We completed section 10 and are resuming on section 11. Amendments Nos. 26 and 27 are related and may be taken together by agreement.
SECTION 11.
I move amendment No. 26:
In page 12, subsection (1) (b), between lines 16 and 17, to insert the following:
"(iii) have regard to the conditions of any planning permission relating to the development of the road, and in particular the need for the road authority to take in charge the road concerned, and if necessary to complete any outstanding works on the road from moneys provided in the developer's bond,".
This amendment deals with the conditions that must be taken into account by a road authority when they propose to declare a road a public road. One of the most frequent problems that arises in new housing estates stems from the failure of developers to complete works, including roadworks. Invariably this causes delays in the road authority taking charge of the road concerned and in declaring the road to be a public road. Usually, the planning permission relating to the development lays down the period within which the road must be completed and the purpose of this amendment is to strengthen the hand of the road authority in dealing with developers who would be required to complete the roadworks so that the road could be taken in charge and declared to be a public road. If necessary, the road authority could complete the outstanding works on the road from the moneys provided in the developer's bond. As Members are aware, ten years after a housing estate has been completed the final surface of the road may not have been completed.
I think that is dependent on the local authority. In my own county because we had unfinished roads — in some case roads remained unfinished after ten years — we introduced a bonding system and now a developer has to be bonded. We insisted that before a development could proceed, a surface dressing or tarmacadam had to be laid. We found this to be very effective. I believe that the bonding system is a good one as it ensured that money will be available to finish the road. In addition, we always tie the contractors to a specific date. As I said, before they undertake any building work on the site, we make sure that a substantial road is built.
May I take it that amendments Nos. 26 and 27 are being taken together?
Correct.
The reason I wish to delete section 11 (3) is that invariably the road authority would be the local authority and we are here talking about minor roads. These matters should be determined at local level, whether by bonding or as Deputy Gilmore has suggested.
Section 11 (3) states:
The Minister may prescribe criteria for the declaration of roads to be public roads . . . . shall comply with any such prescribed criteria. . . .
We do not know what are the criteria — and we have no definition — so if the Minister decides he has power under section 11 (3), he could decide future criteria. Instead of reference to a road authority perhaps it would specify that the Minister is satisifed. I do not see any need for subsection (3). The different points made on what makes a public right of way into a public road should be determined at local level, bearing in mind the local financial situation and other relevant factors.
Both amendments relate to the criteria for the declaration of public roads. Deputy Gilmore argues for extra statutory criteria while Deputy Yates is opposed to ministerial power to specify additional criteria. I understand the intent behind Deputy Gilmore's amendment. Its primary purpose is already covered by the requirement in section 11 (1) (b) (ii) — that the road authority consider the financial implications for themselves of the proposed declaration. Clearly if a developer was obliged by a planning decision to provide a road and had not completed it, there would be certain implications for the local authority in taking it in charge in an incomplete state. In addition the Minister has power under subsection (3) to prescribe criteria for the declaration of public roads which could, if necessary, include reference to this issue.
I understand the argument and point Deputy Gilmore is making. He will appreciate that in recent times we are becoming less familiar with this type of problem overall, which has been dealt with in a number of ways. First, there were special moneys provided a few years ago for a number of estates where this was a problem. It is not the most desirable result but that had to be taken on board. Second, local authorities are now much more careful. Deputy McEllistrim outlined his experience of how local authorities approach the bonding system. Very often the requirement is that these works be given priority before others are completed. There was the Supreme Court decision which, in the case of companies liquidating after the completion of the construction stage of houses — using this as a way out of meeting commitments with regard to the type of work to which Deputy Gilmore has referred — decided that such companies would be personally liable, which has meant there has been an overall improvement in this area.
With regard to Deputy Yates' amendment, I believe that ministerial power to make regulations setting down criteria for the declaration of public roads is reasonable. The taking in charge of a public road imposes an ongoing financial obligation on a local authority and, through them, on the taxpayer. It is important that this power be exercised reasonably. While I have every expectation that local authorities will act reasonably and in good faith — and I have no immediate plans to prescribe any critiera — it is important that there be some reserve power to prevent possible abuse. The Committee will be interested to know that the Local Government Act, 1925 — the original statute governing the declaration of public roads — laid down a precise criterion that a road had to be at least 11 feet wide before it could be declared a public road.
There is no real answer to this problem. I do not want to be involved. I am endeavouring not to involve myself in areas with which the competence of local authorities and local expertise can deal more efficiently. I have to say — and I say this against myself — that in the past I have put pressure on local authorities to take over roads and maintain them as public roads but the machinery necessary to do the job could not gain access. There is an obligation on all of us, to help people living in isolated areas by improving the road to their homes. Perhaps it does call for better understanding between landowners and the relevant local authority before getting to the stage I sought to take it in the context of declaring public roads——
I may be accused again by Deputy Yates of wearing a hat I have had to give up for some time now——
That is a temporary problem.
