I move amendment No. 1:—
In sub-section (1), page 4, in lines 3 and 16, to insert after the word "Minister" the words "or the Irish Land Commission"
Forestry Bill, 1945—Committee Stage.
Sections 1 and 2 put and agreed to.
SECTION 3.
I presume that it must be the Land Commission, as it would not be legal otherwise?
The proposal is that it should be the Minister or the Irish Land Commission.
Amendment put and agreed to.
I move amendment No. 2, standing in my name and that of Deputy Hughes:—
In paragraph (b), line 20, to delete the words "Iris Oifigiúil” and substitute therefor the following words:
"any newspaper or newspapers circulating in the area in which the person ordinarily resides".
I put down this amendment because I thought that it was futile to put a notice merely in Iris Oifigiúil, since most of the people of the country would never see it. For that reason, I think it would be more practicable to accept this amendment.
This section of the Bill deals with a matter of serving a document.
Serving a notice.
Yes. There are two ways of serving it: one by personal service and the other by post. There are certain cases where persons might not be available and the Land Commission might not be able to reach them. Apart from that, however, the notice must be inserted in Iris Oifigiúil, and I think that that is also the best way of giving notice, since Iris Oifigiúil will be in the hands of solicitors, land agents, and so on. Accordingly, I think that that is the best way of conveying the information to a person in a particular locality— at least, it can be conveyed to him in that way through the land agent or his solicitor, in case the person concerned might not be there at the moment.
But there are not any land agents now.
I would not be so sure of that; there are some agents.
The agents may not be living in the district but solicitors acting for the estates may be there. There is a good deal of point in Deputy McMenamin's amendment, that notice should be published, perhaps, in a local paper, in addition to Iris Oifigiúil. Assuming that an agent is not living in this country, there is some contact between the agent and the Forestry Department through solicitors or some other representative. A document of this kind should be brought to the notice of the agent or of the landlord's representative. The amendment is a reasonable one, and I suggest to the Minister that he should accept it, so that there would be publication locally.
That is not the amendment. It seeks to delete the words "Iris Oifigiúil”.
Yes. I imagine that it would be much more effective to publish this document in a local paper rather than in Iris Oifigiúil. However, the Minister must comply with the official regulations, which have been long established, but I suggest that, in addition to Iris Oifigiúil, there should be publication in perhaps one or two local papers.
I really do not see the use of doing that. I think Iris Oifigiúil fills the bill, as far as giving notice in particular circumstances goes.
Many people do not know that such a publication is in existence.
As the amendment stands, it would do away with publication of the notice in Iris Oifigiúil. If it were so framed that there would be publication in Iris Oifigiúil and in a local paper, I would not have any objection.
It can be brought up on Report Stage.
Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
SECTION 4.
Question proposed: "That Section 4 stand part of the Bill."
Can the Minister say how Section 10 of the Petty Sessions (Ireland) Act, 1851, affects prosecutions for forestry offences?
With regard to the limit of six months for proceedings.
Why is it being made 12 months instead of six months?
The 1928 Act provided that proceedings for offences there under should be instituted only with the consent of the Minister personally. Sub-section (1) of this section provides that proceedings under the Bill may be instituted with the consent of the Minister personally or of any officer of the Department, not below the rank of an assistant secretary, nominated by the Minister for the purpose. The object of the change is to obviate the necessity of specific approval by the Minister of the institution of proceedings for trivial offences. Sub-section (3) provides that the normal statutory limit of six months for the institution of summary proceedings for offences of the type which arise under this Bill shall be extended to 12 months for the purposes of the Bill. In the administration of the 1928 Act, the application of the six-months' limit, settled by Section 10 of the Petty Sessions (Ireland) Act, 1851, had been a source of difficulty, as offences in relation to the illegal felling of timber did not come to the notice of the Department for some time after their commission, and it has frequently happened that time did not permit of the institution of proceedings in such cases.
The time is being extended from six to 12 months. There is no objection to that.
I would not object to the Minister taking that power. Under the Act of 1851 there may be cases pending longer than 12 months before the Department would get notice of them. I think the section could be made much wider.
Question put and agreed to.
Sections 5 to 9, inclusive, agreed to.
SECTION 10.
Question proposed: "That Section 10 stand part of the Bill."
When speaking on the Second Stage the Minister said that he was quite satisfied that his present advisers on forestry knew all about it, as they were experts. For that reason he did not think it necessary to get expert advice from outside the country. It was then suggested by two or three Deputies that it might be advisable to bring in experts from outside who specialised in forestry work to assist members of the consultative committee. I should like to know if the Minister gave any consideration to that suggestion, so that there might be a more go-ahead and thoroughgoing forestry policy here.
I think we have the best advice that it is possible to have in the Department. We already had the advice of an outside expert, and that advice, and the work he did, are practically the advice that we now get from our forestry expert. The work they are doing is exactly the work he did, and that he proposed to do. There may, possibly, be changes as the years go on, but, at present, there is no need for any outside advice, because our experts are competent people, and are fully abreast of research work in other parts of the world.
The war has created a new problem, inasmuch as a great deal of timber has been cut down, and there is a new problem of restocking to make up for the wastage of war. I agree with the Minister that those who are advising him in the Forestry Department know as much about the subject as any experts from outside. I believe they are very competent men, but, nevertheless, in view of the situation which now exists in this country, it might be advisable to bring in some outside expert who has probably more experience than the Minister's advisers in making good the depredations of war and making up for the wastage created by the cutting down of so much timber during the emergency. I imagine that is a new problem and, for that reason, probably the Minister would require views other than those of the men whose advice he is so accustomed to getting, weekly or monthly, or whenever he seeks it. I suggest there is a problem in which the knowledge and experience of outside experts could be utilised with considerable advantage to the country.
All such knowledge, up to date, is available in the various books and publications which are at the disposal of our experts and, as a matter of fact, our experts have been writing some of these publications for the benefit of other people in other countries. I do not think there is anything to that, really.
Question put and agreed to.
SECTION 11.
I move amendment No. 3:—
In sub-section (1), line 12, before the word "enter" to insert the following words "with the consent of the owner, the tenant purchaser or purchaser or his agent".
Sub-section (1) is very wide and very drastic. It reads:—
"Any authorised officer may enter on and survey any land for the purpose of ascertaining whether it is suitable for afforestation or for the purpose of inspecting any timber thereon or for any other purpose in connection with the exercise of the powers of the Minister under this Act."
What are the powers that the Minister requires in respect of land other than power to inspect as to its suitability for afforestation? I should like to hear from the Minister why he wants to have land inspected as to the timber that may be on it. I take it the timber is the property of the man who owns the land. I do not see why the inspector should be allowed to go in on a man's land whenever he likes. This sub-section should be reconstructed and modified. Really what is happening in this country is that we are being inspected to death. Every Department of State may have at one place three, four or five inspectors on the same morning. The House should de-limit these powers to some extent. If the Minister gets power to inspect land to see whether or not it is suitable for afforestation, that is all he requires. With regard to the cutting down of timber, that is already provided for in other parts of this Bill and in the existing law. It cannot be cut down without a licence from the Minister. I do not see what power the Minister requires other than power to inspect as to suitability for planting. This sub-section is far too wide. It should be de-limited and, if necessary, there should be a provision that they could not enter on the land without the consent of the owner. Sub-section (2) says that the authorised officer will produce his authority. Of course he will. That is quite a simple thing. You could give him authority to raid a man's house. Give him a letter of authority and all he has to do is to produce it. These authorities with regard to interfering with people's rights and people's property should be restricted as far as possible. We should have some respect for the old maxim of the common law that a man's home was his castle, and so was his land, and that any man who put his foot on it was a trespasser without legal right. The Minister wants legal rights to the extent of inspecting as to whether land is suitable for afforestation or not but I think there the Minister's requirements end for all practicable purposes. We should hold the rein a bit tighter on this business of letting loose inspectors with absolute powers to do this, that and the other thing, to enter when and where and at any time they like. I think the sub-section is very wide and drastic.
I am as little inclined as the Deputy is to infringe on any man's right or on his property, but this power already exists in the 1919 Act. This Bill, as I pointed out to the Deputies before, is a consolidating Act, which takes up the 1919 Act and the 1928 Act and gets them into one statute. If this amendment were accepted it would be just as well to have the clause out of the Bill altogether. For instance, you want these powers in various ways. During the emergency it was found very necessary to make a general survey of all the woodlands of the country for the purpose of ascertaining what was the amount of commercial timber and timber suitable for firewood and other purposes in the country. That meant an inspection both of private woodlands and of State woodlands. It was not at all unreasonable, as a matter of fact, it was quite necessary, and such necessity might arise again. We are looking for nothing new. We already had the power in the 1919 Act. We merely want to continue the power for such purposes as might arise and as arose under the survey of the Irish woodlands during the emergency. There is no desire to infringe on the liberty or the property of the individual.
What does the Minister mean by asking for power for the purpose of inspecting "for any other purpose"—in line 15?
The Deputy is a lawyer.
That is the reason I want to know the meaning of these things and I should like to hear it now.
The Deputy knows that unforeseen circumstances might arise——
Yes.
——where it would be necessary that we should have the power. For instance, if it is necessary to have a right of way, which this Bill provides for——
That is a different matter.
——it may be necessary to survey the position of the woods for fear of danger to adjoining woods, and so on.
The amendment merely states that the authorised officer, with the consent of the owner, the tenant purchaser or purchaser or his agent may enter. I take it it is the usual thing for the forestry people to notify an owner of woodland or an owner of timber or an owner of land that an official of that Department will make an inspection there on a certain day at a certain hour.
That is ordinary courtesy.
Or some approximate time.
As ordinary procedure, there would be notification, of course.
The Forestry Department obtain the consent of the owner before their officials enter?
I think it would be very wrong to enter on the land without notifying the owner or occupier.
And so far as possible they obtain the consent of the owner of the land?
That is true.
Amendment, by leave, withdrawn.
Section 11 agreed to.
SECTION 12.
I move amendment No. 4:—
In page 8, line 33, to insert after the word "include" the words "a State annuity or".
