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Seanad Éireann debate -
Tuesday, 9 Nov 2021

Vol. 280 No. 1

Land and Conveyancing Law Reform Bill 2021: Second Stage

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

On behalf of the Minister for Justice, Deputy McEntee, who regrets that she is unable to be here in person, I am pleased lead off the debate on Second Stage. As Senators will be aware, this is an important and urgent Bill. Under Part 8 of the Land and Conveyancing Law Reform Act 2009, significant changes to the law on prescriptive easements and profits à prendre are due to take effect immediately after 30 November 2021, in just three weeks' time. Up to now, the 2009 Act has applied transitional provisions, allowing court proceedings, or applications to the Property Registration Authority, seeking to validate or register a prescriptive right to be decided under the old legal rules that applied before the 2009 Act. That transitional phase will end, however, on 30 November next and new rules will take effect for all new claims from 1 December.

The 2009 Act was a major item of reforming legislation that repealed a large number of outdated laws and concepts and modernised much of our land and conveyancing law. Serious concerns have, however, been raised by stakeholders, including the Law Society and the Bar Council, about the impending changes to the law on preceptive easements and profits under the 2009 Act. In particular, the new legal rules on acquiring prescriptive easements or profits are causing legal uncertainty. Second, the generally accepted view is that after 30 November 2021, only user periods starting on or after 1 December 2021 can be counted in claiming prescriptive rights that are not registered, even if they have been enjoyed for many years before that. Third, the requirement for mandatory registration of prescriptive easements or profits à prendre is not operating satisfactorily in practice. It has not yet been possible to register many important prescriptive rights that appear to have been enjoyed for many years without dispute.

Stakeholders indicate these changes risk causing unnecessary court cases to protect rights that have been enjoyed for generations without dispute, resulting in stress and legal costs between neighbours. The new registration requirement is causing widespread blockages and delays to conveyancing and problems for mortgage or farm loan approvals where a house or lands depend on an unregistered prescriptive right. The Minister has listened carefully to these concerns and is satisfied that in these complex legal areas, the provisions of the 2009 Act are not working as intended, and that prompt action is required to avert the changes due to take effect on 30 November.

The Bill will address the most pressing need by repealing the major changes due to take effect on 30 November, thus removing that deadline. It is essential that it can, with the support of both Houses, progress to enactment by 30 November at the latest. The Minister has secured Government agreement to establish a time-bound review, in agreement with the Attorney General, that will identify any further changes that are desirable to the law on prescriptive easements and profits to ensure this area of law will be put on a sustainable, long-term basis.

The main changes to be made by the Bill are as follows. Section 6 will repeal sections 33 to 39, inclusive, of the 2009 Act. Consistent with the strong preference of stakeholders, this will repeal the major changes that were due to take effect after 30 November, thereby removing the imminent deadline. The Bill sets out a number of new rules for the law on acquiring and validating prescriptive easements and profits à prendre. This follows extensive engagement with stakeholders, including the Law Society, the Bar Council, the Property Registration Authority and the Law Reform Commission.

In general, claims made after the Bill comes into operation will be decided under the judge-made law, known as the doctrine of lost modern grant, that applied before the 2009 Act. This reflects the strong preference of stakeholders, which see this as the most satisfactory and familiar set of rules available, pending the more comprehensive review intended by the Minister. Under the Bill, periods of long use that were acquired before or during the years 2009 to 2021, inclusive, will not be lost on 30 November where the prescriptive right is unregistered, as under the 2009 Act, but can still be counted in a claim made after that date. Applications based on periods of use completed before 1 December 2009, the date on which the 2009 Act came into operation, will continue to be decided in accordance with the law that applied before that date. The same is true of applications to court or to the Property Registration Authority to validate or register a prescriptive right that are pending when the Bill comes into operation.

Special arrangements are proposed in respect of State-owned land, including foreshore. Under section 3, as under the 2009 Act, acquiring a prescriptive right against State-owned land after 30 November 2021 will require longer periods of use than are required in a claim against land owned by a private person. Otherwise, the general rules I outlined will apply and, under the Bill, long use before 30 November 2021 will still be counted, unlike under the 2009 Act. It will still be possible to validate a prescriptive right, either by applying to court or by registering it directly with the Property Registration Authority, but this will be optional, as it was before the 2009 Act, rather than becoming a requirement to avoid losing any rights acquired through long use.

I will now address the main provisions of the Bill. Section 2 sets out the main rules that are to apply to a claim to have acquired a prescriptive easement or profit à prendre following the coming into operation of the Bill. In cases where the prescription period was completed before 1 December 2009, the legal rules are those that applied before that date, as at section 2(a). In cases where the prescription period was completed after 1 December 2009, the legal rules are the pre-2009 Act judge-made rules known as the doctrine of lost modern grant, as at section 2(b). There is an exception to these main rules for applications to court or the Property Registration Authority that are pending when the Bill comes into operation, and these are dealt with under section 6(2).