So be it. I should have tabled an amendment to delete "may" and substitute "shall" before the word "criteria". It would have been better had the Minister not to make up his mind whether to bring forward criteria. The word "may" is weak. The Minister should drop "criteria". I approach this more from my experience of local authority membership than any other experience. One of the weaknesses is that local authorities do not have such clearly specified criteria in respect of these types of roads in estates and so on. If they were in existence then the planning authority, in giving planning permission, could say there are the criteria for the roads in an estate and they would have to be built accordingly. Many of us now make representations to have estates taken over by the local authorities because roads in estates have not been completed, when we are told the lighting has not been finished and that gullies have not been properly constructed. However, the local authority will not take such estates in charge because they would then become responsible for them. If such criteria were clearly specified, local authorities could act before a developer disappeared leaving a mess behind. While that happened more in the past, things have improved in this area, but it was necessary, and may still be necessary, that it be a requirement that the Minister lay down criteria and local authorities ensure that they are complied with. I do not see anything wrong with that. I would be in favour of that because it would make life easier for those of us who make these representations at county council meetings and so on.
I have indicated already that I do not want to go down that road. The provision is there in extreme cases, if there were any abuses, for the Minister to prescribe criteria. Perhaps I have more confidence in local authorities than Deputy Kavanagh in trying to deal with these matters at local level as far as possible. As far as best practices and any information and help we can give in relation to such matters is concerned, I would be glad to make departmental experience more widely available to local authorities, but becoming involved in day to day setting down of criteria in all circumstances, no matter how variable, is not something I want to do.
With the exception of the Minister's comments, the focus of the debate so far has been on unfinished estates. The biggest problem in my constituency in relation to declaring roads public is that in virtually every half parish, there is a lane or roadway that was improved under the local improvements scheme, perhaps ten or 20 years ago, now needing to be resurfaced. When residents go to the local authority and say: This road was once tarred, they cannot reply that it is not a public road but a private lane they improved or surfaced but since they did not take it in charge they have no responsibility to maintain it on an ongoing basis. We have a number of these cases in my constituency. It is up to the relevant local authority to declare these lanes public roads — as opposed to public rights-of-way — or as the officials describe it, to take them in charge. In such cases I am very anxious that local residents be facilitated.
While I agree totally with the points that have been made about the need to obtain a bond and to ensure that there are no cowboy developers, this is a separate problem. I would not like to see the Minister to impose an embargo in relation to new roads. I am happy to withdraw the amendment on the understanding that the Minister has no such plans and that this will be used only to ensure proper standards rather than as a financial mechanism to control road authorities, namely, local authorities, in relation to rural lanes.
I would like to return to my own amendment. I accept the Minister's statement that the problem of unfinished housing estates is by no means as big now as it was five to ten years ago but it is still a problem. It seems that it arises from a number of circumstances. For example, in some cases the bond which was lodged, say, ten years ago is no longer sufficient to enable the local authority to carry out the works to bring the road up to standard.
Given the financial constraints on road authorities, road engineers have shown no enthusiasm to add to the list of public roads they have to maintain within the limited resources available to them. I am thinking here, of a small housing estate in my constituency consisting of six houses. A bond of £5,000 was issued but £12,000 will be required to complete the work on the road. Because the developer has disappeared from the jurisdiction, the planning department of the local authority are not in a position to pursue him, while the residents are stuck with an unfinished road which cannot be taken in charge. It is a catch 22 situation.
While I accept this problem can be approached in many ways and do not expect this legislation to be a panacea, it seems to be a mistake to omit a reference in the criteria that road authorities must take into account the conditions that were laid down by the planning authority in the first place. Where a road authority propose to declare a road to be a public road they must satisfy themselves that the road is of general public utility — I have no problem with that — and consider the financial implications for the authority of the proposed declaration. If they are not in a financial position to maintain the road they may decide not to declare it to be a public road. However, I ask the Minister to think about this matter again before Report Stage with a view to providing that the conditions which were laid down by the planning authority must be taken into account by the road authority when they come to decide whether they should declare a road to be a public road.
There are two issues involved here, and I take the point made by Deputy Gilmore and others, that it was the widespread practice for the contractor to walk away leaving estates half-finished and the roadway in a mess. In relation to new developments, the concept of a bond is an excellent one as the builder would have to provide a sufficient sum of money to complete the roadway. Houses must be sold at an attractive price and if corners are cut then the road will be left unfinished. Given our experience in the past we cannot allow this to continue. If the local authority were to be seen completing a roadway into an estate of ten or 12 houses, which should have been completed by a private contractor, especially if the roadways leading to the houses of one or two farmers had been neglected and were in a deplorable condition, there would be a riot; the elected members could not agree to this. We must ensure in future that building contractors obtain a bond involving a substantial sum so that we will not be codded again.
To say the least, the road surfaces of many estates, are very poor and the local authorities cannot afford to get involved and declare the roads to be public roads. If the Minister decides to declare the roads to be public roads, will he supply the cash to the local authorities to complete the work? To return to the point made by Deputy Yates, we are not taking over laneways and declaring them to be public roads.
It has been done.
