside the scope of the amendment.

the letting of land but these people will not be called back. I hold that land that is being let has not been misused to the extent that the Minister would think. If any person takes land he makes the most use of it. I have seen people who have taken land by the 11 months and they have manured it and put in much more stock and it has paid them off well. The land I saw worst treated was the land that was let by the Irish Land Commission. We had cases of land being let for three, four or, five years.

Mr. Moran

This has nothing whatever to do with the amendment.

An Cathaoirleach

The Senator is still outside the scope of the amendment.

Mr. McAuliffe

We are on the letting of land.

Mr. Yeats

We are not.

Mr. McAuliffe

On subletting.

Mr. Yeats

We are on conacre.

Mr. McAuliffe

Yes, this is conacre and the Land Commission are letting land in conacre. I can assure the House that there is no land misused more than land taken over by the Land Commission.

An Cathaoirleach

I must draw the attention of the Senator to the fact that the merits of conacre are not in question on this amendment.

Mr. McAuliffe

I hold that the amendment is one that should be accepted by the Minister because the section as it stands has raised grave doubts in people's minds and will bring about letting secretly and everything else. I hold that the amendment put down by Senator Fitzpatrick should be supported.

Mr. Nash

In the 1923 Land Act there was a section introduced which prohibited almost identically to the words of this section letting and subletting of lands while they were subject to Land Commission annuity. In the 1927 Act an identical section was introduced which prohibited letting and subletting of land the subject matter of any annuity. Throughout all that period and prior to that it was quite clear and obvious to every lawyer what constituted a letting of land and what lettings a farmer was prohibited from making. I have absolutely no doubt whatsoever in my mind, and I am certain that it is crystal clear in Senator Fitzpatrick's mind and in the mind of every lawyer in this country, the circumstances under which a farmer, without breaking any section of the Land Acts, including this particular section, can set his crops or the use of his land.

The issue really for us to consider on this amendment is whether we are to continue to accept a legal position with which every lawyer in the country is thoroughly conversant, which has been the subject matter of litigation until such time as not a single word has not been clarified, or on the other hand whether we should endeavour in this House by legislation to illustrate the obvious and to explain the evident. It is very much easier to describe a thing than to define it. What Senator Fitzpatrick purports to do in this amendment is to endeavour to define the exceptions. Under the law as it is at the moment there are two types of letting which do not break the law and do not break this section. They are commonly and broadly, perhaps, if you like, slightly inaccurately, defined as an 11 month letting and a conacre letting. An 11 month letting is where a farmer for a period of 11 months or shorter permits someone else to put cattle on his land and use the grass on the lands. He does that for a period of 11 months, not for 12. If it is done for 12 months it is a yearly letting, and if you have a yearly letting you must as the law now stands give six months notice to quit and comply with a number of technicalities. If you give an 11 month letting or grazing you are simply giving the man who is grazing his cattle the right to remove the grass on the land during that 11 months. Conacre letting means—or, again, broadly means— that you set land to a farmer for a period of less than one year with the right to till it, to sow a crop on it, and to remove that crop when it has come to fruition. You can also do things that Senator Fitzpatrick has not set out in this amendment.

As the law now stands — and Senator Fitzpatrick knows that law at least as well as and possibly better than I do — you can set your meadow, and there is no reference to meadows here. You can set your aftergrass which is much the same as setting grazing. There are certain things that would be completely adverse to the legal position as it at present stands, and adverse to public policy, if this amendment were accepted. For example, if a farmer has a field, say, of 12 acres that for conacre he considers is worth £10 per acre a year, his rent for that field for conacre is £120 for one year. If instead of setting it for conacre each year he says to his neighbour: "I am hard up for cash. Give me £480 and you can have this field for four years and take four year's crops off it", theoretically, if you like, that may be conacre, but in actual fact that would be a letting that is prohibited by this statute, and also by the 1923 Act and the 1937 Act.

The legal position is crystal clear. There are two types of law under which we live in Ireland, and under which people in England live, as distinct from the type of law which is common on the continent. The law under which we live is in the common law and statute law. On the continent they endeavour to codify everything, to reduce everything to writing. Common law is what has been built up by the judges over the years. Every lawyer knows, and it is clearly understood, that for a relatively short time after we pass new statutes no one can say for certain, very often, what the law is. I could quote certain statutes at the moment on certain sections of which no lawyer at the Irish Bar could give a complete and final decision, because those sections have not been considered by the higher courts or the Supreme Court.

The suggestion at the moment is that we should pass an Act of Parliament to define something which is already crystal clear. Then we will find that, perhaps, that definition is not quite accurate, and we will have to pass another Act of Parliament to amend that defining Act. We shall later have to pass an Act of Parliament to extend the Act that amends the Act that makes the definition, and a later Act to explain the Act that extends the Act that amends the Act that defines the situation. We are to do all that to ascertain what every lawyer in the country now knows, and what no lawyer will then know. However, in the meantime the Legislature will be kept busy. We shall have to take quite a large number of cases to court to decide the meaning and possible interpretation of every word in the section. The two Houses will be busy; the lawyers will be busy; the judges will be occupied; and everyone will be happy.

Mr. Moran

At this stage I do not propose to follow the arguments of Senator McAuliffe which I think are wholly irrelevant to what we are considering now. They may be relevant on another section. When I get time — I have not got time tonight — I will shed tears for the unfortunate man with a holding of over 80 acres worth £14,000 which he has been consistently letting and on which he has not put up a house or a hayshed. That type of land user does not appeal to me.

Let me come now to what the law says on this particular question of conacre lettings or 11 month lettings. I should like to know where is the disquiet about which Senator Fitzpatrick spoke. He was followed in his very worried approach by Senator Quigley and others. There has been no disquiet about this matter that I know of except the disquiet engendered by Deputy Oliver Flanagan in the Dáil who, notwithstanding the law, and notwithstanding the facts that were explained to him, kept repeating that conacre lettings and 11 month lettings would be affected by this section.