Section 3 deals with claims to have acquired a prescriptive easement or profit à prendre over State-owned land or foreshore, other than pending applications or claims where the prescription period was completed before 1 December 2009. The longer prescription periods, of 30 years for State-owned land that is not foreshore and 60 years for foreshore, were recommended by the Law Reform Commission in 2002. They reflect the fact it is more onerous for the State than for a private owner to be aware of any easements or profits being exercised against its land, particularly regarding foreshore, which is submerged for much of the time.

Section 4 refers to the law on extinguishment of easements or profits à prendre.

The Bill repeals the new rules due to come into effect under the 2009 Act and this section just clarifies that the pre-2009 common law rules on extinguishment will continue to apply.

Section 5 amends section 49A of the Registration of Title Act 1964 in respect of registration of a prescriptive easement or profit. The amendments remove the condition that the authority must be satisfied that the claim meets the requirements set out in sections 33 to 38, inclusive, of the 2009 Act, and also clarify the conditions for registering a claim in respect of a profit à prendre in gross.

As I mentioned, section 6(1) repeals sections 33 to 39, inclusive, of the 2009 Act. Section 6(2) refers to applications to court or to the Property Registration Authority that are pending when the Bill comes into operation. It provides that they are not affected by the Bill. Essentially, such applications will, therefore, continue to be decided by the law as it stood previous to the 2009 Act.

I wish to acknowledge the engagement shown by Senator Higgins in introducing a Private Members' Bill on this issue, together with Senators Ruane, Flynn and Black. Their Bill essentially makes a single amendment to the 2009 Act, extending the 30 November deadline for a further period of five years. We also considered this approach when developing the Government Bill. However, after legal advice from the Attorney General and stakeholder engagement, the Government decided to go further and to address other aspects as well. The Minister believes the Bill before the House offers the best way of ensuring that all the necessary changes are made in this particularly complex legal area.

I believe the care and consultation that has gone into the Bill is evident. The importance and urgency of progressing the Bill for enactment before the legal cliff edge of 30 November is clear. The Minister very much hopes that, with the co-operation of all sides, we can facilitate its swift passage through this House. Time is short. I commend the Bill to the House.

I welcome the Minister of State to the House. I thank him and his officials, as well as the Minister, Deputy McEntee, in her absence, for the swiftness with which the Bill has been brought to the Houses. As a person who lobbied on this issue for some time and was notified well in advance of the potential cliff edge many people were facing on 30 November, I warmly welcome the move being made here this evening. Although it is just a short amending Bill, I take on board and welcome the fact that there is a commitment to a comprehensive review of this situation.

To be honest, this law is far too complex for a person such as me. When one researches the issue and reads into the intricacies of what is involved overall, one realises it becomes very complex. That goes back to our history, in that many of the smaller farms in rural Ireland initially came from the division of estates and larger holdings by the Land Commission. It is not always possible in such situations for all involved to have road frontage or road access. Agreements were made in respect of easements known as rights of way to allow people to access land. Back in the day, in my father's time and that of his father before him, these were often gentlemen's agreements. There is no formal documentation or registration of the rights of way and, as ownerships change and new generations come along, it is not always as easy to implement these gentlemen's agreements that have been in place for years as it was for the previous generations who were around when the arrangements were made.

A major issue that was beginning to raise its head in recent months with the 30 November deadline pending was a slowdown in conveyancing, as the Minister of State noted. Whether it was drawing down a loan, purchasing or selling land or working through probate or situations of intestacy, people realised that come 30 November rights of way would need to be registered and that was slowing down those processes. As such, it became vitally important that something was done before 30 November. The issue is addressed in this amending Bill, which I welcome.

I hope it will be taken into consideration in the comprehensive review that has been promised post the enactment of the Bill that, since 2017, 70% of applications to the PRA have been rejected. That is a fact that comes up when one researches this issue. I do not expect the Minister of State to have an answer this evening in terms of the reasons for those rejections but I hope that this issue will be considered in any review relating to further legislation and that the pitfalls that seem to have arisen there will be addressed in whatever manner possible.

I will not go on much longer. It is noteworthy that the Law Society, the Bar Council and the farm representative bodies all welcomed the Bill and that it had the blessing of the Attorney General, the Cabinet and the Government before it was even introduced. It is usually the case that legislation is introduced and at some stage during its passage through the Houses Members start getting phone calls or correspondence from stakeholders with an opinion on the matter. In this case, they all came forward to set out their opinions before the Bill was even introduced. For that reason, I do not see why I or any other Member present, certainly on the Government side, would have any issue with the Bill. As I stated, it has received the blessing in advance of the stakeholders whom it mostly affects.