It has not. Let us be reasonable about this. If somebody above us decides to declare a road to be a public road, where will the county council get the finance to maintain it? On section 12 we will deal with a different kettle of fish, the reverse. As I said, we should ensure in this legislation that building contractors complete private roadways to housing estates, when their bond will be released. That is an excellent idea.
I would like to take up the points raised by Deputy Yates and Deputy Boylan about roads completed under local improvement schemes. While each local authority deal with the matter in a different way — I have 25 years experience as a county councillor — in my county up to about ten years ago we declared all roads with three or more houses to be public roads. We have to maintain 2,500 miles of county road and when the rates on land and houses etc., were abolished we decided that we should no longer declare such roads to be public roads. We have stuck to that decision rigidly, as we do not have the money to maintain them.
In relation to unfinished roadways in housing estates we attach conditions when planning permission is granted and operate a bonding system. We do not take these roads in charge because we have too many county roads to maintain. Therefore we leave them as they are. If a good job is done and if the conditions attached by the local authorities are adequate the road should last for about 20 years.
The discussion has centred on the provision of roadways in housing estates, and many sensible suggestions have been made. It is important that we ensure that a road is left in good condition when the residents occupy the houses. I am concerned chiefly with the rural scene and I can sympathise with the views expressed by Deputy Yates. We too, in County Mayo, have requests that roads used by the public, which are not public roads in the legal sense, be taken over by the council. If a road is taken over we ensure that it is sponsored by a certain number of councillors and is put into a fit condition; its width and so on is determined by the engineers. In addition, we ask the people who own the land along the roadway to sign a form if they are willing to have this road taken over, and if any of them refuse to sign, then the road is not taken over. Was the provision which required signatures legal or is it being dispensed with in this new legislation?
I am between the devil and the deep blue sea because I am pressurised, on the one hand, to come away completely from having any say on this matter and, on the other hand, to prescribe further criteria as to how I could be involved. To take a number of points together — the question raised by Deputy Morley and touched on by Deputies Boylan, Yates and McEllistrim — there are no changes as far as the Minister for the Environment is involved in determining where a local authority may or may not decide which roadways they are going to declare public. I take the point that in recent years local authorities have been, in many cases, very reluctant to add to the mileage of the county roads network that has to be improved. I am very surprised to hear Deputy Yates saying that local authorities took in charge or declared public some time ago roads for whose maintenance or improvement the local authority would now say that they either did not or would not carry responsibility.
I did not quite say that. I said that they were surfaced under the local improvement scheme, but when it was a bad surface they said it was not their responsibility to maintain it.
I did not understand it to be a local improvement scheme. Having regard to the position in other countries and in spite of having a less dense population and a greater mileage surface per head of population than any of our European competitors, we can put our county roads ahead of those of a number of our partners who spend the money, depending on the volume of traffic, on the major arteries and reduce expenditure on the county road system to very negligible levels. We have never agreed with that and I believe we have had a good, balanced approach to this matter. Today's item is not about how local authorities will deal with this question but rather one of keeping a balance.
I believe Deputy Gilmore will have to accept that it is essential for local authorities to have regard to the financial implications of the taking over of roads by them. I have no wish to get involved in setting down criteria, but if it helps the purposes of today's debate, I will, following the enactment of the Bill, either prescribe guidelines, on the basis of our experience up to now, which would assist local authorities or, indeed, have a further look at all of this between now and Report Stage. I would remind Deputies that it is not possible to accommodate the two opposing features which have emerged here today. I will examine the question to see whether we can help local authorities by way of preparing guidelines in the light of experience so far or, alternatively — without giving a commitment — by reconsidering it between now and Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 27 not moved.
I move amendment No. 28:
In page 12, between lines 42 and 43, to insert the following subsection:
"(7) Any road constructed or otherwise provided by a road authority after the commencement of this section shall, unless otherwise decided by such road authority, be a public road and it shall not be necessary for the authority to make an order under subsection (1) in relation to any such road.".
It is expected that when a road authority build a road, it will be for the use of the public. This amendment will mean that the road built by the road authority automatically becomes a public road unless the road authority decide otherwise. The road authority will not, in those cases, have to go through the formal declaration process in this section. I think most Deputies will accept the necessity for an amendment under such a heading to reduce the necessity for any formal declaration of roads that are developed in that way.
I have no objection to this amendment, but where would the first three words in the new subsection —"Any road constructed"—leave the case of the local improvement scheme roads, because they would seem to come under that definition? If it is a public road legally, does that mean there is a legal obligation from then on? When my local authority get an allocation from the Department we improve a number of lanes but when it comes to the routine surfacing and maintenance of roads, they are not considered. In many cases the council will not even provide filling for potholes, saying it was done on a once-off basis and that they are not taking any more roads in charge. If in 1993 some area got a lane surfaced, the amendment seems to suggest that "any road constructed" shall be a public road. I have no objection to it, but is that what it means?
If the Deputy reads further "any road constructed or otherwise provided by a road authority after the commencement of this section shall, unless otherwise decided by such road authority . . . .".
Would that cover it?
Yes.
Amendment agreed to.
Section 11, as amended, agreed to.