One would imagine that these worriers, the Fine Gael Senators and Deputies, would have been worried since 1923. Section 65 of the Hogan Act provides:

Why were they not worried about that provision and a similar provision in the 1925 Act, the 1927 Act, the 1933 Act, the 1946 Act and the 1950 Act? How is it that people who escaped being worried about those provisions for the past 50 years should suddenly wake up after this Bill was introduced, and cannot sleep since in the fear that conacre lettings and 11 month lettings will be caught by this section? Again, let me say this is no assurance of mine when I say they do not come within the section. These temporary convenience lettings do not come within the section. That is the law of the land as defined for long and many a day.

Since the Senator wants chapter and verse for everything perhaps it might be sufficient if I refer him to one decision by Justice Murnaghan in the circuit court. It is the Irish Land Commission v. Lawlor and Cross and is reported in the Irish Jurist, No. 10, 1944. The head note is: "Land purchase — Purchase agreement — Terms of — Prohibition against sub-letting— Whether letting in conacre a breach of — Stipulation for working the lands in accordance with proper methods of husbandry — Meaning of — Forfeiture clause — Duty of Land Commission."

It continues:

Held, by the High Court, (Murnaghan J.) (affirming Judge Fawsit) that: (1) A letting of land in conacre does not constitute a breach of an agreement not to "sell, alienate, sublet, subdivide or part with the possession of" the said land.

I am obliged to Senator Yeats who quoted the judgment of "Murnaghan J." in the other case to which I referred: Fitzpatrick V. Behan. All I want to add to what the Senator has quoted from the decision of the learned judge in that case is to say that:

We have been referred to the case of O'Flaherty v. Kelly where the distinction is approved. In the earlier Land Act Code where the possession of the land was not parted with by the owner, and no tenancy was created, the Land Acts did not apply.

This has been the position not alone in these cases but down through all the decisions, even under some of the very earlier Acts. What I describe as the "eatage of the grass" and Senator Nash has put in a more precise legal way that it is a licence to eat the grass on the land and take the meadow off the land, is not now and never was within the Land Code and never was within the Land Acts.

I do not know how we can follow up this canard — until this Bill is passed — that was consistently repeated by Deputy Flanagan in the Dáil and evidently swallowed by the Fine Gael Senators and regurgitated for the very same purpose, to make the people believe that the ordinary 11 months letting is covered and they will not be able to make it in the future. I noticed in the Dáil that there was no attempt made by any of the Opposition lawyers to come up with this proposition——

Mr. L'Estrange

Deputy Tom O'Higgins.

Mr. Moran

In my recollection I do not remember any of them being on record as having the doubts that have arisen in the minds of Opposition Deputies and Senators. I do not think it is necessary for me to keep repeating the law which is that conacre lettings, or that type of temporary convenience lettings, are outside the provisions of the Land Code, have always been outside the provisions of the Land Code and are outside the scope of this particular section. Senators ask me why not put in a section for the purpose of removing doubt. There is no doubt that anyone can see except the invented doubt that has arisen since the Opposition came in such a strenuous way to this section. The Senator might as well invite me to include a section which would read "for the purpose of removing doubt it is hereby declared that the Isle of Man is not a part of Ireland, its islands, or territorial waters." It would be just as ludicrous to write in here in the legal sense that conacre, 11-month lettings and agistment are outside the provisions of this particular section. As I have repeated, there is no doubt on this issue in the minds of any of our judges; there has been no doubt on this issue under the 1923 Act or any of the subsequent Land Acts that deal with the question of letting or subletting; there is no doubt in my mind or in the minds of the draftsmen, the Attorney General or anybody else who has any connection with this Bill that it affects in any way the ordinary traditional temporary convenience and 11-month lettings or conacre lettings that have taken place from time immemorial.

I cannot put this matter any further. I can only hope that after this — and it is not a question of my assurances, I merely repeat the law as it stands— those unfortunate people who have been losing sleep since the introduction of this Bill will get happier repose after this particular session of Seanad Éireann.

Mr. Fitzpatrick

Section 12 is a completely new section dealing with subdivision and subletting. There are provisions in this section which are not in any similar section in any of the earlier Acts, as far as I know. For example, subsection (2) gives a direction to the Land Commission as to why their consent should be withheld and goes on to tell them that "the power of the Land Commission to withhold their consent under this section shall be so exercised as to prevent the creation or continuance of holdings which, in the opinion of the Land Commission, are not economic holdings." I put it to the House that it is capable of argument under the subsection that a holding which is sublet in conacre or otherwise for a number of years is being continued as an uneconomic holding because the farmer is using 10 acres of it himself and year after year he is letting 10 acres in conacre. That could be argued to be the continuance of an uneconomic holding. Furthermore, subdivision is defined in subsection (8) of this section. Therefore, as Senator Nash truly said, after passing a new statute no one knows what the law is. I could not agree more. The superior courts, needless to say, have never given an opinion on this section and until such time as they can the law will be in a state of uncertainty and lawyers arguing before the superior courts on this section will be able to say that for the first time the Land Commission are given a direction as to the grounds on which they will withhold their consent, that here the legislator has gone to the trouble of guiding them as to why they should withhold their consent and, as I said, subdivision has been defined.

The Minister appears very reluctant to put in a simple section for the removal of doubt. At least six or seven times already in this Bill there are sections which begin with the words "for the removal of doubt." I refer to sections 8, 9, 10, 19, 23 and 27. There may be others. The Minister, I understand, makes the case very strongly that under section 27 he is entitled to do what he is going to do and there is nothing new about it. Yet, section 27 begins with the words "For the purpose of removing doubt." I urge the Minister, in view of the new approach to subletting as contained in this section and with particular reference to subsection (2) of that section, and in view of what Senator Nash said, and which apparently the Minister accepts in toto, that after an Act of Parliament is passed no one knows what the law is, that he should have second thoughts about this. He will not lose any caste or political face if he does so, or if he went the whole hog and said “we never intended that this section will apply to this type of letting and if there is any doubt about it, or if there is any fear that the courts, having regard to the terms of this section and in particular to the terms of subsection (2) of this section might hold otherwise than I think they will hold, I am prepared to put it beyond doubt.” I certainly say that in view of this section the courts are not bound by any previous decisions that they have given because they will be adjudicating here on a different section with different terms.