This part would then read ". . .but does not include a State annuity or a charge subsisting under a settlement. . .". The expression "State annuity" means any land purchase annuity payable to the Land Commission or the commissioners.
It means nothing more than any land purchase annuity or any type of charge due to the Land Commission?
Yes.
It means nothing more than that?
No.
Does it include a charge due to any other Government Department?
No.
Is the expression "State annuity" only intended to cover a charge due to the Land Commission and the Land Commission only?
A State annuity or a charge to the Board of Works Commissioners—land annuity.
Amendment agreed to.
I move amendment No. 5:—
In page 8, between lines 37 and 38, to insert the following:— the word "owner", in relation to land, means—
(a) where the land is vested under the Land Purchase Acts in the Land Commission, but not in the tenant-purchaser or purchaser thereof, the person who is for the time being the tenant-purchaser or purchaser, as the case may be, of such land, and
(b) in any other case, the owner of the lowest estate in the land constituting an estate saleable under the Land Purchase Acts.
This is a drafting amendment. The object is to define the word "owner".
You can acquire any sort of land no matter how it is held?
The object of this amendment is to introduce a uniform definition of the word "owner" in relation to land for the purposes of Part III of the Bill. It will leave the position unchanged so far as Section 21 is concerned. It will enable the tenant-purchaser or purchaser of land which is vested under the Land Purchase Acts in the Land Commission but not in such tenant-purchaser or purchaser to object in the capacity of "owner" against the making by the lay commissioners or the appeal tribunal of an acquisition Order under Section 23 authorising the Minister to acquire the land compulsorily under Chapter III of Part III and also in regard to rights of way.
Amendment agreed to.
I move amendment No. 6:—
In page 8, to delete lines 38 and 39, and substitute the following:— the expression "State annuity" means any sum being—
(a) any land purchase annuity or any annual sum equivalent to a purchase annuity, within the meaning of the Land Purchase Acts, payable to the Land Commission, or
(b) any land purchase annuity payable to the commissioners, or
(c) any rent charge, annuity or yearly or half-yearly payment payable to the commissioners in respect of any local loan, within the meaning of the Local Loans Fund Act, 1935 (No. 16 of 1935);.
Amendment put and agreed to.
Section 12, as amended, put and agreed to.
Section 13 agreed to.
SECTION 14.
I move amendment No. 7:—
To insert before Section 14 the following new section:—
An appeal shall lie from a decision of the appeal tribunal under any Part of this Act to the High Court.
I move this amendment with a view not only to making the law just but giving it the appearance of being just. If the appeal is to the appeal tribunal that means that the Department will be a party to the matter and also the judge of the issue. It is hard to get people to believe that they are getting justice even when they get justice. The administration of the law must have the appearance of being just as well as being just.
The acquisition of a considerable portion of land might involve a very considerable sum of money in some of these cases, because I take it the Department are going in rather extensively for afforestation and propose to take considerable tracts of land in some places. Perhaps that land may be reasonably good. Perhaps it is land that, with hard work and industrious use of it, would make reasonable arable land. The question of value would therefore arise and a considerable amount of money might be involved. In that case, if there were a dispute between the Department and the owner of the land it would be wise that an opportunity should be given to the owner to appeal to the High Court. He could take advantage of that or not take advantage of it as he liked, but he could not say afterwards that the Minister had held both ends of the stick; that he was tied down and that justice was not done. A man from whom land was taken might feel that it was arbitrarily taken and that he had not got justice owing to the fact that the Minister was one of the parties to the matter at issue and that officials of the Department were adjudicating on the matter.
Under the Land Purchase Acts there is no appeal whatever from a decision of the appeal tribunal on questions of fact. On points of law, where the judicial commissioner is supreme over the lay commissioners, there is an appeal to the Supreme Court, not to the High Court. Deputy McMenamin made a statement which I think it would be wise to answer, that is in regard to prejudged cases coming before the lay commissioners. The lay commissioners acting on the appeal tribunal have no pre-knowledge of any case which comes before them. The lay commissioners on the appeal tribunal have no knowledge of any case that is appealable. They come to the case when they are on the appeal tribunal with the same lack of knowledge of the parties or anything else as a judge in the law courts. That being so, if Deputies will realise it and understand it and make it clear to the public, there can be no idea that the case is being prejudged by people who have full knowledge of both sides of it before they hear it in court. There is no appeal to the High Court and it would seem to me to be very peculiar that a decision by a judge of the High Court should be appealed again to his own court. It would not make sense.
I would rather that the Minister would not mention the things that took place under the Land Acts. I have recited in this House cases that occurred ten or 12 years ago. I do not want to refer to them again. They are too disgusting to think about them. One could not imagine that in any country such an injustice could be perpetrated under the law as occurred in connection with the fixing of the price of land under the Land Acts in this country. The thing was most appalling. If it occurred under the old landlord system, I suppose there would be a regular war. I would rather that these things should not be referred to. We know the atrocious things that happened and the robbery which took place in connection with the fixing of the price of land under the Land Acts. Poor people were treated in a monstrous way. I would not like any of these things to occur again. It may have been thought when the Land Acts were going through that these things would not occur, but we know now that they did, in fact, occur.
The House should take precautions to ensure that a thing like that will not be repeated in this Department, which is a branch of the same Department. The Minister talks about the commissioners approaching those cases with impartial minds. I know that. I know that they are able men and men of the highest integrity. What I said was that the law should not only be just but should give the appearance of justice. I know those men well. They are men to whom I would entrust my own case but I am not the poor man down the country whose land is being taken. He sees things in a different light. His geese are all swans. This particular piece of land is the apple of his eye, though it may be of very poor quality. For hundreds of years, the place has been in possession of his ancestors who toiled and sweated on it. If that man's land is taken, he should be awarded such a price as will convince him that justice has been done.
Is there not an appeal all the time against those decisions? Is there not an appeal tribunal before whom counsel appears? If this appalling injustice was being done all these years, it is amazing that the lawyers have not been more vocal about it. I am glad that Deputy McMenamin paid tribute to the commissioners and to members of the appeal tribunal. I think that they are men of the highest integrity but every man who loses a case will find fault, as Deputy McMenamin did here.
I shall give the Minister a case if he wants it.
Every man who loses a case thinks there is an appearance of injustice. The man who wins thinks that justice has been done.
We had the case of a farm in Westmeath. The estate duty authorities valued the farm at £7,000. Estate duty on that amount was collected, the owner having died and left a widow and one child. The widow endeavoured to work the farm for some years. Ultimately, she was driven to auction it. At the auction £3,500 was offered for it and she refused to accept it. The Land Commission acquired the land and gave her a £5 note. Does the Minister know nothing about that case? Did he ever hear about it, or does he think that such a thing should happen in the Department of which he is now the head?
Is it not true that hard cases of that kind occur under all conditions? Hard cases do not make good law.
I take it that the procedure relating to the acquisition of land for Land Commission purposes will apply also to the acquisition of land for forestry purposes. There is no appeal to the appeal tribunal on questions of fact. If the appeal tribunal should decide that land is to be acquired, then it will be acquired.
There is no appeal on questions of fact.
On questions of law and questions of price, there is an appeal to the High Court?
Is there not an appeal to the Supreme Court?
I am speaking of appeals from the appeal tribunal.
There is an appeal only on questions of law in that case.
There is no appeal from the appeal tribunal on the question of price?
No.
Amendment put and negatived.
On the section, the Minister is taking power not merely to acquire land but to acquire timber. While the appeal tribunal and the Land Commission staff may be very good judges of land, I do not think that even the Minister would claim that they were expert judges of the value of timber.
The Minister would so claim.
I am surprised at the Minister. There are very few men who would regard themselves as experts respecting the value of timber. I doubt very much if even those men who are engaged in the trade would claim that they were experts in this respect. I am not aware that the Land Commission staff get any special training which would fit them to value timber in the modern way. They will have to fix not alone the price of land but the price of timber, if timber is purchased instead of land. In these circumstances, there should be some discrimination between the present functions of the Land Commission and the appeal tribunal and their functions in relation to the acquisition of timber under this measure. Some provision should be made for the individual who may feel that he has been unjustly treated in regard to the value placed on timber acquired by the Forestry Department. The value of timber is a matter which is really outside the scope of the knowledge of the appeal tribunal. I admit that they are specialists regarding the acquisition and value of land but I do not think that the Minister would have the hardihood to stand up and say they were expert also in their knowledge of the value of timber. For that reason, I say there is a difference between the functions of the lay commissioners in relation to the acquisition of land and the functions of the lay commissioners in relation to the acquisition and valuing of timber acquired under this Bill.
I think that there is some point in the case made by Deputy McMenamin that, where timber is purchased, the person concerned should have a right of appeal to some other tribunal than the appeal tribunal for the purpose of ascertaining whether the price placed on the timber represents its real value or not. I do think that the Minister should, in fairness to these people, consider the amendment moved by Deputy McMenamin and see if something cannot be done to ensure that fair play will be meted out to those people from whom timber is acquired. I am satisfied that, as the Bill stands, they have a legitimate grievance. I am not satisfied, and I do not think that any member of the House is satisfied, that the appeal tribunal is as expert in its knowledge of the value of timber as it is in its knowledge of the value of land.
I claim to be an expert on the value of timber. I grew up with timber——
We have more experts than I thought.
And I should not care to pit my knowledge of timber against that of experts in the Forestry Department. I do not think that the Deputy need be unduly worried about this section, because I know of no case, so far, in which the Forestry Department has acquired forests or timber in any quantity on land. The type of land we are purchasing is plantable, mountain land, which has no timber at all. The difficulty the Deputy foresees has never arisen and is not likely to arise. The buyer and seller of timber know its exact value. People used to timber know its exact value. The question does not arise at the moment, because the price of timber is fixed. Ordinarily, it should never arise.
That is the point I was going to put to the Minister, that wherever the Forestry Department propose to acquire any land on which there is any considerable quantity of timber, the owner of the land should get leave to sell the timber before it is acquired by the Department. The Minister gives me to understand that is the usual practice, and I think that is the proper practice. The owner should be allowed to dispose of the timber before the land is acquired by the Department.