I plead with the Minister of State to ensure that, whatever comes out of the review following the enactment of the Bill, an awareness campaign is put in place. The reason we got so close to the deadline with so little action was a lack of awareness. For many people who were aware that it was coming down the line, there is and was a big element of fear, particularly among the older generations who lived with the gentlemen's agreements. They did not want that to change and believed that the fact it was being legalised might diminish or dilute their ownership. They did not want to prevent their neighbour or whoever having a right of way, but were concerned their ownership could be diluted. Nothing could be further from the truth, but it is difficult to explain that to a person who has lived with the previous arrangement all his or her life. When we get to the final solution and this issue is moved forward, a serious awareness campaign will be needed. We need people to know the ins and outs of it and what might be coming down the line. I know of a person who was given a site on the family avenue and just assumed he or she could use the avenue for access, but when the next generation took over the farmhouse there was an issue in respect of whether the person was really allowed to use the avenue to access his or her house. Sometimes situations arise that were ill prepared for, or of which people were not aware. While this was a solution to such situations, in many cases it created more alarm bells than it offered the relief of a solution to a problem. It is vital that when we move forward with whatever extension is agreed, and whatever comes out of the review in terms of future legislation, there is a good awareness campaign through the farm organisations, Revenue or whatever body has access to all those affected.

I know other speakers will touch on the issue in the context of urban areas. This is not just a rural issue but, from my perspective, it is a major issue in rural Ireland. I have not mentioned access to bogs. It can be a nightmare when there are several bog banks on one land bank and there is only one access route and one person owns it. It is not just one neighbour allowing another across their land to gain access to other land or water for their animals or whatever; it can be 40 people using a lane owned by an individual. This is about how that can be teased out and how to get to the bottom of sorting it out, legalising it and moving forward to a system that is more structured than the gentlemen's agreements that were in place previously.

I welcome the Minister of State and thank him for his opening statement on the Bill. I thank his Department and the officials in the civil justice legislation division of the Department for the very comprehensive briefing note provided. It is very helpful. As previous speakers have stated, it is a complex issue on which we need to tread softly and carefully. The Minister of State mentioned the issue of the legal cliff edge on 30 November, of which all present are aware.

The Minister of State referred to legal uncertainty. All Members, and certainly the many of us who have served on local authorities, whether they be city or county councils, are aware of the county development plan process. We know that in some county development plans, including that with which I was familiar, that is, the plan for Dún Laoghaire-Rathdown, issues relating to public rights of way are marked out.

Some of them were originally old mass paths that ran up to Glencullen and near Enniskerry or that part of the county. We had established rights of way or what people thought were public rights of way but then there were legal challenges. History moves on. In terms of the continuity of knowledge, the people who have the knowledge move away so people do not necessarily have the facts. So much of this is assumed but when one digs down one discovers there is no real paperwork, which presents a problem.

The County and City Management Association is concerned about this matter. However, when the association was asked by the elected councillors about this matter it was not well equipped to explain the issues and different bits of advice were given. City and local councillors would be aware of county development plans so, clearly, they would be best placed due to being on the ground and would hear the concerns of residents. I am thinking about the foreshore, in particular. I have experienced a major issue with a right of way that took years to clear up. Extinguishing a right of way is quite difficult, particularly now that everything has slowed down with Covid and trying to get the appropriate people to consider the matter. It takes a long time to extinguish a right of way and sometimes people seek to exercise that to frustrate the development of a site or for various reasons.

I am conscious that this legislation is a stop-gap to get us over this current issue. By saying that I am not being disrespectful just stating reality. I will support the fast-tracking of this legislation. It is important that the Department engages with the Minister who has special responsibility for heritage. We have a huge problem with accessing heritage sites and dolmens. For many years people have been able to access three dolmens located in my local authority area but now they have been told they cannot access them. These are sites of heritage and importance so we need greater clarity about access.

We have the issue of the foreshore and its complexities, particularly where a harbour authority is transferred to a local authority thus leading to issues concerning the potential for development and the realisation of development opportunities along a shoreline. In particular, I am thinking about renewable energy and the Maritime Area Planning Bill. We need to be aware that there is a lot of duplication and overlapping so we need to be vigilant. Rather than close down opportunities we need to open them up and realise what we can do in this area.

Clearly the Law Society and the Bar Council are in favour of this initiative, which is my view having perused their submissions on their websites. I was very impressed by their reasoning and arguments that they set out. I was also impressed with their level of engagement, and particularly with the Bar Council that has expressed a willingness to proactively engage with officials and legislators on this proposal. So I am concerned about the foreshore and I have an issue with public rights of way, which we have discussed.

I understand having read both the briefing produced by the civil justice division of the Department and the briefing that we have received that the Bill will address the most pressing need by repealing major changes that were due on 30 November, as the Minister of State has said already. I understand that the Minister and the Minister of State are committed to a more comprehensive reform of the area. I think that is critical and I would like to think that during our debate on this Bill we would be told a definite or indicative timeline. We are getting over this issue but we cannot move on. I am not criticising anyone when I say that this matter should not have reached this point. This is November and we are talking about the end of November. I would like to hear assurances at some stage though not today. What is the timeline for addressing all of the other issues that will follow as a result of our contributions? It is abundantly clear that wholesale reform is needed, which has been accepted by the Minister of State. I understand the Government has obtained approval to establish a timebound review, which the Minister of State has said, in the agreement and of course with the Attorney General. It is important that we develop best practice. What is the long-term view, in particular for the foreshore issue?