Mr. Sheldon

Senator Fitzpatrick has very vehemently urged the Minister to accept this amendment but may I with equal vehemence urge the Minister that he should not do anything of the kind? I am not a lawyer but I understand that one of the accepted things that happens in the courts is that if it is specifically provided that such and such is exempted for the purposes of an Act the court will assume that in any other relationship it is not exempted. I would agree that this amendment would have a shocking positive effect apart from the negative one the arguments appear to establish under law. If you put into this Bill that for the meaning of this section that conacre lettings are not lettings, I am quite sure the court would hold that in any other respects they were lettings and it would do an infinite amount of harm to people in respect of other Land Acts and, possibly, Finance Acts.

Mr. Fitzpatrick

I am glad the Senator prefaced his remarks by saying he is not a lawyer.

Mr. Sheldon

That is the one certainty in this whole business and probably two or three judges——

Mr. Fitzpatrick

That is another reason why it should be put beyond doubt because judges are lawyers.

Mr. Sheldon

I am pleased that the judge comes from the same province as myself and we are bound to be right.

Mr. L'Estrange

Which section of the province?

Mr. Sheldon

It does not matter. Perhaps Senator Fitzpatrick will correct me. I understand that by saying, for the purpose of this particular section or Act, so and so does not apply almost certainly the courts would be of the view that because you made that exception there was a doubt under every other Act. If the legislature meant, in respect of all Land Acts, this type of letting was not a letting, that would be all right. But, where you say, for the purposes of this section, an agistment, conacre or grazing letting is not a subletting under all the other Land Acts a doubt would arise. This amendment has been worded with the greatest care and a great deal of legal advice has been got for it but I am too well aware that the worst possible drafters of legislation are lawyers.

Mr. L'Estrange

I think the Minister should leave this beyond all doubt and not have expensive litigation in the future as we may well have over this section. We have been accused of political motives. I do not think the Fine Gael Party are responsible for the doubts and anxieties of people throughout the length and breadth of this country, especially in the west. We are not responsible for that. I want to say I would be guided by a man of the ability of Deputy T.F. O'Higgins. The Minister said none of the Fine Gael lawyers in the Dáil spoke on this particular section. I should like to correct him on that. In the Dáil debates of the 22nd April, 1964, column 245, Deputy T.F. O'Higgins, referring to this section providing that agricultural holdings shall not be set without the consent of the Land Commission, said:—

I do not know the object or why this section has become necessary in the Bill. That may appear. The Minister may be able to tell us that later on. I do know that the Minister in earlier discussions said that the section has nothing to do with conacring or temporary lettings, and so on. On what basis does the Minister say that? It is an interesting fact—again, I hope Deputies will understand this—that in no part of the Land Acts that I am aware of is there any definition of letting or subletting which would safeguard a person making a conacre or grazing letting.

He continued:

It is all very well for the Minister to give assurances in the House but, later on, if the powers conferred by an Act of this House come to be tested in the courts or anywhere else no one will pay any attention to the pious hopes or aphorisms of a Deputy or Minister speaking inside this House.

I think the same applies to what Senator Nash has said. He may be a first class solicitor but I remember when he was canvassing——

An Leas-Chathaoirleach

What Senator Nash said when canvassing means nothing here.

Mr. L'Estrange

Yes, it could if he he were speaking about letting or subletting.

An Leas-Chathaoirleach

It has nothing to do with the Land Bill.

Mr. Fitzpatrick

Would the Minister like to say a word about the effect he thinks subsection (2) would have on the mind of a court considering this?

Mr. Moran

This does not come within the ambit of the section at all.

Mr. Fitzpatrick

I shall consider it again on Report Stage.

Amendment, by leave, withdrawn.

Question proposed: "That section 12 stand part of the Bill"

Mr. E. Ryan

Subsection (8) of section 12 contains a number of important definitions and section 1 of the Bill also sets out definitions applying to the whole Bill. At first sight, it might appear that section 1 contains the only definitions in the Bill but, in fact, other sections contain definitions applying to one section alone. This causes a certain amount of confusion. For instance, the word "holding" is, in fact, defined in three or four different ways in the course of the Bill and I suggest to the Minister that he might consider in a Bill of this kind, where there is a definition section at the beginning and where there are other definitions later on, that the definition section should refer to the fact that certain sections in the Bill have definitions applying to the particular section. I should like the Minister to consider the possibility of putting in such a note before the Report Stage.

Mr. Moran

I appreciate the point made by the Senator. He will also appreciate that owing to the diversity of matters dealt with under this Bill one must have what I might call an artificial meaning for certain purposes under different sections. I shall see before the Report Stage whether the Senator's view can be met. That is, to underline the fact that there is no general definition for the whole purposes of the Bill.

Mr. Ross

At the end of section 1 there should be something to this effect in addition to the above definitions. Sections 9, 10 and 11, or whatever they may be, have definitions referring to the sections concerned.

Mr. Moran

I shall have a look at that.

Mr. McDonald

I feel we should oppose this section. Certainly, this evening many doubts have been raised here. Many of the Fianna Fáil Senators have advocated the acquisition by the Land Commission of farms that have been let in conacre. In view of the many points that have been raised here we should take another look at this section.

Senator Mooney referred to the fact that many holdings were being voluntarily consolidated. I agree with him; I consider it a very good thing. In Laois, the position is that there are 9,000 farmers, there are over 23,000 rated holdings. Laois has a rather grave history of land agitation and troubles over the past five hundred years and it would be a pity if consolidation were to take place too quickly and the farms intermixed. The Department should give farmers an opportunity to consolidate their holdings in one piece by encouraging them to exchange fields. As they are at present, we will eventually have a chess board layout of farms.