That has been the practice of owners offering land for the purpose of forestry. In regard to valuation, I am sure the Forestry Department in purchasing existing timber are bound by such regulations as would be made by an outside arbitrator.
Section agreed to.
SECTION 15.
I move amendment No. 8:—
To delete all words from the word "with" at the beginning of line 8 to the end of the section.
I thought that this would be a matter that would be taken out of the hands of the lay commissioners and given to the official arbitrator. Again it is a linking up of the Department with the Minister who is a party to the matter. There does not seem to be an impartial tribunal to decide the matter. You have people who are in a sense subject to him, his officials, passing judgment on these matters. I think again that there should be an official arbitrator as distinct from the lay commissioners in these matters. I should like to know from the Minister how it is that an official arbitrator has not been accepted instead of lay commissioners.
There is no such thing as an official arbitrator. In a case where the Department of Defence wishes to purchase land for barracks, or the Board of Works wishes to purchase land for public buildings, when there is a disagreement in regard to the price, an arbitrator is appointed by agreement between the two parties but in regard to the purchase of land there has never been an official arbitrator. The Land Commission has been set up for that purpose and there is an appeal tribunal established also for that purpose.
Amendment, by leave, withdrawn.
Section 15 agreed to.
Amendment No. 9 is ruled by the decision on No. 8.
Amendment No. 9 not moved.
Section 16 agreed to.
SECTION 17.
I move amendment No. 10:—
In sub-section (5), page 10, line 35, to insert after the word "Act" the following "or payable by the Minister under Section 20 of this Act".
The object of this amendment is to provide for the application of the machinery for the discharge of liability to pay compensation, provided by Section 17, to compensation payable by the Minister where the Minister is the grantee under an Order providing a temporary right of way granted by the lay commissioners or the appeal tribunal under the new Section 20 proposed by amendment No. 20.
Amendment agreed to.
I move amendment No. 11:—
In sub-section (7), page 10, line 57, after the word "section" to insert the following "20 or".
This is a consequential amendment.
Amendment agreed to.
I move amendment No. 12:—
In sub-section (7), page 10, line 58, to delete the word "operation" and substitute the word "force".
Amendment agreed to.
I move amendment No. 13:—
Before sub-section (9) to insert the following new sub-section:—
(9) (a) The following provisions shall apply in respect of compensation payable by any person (other than the Minister) under Section 20 of this Act:—
(i) in case, within three months after the final determination of the compensation, any person (in this paragraph referred to as the applicant) applies to the person liable to pay the compensation (in this paragraph referred to as the liable person) for payment thereof and satisfies the liable person that the applicant is competent to give an effective discharge therefor, the liable person shall pay the compensation to the applicant,
(ii) in any other case, subparagraphs (i) and (ii) of paragraph (b) of sub-section (2) of this section shall apply to the said compensation as the said sub-paragraphs apply to the compensation referred to therein, and as if the reference therein to the Minister were a reference to the liable person,
(b) The compensation referred to in paragraph (a) of this sub-section shall bear interest at the rate of £3 per cent. per annum from the date on which the relevant Order under Section 20 of this Act comes into force to the date on which it is paid.
This amendment provides for the application of the machinery for the discharge of liability to pay compensation provided by Section 17 to compensation payable by any person other than the Minister as the grantee under an Order providing a temporary right-of-way by the lay commissioners or the appeal tribunal under the new Section 20 proposed by amendment No. 20 and for the payment of interest by such grantee on the compensation at the rate of £3 per cent. per annum, the rate of interest payable by the Minister in like circumstances, where he is the grantee under an Order under the new Section 20, in consequence of acceptance of amendment No. 11.
Amendment agreed to.
I move amendment No. 14:—
In sub-section (9), page 11, line 10, to delete the words "by the Minister".
This is a drafting amendment.
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.
I move amendment No. 15:—
To insert before Section 18 a new section as follows:—
Where any sum (being compensation under Section 19, 20 or 21 of this Act or compensation or part of compensation under Section 30 of this Act) is payable to any person, then, unless such sum is deposited in court under Section 17 of this Act by reason of the wilful default of that person to make a good title thereto, the person liable to pay such sum shall pay to such first-mentioned person the costs incurred by him in deducing, evidencing and verifying the title to such sum, and Section 83 of the Lands Clauses Consolidation Act, 1845, shall apply in relation to such costs, and for the purposes of such application the person liable to pay such sum shall be deemed to be promoter of the undertaking.
This is a new section. Perhaps the Minister would explain the effect of it?
The purpose of the new section is to require the Minister or any other person paying compensation under Part III of the Bill to pay also the costs incurred by the person entitled to the compensation in deducing, evidencing and verifying his title thereto.
Amendment agreed to.
Section 18 deleted.
SECTION 19.
Amendment No. 16 not moved.
I move amendment No. 17:—
To delete sub-sections (2) and (3), and substitute the following two sub-sections:—
(2) The Minister shall, immediately upon making application for an extinguishment order, publish the prescribed notice of the application in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land to which the application relates is situate.
(3) Every application for an extinguishment order shall be heard by the lay commissioners, after they have published the prescribed notice of the hearing in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land to which the application relates is situate.
This calls for publication of an application for an extinguishment order in Iris Oifigiúil and in local newspapers. It meets the point raised by Deputy McMenamin on Second Reading.
Amendment agreed to.
Amendment Nos. 18 and 19 not moved.
Question proposed: "That Section 19, as amended, stand part of the Bill."
Can the Minister say whether, in respect of the extinguishment of easements, notice will be served upon the persons directly affected, in addition to publication in local newspapers? I assume that one or two people would be directly affected by these easements.
Yes, certainly.
Question put and agreed to.
SECTION 20.
I move amendment No. 20:—
Before Section 20 to insert the following new section:—
20. (1) Where, for the purpose of transporting any timber (including timber to be derived from trees proposed to be felled) from a wood or forest to a public road or to a railway or waterway, the owner of such timber requires a right of way (in this sub-section referred to as the required right of way) by a particular route over any land (in this sub-section referred to as the proposed servient tenement), he may make an application (which shall indicate, by reference to a plan to be attached to the application, the required right of way and shall specify the period (which shall not exceed 12 months and is in this sub-section referred to as the required period) during which he wishes to exercise the required right of way) to the lay commissioners for an order granting to him the required right of way, and thereupon the following provisions shall have effect:—
(a) the applicant shall, upon making the application, serve the prescribed notice of the application on the occupier (if any) of the proposed servient tenement and on the person who appears to him to be the owner of the proposed servient tenement, if it is reasonably practicable to ascertain that person;
(b) the lay commissioners shall publish the prescribed notice of the hearing of the application in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the proposed servient tenement is situate;
(c) the lay commissioners, after hearing the application, may—
(i) make an order granting to the applicant a right of way (being, as they think fit, either the required right of way or another right of way), exercisable during the required period or such other period (not exceeding 12 months) as they think fit, over the proposed servient tenement, or
(ii) refuse the application;
(d) if the lay commissioners make the order, the occupier or the owner of the proposed servient tenement may, within two months after the making of the order, appeal to the appeal tribunal against the order, and the appeal tribunal may, on such appeal, —
(i) confirm the order, or
(ii) confirm the order, but do either or both of the following things, namely, alter the route of the right of way thereby created and alter the period (so however that it shall not exceed 12 months) specified in the order as the period during which the right of way is to be exercisable, or
(iii) revoke the order;
(e) if the lay commissioners refuse to make the order, the applicant may, within two months after such refusal, appeal to the appeal tribunal against such refusal, and the appeal tribunal may, on such appeal, —
(i) affirm such refusal, or
(ii) make an order granting to the applicant a right of way (being, as they think fit, either the required right of way or another right of way), exercisable during the required period or such other period (not exceeding 12 months) as they think fit, over the proposed servient tenement;
(f) if the lay commissioners make the order, but grant thereby a right of way other than the required right of way, the applicant may, within two months after the making of the order, appeal to the appeal tribunal against the order, in so far as it grants a right of way other than the required right of way, and the appeal tribunal may, on such appeal, —
(i) confirm the order as made by the lay commissioners, or
(ii) vary the order by substituting a right of way different from that specified in the order;
(g) if the lay commissioners make the order, but thereby grant a right of way exercisable for a period of less than the required period, the applicant may, within two months after the making of the order, appeal to the appeal tribunal against the order, in so far as it grants a right of way exercisable for a period less than the required period, and the appeal tribunal may, on such appeal, —
(i) confirm the order as made by the lay commissioners, or
(ii) vary the order by altering the period (so however that it shall not exceed 12 months) specified in the order as the period during which the right of way is to be exercisable;
(h) the applicant and the occupier and the owner of the proposed servient tenement shall each be entitled to be heard on the hearing of the application or of an appeal under this sub-section;
(i) if the lay commissioners or the appeal tribunal (as the case may be) are satisfied that after diligent inquiry the owner of the proposed servient tenement cannot be found or ascertained, the application or an appeal under this sub-section may be heard and determined, notwithstanding the fact that such owner has not been found or ascertained.
(2) Every order under sub-section (1) of this section shall—
(a) have attached thereto a map showing the location of the right of way thereby granted and its extent,
(b) be expressed and operate to confer on the grantee under the order and his licensees a right, during the period (which shall be taken as commencing on the date on which the order comes into force) specified in the order, to pass and repass, with or without vehicles and animals, over the portion of land over which the right of way as shown on the said map is exercisable,
(c) operate to authorise the said grantee to construct and maintain a road on such portion.
(3) (a) An order made under sub-section (1) of this section by the lay commissioners shall not come into force save as is provided by paragraphs (b) or (c) of this sub-section.
(b) Where an order is made under sub-section (1) of this section by the lay commissioners, and no appeal in respect of it is duly taken under the said sub-section (1), the order shall come into force immediately upon the expiration of two months after the date on which the order is made.
(c) Where an order is made under sub-section (1) of this section by the lay commissioners, and is confirmed or varied by the appeal tribunal under the said sub-section (1), the order shall come into force on the date on which it is so confirmed or varied.
(d) Where an order is made under sub-section (1) of this section by the appeal tribunal, the order shall come into force on the date on which it is so made.
