In the absence of Deputy Beirne, is anybody moving amendment No. 1?
SECTION 2.
The Chairman ruled that amendments Nos. 1 and 2 would be taken together:—
1. In lines 22 and 23 to delete " if such road authority is satisfied that the road is of general public utility".—John Beirne.
2. In line 23 before " and " to insert " (whereof the road authority shall be sole judge) ".—Martin J. Corry.
I move amendment No. 1. I take it that the intention of the amendment is to make the local authority the deciding authority as to whether a road is regarded as of public utility or not. I think that is desirable because otherwise it might be a matter for the courts, I suppose. I think these amendments of Deputies Beirne and Corry establish the fact that it is the local authorities' decision and that that decision is final.
Mr. O'Sullivan
I cannot see any necessity for that. The whole Bill is designed to give the local authority power to declare that a road is of public utility.
The words which it is proposed to delete, say, " If such road authority is satisfied that the road is of general public utility ". That, of course, leaves the particular council, as the section stands, completely free to determine such question for themselves. There is no ambiguity or doubt whatever in the section. The section says:—
" Notwithstanding anything to the contrary contained in Section 25 of the Local Government Act, 1925 (No. 5 of 1925) or in any other enactment a road authority is hereby empowered to declare any road which is not a public road to be a public road, if such road authority is satisfied that the road is of general public utility . . ."
Therefore, the local authority is completely and absolutely free to determine this matter by itself.
The amendments are superfluous.
In fact, it would be a weakening of the section not to give the complete power as it is in the section to the local body to decide the question for themselves.
Mr. O'Sullivan
I move the rejection of the amendments. They are unnecessary.
It seemed, on the face of it, to be strengthening the authority of the local authority.
There is very little in it, but I think it is better as it stands.
We had better withdraw it.
I do not think there is any need for it.
Amendment, by leave, withdrawn.
Mr. Brennan
I move amendment No. 3 in the name of Deputy Corry :—
To add to the section a new subsection as follows :—
(2) A declaration under sub-section (1) of this section shall be a reserved function within the meaning of the County Management Act, 1940.
I think that under Section 25 of the Local Government Act, 1925, this function is a managerial function. In the course of our discussions on the Second Reading of the Bill, I think we talked a good deal about the councils and I do not think anybody talked more about the councils than I did myself. It seems to me that we would have to accept the amendment if we were to give effect to the general idea that I had at the back of my mind. Not only would we have to give effect to the amendment as far as this Bill relates but under Section 25 of the Local Government Act, 1925 we would have to take the manager out of the whole section and make it a reserved function to be decided by the county council. I would then suggest a new section :
" The making of a declaration under Section 2 of this Act or Section 25 of the Local Government Act, 1925 (No. 5 of 1925) shall be a reserved function within the meaning of the County Managers' Acts, 1940/42.
It covers not only what is here but Section 25 of the Local Government Act, 1925. But perhaps we can have that on the Report Stage.
I would be very much inclined to agree with that. With regard to the making of the declaration it might be a very popular thing, probably in all counties, to extend the road mileage but it would also have the effect of adding very much to the cost and I think the authority that has to strike the rate should be the authority to decide what liabilities it was going to undertake. I think this should be a matter for the county council and not for the manager.
Under Section 25 of the 1925 Act it was a managerial function to determine or declare the taking over of a connecting road that answered the description prescribed in the section. All I am suggesting now is that it would be absurd to have, in Section 25 as amended, that part of the new section a managerial function and the other part a reserved function. You cannot divide the thing. The new section will have to make it either a reserved or a managerial function. You could not very well have half of it managerial and the other half a reserved function.
Well, what is the decision on Deputy Corry's amendment No. 3 ?
I take it we are accepting it.
Mr. O'Sullivan
Yes, to be amended by the Minister.
Amendment No. 3 is withdrawn then in favour of an amendment which the Minister will put forward for Report.
Mr. Brennan
It is accepting the principle of the amendment.
Even as it stands Deputy Corry's amendment would not do.