Earlier Senator Paul Daly mentioned the importance of bogs and established rights of way. Therefore, rights of way are critical and contentious. Irish people have a fundamental love of the land. I mean we are territorial about land and will fight to the end to defend it so having greater certainty is important.

Today, the Minister of State confirmed that one can still register a property with the courts or the Property Registration Authority but this will be optional, as it was in 2009. It is important that message is conveyed and publicised because some people still feel that they want to register. This legislation does not prevent people from registering as was the case pre 2009. People still have the option to register. We need clarity and I would like if the Department undertook to share the briefing that we have received here today, or some version of same, with the city and county managers. They are keenly aware of this issue yet seem to operate on a different basis. The legislation is important but we must use every opportunity to dumb it all down and make it very simple. I recognise the importance of the timeline. The Minister of State has my full support, and that of the Independent Members of Seanad Éireann, in the passage of this important legislation.

Ar son Fhine Gael, cuirim fáilte roimh an mBille seo agus roimh an Aire Stáit freisin. Cé go bhfuil sé déanach, tá sé tábhachtach agus ní fheicim aon fá ar cheart dúinn vóta a chaitheamh i gcoinne an Bhille seo. Caithimid tacaíocht a thabhairt dó.

Senator Paul Daly, when he spoke earlier, was very self-effacing when he said that this is a difficult matter to understand. I have practised at the Bar for 15 years yet I must sit down and read this legislation in some detail to have any idea what it is about. I am grateful for the Department's briefing notes in that regard. In fact, that is probably true for most members of the Bar, notwithstanding that experts from the Bar gave a submission through the Bar Council. As a general rule, solicitors are more familiar with land law. In fact, there is a standing expression that when it comes to land law most of us are at sea and that is the reality. Land law is incredibly archaic and convoluted. Even the terms used such as easements and profits à prendre are archaic.

The Bill is technical but I recognise that it does something that is important even if it is late in the day. I remember when the 2009 Act came through and back in the early 2000s steps were taken to reform the land and conveyancing laws. These laws are archaic. Many of the terms and bases on which the legislation is currently based, date back to the Middle Ages so it is appropriate that we reform the law even at this late stage. I welcome the fact that we are bringing some clarity to this but, as has been said by other speakers, there should be even greater clarity. What would be very welcome would be a streamlining of the law. Senator Boyhan mentioned the need for simplification but I think even that would be an incredibly difficult project and a worthwhile one.

It is appropriate that ordinary people and ordinary barristers would be able to easily interpret the law to understand what it means, what effect it has and how it affects them or their neighbours. Reference has been made to how this matter has a very significant impact on rural areas but, as has been said, it affects urban areas. Senator Boyhan referred to the county development plan of Dún Laoghaire-Rathdown County Council, which I was part of in the past. There are rights of way in that area and in many ways the communities are perhaps unaware of the extinguishing of some of those rights of way. I am aware of a right of way at the end of Pottery Road, which is literally 100 m away from where I grew up, where a petrol station has de facto extinguished the right of way in order to make the plot of land more valuable and open to development. The local community is unaware that this has happened. Very often, in such cases, the local authority is not interested in getting down and dirty to establish these rights that benefit the local community. I can understand why they are not because there is exposure and costs for local authorities. In addition, they do not really get the support from central government that they need to be more proactive in preserving rights of way.

A right of way at my alma mater of St. Laurence College, Loughlinstown, runs right next to the school and almost across a playing pitch. That makes it incredibly difficult for the school to establish a playing pitch. It wanted to move the right of way. We all hoped that there would be progress in that regard in the development plan. As the right of way goes right past the school all day when classes are going on one could have people from outside the school, from the local community or from outside the local area walk right past the windows of classrooms and, possibly, disrupt classes or cause other mischief.

The sensible thing would be not to extinguish the right of way because it is an important route for people from the residential area to get to the N11, bus stops and so on, but to move it so that it takes a slightly different route, still preserving the right of people to cross that territory while facilitating the need of the school to have access to its lands. It is a technical Bill. It does something that must be done at the end of the day. However, it is important to recognise that it also takes place in an information vacuum. I say that in no way wishing to be critical of any organisation or individual. Reference has been made to two tremendously important issues, namely a proper review of this area of the law to establish that we can change it in a way that makes it more accessible to everyone, but equally, a public information campaign. People should properly understand the rights that are in play here and the fact that they sometimes need to take steps to protect their rights in a local community to facilitate them but in the first instance to let them know. A public information campaign can only be properly successful when the law itself is accessible. If the law is as dense as the current conveyancing law and land law generally is in this country, it is almost impossible to have an effective public information campaign that explains to people what is involved. There is no realistic opportunity to talk to people about medieval land law and expect them to be either interested or engaged in it. The two issues go hand in glove, one being the reform of the area of law but the other being that information campaign to let people know what is happening. This Bill is a stepping stone, a stopgap and a necessary plug in the dam as it were, and on that basis the Fine Gael group and I have no difficulty in supporting it. I hope it is the first step in a process that brings us closer to a more comprehensive and accessible land law system.