(4) (a) Where an order under sub-section (1) of this section has come into force, the grantee under the order shall be liable to pay compensation to the occupier (if any) and the owner of the land over which the right of way is granted by the order.
(b) Any compensation payable under this sub-section shall, in default of agreement, be fixed by the lay commissioners on the application of the person liable to pay the compensation or the person claiming to be entitled to it.
(c) The person liable to pay any compensation under this sub-section or any person claiming to be entitled to such compensation may, within one month after the date on which an application to fix such compensation has been decided by the lay commissioners, appeal to the appeal tribunal against the decision.
(5) Where the grantee under an order made under sub-section (1) of this section constructs a road over the portion of land over which the right of way granted by the order is exercisable, the occupier or owner of such land may, within one month after the expiration of the period during which the right is exercisable, serve on the said grantee a notice requiring him to remove from such portion the materials used for the construction of such road, and thereupon the following provisions shall have effect—
(a) the said grantee shall, not later than one month after the service of the notice, remove the said materials,
(b) if the said grantee fails to comply with paragraph (a) of this sub-section, the occupier or owner may remove the said materials and, in that case, may recover from the said grantee as a simple contract debt in any court of competent jurisdiction the expenses incurred by him in such removal.
(6) Where the land, over which a right of way is granted by an order under sub-section (1) of this section, is registered under the Act of 1891, the Minister shall send a copy of the order to the registering authority under the Act of 1891 and the said registering authority shall register the said right of way as a burden affecting the said land.
(7) No stamp duty shall be payable on any order under sub-section (1) of this section, nor shall any fees be payable in respect of any proceedings in the Land Registry under sub-section (6) of this section.
The principal change in this section which it is proposed to insert is that, instead of the Minister making orders under the section, the orders will be made by the lay commissioners, and the Minister will not come into the picture unless he happens to be a person requiring facilities for the haulage of timber. There may be people other than the Minister, private individuals, seeking haulage facilities, and that is the reason for the change. The change is designed to bring the section into alignment with the other sections, and particularly Section 21 which is concerned with the creation of permanent rights of way appurtenant to State forests over adjoining lands.
If private individuals make an application, will they be confined exclusively to the haulage of timber? Private individuals might want to haul turbary through a plantation.
We have had that headache before.
You will probably have it again, and will continue to have it for many years to come.
This deals with haulage facilities for timber.
Exclusively?
Yes.
Is the same provision for compensation made in this connection as in the section dealing with the acquisition of land?
Yes.
Why does the Minister impose on the grantee the duty set out in sub-section (5) with regard to requiring a grantee to remove a road which has been constructed? If he does not remove it, he can be sued and the expenses incurred in removing it recovered as a simple contract debt. It is very strange that a man should be asked to remove a road. It may be a very difficult job, if the road has been constructed of stones and then macadamised. It might involve a heavy cost and if the Forestry Department are to exercise powers to assert rights over land, they should accept responsibility for the road as well. An obligation of this kind should not be imposed on a man. It might take him a very long time to do it and he might not be in a position to do it at all, if he had not a horse and cart. A man might have no money to employ labour and could not do the job himself because of the necessity to attend to his own farm work. If the Minister proposes to assert rights over land, he should accept the liabilities, and this would be a very small liability.
I regard this sub-section as desirable. I take an entirely different view from that taken by Deputy McMenamin. This sub-section compels the Forestry Department, or whomever gets a right-of-way across a person's land, to remove a roadway immediately their term of use has expired. I think it is desirable, because otherwise there will be disused roadways across land which would be an obstruction and an injury to the landholder. That is my understanding of it.
Deputy Cogan is right. The point is that we acquire haulage facilities over a man's land and put down a roadway. When we are finished, the Forestry Department has to put the land back into its original condition. If the owner of the land wants to have the roadway, he may have it, but, if he does not want it, the land must be put back in its original condition. It seems to me to be quite reasonable.
It is, with regard to the Forestry Department, but what about the grantee? Suppose a grantee has to make a road and take it up again, what is the position? The Minister knows what can happen to a road in bad weather. Many tons of stones may be put on the road, and they sink down and down, and no money could put the land back into condition again. It would require a fortune to do it.
It does not go back immediately to its original condition. I know that.
My opinion is that it would impose an impossible burden on the grantee. There could be roads laid down with rough timber, with rails such as a contractor uses on virgin soil where he is working on a scheme of houses and the subsoil is soft. He throws a few logs across and puts the rails on them. It would be simple enough lifting that type of road—it would come under the heading of a road as well—but everyone knows that where carts are going across soft virgin soil it is physically impossible to put that soil back in its original condition. There may be common sense used on this point and the grantee may not want the land brought back into the same position as it was in before. I can see the impossibility of restoring it to its former position, though I suppose he could put some soil over the road and submerge it.
Is it not only fair that the Minister who gets haulage facilities over a man's land should do his utmost to put the land back in the position in which he found it?
I am talking of the grantee, the individual.
The Minister is the grantee.
Then one can say he should have those facilities. The individual may want those facilities as well as the Forestry Department.
The owner of the land is protected.
Amendment agreed to.
Section 20 not moved.
SECTION 21.
I move amendment No. 21:—
In sub-section (1) to delete paragraphs (a) and (b), and substitute the two following paragraphs:—
(a) the Minister shall, upon making the application, serve the prescribed notice of the application on the occupier (if any) of the proposed servient tenement and on the person who appears to the Minister to be owner of the proposed servient tenement, if it is reasonably practicable to ascertain that person;
(b) the lay commissioners shall publish the prescribed notice of the hearing of the application in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the proposed servient tenement is situate;
That is practically the same thing as before, in regard to publication.
Amendment agreed to.
I move amendment No. 22:—
In sub-section (1), paragraph (d), page 15, line 31, to insert before the words "the owner" the words "the occupier or".
That amendment is designed to give the occupier of the land, who may not be the owner, an opportunity of appealing to the appeal tribunal against the order. A man may not be vested in his holding but will have the same opportunities as if he were the actual owner.
Amendment agreed to.
I move amendment No. 23:—
In sub-section (1), to insert at the end of the sub-section the following two paragraphs:—
(g) the Minister and the occupier and the owner of the proposed servient tenement shall each be entitled to be heard on the hearing of the application or of an appeal under this sub-section;
(h) if the lay commissioners or the appeal tribunal (as the case may be) are satisfied that after diligent inquiry the owner of the proposed servient tenement cannot be found or ascertained, the application or an appeal under this sub-section may be heard and determined, notwithstanding the fact that such owner has not been found or ascertained.
The new paragraph (g) which this amendment proposes to add to sub-section (1) of Section 21 is intended to make it clear that the Minister and the occupier and the owner of land over which a right of way is created or proposed to be created by an order under Section 21 shall all be entitled to be heard on the hearing of any relevant application to the lay commissioners or appeal to the appeal tribunal under the section. The new paragraph (h) which the amendment also proposes to add to the sub-section is a corollary to paragraph (g). In the main, this is for the purpose of giving the unvested holder an opportunity of appealing to the appeal tribunal.
Amendment agreed to.
I move amendment No. 24:—
In sub-section (2), page 16, line 1, to insert after the word "under" the following words "sub-section (1) of".
This is merely a drafting amendment.
Amendment agreed to.
I move amendment No. 25:—
To delete sub-section (6).
Why is the sub-section being deleted?
This amendment is a corollary to amendment No. 5. That amendment provided for the insertion in Section 12 of a definition of the word "owner" in relation to land for the purposes of Part III of the Bill generally. The definition now incorporated in Section 12 is identical with that in sub-section (6) of Section 21, and, since it will automatically apply to Section 21, sub-section (6) may be deleted as no longer necessary.
It is not necessary to reintroduce it into this section?
No.
Section 21, as amended, agreed to.
SECTION 22.
I move amendment No. 26:—
To delete sub-section (1) (b).
Paragraph (b) requires a person to furnish, "if he has any such interest, an abstract (with copies of all abstracted documents) of his title to that interest." Of course, if he does not do that, he is subject to a penalty of £20, whether he has any interest in the land or not. Why take that power in regard to a person who has no interest in the land? If you serve a notice on somebody and he says he has no interest in the land and is not going to submit an abstract of title because he has no interest, why should he be fined £20? Nothing could be more ridiculous. The man may say he will not bother going to a solicitor to get an abstract of title, because he has nothing to do with it. The Minister is going to prosecute and convict that man and the penalty is a fine not exceeding £20. Notice may be served on someone who has nothing to do with the property. He will, of course, be convicted if he does not return an abstract. That is provided in the sub-section. Surely, it is ridiculous to take that power.
The whole point is to make certain of title. Where there are many interests involved, it is foolish to ignore any of them. The acceptance of the amendment would negative generally the provisions of Section 22. This is intended to enable the Minister to ascertain the persons entitled to an interest in land which he considers it desirable to acquire. The machinery is based on the assumption that the Minister will be able, by the exercise of his powers of requisition under Section 22, to ascertain the names of all persons entitled to an interest in the land which he proposes to acquire compulsorily and the extent of the interest of each particular individual in the land. It is not the man who has no claim and does not suggest he has a claim that we are trying to get to clarify his position; it is those people who are claiming interest in land, who may at any time claim interest in the land, and there is no particular grievance on their part because they will be paid for any expenses they go to in regard to the matter. I think it is only fiar, because it is to make titles certain, so that, when the agreements are signed, there shall not be any difficulty afterwards through some person saying he had an interest and was not consulted.
I think it is a very peculiar kind of section. It seems to be a strange type of procedure to make application to a number of people who are suspected of having rights in certain land which the Minister proposes to acquire and, if they fail to supply him with the necessary information, he proceeds to penalise them or fine them, actually. I do not think there is a precedent for that. I am not a lawyer, but it seems to me to be a peculiar type of procedure to adopt. In the ordinary case, where you try to find out who has claims on property, the usual procedure is to advertise and allow claimants to come forward. If they fail to do so, they suffer a certain loss. I have never heard of such a procedure as this in which you fine people for failing to come forward to make their claims. I should like to know if there is a precedent for it.
