We will resume on amendment No. 17 to section 15. I understand that the Minister was requested to indicate his position on the amendment. Amendment No. 17 is consequential on amendment No. 16.
SECTION 15.
I understood amendment No. 16 had been withdrawn at the end of the discussion on the last day.
I was trying to get clarification on that.
That is reasonably close to the mark. The committee will recall that when I said I proposed to withdraw that amendment I made it clear I was doing so on the basis of getting some indication from the Minister as to Report Stage changes he proposed. We will not go into the long debate we had on the last occasion about what is involved. The Minister may recall that he did not take the opportunity to say he would look again at that section with a view to accommodating the views expressed. I was satisfied that my amendment did not meet the requirements. In the absence of a proposal from the Minister I will put forward an alternative amendment on Report Stage.
I am glad progress has been made in the mediation in the mid-west region affecting Limerick and Foynes. I understand there is virtual agreement on that issue. We have been able to make progress by agreement and I seek agreement in this instance. The summer recess has given the Minister an opportunity to reflect.
The section, and the amendment Deputy Smith tabled, address the provision which requires new port companies to give two months prior notice to the Minister of proposed sales or leases of property. As the Deputy will know, provision is made in the Bill where by order certain categories of sales, leases and so on may be exempted from that requirement. There is a difference between the requirement proposed in this Bill and the provisions in the 1946 Harbour Act where approval is required for sales of property. The requirement in the Bill is one to notify the Minister. The Minister, if he believes the situation requires it, may disapprove of the sale or may express a point of view on it. However, the requirement of seeking automatic approval is not provided for in the Bill.
I am aware from the debate on 26 July that the provision in the Bill met with strong objections from a number of Members. I believe the provisions should remain in so far as sales of harbour property are concerned. The purpose of the provision is to avoid a situation where large scale sales of harbour property might arise or, indeed, where indirect privatisation of a port or part of a port might occur. The recent controversy over the sale by CIE of some property in Cork leads me to the view that the provision should be retained in so far as sales are concerned.
I emphasise that section 15 (1) (c) empowers the Minister by order to exempt a specified class or classes of sales from the two months prior notice requirement. The intention here is that transactions of a minor nature involving small areas of land or sales below a certain value will be exempted. The retention of the two months prior notification requirement in so far as leases are concerned is being considered further. It may be decided to exempt short term leases from this requirement and a definition of short term may need to be inserted in the section. I will be in a position to deal with that in more detail on Report Stage. I, therefore, propose that the general provision in relation to sales remains. We will look again at the intention in relation to exemptions of sales of a small size or short term leases between now and Report Stage. I hope to be able to address the concerns Deputy Smith and other Members raised during the debate.
Given that my amendment sought to deal specifically with short term leases, I accept the Minister's commitment. I would like the Minister — I believe he has it in mind and it may be covered by subsection (c) — to perhaps exclude short term leases in relation to the contract for a sale or to include a word to indicate that we are not talking about every sale despite the exemption classes.
What the Minister said goes a long way to satisfy concerns on this matter. The Murphy report made recommendations that legislation should allow operational commercial freedom and in that respect the harbour authority would be able to operate fairly unrestricted in a commercial capacity.
The Port and Docks Board has been concerned that this provision would interfere with its ability to do that. The distinction made between notification and approval is very much in the harbour authority's favour. If the Minister considered exempting the grant of a lease it would solve the problem. I am concerned about making any change in relation to a sale — there is too much scope for abuse to take place in that respect. The granting of leases is a normal, everyday commercial operation, however, the sale of property is a different matter and I caution against any diminution in the provisions for that. I support exemption in the granting of short term leases.
At our pevious meeting we expressed reservations on this issue, particularly with regard to leases and the operational difficulties for the ports if the legislation is implemented according to the original criteria. I compliment the Minister on having researched this and modified it accordingly. I agree with retaining the provision regarding sales. When one considers the furore that surrounded recent sales that protection mechanism will stand to the ports. We are reasonably pleased with what the Minister has done with this part of the Bill.
I move amendment No. 17:
In page 19, subsection (3), line 32, to delete "equal to" and substitute "not less than".