Cuirim fáilte roimh an Aire Stáit anseo. “Sláinte agus saol agat; talamh gan cíos agat” was every Irish person's dream long ago. Tógadh an talamh uainn agus bhí orainn troid chun é a fháil ar ais agus é a roinnt idir na clanna ar fad. We had big challenges to get our land back and then it was divided. Land is a hot potato as we all know very well and it is very important that we make this intervention. It is a good intervention by Government. It is an example of politicians listening to people, organisations and farmers and doing a good job. I know from my own farm at home that my grandfather granted and received rights of way, which all happened in a lovely way long ago, but sometimes when it comes to dividing land and inheritance, it is a messy business. When I read this first before the intervention was proposed, I was frightened as many people I know, including old people and farmers, have rights of way on land that they have not registered. They have not gone down this legal route. To refer to what the Law Society said, no application could be made to validate such rights for another 18 years if we had not intervened, even where someone had been exercising those rights for 50 years or more. It is very important, therefore, that we are doing this today. Land is a big issue. It is not going to go away just because of this one change that we are making today.

Work is currently being done on a land use reform Bill by several Departments as they examine land use in Ireland, not just because of climate change but everything is changing. Our land use will change as well, and access to land. Land was compulsorily purchased in County Kerry for a greenway. Nobody wants to go down that route. We must look at how we are dealing with land. Senator Hackett and myself several years ago wrote a farmers first policy on accessing land for the Green Party. It is one where the farmer has to be engaged at the beginning because even to this day there are always major challenges any time we want to do a walking or cycling route. Some farmers themselves want to do walking routes. The Government has no set steps to be taken and no valuation. How should the land be valued and how much should the farmer be paid? If we have had that figured out, we would not be waiting ten years for a greenway in west Clare. There are many issues relating to land use that this Bill brings up for me. Land is precious. Many families over the years have had wars over land use. They have been blocking it, lying across it and gates were thrown over the ditch. If we had not intervened today I do not know what would happen. As previous speakers said, we must educate people. When I read this legislation, I did not have a clue and thought the Government wanted to take away rights of way unless people went to the lawyers. We have much work to do but we have Macra na Feirme, with ten thousand young farmers, and I do not know why we are not engaging more with them. They are the future of farming. They are the ones who comprehend these issues probably better than some of us and they can help us inform landowners about this. We need to be clever in how we move forward when we come to reform.

The other issue then is insurance. There is a fear among farmers about giving people access. This country is so full of amazing wells and dolmens. We have 200 castles in County Clare alone but there is great fear about giving access to land because of the claims culture and insurance companies ripping people off. The courts sometimes support that as well. That is a huge issue. Until we resolve that I do not know how we will resolve our land use and land access. I wanted to raise that as an issue while we are talking about this, but I welcome the work on this Bill. It is important that it has happened before the end of November. In future we must do much more to inform people so that the fear of God is not put into them about land rights and rights of way.

Cuirim fáilte roimh an Aire Stáit. Táim sásta go bhfuil an seal agam cúpla focal a rá le linn na díospóireachta seo anocht. The Land and Conveyancing Law Reform Act 2009 provided for fundamental reform and modernisation of land law and conveyancing law in this State. At the time, the measures were broadly welcomed. The 2009 Act was a combination of years of work by the LRC and the Department of Justice, Equality and Reform. It repealed many old statutes, some of them as has been said from the Middle Ages. An area the Act sought to reform was the law relating to easements and rights of way. Unfortunately, the Act did not achieve that objective. This amending legislation means that easements such as a right of way and rights to maintain water and sewage pipes on neighbouring land will no longer have to be registered with the PRA by 30 November this year.

Rights of way are crucial for people to access, especially, although not exclusively, as has been said, in a country setting. They can often allow access for homeowners to a home by foot or car while for farmers, they can affect access, drainage and many other issues related to farming. Following the Land and Conveyancing Law Reform (Amendment) Act 2019, as amended by the Civil Law (Miscellaneous Provisions) Act 2011 ,approval by neighbouring landowners is required. In some cases, complex legal procedures must be undertaken to establish proper rights of way. The new legislation has also given rise to issues with mortgages where banks ask for proof of access rights that are often onerous for property owners to obtain. This legislation mandated that these easements need to be registered in the PRA or else by Circuit Court application. This is time-consuming. Sinn Féin called for the deadline to be extended due to the legal and practical complexities involved in registering rights and indeed the Covid-19 pandemic, which all have given rise to great difficulties for many people. Otherwise many homeowners would have risked not having the proper access to their homes, which has the potential to flood the courts with cases. The Minister eventually responded by extending the deadline through the Land and Conveyancing Law Reform Bill 2021 and promising a review and new legislation for the area.