It says here "any person, who appears to" the Minister. How is the Minister to know? What steps will he take to find out those people who may appear to him? I can see in paragraph (a) that a person is simply asked to make "a return in writing". I suppose if they write and say they have no interest, that finishes the matter and the Minister takes no further action.
But if the man does not bother his head, he is still subject to a penalty of £20.
I would hardly read that into it. I take it that it is a man who will have an interest in the land, but possibly is too careless to return in writing the nature of his interest in that holding and he does not go to the trouble of producing his abstract of title. Then afterwards he may come to create trouble. I presume that is what is in the Minister's mind—that if a man came in such circumstances and desired to upset the whole procedure, he could be fined. There could be something in that point. There are some people who are possibly a bit contrary and they do not want to agree to anything. They might stay away and later kick up some trouble. In that case I think it would be necessary for the Minister to fine any man who gets a reasonable chance to put forward his claim in a specified time and does not do so.
Again, it is the question of certainty of title. Generally, what is purchased for forestry is the mountainy type of land or moorland and much of this land is held in commonage and is generally used for sheep grazing and so on. It is quite possible certain people have very definite rights, but in commonage many rights are claimed that have no legal basis and many a small farmer on a mountainside who has no actual rights of grazing on the mountain may, if he is a strong-willed individual, muscle-in on the rights of others. As to the people who have actual rights, these rights must be considered, but as regards the man who has tried to make a right for himself and appears to be using the land for his own purposes, we have to try to ascertain what particular legal right he has. If that man continues to claim a right on the land and affects adversely the work of the Forestry Department, we are entitled to insist that he will produce a document that entitles him to that right and, if he cannot produce it, if he is recalcitrant, then we are entitled to punish him for a false statement or for making our work impossible. I think it is a reasonable proposition.
At first glance this section appears to be very unfair to the person with rights on a mountain but, on reconsideration, I think it may have advantages for such a person, because definitely if you are to carry through a policy of acquisition you must ascertain who are the people who have rights and you must try to ascertain it as quickly as possible. If you adopted a procedure of penalising persons who fail to make claims by debarring them from compensation you will be imposing a greater hardship upon them. This section seeks to impose a limited hardship, a fine of £20, so that I think it might be justified on that ground. I was comparing this procedure adopted here with what might be adopted in regard to a deceased person, when a creditor failing to make a claim would lose his claim. If the same procedure was adopted in regard to a grazing right, it would be a much more severe penalty than is provided in this section, so I think it is justified on that ground.
The Deputy will understand the difficulty of farmers protecting rights in commonage, and the section is really directed to ensure that the people who actually have rights of ownership shall be paid and not those who have no such rights. There is no imposition in the matter because the Minister will pay whatever fees are necessary for the ascertainment of rights. There is no imposition of a financial disadvantage on any of these people.
The section is ambiguous in some ways and difficult for the ordinary Deputy to understand. If the Minister had explained the intention at the back of his mind, it would have saved a good deal of discussion. I agree with the Minister that people lay claims to a portion of a mountain commonage to which they are not legally entitled. Every Deputy, and especially Deputies from western constituencies, have experience of that. I take it the persons who will be asked to submit these particulars will be persons whose names are submitted to the Minister by the local commissioners and who claim they have certain grazing rights.
That, roughly, covers it.
Then if a person who claims to have such a right has a notice served on him and he does not reply to that notice, he will be proceeded against and fined according to the procedure laid down in this section. But it may be also that a notice will be served on a person who never at any time laid claim to rights on a mountain and that individual will be treated exactly in the same way as the man who said he had a claim but, as it subsequently transpired, had no claim whatever. There is no discrimination exercised between the bogus claimant and the other type of man who has never at any period laid claim to such grazing rights and never in fact used the mountain for grazing purposes. The section gives the Minister too much power. I am satisfied the Minister does not want all the power that he is given in the section. It is his desire to discriminate between the bogus claimant and the innocent person upon whom such notice may be served. According to the phrasing of this section, the innocent person is going to be treated in exactly the same way as the guilty. I am perfectly certain from what I know of the Minister's conception of justice that he would not desire that to happen. But, if the procedure laid down here is followed out to the letter, that is exactly what is going to happen, according to my interpretation of the section.
That could not be possible.
It could, according to my reading of the section.
In the acquisition of land for forestry, there is bound to be a very detailed inspection of the land offered to the Forestry Department as well as a very strict inquiry as regards those who claim rights to the land. Now, surely, any man who has a right to the land will be very glad to assert his right, particularly when he is paid for proving it. Why should the Forestry Department go to all and sundry, to people who have no rights and who have made no claims? The only reason for this action is because the people affected have claimed on some basis: on the basis that they have rights. The people who do claim and who are regarded in some sense as having a claim, consequent on an inspection and an inquiry, are asked to prove their rights at the expense of the Forestry Department. If a man claims to a right at the time an inquiry is being made, and later fails to submit for the inspection of the Land Commission the documents, etc., which give him that right, then the best way to prevent him from asserting such a right again is by punishing him for making a wrong statement. There is discrimination in this for the benefit of those people who have actual rights as against those who have no rights.
I would ask the Minister to look into the section again between this and the Report Stage, and see if he cannot amend it to ensure that no injustice will be done to an innocent person, because, quite conceivably, the Land Commission officials might submit to the Forestry Department the names of persons who never made any claim whatever to rights in this matter. They might be guided by information obtained from local people. It would be very unfair in such a case that the person concerned should be punished in the manner in which the section prescribes. On the understanding that the Minister will look into the matter to see if he cannot do something to prevent the possibility of such a thing happening, we are prepared to withdraw the amendment.
I will examine it between this and Report Stage.
Amendment, by leave, withdrawn.
Section 22 agreed to.
SECTION 23.
I move amendment No. 27:—
To delete sub-sections (2) and (3) and substitute the following two sub-sections:—
(2) The Minister shall, immediately upon making an application for an acquisition order in respect of any land, do the following things:—
(a) publish the prescribed notice of the application in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land is situate, and
(b) serve a copy of such notice on the occupier (if any) of the land and on the person who appears to the Minister to be the owner of the land, if it is reasonably practicable to ascertain that person.
(3) Where an application for an acquisition order in respect of any land has been made, the lay commissioners shall hear the application, after publishing the prescribed notice of the hearing in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land is situate, and may, subject to the subsequent provisions of this section,—
(a) make the order, or
(b) make the order with the exclusion therefrom of any specified part of the said land, or
(c) refuse the application.
This amendment is intended to clear up a number of points of detail in sub-sections (2) and (3) of Section 23 in regard to the steps to be taken by the Minister in relation to any application made by him for an acquisition order in respect of land and by the lay commissioners preliminary to the hearing of such an application.
The new sub-section (2) which is proposed for insertion instead of sub-section (2) in the Bill as circulated provides for the publication in Irish Oifigiúil and in local newspapers of notice of an application for an acquisition order, instead merely of providing for the giving of notice in the locality in which the land is situate, a requirement which might be difficult to interpret. It provides for the service of copies of any notice so published on the occupier and apparent owner of the land, whereas the present sub-section (2) provides for the giving of notice only to the apparent owner.
The new sub-section (3) differs from the present sub-section (3) in so far as it is specifically stated that the lay commissioners will hear an application for an acquisition order, thus providing an opportunity for representations to them for or against the making of the order; they will publish notice of the hearing of the application in the Irish Oifigiúil and in local newspapers.
Amendment agreed to.
I move amendment No. 28:—
In sub-section (6), page 18, line 24, to insert before the words "the owner" the words "the occupier or".
The purpose of this amendment is to provide that the occupier, as well as the owner of the land in relation to which an acquisition order is made by the lay commissioners, will have the right to appeal to the appeal tribunal against the order.
I take it that both an actual owner and an occupier will enjoy the same right.
A vested tenant is an owner.
Amendment agreed to.
I move amendment No. 29:—
In sub-section (11), page 19, line 30, to insert before the word "owner" the words "occupier or".
That is the same as the last amendment.
Amendment agreed to.
I move amendment No. 30:—
To delete sub-section (17).
Amendment No. 5 provided for the insertion in Section 12 of the Bill of a definition of the word "owner" in relation to land for the purposes of Part III generally. The definition will, of course, have application to the word "owner" as used in Section 23 and sub-section (17), which contains a definition for the purposes of Section 23 alone, must be deleted in consequence. The substituted application of the definition now inserted in Section 12 for the definition contained in sub-section (17) will have the effect of enabling the tenant purchaser or purchaser of land which is vested under the Land Purchase Acts in the Land Commission but not yet revested in such tenant purchaser or purchaser, to act as owner for the purposes of Section 23 although he is not, in fact, the legal owner of the land. He will thus be entitled to be heard on the hearing of any application or appeal under the section in relation to the land held by him under the Land Purchase Acts, and will be entitled as "owner" of the land to appeal in suitable cases to the appeal tribunal against an acquisition order made by the lay commissioners. That, again, is for the protection of the non-vested owner.
Amendment agreed to.
Question proposed: "That Section 23, as amended, stand part of the Bill."
I would like to have some explanation from the Minister of the meaning of paragraph (a) of sub-section (4) of the section. It provides that no acquisition order shall be made in respect of any land "which, in the opinion of the lay commissioners, is required for the amenity or convenience of a dwellinghouse". Would the Minister say what is really meant by the words "amenity or convenience of a dwellinghouse"? I presume that if a dwellinghouse is allowed to remain on lands which are acquired by the Land Commission it would be regarded as an amenity or convenience, and would include the exemption from acquisition of so much land as would make the holding economic. This raises a rather difficult question because the land might be suitable for afforestation. If, say, there was a small amount of agricultural land convenient to the dwellinghouse, that small holding would be an uneconomic holding unless there was attached to it a certain amount of grazing land or other land suitable for grazing but which it would be necessary to leave with the holding in order to make it economic.
The words: "amenity" or "convenience" do not seem to be comprehensive enough to cover such a situation. I am referring to a large holding which, perhaps, the Land Commission may have acquired and on which they may have decided to leave the dwellinghouse and also a certain amount of arable land attached to the dwellinghouse. Suppose, however, that the amount of arable land attached to the dwellinghouse is not sufficient to make the holding an economic holding, would this sub-section compel the Land Commission to leave a sufficient portion of land there to make it into an economic holding?