The Minister assures us that some of our fears are unfounded. Yet he refuses to allay our fears and put what we require into the Bill. I feel, for that reason, we should have a second opportunity of considering the matters raised here and perhaps we could have this section on the Report Stage.

Mr. Fitzpatrick

I should like to say a word on subsection (6) of this section which says:

Where but for this section a title to a part or parts of a holding would be acquired by possession, the consent of the Land Commission under this section shall be required to such acquisition.

As from now, as I see it, a person cannot acquire title by long possession without getting the consent of the Land Commission. It would be unreasonable to make that subsection retrospective because you might have the position where a person was in possession of a few acres of land for the past 50 years, treated it as his own, was treated as the owner of it by all concerned and was in occupation to the knowledge of the local inspector of the Land Commission. Perhaps he had consulted his legal adviser about his position. It is quite on the cards that he was assured by his legal adviser that as he had been in possession of that land for over 20 years, indeed that he had been in possession of it for 50 years, that he was absolute owner of it and all he had to do was apply to the courts for a declaration that he was the owner. He could have been told that it was his for the asking. That was all right until the present time. Perhaps the person concerned might say: "I am not in a position to go to the court now. I shall leave it over for the time being."

If the section goes through he will find himself in this position. If the section is retrospective, the fact that he was in sole undisputed possession and in receipt of the land and profits for 50 years does not give him a title. The legal position is being changed. I urge that should not be so and that this subsection should specifically read as from the coming into operation of the Bill as an Act.

Mr. L'Estrange

If this section is incorporated in the Bill it will be necessary for the owner of land to relinquish his rights to the piece of land which perhaps has been in the family for generations. I feel the majority of land owners in this country will have a serious objection to the provisions of section 12 because they are an infringement of the rights of the owners of land.

I believe section 12 not only offends the legal definition of ownership but is also, I claim, against the natural law. A man, because of his intellect, his will and his reasoning power has the capacity for ownership and to do what he thinks best with his own property, be it land or other property. The Government, in this section, claim to exercise this power with restrictions on the limitation of time. They are trying to assert—indeed, they are asserting— that the Government own the land of Ireland. The issue raised is whether the farmers own the land. The Constitution never envisaged the claim of the State to the land of Ireland. The right of free sale and the right to own land is part and parcel of our whole land movement down through the years. Section 12 is a grave infringement of the farmers' rights.

Seán Ó Donnabháin

Surely it is wrong for Senator L'Estrange to speak about this matter after withdrawing amendments to this section. Does the Senator think we cannot read what is in subsection (2) of section 12, as amended here today? It says:

The power of the Land Commission to withhold their consent under this section shall be exercised solely to prevent any doubts or continuance of holdings which, in the opinion of the Land Commission, are not economic holdings.

How does he apply that to the whole land code Surely we are not so thick.

Mr. O'Reilly

I am quite satisfied, having heard the last statement by Senator L'Estrange, that he is really malicious in his approach to this section. I do not regard him as being unintelligent. Surely he understands what the position is at the moment and what it is proposed to do under this section. I suggest he does know. The Minister referred to the 1923 Land Act as the Hogan Act. It did some very good things. It took over all the land which, up to that time, was in the hands of the landlords and vested it in the Land Commission. They then became the biggest landlords in the country.

The Land Commission proceeded to resell the land so taken over to the tenant purchasers. In that Act a very good safeguard was put in to prevent this land being parcelled out in small pieces, a thing that could happen in the past and one of the things that had created congestion in the congested areas. Power was taken in the Act to prevent land purchased under it from being sublet or sold along these lines. That has been the law since the 1923 Land Act, and if Senator L'Estrange does not know that he knows very little about land. It is time that he should know and realise that it has been the position. I suggest that it was in the public interest that that position should be maintained. Were it not for it a very dangerous situation would have arisen because people who purchased land from the Land Commission, which was taking over all the land previously held by the landlords, might have sold it out into smaller farms and made the position still worse in the congested areas. It was because that position had existed under the landlord and tenant system in the earlier times that you had the subdivision of holdings of farms held from landlords. A father subdivided his land among two or three sons and ultimately they had nothing but the potato patch.

It was to safeguard against that that the then Minister Mr. Hogan really tried to do a good job of work as he saw it. I am prepared to say that it is only fair to his memory to say that the attempt was a good one. It should be realised that in the case of land purchased under the Ashbourne Act or the Church Temporalities Act or the Wyndham Act of 1904 in many instances the annuity had been redeemed by people who were foolish enough, because money was available at 2½ or 2¾ per cent, whereas now you cannot borrow at less than 6¼ per cent. These people were in a position to divide the land into farms of four or five or ten acres whether it is in Leitrim, north Longford, Westmeath or Mayo. Does any sensible person suggest that it would be in the public interest that land should be redivided into these small units, still further aggravating the position of congestion? If I am to take Senator L'Estrange seriously that is what he is suggesting since he is objecting to the general principle of section 12 of this Bill. It does not make sense. His whole attitude would be to nullify this measure altogether so that the position will be maintained that nothing effective will be done about the relief of congestion in the congested areas.

Professor Quinlan

I must oppose this section as long as it contains subsection (2), that is giving the power to the Land Commission to prevent subdivision when in the opinion of the Land Commission the holdings are not economic. I do not want to go over again the grounds I covered this afternoon but I hope the Seanad can see the absurdity here. The Land Commission is charged with implementing Government land policy. It has the task of acquiring estates, dividing them, carrying through the legal formalities. It is purely an instrument of policy. Where then does the Land Commission acquire the skill or the knowledge to decide what is an economic holding? It has no arm whatsoever to perform the necessary research or evaluation to decide on that. All it can do is to make a mechanical determination in accordance with Government policy based solely on acreage. If it is to go outside that it has not the guidance to do so or to say what was the value of the added units like pig units, poultry units and so on. Therefore, as long as this subsection remains in the section I must regard it as being a completely unacceptable hindrance to proper and legitimate subdivision.