The Law Society was critical of the change required by the 2009 Act, although it largely supports the legislation. This was because previously a statutory declaration by the user of the right of way was permissible, which essentially states that the issue is many paths and laneways are in fact, as has been said, on private land and frequently owned by a third party. This particularly impacted on farmers looking to sell farms where access routes were in fact on third-party land. Court proceedings and agreement to grant rights of way often pit neighbour against neighbour and, indeed, can be hard to establish due to infirmity or estrangement. Sinn Féin wishes to see a tailor-made system that is non-adversarial and respects rights of access. Any new enabling legislation will be welcome but Sinn Féin is keen for more comprehensive reform, which has been promised, to be brought forward. I flag that at this early stage and look forward to working with the Minister of State, departmental officials and colleagues across the House because as Members have acknowledged thus far, and I am sure will after me, while appreciating this is a very complex situation and has been given a very complex response, it is one we need to resolve for the benefit of people out there, if you will pardon the pun, on the ground.

I welcome this Bill and the opportunity to speak to it. The Labour Party supports this Bill and its provisions, and the Government commitment in some of the communications about this to examine the wider area of rights of way.

Before I discuss the matter, I want to speak on behalf of my senatorial colleague, Senator Higgins, who is attending COP26 in Glasgow. She has been very active in pushing for this Bill to be introduced. She was one of the first who realised the rights-of-way abolition would kick in on 30 November. She raised the issues tackled by this Bill this time last year. She identified significant problems arising from it and spoke to three separate Ministers over the past 12 months, namely, the Minister of State with responsibility for heritage, the Minister of State with responsibility for planning and development and the Minister for Justice. She and her Civil Engagement Group colleagues introduced a Bill to extend the provisions by five years. That is a reminder of how Governments sometimes need to listen to points made by the Opposition in order that action can be taken in a timely manner.

This issue has been signalled to the Government repeatedly by stakeholders across society, including the Law Society and the Irish Farmers Association. What we have had, however, was a Government that refused to acknowledge the important issues for people across the country until its hand was forced and a deadline was almost reached. This Bill is being left until the last minute. We could have avoided the need to rush through this legislation to prevent massive legal confusion after 30 November over registering private prescriptive rights of way and protecting rights of way, many of which have been used for generations. This issue affects individuals, families and communities, and it should have been addressed long before now. There are but two weeks until the deadline and there is last-minute, rushed legislation.

If we are to examine the wider issue, we need to consider how private prescriptive rights of way were earned through use over long periods and how they intersect with public rights of way, with a view to creating new rural and urban networks of connectivity. As Senator Garvey said, our rights of way and rights to roam are very different from those in the United Kingdom. It is important that we consider this matter again.

Rights of way present a great opportunity to create green networks. We should bear this in mind in this legislation and local development plans, and we should ensure that we map all existing and new private and public rights of way with a view to creating new networks of connectivity, not only in rural areas but also in urban ones. In an area such as mine, for example, connecting up laneways behind houses and bringing them back to life could be considered. We could create safe walking and cycling routes in our urban environments. In Spain and Portugal, for example, the network of laneways is used for walking and cycling, and initiatives such as the Camino de Santiago have been created as a consequence.

This is also about ensuring permeability in our cities in order that people can be provided with alternative routes where they intersect with public rights of way and create networks of connectivity. I hope the Government commits to considering this as a wider issue. I hope it considers it not just from conveyancing, rural and landowner-rights perspectives but also from connectivity, permeability, transport and environmental perspectives.

Cuirim fáilte roimh an Aire Stáit, an Teachta Browne, go dtí an Teach. Fáiltím roimh chinneadh an Rialtais chun brú ar aghaidh leis an mBille seo agus é a chur tríd an dá Theach roimh dheireadh mhí na Samhna. The Minister of State is welcome. I thank him for, and acknowledge, his work. I acknowledge the work of the current and former Ministers for Justice – Deputies McEntee and Humphreys – on getting Government agreement to progress this Bill through both Houses by the end of the month. The impending deadline has caused some concern within the law profession. I have been contacted by several solicitors who have expressed concern regarding their workload and the impact of existing arrangements on conveyancing and the sale of properties. It is important that we pass this Bill to provide the clarity required and initiate greater reform in this area. We are aware of the trickiness of old rights of way, which can cause legal disputes. Ireland has had many cases of people in rural areas claiming or having rights of way that others do not recognise. There can be all sorts of developments as a consequence, including the putting up and taking down of gates. Such actions can lead to neighbours falling out. Somebody buying a new property may not be aware that others have rights in respect of it. This has caused issues in the past. It has certainly caused stress and imposed costs on people. Disputes have ended up in court. When buying land, it is important to know who has a right to gain access to it or cross it. The Bill will deal with that issue.

I am aware that the Minister of State has had considerable engagement with the Law Society, Bar Council, Property Registration Authority and Law Reform Commission on this subject. It is complex. It can relate to several issues, including rights of way across farmland or on a laneway running over a neighbour's land, the right to use water or sewerage facilities on a neighbour's land, and the right of support between adjacent buildings that are in different ownership. If one is buying or selling, a considerable amount of money can be involved so it is important to get it right and to have no confusion over who has access, rights of way and easements. It is important that we pass the Bill by the end of the month. I acknowledge the work that has been done in the Department, and I wish the Bill steady progress.