I can see Deputy Cogan's difficulty there. There might be a holding which, if a certain amount of suitable grazing land could be attached to it, could be made into an economic holding.
Yes.
I appreciate the point and I shall look into it. Would the Deputy agree to leave the matter over until I can look into it?
Very good.
Sections 23, 24 and 25 agreed to.
Section 26 is being deleted, as there is a new sub-section to be proposed in substitution for it. There is a note to that effect in connection with amendment No. 33.
Section 26 deleted.
SECTION 27.
I move amendment No. 31:—
In sub-section (1), page 21, line 45, to delete the following "sub-sections (2) and (3)" and substitute the following "sub-section (2)".
This is purely a drafting amendment following from the deletion of sub-section (3) of Section 27 proposed in amendment No. 32.
What exactly is this dealing with?
If the Deputy will look at amendment No. 33, he will see that a new section is being proposed in substitution for Section 26. That will come on later.
Amendment agreed to.
I move amendment No. 32:—
To delete sub-section (3).
This amendment proposes to delete sub-section (3) of Section 27. It is a necessary corollary to amendment No. 33, providing for the apportionment where necessary of State annuities subsequent to, instead of in advance of, the making by the Minister of a vesting Order under Section 27, vesting in him land being compulsorily acquired.
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28.
I move amendment No. 33:—
Before Section 28 to insert a new section as follows:—
Where a vesting Order is made in respect of any land (in this section referred to as the acquired land) which, immediately before the vesting date, was subject, in conjunction with other land, to a State annuity,—
(a) the Minister shall give notice of the vesting Order to the authority to whom the State annuity was payable,
(b) the said authority shall, as soon as may be after the receipt of the notice, do one of the following things:—
(i) apportion, with effect as on and from the day immediately preceding the vesting date, the State annuity in such manner as the said authority consider proper between the acquired land and such other land,
(ii) declare the whole of the State annuity to be exclusively charged, with effect as on and from the day immediately preceding the vesting date, on either the acquired land or such other land.
The section which this amendment proposes to insert before Section 28 will replace Section 26, which is being deleted from the Bill. It provides that where a vesting Order has been made by the Minister under Section 27 in respect of any land which before the vesting date was subject in conjunction with other land to a State annuity, the Minister will notify the Land Commission or the Commissioners of Public Works as the case may be, of the making of the vesting Order, and the Land Commission or the Commissioners, whichever body is concerned, will then apportion the State annuity between the acquired land and the other land subject to the annuity, or charge the annuity exclusively on either the acquired land or the other land. The apportionment or exclusive charge, as the case may be, will have effect as from the date immediately preceding the vesting date and under Section 27 (5) (a) (i) the vesting Order will operate to vest the acquired land in the Minister subject to the State annuity to the extent to which the annuity was apportioned or charged on the acquired land.
Amendment agreed to.
Section 28 agreed to.
Sections 29 to 34, inclusive, agreed to.
SECTION 35.
I move amendment No. 34:—
To insert at the end of the section the following two sub-sections:—
(2) Where—
(a) land is vested under the Land Purchase Acts in the proprietor thereof or is vested under the said Acts in the Irish Land Commission but not in the tenant-purchaser or purchaser thereof, and
(b) trees growing on such land are reserved to the Irish Land Commission,
the Irish Land Commission shall be deemed, for the purpose of this part (except Section 44), to be the owner of such land.
(3) Where—
(a) land (not being land to which sub-section (2) of this section applies) is vested under the Land Purchase Acts in the Irish Land Commission, and
(b) such land is occupied by a person (being a tenant-purchaser or purchaser) under an agreement for purchase entered into or deemed to have been entered into under the said Acts,
such person shall be deemed, for the purposes of this part (except Section 44), to be the owner of such land.
This amendment is intended to provide for interpretation of the provisions of Section 37 and other sections in Part IV of the Bill in certain special cases in which the Land Commission have an interest in land on which trees are growing.
The first case, dealt with by the new sub-section (2) which it is proposed to insert in Section 35, is that in which the land has come under the Land Purchase Acts and is either still vested in the Land Commission or has been vested in the proprietor thereof but where the trees growing on the land have been reserved to the Land Commission under the terms of the relative purchase agreement. In such cases it is necessary that the Land Commission should be treated as the owner of the land for the purposes of Sections 37, 39, 40 and 41 of Part IV of the Bill. It is the Land Commission who should have the power to give a felling notice under Section 37; it is the Land Commission on whom a prohibition Order if any, should be served by the Minister under Section 39, and it is the Land Commission to whom a limited felling licence, if any, should afterwards be granted. The new sub-section (2) of Section 35 proposed in this amendment will have the effect of providing that the Land Commission shall be deemed to be the owner of land in these special cases and will therefore be dealt with instead of the actual owner of the land for the purpose of the giving of felling notices, etc.
The new sub-section (3) which it is proposed to insert in Section 35 deals with the case in which special provision is necessary for another party to be deemed to be the owner where the Land Commission, in the absence of such special provision, would have to be treated as the owner. The case is that in which, there being no question of the reservation of trees to the Land Commission, land is vested under the Land Purchase Acts in the Land Commission and is occupied by a tenant-purchaser or purchaser who will, in due course, be the vested owner of the land, but who, although at the moment the equitable owner, is not the legal owner. It is considered that in such a case the tenant-purchaser or purchaser should have the right to give a felling notice under Section 37, that it is on him a prohibition Order, if any, should be served under Section 39, and it is to him that a limited felling licence, if any, should be granted under Section 40. Sub-section (3), proposed for insertion in Section 35, will bring about that position. In the absence of the special provision proposed the Land Commission who would be the legal owner of the land would have to be treated as owner thereof for the purposes of Part IV of the Bill.
Amendment agreed to.
Question proposed: "That Section 35, as amended, stand part of the Bill."
In connection with paragraph (d) of this section, I want to draw the Minister's attention to the fact that I understand trees, standing on land purchased before the 1st day of April, 1928, where the whole or some part of the purchase money was lent on the security of the holding, when they are within a certain distance from the centre of the road cannot, by agreement with the Department of Defence, be cut down. If that is so, it seems to be a source of grievance amongst people who own trees. My information is that a large number of these trees are useless as they stand, but might be used for domestic fuel which is now very scarce, or for commercial purposes. The Order was issued by the Department of Defence during the war period. I suggest there is no necessity to continue it now, and that the Minister might see about its removal, so that a licence could be granted to owners of these trees to have them cut down. I am aware, from information given me by people in the timber trade, that supplies are very limited. They know where there are large numbers of trees standing but, for the reason stated, they are not allowed to cut them. Before the Bill leaves this House the Minister might do something to deal with the matter.
That was a very necessary Emergency Order by the Department of Defence.
At the time.
The Department of Defence will have to alter its mind there. I cannot do anything about it. I know that there are mature trees along the roads, and I have been urging on the Department of Posts and Telegraphs that they will suffer damage if some of these trees are not taken down. This is a matter for the Department of Defence, but I will draw the Department's attention to the Deputy's statement.
I did not raise the matter during the war period. Now that the war is over I think it safe to do so.
The Minister for Defence indicated to the House that the Order would be implemented in permanent legislation. I searched this Bill to see if any provision was made in that respect. If there is to be any regulation regarding the cutting of trees, it should be embodied in this Bill. If there is to be any permanent legislation dealing with trees adjoining roads, the Minister should try to have it embodied in this Bill, so that we would have everything dealing with timber in one Act.
I take it that the Deputy would not suggest that the provision of air raid shelters would be such a matter?
An order was enforced by county councils concerning trees adjoining roads, but it was not operated during the war. Farmers are now being told to cut them down. In the meantime, in many places trees which are damaging the roads are still standing.
Not in South Tipperary.
Many of the trees to which I refer should be cut down. They may have a commercial value, but at present they are injuring the roads. Many of them are mature. If they have no commercial value they should be cut down.
They are all wanted now.
Question put and agreed to.
Section 36 agreed to.
SECTION 37.
I move amendment No. 35:—
In sub-section (4), page 30, to insert between lines 17 and 18 the following new paragraph:—
(b) the tree is standing on land held by the Minister for the purposes of this Act, or.
The purpose of this amendment is to make it clear that there will be no obligation on the Minister to give a felling notice under Section 37 before felling a tree on State forest land. It is obvious that the provisions of Section 37 and the provisions of the other sections in Part IV designed to enable the Minister to control the felling of trees on private woodlands should not have application to any land under his own control.
Is there not something very weak in the regulations dealing with the cutting of trees? When it is desired to cut a tree the owner sends notice to the Guards, and if he hears nothing from them for three weeks he can proceed. Is not that a negative system? If I make application to the Guards about a tree I propose to cut down I have to wait for three weeks before I can do anything.
That is the rule. If an application for a felling licence is submitted, and if the Department of Forestry takes no action, in three weeks the owner of the trees is quite entitled to go ahead. If he is notified before three weeks he may have to wait a little longer.
Do the Gárdaí make a report to the Forestry Department? One fills in a form at the Gárda station. They send that on to the Forestry Department. Is it on their report you proceed?
Yes.
Would it not be advantageous to send definite word to the Gárdaí which they would deliver to the owner of the tree?
It is better not to get definite word lest it be adverse to your interests.
There could be a fine of £20 under Section 22 for not replying.
Amendment agreed to.
Section 37, as amended, agreed to.
SECTION 38.
I move amendment No. 36:—
Before Section 38 to insert the following new section:—
(1) Where a felling notice contains a statement that a tree is intended to be uprooted for the purpose of transplantation, it shall not be lawful for any person—
(a) to use or deal with the tree or cause or permit the tree to be used or dealt with, if uprooted in pursuance of such notice, for any other purpose, or
(b) to cut down the tree or cause or permit the tree to be cut down during the period of two years commencing on the date on which the felling notice was given.
(2) Every person who, in respect of any tree, acts in contravention of sub-section (1) of this section shall be guilty of an offence under this section and shall, subject to Section 53 of this Act, be liable on summary conviction thereof to a fine not exceeding £5 for every such tree.