Section 15 (3) provides that, in general, a port company may only lease land at an amount equal to the open market rent obtainable for the land in question. The provision as framed means that a port company is prohibited from securing a rent in excess of the open market value. It has been put to me that there is no reason a port company should not seek to secure the best rent possible for any land it proposes to lease. I agree this is a valid point and I am therefore proposing to substitute the words "not less than" for "equal to".
A port company may lease land at below its open market value if a significant amount of business or trade is to be transacted at the land or the granting of the lease will have a positive impact on the level of trade or business to be transacted at the harbour. In addition, a port company may lease land at below its open market rental value provided that the Minister's consent is obtained. It is likely, for example, that the Minister would authorise a port company to lease land at below its open market rental value or at a nominal rent where the land was being leased for charitable purposes or for job creation or training purposes.
Amendment agreed to.
I move amendment No. 18:
In page 20, between lines 10 and 11, to insert the following subsection:
"(5) All leases held from or granted by a Port Company or a former Harbour Authority shall be exempt from the provisions of the Landlord Tenant Acts, 1980-1994.".
I would like the Minister's comments on this amendment.
I hoped to hear Deputy Smith's comments on the amendment because I am not clear on what it seeks to address.
The Landlord Tenant Acts, 1980-1994 fall to the remit of the Minister for Justice. Any amendment to those Acts would be a matter for that Minister. However, an amendment to the application of the Landlord Tenant Acts is not a matter for this legislation.
I realised there were complications with this amendment. I have no objection to proceeding along the lines suggested by the Minister. We are dealing with the freedom being requested by the new commercial companies to seek the expiry of unexpired leases where they require them for harbour development. Clearly we will have to pursue this at a different level.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 20, between lines 10 and 11, to insert the following subsection:
"(6) A lease made by a former Harbour Authority or a lease made under this section by a Company shall without prejudice to the inclusion therein of any other provisions provide—
(a) that if at any time the harbour company require the land or premises comprised in the lease for the improvement of their harbour, they shall, upon payment of such compensation as, in default of agreement, may be fixed by an arbitrator, be entitled to obtain possession thereof in like manner as if the term of the lease had expired,
(b) that if at any time the harbour company are satisfied that the lands or premises comprised in the lease are not being put to some bona fide use, they shall be entitled to obtain possession thereof in like manner as if the term of the lease had expired.".
At least some of the new commercial port companies believe they entered into arrangements and leases which because of their new commercial man-date, may cause problems for them. It is a difficult matter to solve as arbitration and settlement will be required. However, it will have to be addressed and these amendments might help.
We are trying to create a commercial ethos. Decisions taken under different regimes militated against harbour authorities developing in the way in which they are now mandated to develop. This amendment might help in that regard. It is a complicated area to resolve because different rights must be measured. I am anxious to hear the response of the Minister and his officials to the amendment.
It is somewhat ironic that we are debating this amendment so soon after the debate on the provisions which protect the property of port companies and ensure that it is not either sold or leased out of the control of the port companies in a way which would disadvantage those companies in pursuing their business.
Deputy Smith is proposing to include section 157 (2) of the 1946 Harbours Act in the new Bill. As a result of the protection we have included in this section that provision need not be enshrined in the current legislation. The Bill does not restrict a port company from inserting such provisions in individual leases if it feels it is of paramount importance. I have no objection either to the companies including a provision of that nature in leases or to including what is really section 157 (2) of the 1946 Act as and additional protection to port companies. If the companies have entered into leases about which they now have second thoughts or if new situations have arisen which mean they would require the property back, I have no objection in principle to including that provision. However, port companies should be aware that where this section is being exercised the question of compensation and so forth arises.
The Minister has been generous in his response. The inclusion of this provision will be of benefit. Notwithstanding the debate we had on the earlier amendment, if all of us looked back on all the decisions we have made over the last 40 or more years, we would point to ones which we would change in the light of new information. That is not a condemnation of anybody. However, the freedom to be able to exercise this power in circumstances where the ports deem fit will only strengthen this legislation.
Amendment, by leave, withdrawn.
Section 15, as amended, agreed to.
Section 16 agreed to.