Like everyone else, I welcome the Minister of State to the House and thank him for his work on this legislation. I have been a Member for several years and I regularly see legislation introduced because we are approaching a deadline. That is not a good way to engage with legislation. Essentially, one's back is to the wall. We have seen this every year with the Special Criminal Court legislation. From time to time, we have technical legislation but this Bill is a little more than that. It is extremely important because the amount of trouble and hassle caused by uncertainty over rights of way within communities, among neighbours, among people living along the same road and even within families is incredible.

For years I was involved as a county councillor in making representations on behalf of people applying for planning permission. It was often the case that a son, daughter and another son all wanted to apply for planning permission to build on the one road. It is all great when everyone gets on but if there is a falling out in the family, it can be pretty scary. That is why this type of legislation is important. While we have to do what we have to do to sort this out by the end of the month, really and truly there has to be fundamental reform in this whole area. Rights of way should be registered. Local authorities should not be washing their hands of the matter. I agree with Senator Ward that a local authority needs to engage on this and invest resources. Local authorities need to establish offices internally to deal with this. So much that needs to be done should and can be done. The task is intricate, detailed and complicated but what is complicated can be simplified if there is the willingness to do so.

I have one more issue to raise while I am on the subject of rights of way, land and so on. I cannot understand why we have not embraced e-conveyancing. When somebody buys a property or house, it can take weeks, and in some cases months, for the transaction to go through, simply because of the conveyancing required, the exchange of documents and so on. We really need to embrace e-conveyancing. If we have learned anything during the pandemic, it is the benefit of embracing technology in the health service, especially in administration. There are general practitioners who would not have dreamed of emailing a simple thing like a prescription to a pharmacy until it was required of them because of the pandemic. We really need to up our game.

When I was the justice spokesperson for Fine Gael, I had discussions with Senator Ward. We visited the Law Society, which has made great submissions on e-conveyancing. The Government never bought into it, but it is something that needs to be done. I would welcome further engagement with the Law Society. Perhaps Senator Ward and the other justice spokespersons in the Chamber might organise an evening in the new year when we can share ideas and learn from each other. With that, I thank the Minister of State again. I cannot see any reason this legislation will not go through the Houses, but I believe that a body of work needs to be done. Given the fact that we have more than three years left in Government, this is the time to do it. We were always wondering how long the previous Government would last. This Government should last long enough to sort out the problem.

I read the name of this Bill and chills went through my veins, remembering my land law lectures with the late, great Deborah Wheeler, a barrister colleague, in the King's Inns. Certainly, this legislation is timely and good and there is no reason we should not all support it. I am sure the fears that went through rural Ireland, in particular, regarding it are something else.

There are two matters I want to raise. If there is to be a review and an examination of rights of way and private property rights, two urban issues need to be brought up. One of them relates to communal waste pipes where there is an unfortunate homeowner in whose front or back garden the manhole is located and neighbours are misusing the pipes and putting wet wipes and other sorts of things into it. If there is flooding, it happens in the homeowner's garden and they have to pay for the treatment of that. If the homeowner contacts Irish Water, the staff wash their hands of it and say it has nothing to do with them. I know of people who are on low incomes or who are elderly, and who are finding themselves responsible. The answer that Irish Water gives them is that they need to go out and knock on the doors of everybody else on their street and get a contribution towards the cost of clearing that out. That is not okay. It is the opposite of getting a right of way onto other people's lands to access your own utilities. It is where you become liable. When I and my office have talked to Irish Water staff about such issues, we have asked them whether the person has the right to close the manhole and stop this flooding in their garden. They do not have that right, but they have the sole responsibility for the fixing of issues caused by other people, over which they have no control. That puts neighbours at loggerheads with each other. It an issue that we must come up with some sort of legislative solution to or in respect of which somebody needs to take responsibility. It is not reasonable that individual homeowners have to do that.

The other issue I wish to raise concerns order 96 of the District Court rules, which provides a facility whereby people can go to court if their neighbours are causing noise pollution. However, if a neighbour has a series of security lights that are making their front room unusable, there is no solution to that other than to take a case under tort law. We need to amend order 96. It is reasonable that people should have the peaceable enjoyment of their homes. Again, we end up with neighbour disputes, where a neighbour goes in, puts up big security lights and others then end up having to put blackout blinds and all sorts in place just to enjoy their own home, if that neighbour is somebody who is unapproachable and will not co-operate. We need to amend order 96 and move beyond noise pollution to include light pollution under that order. The environmental health service and the council will not deal with it. There is no solution there currently, other than taking a case under tort law.

I echo Senator Conway's point on e-conveyancing. It is time we expedited it and got it done and dusted. It is long overdue. Other than that, I support the legislation and acknowledge the need for it.

