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Seanad Éireann debate -
Thursday, 24 Feb 1994

Vol. 139 No. 8

National Monuments (Amendment) Bill, 1993: Report And Final Stages.

Senators may speak only once, with the exception of the proposer of an amendment who may reply to the discussion on it. Each amendment must be seconded; this does not apply to Government amendments.

Government amendment No. 1:
In page 7, line 31, after "excavation" to insert:
"where the Director considers that an archaeological object or the site thereof is in immediate danger of destruction or decay".

Donegal South-West): The purpose of this provision is to restrict the scope of section 8 to instances where the physical context in which a find has been made may be under threat. This amendment arises from the concerns of Senators, expressed during the debate last week with regard to the broad scope of section 8, which could be interpreted as going beyond the immediate need of the director to take action to research and record the features of the immediate surroundings of a find while intact. The intention of the amendment is to allay those understandable concerns, while not restricting a core function of the director.

I support the amendment.

Amendment agreed to.

Amendment No. 2 is out of order as it involves a potential charge on the Revenue.

I cannot understand the reason for this ruling. Section 10 includes a provision to pay people — I used the word "pay" earlier — for archaeological objects and to pay the owners of land. There is a further provision about compulsory acquisition which involves a charge. The explanatory memorandum says no charge arises from this. I cannot understand how somebody cannot be compensated if their land is damaged and not subsequently acquired.

The amendment is out of order. It was also ruled to be so on Committee Stage. I have given you leeway but the ruling of the Chair cannot be challenged. I am sure you are aware of this.

Amendment No. 2 not moved.

I move amendment No. 3:

In page 8, between lines 18 and 19, to insert the following:

"(6) The owner of the land and the occupier of the land on or under which an archaeological object was found shall have the right to appeal to a court of competent jurisdiction any decision taken in accordance with subsection (1) of this section.".

I also moved this amendment on Committee Stage. The owner or occupier of land on which an archaeological object is found should have the right to appeal any decision to a court. Section 8 requires this amendment because it deals with the payment of persons who find archaeological objects. There is no obligation on the director to pay a reward unless he is satisfied it is in the public interest to do so. The amendment provides that where the owner or occupier is dissatisfied, he will have the right to appeal to a court.

I second the amendment.

(Donegal South-West): We discussed this at length on Committee Stage under section 10, amendment No. 9. I have nothing further to add to what I said then but to underline that it is the responsibility of all to protect our heritage. We are not taking away any one's right to appeal to a court if they so wish.

I felt it is essential to insert this right as distinct from it being generally accepted. It should have been written into the Bill.

Amendment, by leave, withdrawn.

I move amendment No. 4:

"In page 9, between lines 13 and 14, to insert the following:

"(4) When the owner or occupier (including the commissioners) of a monument or place which has been recorded under subsection (1) of this section or any person proposes to carry out, or to cause or permit the carrying out of, any work at or in relation to such monument or place, he shall give notice in writing of his proposal to carry out the work to the relevant local authority and shall not, except in the case of urgent necessity and with the consent of the Minister commence the work for a period of two months after having given the notice.".

I moved this amendment on Committee Stage but I did not press it to a vote for procedural reasons. Senator Dardis pressed his amendment to a vote on Committee Stage but I left mine open so that it could be discussed again on Report Stage. I believe, and I said this morning, that owners and occupiers have rights but the commissioners should also have to give notice in writing. An obligation on the commissioners to give notice to the relevant local authority should be written into the Bill. All relevant parties should be notified of what is taking place. Under the Bill the commissioners will not have to give notice to anybody when they are carrying out work. A local authority should be notified that works are about to be carried out.

Senator Dardis's Committee Stage amendment provided that the commissioners should consult with the National Heritage Council and, thereafter, give notice in writing to the Minister. My party supported this. Our amendment is on the same lines. If local authority members receive notice of planned works, they can alert An Taisce and local historical societies. The matter can then be discussed locally and later nationally. This would create necessary publicity. We should have learned lessons from Wood Quay, Fitzwilliam Square, Fitzwilliam Street, Merrion Square, the Burren, Wicklow and Meath.

Leave that one out.