Section 38 in the Bill as circulated is intended as a corollary to a provision in sub-section (1) of Section 39 that the Minister may not make a prohibition Order under that sub-section in relation to a tree stated in the relative felling notice to be intended to be uprooted for the purpose of transplantation. The section as it stands in the Bill provides that where it was stated in a felling notice that it was intended to uproot a tree for the purpose of transplantation it will be illegal for any person to use or deal with the tree, if uprooted, in pursuance of the felling notice, for any other purpose.
This amendment proposes to replace Section 38 by a new section having the same effect but going further to provide that it will also be illegal, where a felling notice contains a statement that a tree is intended to be uprooted for the purpose of transplantation, to cut down the tree during the period of two years commencing on the date on which the felling notice was given. In the absence of this elaboration of the provision under Section 38 it would be possible to evade the restrictions of Part IV by stating in a felling notice that it was intended to uproot a tree for the purpose of transplantation, whereas in fact the owner of the land had no such intention. Having given his felling notice and made such a statement therein he would have to wait for 21 days with the full knowledge that in view of his statement the Minister could not make a prohibition Order in respect of the tree; after the lapse of 21 days and until the expiration of a period of two years he would be quite free to cut down the tree without contravening Section 37. If he uprooted it, Section 38 would bind him to transplant it, but there would be nothing to prevent him from cutting it down. The amendment of Section 38 as proposed will rectify this position.
Amendment agreed to.
Section 38 deleted.
SECTION 39.
I move amendment No. 37:—
In sub-section (4), page 31, line 21, to insert after the word "shall" the following, "subject to Section 53 of this Act".
Sub-section (3) of Section 37 provides that any person guilty of an offence under that section, that is, any person who cuts down or uproots a tree without duly lodging a felling notice, will be liable on summary conviction of his offence to a fine not exceeding £5 for every tree which he uproots or cuts down. It is provided, however, that the liability to a fine not exceeding £5 for every tree will be subject to Section 53 of the Bill which provides that where the commission of an offence under Section 37 was due to a bona fide mistake of fact there is to be a maximum penalty of £100 in respect of the total number of trees concerned.
Sub-section (4) of Section 39 provides that any person convicted of an offence under that section, that is, any person who illegally cuts down or uproots a tree notwithstanding the fact that a prohibition Order in relation thereto has been served upon him, will also be liable to a fine of £5 for every tree so uprooted or cut down, but in the Bill as circulated it is not provided that the maximum penalty clause in Section 53 shall apply also in this case. In equity it should have equal application here as in the case of offence under Section 37 and this amendment, together with amendment No. 58, will have the effect of making it so applicable.
Amendment agreed to.
Section 39, as amended, agreed to.
SECTION 40.
I move amendment No. 38:—
In sub-section (1), page 31, lines 39 and 40, to delete the words "twelve months" and substitute the words "two years".
Representations have been made to the effect that the limit of 12 months placed by sub-section (1) of Section 40 on the period of effectiveness of a limited felling licence granted under that sub-section is too short, and that the period should be increased to two years. From the Departmental point of view, there is no objection to extension of the life of a licence to two years and this amendment is put forward for that purpose.
That is in response to the appeal made to the Minister on Second Stage.
Amendment agreed to.
Section 40, as amended, agreed to.
SECTION 41.
The following drafting amendments were agreed to:—
39. In sub-section (1), page 32, line 45, to delete the words "of the planting of the tree" and substitute the words "of planting".—(Minister for Lands.)
40. In sub-section (1), page 32, line 48, to delete the words "every tree" and substitute the words "the trees".—(Minister for Lands.)
Question proposed: "That Section 41, as amended, stand."
I hope the Minister will keep in view the type of timber that will be of use in the years to come.
Section, as amended, agreed to.
SECTION 42.
I move amendment No. 41:—
In sub-section (1), page 34, line 56, to insert after the word "to" the word "a".
Amendment agreed to.
I move amendment No. 42:—
In sub-section (1), page 35, to delete lines 3 and 4 and substitute the words:—
"public services relating to forestry, such sum (to be specified in such condition) as the Minister thinks reasonable having regard to the expense which, in the opinion of the Minister, the licensee would, if replanting conditions were attached to the licence and compliance therewith were practicable, have had to incur to comply therewith".
Sub-section (1) of Section 42 at present provides that the Minister may attach to certain limited felling licences a contributing condition requiring the licensee to pay to the Minister by way of contribution to the expenses of the administration of the public services relating to forestry such sum of money as the Minister shall think proper and shall specify in such condition. It is the intention that the amount of the contribution to be levied under a contributing condition will be assessed having regard to the expense which the licensee would have had to incur in complying with replanting conditions attached to his licence if the attachment of such conditions had, in the circumstances, been practicable and if the Minister had in fact so attached replanting conditions to the licence.
This amendment proposes to make it clear that the contribution to be exacted under a contributing condition will be so assessed.
May I take it that the sum to be levied will be somewhat similar to the cost of replanting, if it is decided to impose the obligation of replanting?
It will be related to the cost.
Amendment agreed to.
Section 42, as amended, agreed to.
Section 43 agreed to.
SECTION 44.
I move amendment No. 43:—
In sub-section (3) to delete paragraph (c).
Sub-section (3) of Section 44 deals with the right of an owner of land in certain circumstances to require a district planning authority to acquire the land on which a tree, the felling of which the Minister has refused to license on the grounds of preserving amenities, is situate. The preamble of the sub-section says that where an owner of land so requires a district planning authority to acquire land from him, then, unless his request is withdrawn under sub-section (4) of Section 44, the provisions embodied in paragraphs (a), (b), etc., of sub-section (3) will have effect. It is not correct to say that the provision in paragraph (c) of sub-section (3) will have effect only "unless the requisition is withdrawn"; that paragraph must apply whether or not the requisition is withdrawn. It is therefore proposed in this amendment to delete paragraph (c) of sub-section (3). Amendment No. 47 provides for the incorporation of the provisions of the paragraph in sub-section (4).
Amendment agreed to.
I move amendment No. 44:—
In sub-section (3), paragraph (d), page 36, line 60, to insert after the word "authority" the words "or as to the extent of the land or nature of the right over the land proposed to be so acquired by the said authority".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 45:—
In sub-section (3) to delete paragraph (e).
This amendment proposes to delete paragraph (e) of sub-section (3) of Section 44 which provides that certain provisions under public health enactments in relation to the acquisition of land by local authorities will have application to the acquisition of land by a district planning authority under Section 44. On further consideration the draftsman is not satisfied that the provisions in paragraph (e) of sub-section (3) are adequate. It is proposed to delete the paragraph and to make similar but more adequate provision in a new sub-section proposed for insertion in the section by amendment No. 46.
Amendment agreed to.
I move amendment No. 46:—
To insert before sub-section (4), the following sub-section:—
(4) The provisions, relating to the acquisition of land by a sanitary authority, of the Public Health Acts, 1878 to 1931, as amended by Section 68 of the Local Government Act, 1925 (No. 5 of 1925), and by Section 8 of the Local Authorities (Miscellaneous Provisions) Act, 1936 (No. 55 of 1936), shall apply to the acquisition under sub-section (3) of this section of any land or right over land by a district planning authority as if those provisions were herein reenacted and made applicable to such acquisition, and, for the purposes of such application,—
(a) the Minister for Local Government and Public Health shall be deemed to have duly made, under Section 203 of the Public Health (Ireland) Act, 1878, a provisional Order empowering the said district planning authority to put in force, with reference to such last-mentioned land or right over land, the powers of the Lands Clauses Acts with respect to the purchase and taking of lands otherwise than by agreement,
(b) the said provisional Order shall be deemed to have been duly confirmed by the said Minister under Section 68 of the said Local Government Act, 1925,
(c) sub-section (3) of the said Section 68 shall have effect as if the words "subject in the case of a confirmation by the Minister to proof that the notice required by this section was duly published" were not contained in the said sub-section (3).
How do the Guards arrive at a conclusion? If I fill in a form it goes to the Forestry Department. The Guards will come and look at the tree. Is it the Guard who looks at the tree who decides it is fit for cutting?
That does not arise on this amendment.
It is on Section 45.
We have not come to that yet.
Will the Minister explain the amendment?
The new sub-section (4) which this amendment proposes to insert in Section 44 is intended to meet the purpose which paragraph (e) of sub-section (3) was designed to meet. That paragraph has been deleted because the draftsman believed its terms were not satisfactory. The sub-section will provide for the application, subject to certain conditions, of the machinery of the Public Health Acts 1878-1931, as amended by various other Acts relating to the acquisition of land by sanitary authorities, to the acquisition of land under Section 44 of the Bill by a district planning authority. The principal purpose of the provision is to provide for the application of the provisions of the Lands Clause Acts to the assessment of compensation in respect of any land acquired by a district planning authority under Section 44 of the Bill.
The sub-section only applies to the question of compensation?
The point is that there may be woods which add to the scenic beauty or the amenities of a particular locality, especially one of our beauty spots. The owner wants to cut the trees. It is impossible for the Forestry Department to refuse a permit to the owner of such trees if they are matured. In that case, if the district planning authority want to preserve the scenic amenities they must purchase the land from the owner of the trees. That is really the point.
In such a case I take it the Forestry Department have no responsibility whatever except to assist in assessing compensation? The preservation of the trees for scenic purposes will be a matter for the town or county planning authority, but the Forestry Department are interested in the question of compensation and they will be responsible.
The principal purpose of the provision is to provide for the application of the provisions of the Lands Clauses Acts to the assessment of compensation in respect of any land acquired by a district planning authority under Section 44 of the Bill.
The same machinery will be utilised for assessing compensation in these cases, even though the timber has been taken over and preserved by the planning authority?
Yes.
Amendment agreed to.
I move amendment No. 47:—
To delete sub-section (4) and substitute the following sub-section:—
( ) Where a district planning authority propose to acquire under paragraph (b) of sub-section (3) of this section any land or right over land,—
(a) the said authority shall give to the owner of such land or right, not less than 28 days before such acquisition, a written statement showing the extent and situation of such land or right,
(b) such owner shall be entitled to withdraw his requisition under the said sub-section (3) not later than 28 days after the receipt by him of such written statement.