I welcome the Minister of State to the House. I acknowledge his opening statement, which was most informative. This is an issue that has been debated in the Chamber over the past few months. There was great fear of the deadline that is approaching at the end of the month. In my area of rural west Cork, the volume of interactions I have had with the public, including landowners, farmers and solicitors, on this issue has been amazing. One solicitor from Clonakilty told me a few weeks ago that it would take every solicitor and engineer in Ireland to go through every right of way in west Cork. The task is insurmountable. Considering the number of rights of way that needed to be brought in line with the 2009 Act, there was no way we had the personnel, the money or the practical ability to get it done. This amendment is, therefore, really important. It is far from an amendment; it is quite a significant Bill in its own right.

The timelines are very important. We must ensure this is in place by the end of the month. That is important for the general community. There has been great anxiety, particularly among the agricultural community, about this Bill and how it is going to impact it. I was in contact with our spokesperson, Senator Ward, on a continuous basis about when this Bill was coming before the House, because it is a real issue for the agricultural community. I have not experienced such a reaction towards any Bill from the agricultural community in the past few years. The issue of rights of way and the number of rights of way that are under dispute, not registered or unclear is amazing. It is a significant body of work. It became obvious that the timelines in the 2009 Act were not going to be met.

I support this Bill. Perhaps the Minister of State can clarify the timelines in respect of when he is proposing that the Bill will be passed through the House. Has he been talking to the Whips and the Chair to make sure that we meet the deadline? There is significant anxiety around the issue, to say the very least.

I thank Senators Daly, Boyhan, Ward, Garvey, Ó Donnghaile, Moynihan, Kyne, Conway, Seery Kearney and Lombard for their contributions, which were welcome. It is reflective of the fact that, despite it being an exceptionally complex area of law, the situation arising out of its need very much resonates on the ground. I think of one particular situation in my constituency where an elderly farmer lived at the end of a laneway. There were three houses on his laneway. One of them was owned by an elderly lady who had dementia and was in a nursing home. The next house was owned by the county council, and the house at the top of the lane was owned by someone who, let us say, was less than co-operative. The farmer had become distressed about the situation and wanted to resolve it on behalf of his son before he passed away. That case is reflective of what everybody has been experiencing throughout the country. The Law Society and the Bar Council came forward to put very much a legal context to the issues. Senator Lombard mentioned that every solicitor and engineer would be needed to resolve the situation just in west Cork alone. A similar statement was put to me in that it would take 100 years to resolve it.

In theory, the idea behind the Bill would be great if someone discovered new land somewhere and was starting from scratch. Considering the nature of land in Ireland, it was going to be impossible to apply. Senator Daly brought up the important point that a number of applications are being rejected. In the initial stages, it was because all it took was for one person to object to the registration and the next thing people were heading off to court. Any changes that are needed will require an awareness campaign to promote them. As the generations move on, differences in opinions emerge and memories lapse, and more and more problems arise. Many concerns relating to water services were raised, in particular, which we are not going to be able to deal with in this legislation. I will certainly bring the issues to the attention of the relevant Departments. I will speak to the Minister of Justice regarding access to important heritage sites and the loss of rights of way. I can sympathise with Senator Ward. I encountered a similar situation in Wexford in respect of access to an ancient site where the Normans built a church. The right of way was being taken away and the landowner tried to engage the county council.

The local authority there eventually did engage. I understand its fear was with regard to litigation. If a city council does not engage in protecting a public right of way, there is almost nobody else that can do it. It certainly is something that needs to be looked at.

Senator Ward brought up the importance of plain language when dealing with issues such as this. It is hugely important. It ties in with the points made by Senators Conway and Seery Kearney on e-conveyancing. We can get land law and conveyancing law somewhat understandable and readable for ordinary people. It is quite a complex area.

I acknowledged in my contribution Senator Higgins, who tabled legislation on this and did an awful lot of work on it. She has engaged with my officials on this matter. I know she would have liked to have been here. She was quite positive on it.

A number of Senators raised concerns about agricultural communities and the legal profession. All of the contributions were hugely important.

The Minister, Deputy McEntee, regrets not being here today. She will be here for Committee Stage on Thursday. The intention is to move this on as quickly as possible to put away the concerns of many people in the country.

A number of Senators raised the issue of public rights of way. Obviously this is not dealt with in the legislation. Senator Ward raised this matter. It is something that gives rise to a lot of concern and something to which we need to bring further attention as time goes on. Sometimes a more brazen attitude is taken by people with regard to removing these public rights in the expectation that nobody will challenge them on it or take them to court over it. Many of these public rights of way are very ancient and lead to important historical parts of our country. We need to find a way to ensure they are protected.

It is important legislation. There has been much engagement on it. It is a well-crafted Bill. I look forward to it moving through both Houses as quickly as possible to quell the concern among so many people, in particular older people. We look forward to the Bill progressing as quickly as possible.

Question put and agreed to.

When is it proposed to take Committee Stage?

Next Thursday.

Is that agreed? Agreed.

Committee Stage ordered for Thursday, 11 November 2021.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 8.03 p.m. until 10.30 a.m. on Wednesday, 10 November 2021.