Seán Ó Donnabháin

Does the Senator want to limit a holding to a pig unit or a poultry unit?

Mr. L'Estrange

Fianna Fáil said at one time that two acres was sufficient.

Mr. Fitzpatrick

Ten thousand hens qualifies for the highest agricultural position in the land.

Mr. Moran

And an agent's badge can qualify you in various matters even getting into this House. At all events, let us get back to this. There is no apprehension in my mind about subsection 6. The provision was, as I stated on an earlier section, that where you had section 52 of the local Registration of Title Act, 1891 in operation even though the Land Commission have refused their consent people could continue to squat on a particular portion and apply under that section to the court and be declared the owners of that portion of land notwithstanding the fact that consent had been refused. That section has been repealed by the recent Local Registration of Title Act and you have a substitute procedure under the Land Registry under which a person can apply by reason of long possession to be registered as owner of a particular plot of land but it is clear that the registration will now have to have the consent of the Land Commission and it will not be registered otherwise.

I would not be quite happy if this section was not retrospective. I will have another look at it because some Senator has said it could happen that there were cases of adverse possession of land for a period of up to 50 years that might be found to be outside the scope. I cannot accept that the Senator is quite correct in that interpretation. I would say that up to the passage of the last local Registration of Title Act he would have to establish his claim and the instance given by the Senator would be outside the provision of section 49 of the last Act. Such a person would have acquired the ownership of the land in question.

On the other hand, I feel that retrospective consent of the Land Commission would be desirable under this particular section because it may well be that cases will come to light of rearrangement and otherwise whereby an unofficial subdivision might be desirable. One Senator gave a typical example of this and I have come across it myself in practice where people have made their own arrangements, have swopped fields without bothering with lawyers or courts or land registry. They have done it the cheap way, a very effective and satisfactory way in some instances. Senators will appreciate that after the passing of that Bill such an arrangement would be avoided without the consent of the Land Commission, and it could be desirable if it were a good arrangement that the Land Commission would have power to give retrospective consent to a situation that they were satisfied was reasonable and desirable. So on that aspect of the matter I urge that it would be desirable to give the Land Commission power to give retrospective consent in the type of case to which I have referred.

Mr. Fitzpatrick

Before the Minister passes from that it might save time if I ask whether he agrees that subsection (6) should not be retrospective. Did I understand the Minister correctly on that? It certainly should not be retrospective beyond the Registration of Titles Act which we passed last year.

Mr. Moran

I will have another look at this. I am not without experience in these matters, and my personal view is that it would be desirable that they should have the power to consent retrospectively to subdivision in certain cases. I can visualise cases in which it would be desirable that people should not be in a legal strait-jacket, and that the Land Commission would be in a position to legalise the matter to suit the parties concerned, and the private arrangements that would suit the parties concerned, if the Land Commission thought them unobjectionable.

Mr. Fitzpatrick

Does the Minister appreciate that I am going a bit further? I say this section should not affect ownership which has been acquired before the coming into operation of this Bill.

Mr. Moran

I see. I must say I did not quite appreciate the point being made by the Senator. I will have a look at it. I do not think the section would be so operated—let me make this clear—unless in a case in which, in the past four, five or six years, the Land Commission did, in fact, refuse consent and the people deliberately set out to ignore that refusal, and proceeded to fence off their own type of subdivision without the consent of anyone. Generally speaking, I should imagine that things will have occurred before the passing of this Bill with which the Land Commission would not be concerned.

Let me get back to the fundamental reason for having this section in the Bill which is, when you remove all the smoke-screens that have been put up, all the suggestions that have been made and all the interpretations that have been given, to make the same law—which has been the law of this land since 1923 so far as subdivisions of the land of Ireland are concerned— equally applicable to all the land in the country. Let the House be clear on that.

I have already quoted section 65 of the 1923 Act. Subsection (1) provides:

We have had allegations by Senator L'Estrange, and some of his friends, that section 12 of this Bill is an infringement of rights of ownership and rights of free sale. He suggests it is a completely new invasion of farmers' rights. Of course, nothing is further from reality. The section of the Land Act of 1923 which I have quoted provided that where money was advanced for the purchase of a holding it could not be subdivided without the consent of the Land Commission, and if it were subdivided the Land Commission were entitled to repossess the holding, and sell it out or allot it to someone else. That section deals with all lands purchased under the 1923 Act. The legislators at the time apparently forgot to make it retrospective to Acts previous to the 1923 Act, and in the 1927 Land Act they applied the very same provision against subdivision to Acts preceding the 1923 Act, in order to try to make the law more uniform-So if this is an infringement of the rights of farmers by prohibiting subdivision and fragmentation, if it is an invasion of farmers' rights it was also an invasion of farmers' rights in the 1923 Act, the 1927 Act, and every Land Act passed by any Irish Parliament.

There is an amount of land in this country that is outside the scope of any of the Land Acts. There are lands held under fee farm grant titles, and there are lands which are the subject matter of what we call demesne lands which are not subject to the Land Acts. The provisions of the 1923 Act, the 1927 Act, and so on since then, do not apply to those lands. Without section 12 in this Bill the law prohibiting subdivision applies, I would say, to 80 per cent of the land of Ireland. We are now making the same law applicable to the other 20 per cent of the land. Demesne land or land not purchased under the Land Acts will require the consent of the Land Commission for subdivision. Putting it another way, the law against fragmentation of land and the creation of uneconomic holdings will apply to the remaining 20 per cent of the land.

Lest there be any misunderstanding, and lest it might be suggested that I am not giving full information on this issue, it is correct to say that under one of the provisions of the Land Acts, if an individual had purchased out his annuity he could subdivide without the consent of the Land Commission. Under this Bill people will not escape the prohibition against fragmentation of holdings and the creation of uneconomic holdings merely by virtue of the fact that they have sufficient money to redeem the annuity which applies to their holding.