Amendment, by leave, withdrawn.
Amendment No. 4. Deputy Sweetman asked me to excuse him because he is engaged in the House. I move it for discussion :—
To add to the section a new subsection as follows :—
(2) A declaration by a road authority under this section that a road is of general public utility shall not be open to challenge in any court of law or elsewhere.
Mr. O'Sullivan
That means there will be no appeal whatever from the decision of the local authority.
Mr. Brennan
Is the decision of a local authority subject to appeal in a court of law ?
I cannot see the need for the amendment. I think the section is quite clear:—
" Notwithstanding anything to the contrary contained in Section 25 of the Local Government Act, 1925 (No. 5 of 1925) or in any other enactment a road authority is hereby empowered to declare any road which is not a public road to be a public road, if such road authority is satisfied that the road is of general public utility, and every road so declared to be a public road shall thereupon for all purposes be a public road."
This is very similar to Deputy Corry's amendment.
It is just a matter of repetition, trying to make something clear that is already as clear as it can be made.
There would be more likelihood of an appeal to the Courts if a council refused to declare a road of general public utility.
Amendment, by leave, withdrawn.
I move amendment No. 5 in the name of Deputy Sweetman for discussion :—
To add to the section a new subsection as follows :—
(2) The term general public utility specified in the preceding subsection shall be interpreted as including (inter alia) any road which at the date of a declaration under the preceding sub-section is :—
(a) the sole means of access to six or more dwelling-houses, and
(b) certified by the county engineer to be in a condition suitable for the traffic likely to be borne thereon.
I would like to point out there that the idea underlying Section (b) is that you have those accommodation and link roads which may be in bad condition and which serve, say, three, four, five or six houses. Grants can be made available for the repair of those roads under the rural improvement scheme and it should be the duty of people to avail of that before the county council can take over those roads. In fact, although I am not a member of a county council myself, I have often heard councillors saying, when it is put up to them to take over a road, that the very least that should be done is to put the road in repair first. We all understand that when an accommodation road is repaired it is allowed to fall into disrepair again. It would be a very good thing for the council to take over a road when it is in good repair, for it would not cost very much then to keep it in repair—traffic is not too heavy on them.
Mr. Brennan
The amendment, if accepted, would be likely to act as a brake on the whole spirit of the Act. Most of the culs-de-sac which could be submitted now for taking over as county roads would not be in a very decent state of repair and the result would be that the whole lot would be held up for a long time.
I think Section 2 of the Bill covers Deputy Sweetman's point. It is unfair that councils should be tied down to six as a desirable figure.
A number of people did not think it wise to accept the principle of this Bill at all. But there is no use in accepting the principle and then surrounding it with a number of conditions that will have the very opposite effect. It is suggested here that six houses should be the figure fixed. But I think they can make it ten or six or four if they want to. They are a free agent and that is the way the thing should be left. The certificates by the county enginner would be a protection, of course. I was not clear at first what Deputy Sweetman had in mind but I did suspect that it was the point made by the Chairman. But while this would act as a safeguard to the council it certainly could have a very limiting effect, and while that in some cases might be desirable the same sort of problem would arise very shortly again in certain places. In my view, it would be bad to adopt either of these two, (a) or (b).
As regards (b) again, it is left optional to the council. Around Cork City suburbs I know there is a provision that in built-up areas roads must be put in a certain condition before the council will take them over. If freedom is left to the local authorities themselves perhaps it would be better. If this is put in too strong a form it may have a bad reaction later.
Mr. O'Sullivan
In my area there are a big number of cul-de-sac roads. Because of the geographical position they must be culs-de-sac, because they lead either to the mountains or to the sea. This seems to prevent the county council from declaring most of those roads a public road. The four or five farmers served by each of those roads would have to put it in repair before the council could do anything, and then it would have to be certified by the engineer. That would be utterly impossible, and I would have to move the rejection of the amendment.
I withdraw the amendment, on behalf of Deputy Sweetman.
Amendment, by leave, withdrawn.
Section 2 agreed to.