There were some consultations in these cases. However, it is serious if local people are not made aware of works to be carried out. Section 11 deals with all works which can be carried out, such as extensions to national monuments and car parks. If the National Heritage Council is not to be notified of such work, at least local public representatives, county engineers, local historical societies and An Taisce should be alerted. However, the commissioners should not be permitted to carry out work without at least having notified the relevant parties.

I second the amendment. On Committee Stage the Minister accepted the argument that the commissioners should be subject to the same obligations as private individuals who are occupiers or owners of national monuments. If that is the case, the commissioners should be subject under the legislation to exactly the same provisions. That is why the amendment is a good one.

My Committee Stage amendment proposed that the owner or occupier should first consult the National Heritage Council. However, I am prepared to accept Senator Enright's argument that the local authority is also an appropriate body. We had an argument about the National Heritage Council not being a statutory body, although we are going to make it a statutory body under the terms of the Programme for a Partnership Government.

The local authority can have a role to play in this. The powers vested under section 11 are so broad in terms of what can be done on land which is adjacent to a national monument that there must be a safeguard. These self-appointed arbiters of public taste have a very narrow focus of what is desirable in architectural terms. The Government repeatedly talks about consultation but its definition of consultation is far narrower than mine.

I understood the Minister to say on Committee Stage that on Report Stage he would attend to the problem of damage to land which was not being acquired. However, I do not see that matter being attended to here.

I support Senator Enright. Without casting any aspersions on the taste or work done by the commissioners, advice in such situations is always of value. Those in the locality have the greatest vested interest in what will happen to the national monument involved. They are also the people who are most likely to be the guardians of that area. I cannot understand why the input of local archaeological or historical societies and the National Heritage Council would not be of value. Senator Enright's suggestion that the local authority should have the information is perfect because then all these other bodies could see the proposed plans and give advice or make comments. I hope that the Minister will accept this amendment.

(Donegal South-West): We discussed the substance of this amendment in the debate on amendment No. 17 on Committee Stage. I must reiterate and emphasise the fact that it is much more onerous on the commissioners when they have to advise the Minister; the Minister, in turn, has to lay the appropriate order before the House.

In relation to the planning Acts and the regulations, if the commissioners are restoring a building they are exempt. However, if any major alteration is being made or if they are adding to a monument they must obtain planning permission. The Office of Public Works must make the appropriate application to the relevant local authority. This provides an opportunity for those who have varying views on any development to become involved in the process.

It is not necessary to get planning permission to carry out restoration work to a dwelling if no alterations are being made. However, it is necessary if additions are being made to the dwelling or if substantial alterations are being made. The Office of Public Works will comply with the regulations which are there. I believe the responsibility on the commissioners will be much more onerous as a result of our introducing a further section to the Bill. I do not believe acceptance of this amendment would improve the Bill and I regret I am unable to accept it.

I made the point this morning when I was discussing Senator Dardis' amendment that, due to the volume of legislation, some matters may not get the attention they deserve from TDs, Senators or the media. I am looking for a safeguard. It is possible to get caught up in bureaucracy and red tape. This is to ensure that the relevant interested parties are notified, and notifying the local authorities is the correct way to do this. The amendment states: "notice in writing of his proposal to carry out the work".

Amendment put and declared lost.

I move amendment No. 5:

In page 13, between lines 6 and 7, to insert the following:

"13.—Where a national monument is falling into disrepair, or where it is obvious that such neglect will result in serious permanent damage to the said monument then it shall be in order for any interested person, individual, group or society to serve an order on the commissioners and the Minister, alerting them as to the condition of the said monument and where after the passing of a period of two months from the date of the service of the said notice then the relevant individual or body shall be empowered to take such relevant court action to compel the commissioners and the Minister to take all necessary steps to preserve and maintain the said national monument without any costs or expenses being paid by the said individual or person.".

Where there is a problem with a national monument which is owned by a third party, the commissioners now have the powers to compulsorily acquire it. As long as there are proper safeguards, I would have no objection to the commissioners taking control of such a monument. However, I received correspondence from a person who is interested in such procedures and is concerned that there are a number of national monuments and monuments of local historical significance which are allowed fall into disrepair and ruin. If ordinary individuals see that a monument is falling into disrepair they should notify by registered post, the commissioners and the Minister. They will be given two months to attend to the matter or to outline a plan whereby it will be attended to over a period of time.