So, stripping it of all the ballyhoo, what is being done is to make the law applicable to all kinds of land in the country, and to apply the same prohibition against fragmentation as has been the law for all land purchased under the 1923 Act, and all the land purchased under the 1927 Act and the other Land Acts.

This House and every sensible individual will subscribe to the proposition that it would be the height of foolishness on the part of the Legislature to provide at very great expense funds for the relief of congestion while at the same time allowing every land owner to fragment his holding for any purpose that occurs to him, in that way getting himself and some of his successors in title again on to the books of the Land Commission and on to the books of the Exchequer for the purpose of relief. This is the purpose of this section. There is no infringement of ownership or sale that has not been infringed by every Parliament that passed Land Acts since 1923. I do not know what the natural law is to which Senator L'Estrange refers unless it is the law, natural or unnatural, which leads Senators and Deputies to misrepresent situations in this House for public consumption. The fact remains, however, that subsection (1) of section 12 is virtually word for word as subsection (1) of section 65 of the 1923 Act. There is no infringement of anybody's rights any more than there was under the 1923 Act, the 1927 Act, or any other Land Act. From the point of view of making the law uniform and applicable to all, there is no reason why this Bill should preserve certain lands—20 per cent of them being mainly what we would call pure freehold—outside the provisions of the Land Act and providing that owners could fragment them, whereas 80 per cent would not be subject to the prohibition contained against subletting and subdivision in the 1923 Act, and the 1927 Act and every other Act.

Mr. Brosnahan

The Minister has made an excellent defence of the section and I am quite satisfied with what he has said. His handling of this legislation is the finest I have ever seen in the House. He has gone into great detail and shown that he has carried out a deep background study in support of his arguments. Senator Quinlan's objection might be met if the Minister gave an assurance that before any rule of thumb—as Senator Quinlan stated— application is made on what is an uneconomic holding, in any borderline case there would not be an arbitrary decision without an expert opinion on whether the holding is economic or otherwise. Could we have an assurance on that?

Mr. Moran

I have no hesitation in assuring the House that there would not be any arbitrary decision on such an issue. I did say to the House at an earlier stage that there was a legal case being brought against the Land Commission where there was an allegation that they had unreasonably withheld consent to subdivision. This subsection copperfastens the position and makes the legal position of any landowner much safer from any arbitrary decision than as the law stood. I should like Senators to appreciate that it is the first time that this subsection has been written into the Land Acts and it will really act as a brake on the general and what I might call unrestricted power of the Land Commission under the previous sections of the Land Acts which I have quoted. The subsection reads—there is an amendment but anyhow it makes the section still better from the point of view advocated by the Senator-as follows:

Normally, the Land Commission's consent to subdivision is refused only in very obvious cases to which I referred when giving statistics on one of the other sections. I pointed out that of the approximately 3,000 applications on average in one year there were only 63 refusals per year over a period of ten years. Normally, the Land Commission's refusals are in cases in which there would be no doubt at all. A man might own a small holding and propose to sell off four, five or six acres and generally the difficulty arises because of an amount of sympathy with the individual concerned, who invariably makes the case—certainly in the cases brought to my notice—that he is hard up and driven by economic circumstances to sell out and that it is a question of selling that portion or selling the lot. Unfortunately, in many instances where consent has been given on a question of tiding him over for a few years he ultimately sells the lot. We have not come up against the proposal here, that the Land Commission will withhold consent where a man, we will say, with 150 acres of good land in one of the lush counties of Meath or Kildare, proposes to divide the land into 50 acre units between three sons. That type of case will automatically get the consent of the Land Commission and there would be no question about it. I certainly have no hesitation, from my experience of the working of the Land Commission in assuring the House that this power will not be used arbitrarily. From the figures I have given it is pretty clear how the Land Commission operates. As I explained to the House, all I am doing is applying the land code to all the land of the country.

Professor Quinlan

The Minister has gone some distance but I should like him to go a little further. I should like if, for the Report Stage, he could give us a breakdown of the figures he quoted. Could he say how many applications were received for subdivision in the region of 20 to 25 acres, 25 to 30 acres, and 30 to 35 acres and how many were granted in each case. He mentioned subdivision into three 50 acre units but, naturally, there could be no objection to that. An economic holding is very difficult to define but surely it must be a holding that satisfies the prevailing definition of a family farm.

My whole contention is that the Land Commission is not geared to make a judgment on what is an economic holding. Perhaps, by the next day the Minister will have seen fit to change the wording and put the onus on the chief agricultural adviser in the county concerned to decide whether a holding is economic. There is a very positive obligation on the Land Commission here to prevent the emergence of uneconomic holdings. The whole question hinges on what is an economic holding. All we can say is it varies or should vary from district to district and it should vary with the amount of capital put into the land. If a holding is below the 40 or 45 acre level the question cannot be answered unless by a body of experts. The expert is the local agricultural officer who is responsible for farm planning and it is reasonable to push the onus on to the chief agricultural adviser. Anyway, I suggest to the Minister that he might consider this for the next day.

Mr. O'Reilly

It would appear that Senator Quinlan is not aware that many inspectors of the Irish Land Commission are bachelors of agricultural science. I think in most counties the Land Commission have seen fit in recent times to employ people with a knowledge of agriculture. You cannot deal with land policy without referring at some stage to the use of land. I want to assure Senator Quinlan that as far as I know there is a large number of men in the Land Commission with degrees in agricultural science. Since they understand the workings of their own machinery better than anybody else and so long as they employ people in the service with a degree in agricultural science, that function can best be discharged by the Land Commission themselves since they have such experts in their own employment.

Professor Quinlan

These people may have degrees in agricultural science but the fact is they are not practising as agricultural advisers. Consequently, they are not the specialists appropriate to decide on what an economic farm is. Certainly they can form a judgment if they consult with the local agricultural adviser, but I think the local agricultural adviser's part in the decision should be much more explicitly stated.

Mr. O'Reilly

It is hardly fair to the people who have a degree in agriculture and who work in the Land Commission to suggest that they would not be competent to form a judgment. They actively deal with rural people on farms and with the advisory services either in the Department of Agriculture or through the agricultural adviser. I am afraid that the people in the Land Commission would feel humiliated if they were classed in a lower category——

An Leas-Chathaoirleach

I do not want to interrupt the Senator unduly but there is nothing here about the qualifications of Land Commission inspectors.

Mr. O'Reilly

I may have misunderstood Senator Quinlan. The meaning I took from his remark was that even if there are men in the Land Commission with degrees in agricultural science they are not as competent or as qualified to give a judgment on whether a farm is economic or not as the man who is in the employment of the Department of Agriculture or in the advisory services. If I have mistaken the Senator's meaning, I am sorry.

Professor Quinlan

I think Senator O'Reilly's point deserves clarification. I put it to the Minister for consideration on Report Stage. I can sympathise with Senator O'Reilly's confusion in this matter because making a judgment as to what is an economic holding, which is what is required in section 12, requires many years close work in the economic field and in the planning of farms and farm management. That experience is something which takes a person holding a bachelor's degree in agricultural science several years to acquire. In the Land Commission he is concerned solely with administration of the land policy of the Commission itself and is far removed from decisions of an economic nature. I think the Senator will admit the point I have made.

Mr. McDonald

I should like to ask the Minister one final question.

There is a not uncommon practice down in the midlands where, when a farm goes on the market, a number of local farmers buy it jointly and then endeavour to divide it, with the ultimate result that there is one farm less, without the creation of any additional holding. Will that practice now cease? It would mean that three or four farmers would come together and buy a derelict holding and divide the fields among themselves, thereby making their own holdings larger and possibly more economic.

Mr. Moran

No, that process is going on all the time in consolidation and it is subject to the very same provisions as are provided in this section. It needs the Land Commission's consent but where a holding is bought in that way by two or three neighbours the Land Commission's consent is automatically forthcoming because it is a condition of their consent that these portions will be consolidated with their own holdings. In some cases to my knowledge, where the neighbours come together and buy such a farm and relieve their own congestion, they avail of the advisory services of the local Land Commission inspector in order to make a proper division of the holding.

Question put and agreed to, Senators Quinlan and McDonald dissenting.

SECTION 13.

An Leas-Chathaoirleach

Amendments Nos. 26 and 27 may be taken together.

Government amendment No. 26.

In subsection (4), page 10, line 14, after "all persons" to insert the following:

"; provided, however, that in any case where the consent of the Land Commission under this Act is given after the attempted or purported sale, transfer, letting, subletting or subdivision, such consent shall, if the Land Commission so direct, so operate as to validate with retrospective effect such attempted or purported sale, transfer, letting, subletting or subdivision".

Mr. Moran

This amendment is similar to amendment No. 27 put down by Senators Ross, O'Brien and Stanford but I think the wording is better and it ought to be accepted instead. I am advised that the wording of this is more appropriate for the purposes of the particular subsection, and Senators will appreciate that when they see it.

Mr. Ross

I accept the Government amendment and withdraw my own.

Amendment agreed to.

Amendment No. 27 not moved.

Mr. Ross

I move amendment No. 28:

To add to the section a new subsection as follows:

"( ) This section shall not apply to any sale or transfer made pursuant to any court order or made by an executor or administrator in due course of administration or to any transfer giving effect to a contract bona fide entered into before the publication of the relevant provisional list or the service of the relevant notice.”

The Minister says section 13 was designed to counteract deliberate obstruction of the Land Commission. This amendment is set down because there could be in the powers of section 13 very unreasonable delays in administration pursuits or in sales by court order. I do not think either of these would in any way fall within the category of the sales which were trying to obstruct the Land Commission compulsory acquisition proceedings. We have provided in the proposed new subsection that this would apply to any transfer giving effect to a contract bona fide entered into before the publication of the relevant provisional list or the service of the relevant notice. Again, I think the position is that nothing in this proposed subsection would in any way go contrary to the Minister's intention. If the House would agree to the subsection being put in, it would facilitate the transfer of land which would otherwise be obstructed and held up for a considerable time under the proposed section 13.

Mr. Fitzpatrick

I should like to support Senator Ross in this amendment. Obviously, the purpose of the section, as the Minister has told us, is to prevent some owners working a quick one on the Land Commission. I do not believe it was ever intended that the section should apply to a sale pursuant to a court order or a sale made by an executive in the due course of administration. That is not the type of sale which the section is intended to catch and I would urge on the Minister to accept that portion of the amendment. There is more force in the latter portion of the amendment which says that the section shall not apply to any transfer giving effect to a contract bona fide entered into before the publication of the relevant provisional list or the service of the relevant notice.

I have just read the section and it refers to the publication of the notice after the passing of the Act or the services of the notice after the Passing of the Act. There is a danger that it might be held, although the contract was entered into before the passing of the Act, that the actual subdivision or sale would not take place until the transfer or deed of conveyance was executed. Therefore, I consider this amendment by Senator Ross really does nothing more than put beyond doubt the intention of the section. There is considerable doubt as it stands.

Mr. Moran

I have given some consideration to this amendment and I do not see that there really is a case for accepting it. The Land Commission is the organ of government which is charged with the duty of acquiring lands for the relief of acute congestion and when the Land Commission want to inspect certain lands or institute acquisition proceedings for them, one asks oneself why they should be stopped, merely because there was private litigation or that the lands are subject to the confirmation of administration business.

Senator Ross will appreciate that in the cases he visualises the lands would be sold anyhow. They are going ahead for sale under a court order and in some cases, certainly in congested areas, it may very well be the holding, in respect of which the Land Commission were waiting for a suitable opportunity to acquire it, because of the intense local congestion or because, perhaps, of the holding up of a rearrangement scheme for the acquisition of a suitable holding that a suitable rearrangement scheme could be put through without acquiring it.