If the commissioners or the relevant Minister fails to take notice of the warning furnished to them, that person shall have the power to issue proceedings against them and to bring the issue before the relevent court.

Few people would be able to take that sort of action because of financial constraints. If they bring a case showing that the monument is in a state of neglect and if the proposition is reasonable, they should not be penalised for costs but at least granted their outlay so that they would not be out of pocket. Some provision along those lines is essential. This is not to disparage the fine work the Office of Public Works is doing but because financial constraints and the pressures of work over a period of time, many fine monuments and buildings can fall into a state of disrepair. This amendment is designed to give concerned citizens or groups, such as An Taisce, legal powers to try to preserve a monument if they feel it needs attention.

I second the amendment. I am sure the Minister can envisage circumstances where the owners of monuments might almost be a party to allow them to fall into decay and disrepair. If we are to be consistent on the matter of consultation, concerned members of the public must be included in preserving our national heritage in the widest possible context. There are some who are vigilant in preserving our national heritage but they should be made to feel they have an input and this provision would be a good way of doing that.

Like the Minister, I can envisage circumstances where the owner of the property might totally neglect the monument in order to get rid of it. This, regrettably, has happened to much of our architectural heritage. I do not wish to reopen the debate we covered in detail on Committee Stage, but I wish to refer to public liability insurance. Farmers are liable for any injury to people crossing their lands. There are some farmers who would prefer to see the monument on their land demolished than be open to public liability claims. That is why the amendment is a good one and should be supported.

(Donegal South-West): One must differentiate between national monuments which are the responsibility of the Commissioners of Public Works and those that are not. However, under section 12 of the 1930 Act, the commissioners are obliged to maintain all monuments in their ownership and guardianship. There is no need, of course, to introduce a new provision for those monuments which are the responsibility of the Office of Public Works if the commissioners are negligent in their duties of such monuments in their care.

Concerned citizens may seek an order of mandamus from the courts to compel the commissioners to do their duty. If we were to accept that the Senators are referring to all 150,000 recorded monuments, this would result in a serious financial responsibility on the commissioners if they were responsible for taking the necessary action. I fully appreciate that it would not be a question, and the Senators do not indicate or insinuate that it would be necessary to do this with such a number. However, if provision is made for a number of isolated instances, it must include all these monuments.

The commissioners should not be forced to take responsibility for the maintenance of all recorded national monuments. This would have grave financial implications for them. If the Senators are referring to a number of important individual monuments that may cause problems in the future, there is nothing to prevent the Commissioners of Public Works from acquiring such monuments compulsorily. Under section 12 of the 1930 Act, they would then have responsibility for the maintenance of those monuments under their ownership.

I hope the House accepts that such an amendment could open the floodgates and leave a responsibility on the commissioners for the maintenance of 150,000 monuments. The amendment states:

...after the passing of a period of two months from the date of the service of the said notice then the relevant individual or body shall be empowered to take such relevant court action to compel the commissioners and the Minister to take all necessary steps to preserve and maintain the said national monument without any costs or expenses being paid by the said individual or person.

I assure the House that if there were monuments of such historical importance to the State they would be acquired compulsorily and it would then be the responsibility of the commissioners to carry out these works.

As you are aware from travelling around the country, a Chathaoirligh, one can come across many buildings which are classed as national monuments. However, the signs of disrepair and neglect are obvious to all. If this amendment was agreed, there are people who would be able to take the necessary steps to ensure that the necessary works are carried out. We are too easy-going when it comes to monuments. This will put pressure on the Commissioners of Public Works and the Minister of the day, and that is why I put down this amendment. In the past we allowed many of these monuments to fall ino a state of disrepair. It is not good enough for the Minister to say there is so many monuments; many of them are of considerable historic value and should be preserved.

Amendment, by leave, withdrawn.
Government amendment No. 6:
In page 13, line 29, after "deposit" to insert "for a period of not less than two months".

(Donegal South-West): This relates to the display of plans for compulsory purchase for periods of not less than two months. This amendment was accepted in principle on Conmmittee Stage and this amendment gives effect to that acceptance.

I thank the Minister for including this phrase which I put down in an amendment on Committee Stage. It is a small victory to have this wording included in the legislation.