If the transaction were beyond the Land Commission control it would have the effect of slowing down the relief of congestion. I would suggest to the Senator that there is no reason to believe that the Land Commission cannot be relied on to avoid any clashes with the court. They would naturally have the right to the administration of an estate, particularly if it was subject to an order of the court and if the administration was being carried out under order of the court. Indeed, if there was any undue delay as is feared by the Senator, I am quite sure the judge concerned would have something to say about it if it was brought to his notice.

Generally speaking, in these cases which come up in the circuit court I cannot visualise any undue delay. Indeed, it is notorious that under the same procedure the administration of estates under the order of the court where there is very long delay by all concerned usually involves the sale of land. We have all these different orders that must be obtained in that complicated process. I often hoped, and do hope, that some Minister for Justice will find the time on some occasion to simplify it because invariably where such lands are being sold by order of the court the offer has got to be proved by the court. Invariably there are litigation proceedings that the proper price is not being obtained. You have all this long drawn out proceedings, which certainly does not benefit anybody. I beg the Senator's pardon. It does benefit the lawyers concerned. It is difficult to see what benefits are otherwise conferred.

Generally speaking, such cases administered by order of the court are noted for the expediency they are dealt with. I cannot visualise the Land Commission in such cases being the cause of any undue delay. At all events it can well happen—I am not talking about large administrations—particularly in congested areas where a holding, small though it might be, may be vital towards the finalisation of a re-arrangement scheme. In such a case it would be vital that the Land Commission would have power to come in and acquire it notwithstanding the fact that the estate was being administered under an order of the court. I should add, of course that, the law being as it is, the Land Commission would have to pay full market value for such land, and, indeed, being a case that was subject to administration under an order of the Court the judge would make quite certain that the Land Commission did, in fact, pay the full market value.

I am sure also that in any of the cases in which there might be some particular difficulty the Land Commission would be alive to and take due account of any special difficulty of executors or administrators in dealing with the problems arising in such cases.

As regards the second portion of this amendment, the concession in favour of pre-existing contracts would open up the possibility of having cases confused by back-dating contracts. A case of quick sale which would defeat proceedings, in which there was a back-dating of even one or two days, might easily serve to defeat the whole purpose of this section and the object which it was designed to meet. We are well used to experiences of evasion in cases of the Land Commission's intention to acquire land being frustrated, and it is not unknown to us that in some cases contracts have been back-dated and phoney contracts have been produced for the purpose of endeavouring to defeat the Land Commission. Indeed, during the last year there was one case in my own county in which there was an alleged sale by the owner of land which was required for the relief of congestion to a first cousin of his. In the first instance there was a fantastic consideration set up-something like £2,500 for land the market value of which should be about £800 or £900. There was a firm of auctioneers in the matter, and a legal firm. The Land Commission did not believe that before their notice in Iris Oifigiúil was served this contract had been entered into, that it was bona fide, and they fought this particular case; and before the court came off those concerned withdrew their objections to the Land Commission's acquisition, which will be an indication to the Senators that they realised that the bluff was being called. I am citing this instance to indicate that one of the easiest ways of evasion, and, indeed, a very hoary one in the country, is this alleging that there is a pre-existing contract for the purpose of defeating Land Commission acquisition.

I have given careful consideration to the position that might arise if this amendment was accepted. I can see these dangers which I have enumerated by accepting the amendment and on the other hand I cannot see the Land Commission getting into trouble with a circuit court judge by flouting what he directs in an administration suit. Down through the years they have avoided that position and I am sure we can rely on them to do so for the future.

Mr. Ross

I do not really follow the Minister's argument all the way down the line, because it still comes back to my original position that these particular types of transfer operations are not ones which offend against the section in general. They are not ones which are deliberate obstruction of the Land Commission except for possibly the last one—a transfer giving effect to a contract entered into before the publication of the notice. In the last one it might not be bona fide. The Minister's example of the case in which a contract was produced that clearly was not bona fide and the opposition to the Land Commission acquisition was withdrawn simply because the people who produced the non-bona fide contract could not face up to standing over it in court is in favour of the amendment rather than against it. I would be prepared to consider possibly extending it to the transfer being entered into and possibly stamped something of that kind with an imprest stamp which would be clear evidence of the date if the Minister would consider that point, but I do see that in the earlier points there might be some inconvenience for the Land Commission.

We have to take a balance between the inconvenience to the Land Commission in a sale pursuant to court order or an administration suit as against the inconvenience to the people involved. In one case the Land Commission can come in and stop these sales. In the other they can go through and the Land Commission can buy afterwards. It is a question of weighing up the delay on either side. It seems to me that the amendment in principle should be allowed to stand because these are cases which are not deliberately obstructive and perhaps the whole matter could be reconsidered on the Report Stage.

Mr. Moran

I will consider it by the Report Stage. I still cannot find the answer, notwithstanding what the Senator has said, in my mind at the moment as to what the position would be if there was what I would term a vital holding for Land Commission purposes that was a subject of an administration suit. I will state that in such a case they would not be trying to jump the gun as far as the Land Commission is concerned, but if the Land Commission in such a case were prohibited from competing for that farm or from serving the notice to ensure that they could get the holding subject to the price being fixed it could be serious for the Land Commission in congested areas. The Senator will appreciate that in some of these cases, particularly where there are rundale estates, the Land Commission may have been waiting for years to get hold of some such holding.

I am sure the Senator will agree it would be too bad in such a case, even if that holding were the subject matter of an administration suit, that the hands of the Land Commission should be tied. However. I shall have a look at this matter between now and Report Stage. At the moment unless, having considered what has been said, I can dig up a reasonable safeguard, I would be doubtful about it. I am afraid of the dangers of accepting this amendment, but I shall have a further look at it between now and Report Stage.

Mr. Ross

I should like to thank the Minister and ask him to consider each one of them separately. I can see he may, perhaps, accept the first or second, but not the third.

Amendment, by leave, withdrawn.

Progress reported; Committee to sit again.

The Seanad adjourned at 10.1 p.m. until 3 p.m. on Thursday, 11th February. 1965.

Seanad Éireann debate - Wednesday, 10 Feb 1965