I was under the distinct impression on Committee Stage that the Minister was going to come to us on Report Stage with recommendations as to how we would deal with this matter of compensation to those whose land had been damaged but not acquired. I would like to know the answer to that question.

Unfortunately that is not relevant to the amendment. Is the amendment agreed?

On a point of order, if the Minister made a statement on Committee Stage and, as I understood it, gave a specific undertaking surely I am entitled to challenge that and to ask what happened?

There was no amendment on Report Stage on the matter. Perhaps the Minister will explain it during his final remarks.

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

Donegal South-West): I thank the Senators for their contributions on Committee Stage, especially Senator Enright, Senator Dardis, Senator Ormonde and Senator Daly, who took a particular interest in the Bill. While, as Senator Dardis said, the acceptance of the amendment might be only a small victory, I have no doubt that the contributions of Senators are in the best interests of the Bill. I hope it will be enacted in the near future as it is proposed to take Second Stage in the Dáil in the next few weeks. It is important legislation and I am pleased that we introduced the additional section which places more onus on the Office of Public Works.

There may have been some misunderstanding as I certainly had no intention of trying to mislead Senators in relation to compensation. I referred to the amendment, accepted on Report Stage, which restricted the scope of section 8 to instances where the physical context of a find and site is in danger of destruction or decay. The purpose is to restrict the scope of section 8 to instances in which the physical context in which a find has been made is under threat.

There is no question of paying compensation. By the same token this restricts the power of the director who will go to the site to carry out an inspection to establish if the archaeological object is of historical importance. The tools he will carry with him, by and large, will be a trowel and spade. There may be a perception that he will arrive with a number of dump trucks, a JCB and low loaders. If that were the case I could fully appreciate Senator Dardis's concern but I do not believe that to be the situation. It will not be the intention of the director using his trowel and his spade to cause any serious destruction meriting compensation. If I gave the wrong impression, I apologise.

I thank the Minister, Deputy Higgins, who was present on Second Stage and Deputy Gallagher who was here on Committee Stage. I found them most helpful and courteous in their handling of this Bill. A number of points were made and dealt with at length.

There are matters which the Minister should look at further in the Dáil, particularly with regard to payments. Unless we are generous in this area and there is a proper procedure for assessing value, the legislation will run into difficulties. Similarly, when acquiring national monuments, easements and so on for the provision of facilities, one is taking over private property. It would be essential for constitutional purposes to have proper safeguards and a system of arbitration for the payments.

There should be some more acceptable way of dealing with cases where the commissioners are carrying out works. They should be in a position to notify local authorities, public representatives and interested parties such as An Taisce.

This Bill is an example of legislation where powers are being acquired by the State. This is desirable in some ways but there should be more transparency and acceptance of the fact that ordinary individuals also have rights. My last amendment was relevant in this regard. Where an object or monument is falling into disrepair, it would have given that person or An Taisce the right to notify the State and the Commissioners of Public Works that a place is being neglected. They should be given an input to this area. Perhaps the Minister could consider the matter and accept a similar amendment in the Dáil.

I thank the Minister for his diligence over two days of Committee Stage, his attention and the manner in which he dealt with our queries and amendments. I also thank his officials as they have answered our questions openly and well.

I am sure the Minister would not mislead the House, certainly not deliberately. I hope the legislation will achieve its intended objective, which is to preserve and secure our national monuments. I hope it will also ensure that the public will have general access to those monuments.

I still have a problem about the serious flaw with regard to the powers of the director and what he might do with his trowel and his spade. I heard the trowel and spade argument over lunch but there are circumstances where damage can be done. I accept it would be in very limited circumstances but if damage is done somebody should be able to recover the cost of repairing that damage. I hope the Minister will bear that in mind when he brings this legislation to the Dáil.

Senator Dardis, you seem to have a great interest in the Bill if you talk about it during your lunch breaks.

Ba mhaith liom mo bhuíochas a gabhail leis an tAire freisin tuisc an slí a chur sé an Bille seo tríd an Seanad agus an slí go raibh sé cobht leis na freagairí go léir. I thank the Minister and all the Senators who participated in the debate.

Question put and agreed to.

When it is proposed to sit again?

It is proposed to sit again at 2.30 p.m. on Wednesday, 2 March 1994.

Sitting suspended at 2.40 p.m. and resumed at 4.00 p.m.