Amendment No. 43 dealt with the deletion of paragraph (c) from sub-section (3) of Section 44. This amendment proposes to incorporate the terms of that paragraph in the present sub-section (4). The change is necessary because the provisions embodied in paragraph (c) of sub-section (3) of Section 44, if so embodied, would only have application unless a relevant requisition under sub-section (3) were withdrawn under sub-section (4). They must have application whether or not the requisition is withdrawn.
Amendment agreed to.
Question proposed: "That Section 44, as amended, stand part of the Bill."
Would the Minister look into the point raised by Deputy O'Donnell, that is, to ensure that the Gárda would give notice to the applicant that he has authority to cut timber? It would be better. There is this about it. The ordinary farmer as a rule does not keep books or accounts and he may not remember exactly when he made the application and there is a possibility that he may proceed to fell timber before the 21 days have elapsed and thus incur a penalty. If it were mandatory upon the Gárda to send a notice to the farmer that he had permission to cut, it would be better.
I think the Gárda in this country are nearly as reasonable as the Land Commission or the Forestry Department. It would be difficult to manage.
The Gárda are 99 per cent. good in the true sense of the word. I have not met the 1 per cent. They are friendly and they mean well. I do not know exactly what the method is. The farmer gets this form from the Gárda and fills it in. Does it go to the Department? Have they to report on that? The Land Commission does not send a forester along nor do I expect them to go to that expense. I assume the Gárda sends a report about the tree to be cut. If the Gárda has a grudge against me, then I do not get permission to cut the tree. There is something very week about it. If you do not get a refusal in 21 days, you can cut. It is very weak and indefinite. I do not want to incur any extra expense.
The Gárda with a grudge is a bad citizen and we cannot make provision for these, unfortunately.
Question put and agreed to.
Section 45 agreed to.
SECTION 46.
I move amendment No. 48:—
In sub-section (2), page 38, line 36, to delete the words "of the planting of the tree" and substitute the words "of planting".
This is merely a drafting amendment.
Amendment agreed to.
I move amendment No. 49:
In sub-section (2), page 38, line 39, to delete the words "every tree" and substitute the words "the trees".
This is drafting amendment.
Amendment agreed to.
Section 46, as amended, agreed to.
Section 47 agreed to.
SECTION 48.
I move amendment No. 50:—
In sub-section (2), page 40, line 37, to delete the word "first" and substitute the word "second".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 51:—
In sub-section (3), page 40, line 50, to delete the word "first" and substitute the word "second".
This amendment follows on amendment No. 50.
Amendment agreed to.
I move amendment No. 52:—
In sub-section (3), page 40, line 52, to delete the word "two" and substitute the word "three".
This also follows on amendment No. 50
Amendment agreed to.
I move amendment No. 53.
In sub-section (3), page 41, line 20, to delete the word "twelve" and substitute the word "thirteen".
This is also a drafting amendment.
Amendment agreed to.
I move amendment No. 54:—
In sub-section (3), page 41, line 24, to delete the words "every tree" and substitute the words "the trees".
This is the same as the previous one.
Amendment agreed to.
Section 48, as amended, agreed to.
SECTION 49.
I move amendment No. 55:—
In sub-section (3), page 42, line 48, to delete the words "every tree" and substitute the words "the tree".
This is also a drafting amendment.
Amendment agreed to.
Question proposed: "That Section 49, as amended, stand part of the Bill."
When imposing replanting conditions, is it the usual thing to insist that the land shall be suitably fenced to prevent trespass by animals?
Section 49 empowers the Minister, in sub-section (1), to grant to persons who are conducting forestry operations on private lands general felling licences freeing them from the obligation of giving felling notices under Section 37 in relation to the intended felling of individual trees. Sub-section (2) provides that the Minister may revoke a general felling licence at any time. This power of revocation is necessary to prevent the wholesale abuse of privilege to which an ill-disposed person might put a general felling licence. Sub-section (3) provides that there shall be attached to every general felling licence which authorises the felling of trees for the purpose of clearing land with a view to replanting afforestation conditions requiring the licensee to replant the land as contemplated by him. The purpose of the general felling licence is to convenience those who are conducting forestry operations on estates in accordance with good methods of sylviculture so that they shall not be put to the inconvenience of applying for a felling licence in regard to every tree they cut down. The question of the revocation is where some ill-disposed person gets such a licence and proceeds to clear the land generally without adopting proper sylvicultural methods. Sub-section (3) is the replanting condition.
And sub-section (4)?
Is it in regard to fencing the Deputy asks the question?
Yes.
There must be fencing.
That condition was always imposed? It was impossible during the emergency, at all events, to obtain wire fencing.
And there was no planting except by the State.
Wire fencing is obtainable now.
Wire fencing was unobtainable.
Question put and agreed to.
Section 50 agreed to.
SECTION 51.
Question proposed: "That Section 51 stand part of the Bill."
This section seems to contain entirely new legislation. An owner of trees is prohibited from cutting any boughs or branches off the trees. I think this is a piece of legislation which will require some explanation and will also require some publicity because the ordinary person would not regard himself as compelled to make an application for a licence to take a branch off a tree. This section would place a very severe hardship on owners if they have to make application for a licence in respect of every branch they had to cut. So far as paragraph (a) is concerned, regarding ring barking or damaging trees, I can well understand that provision. In some cases it might be done maliciously by trespassers and in other cases the owner of timber might do it in order to get the timber condemned or in order to ensure that the timber would decay so that he would be able to cut it. That, as I say, might happen in some cases but I think it would be very undesirable to restrict the cutting of branches. That is an operation that would require to be done from time to time, and I think it should not be interfered with.
The Deputy need not worry about that particular matter. There may be trees overhanging crops or overhanging houses and there will be no restriction in the cutting of branches in such cases. This provision is intended to deal with cases where a man cannot get a permit or is not entitled to it and he then proceeds to deal with the tree in such a fashion as to bring it down without actually cutting it—ringing it or destroying it in some such fashion. That is really what the section is directed against, not the ordinary cutting of branches.
Question put and agreed to.
SECTION 52.
I move amendment No. 56:—
In sub-section (1), page 44, line 10, to delete the words "of the planting of the trees" and substitute the words "of planting".
This is a drafting amendment.
Amendment agreed to.
I move amendment No. 57:—
In sub-section (1), page 44, line 12, to delete the words "every tree" and substitute the words "the trees."
Amendment agreed to.
Section 52, as amended, agreed to.
SECTION 53.
I move amendment No. 58:—
In page 44, line 45, to insert after the figures "38" the following: "or Section 39".
Amendment agreed to.
Section 53, as amended, agreed to.
Sections 54 and 55 agreed to.
SECTION 56.
Question proposed: "That Section 56 stand part of the Bill."
I should like to know what are the qualifications of the referees appointed to carry out the duties under Section 56. There is no provision in the Bill calling for any special qualifications for these referees.
The referee appointed must be a landowner with a knowledge of woodlands.
That is not stated in the section.
Apparently it is not. It is evidently understood.
Question put and agreed to.
SECTION 57.
I move amendment No. 59:—
In sub-section (3), page 49, line 5, to delete the words "one year" and substitute the words "two years".
The purpose of this is to give a better opportunity of complying with the Act.
Amendment agreed to.
Section 57, as amended, agreed to.
SECTION 58.
I move amendment No. 60:—
To delete sub-section (1) and substitute the following sub-section:—
(1) Where the Minister is satisfied that trees or tree plants, growing on any land (in this sub-section referred to as the planted land), are being, or are likely to be, damaged by rabbits or vermin present on any land (in this sub-section referred to as the infested land) in the vicinity of the planted land,—
(a) the Minister may serve on the occupier (if any) of the infested land a notice in writing stating—
(i) that trees or tree plants growing on the planted land are being, or are likely to be, damaged by rabbits or vermin present on the infested land, and
(ii) that, within three months after such service, either—
(A) such rabbits or vermin should be effectively destroyed, or
(B) effective steps should otherwise be taken for the prevention of such damage;
(b) if—
(i) the infested land is unoccupied, or
(ii) the infested land being occupied and a notice under paragraph (a) of this sub-section having been served on the occupier thereof, the occupier does not, within three months after such service, either effectively destroy the rabbits or vermin present thereon or otherwise take steps which are, in the opinion of the Minister, feasible and effective for the prevention of damage by the rabbits or vermin to trees or tree plants growing on the planted land,
the Minister may authorise in writing any person to enter on the infested land and kill and take the rabbits or vermin thereon during any specified period, not exceeding 12 months;
(c) the Minister or the person so authorised may recover from the occupier as a simple contract debt in any court of competent jurisdiction any expenses necessarily and properly incurred under paragraph (b) of this sub-section.
Sub-section (1) of Section 58 of the Bill as circulated requires the Minister, before authorising entry on land to destroy rabbits or vermin thereon, to afford the occupier, if any, of the infested land an opportunity of destroying effectively rabbits and vermin, or otherwise of taking steps which are, in the opinion of the Minister, feasible and effective for the prevention of damage by the rabbits or vermin to trees or tree plants growing on planted land in the vicinity. It has been represented that the condition that the Minister must first give the occupier an opportunity of removing the rabbits, or taking other steps for the prevention of the damage, is not satisfactory, in so far as the word "opportunity" is vague and indefinite.
This amendment proposes to delete sub-section (1) and to insert a new sub-section (1) which is on the same lines as the present sub-section, except that, where the sub-section at present provides for the Minister first giving the occupier an opportunity of removing the rabbits or vermin, or preventing them from causing damage, he is required first to serve on the occupier of the land infested by rabbits or vermin notice giving that occupier three months within which to destroy the rabbits or vermin, or take steps to prevent them causing damage, and he will be empowered to authorise the entry of some other person on the land to destroy the rabbits or vermin only if the occupier fails to take suitable action himself in consequence of the notice served upon him.
This raises the whole problem of vermin and game protection. The Minister very glibly talks of throwing the onus in this matter on the adjoining land-holders, when it is his plantations and new forest areas that will be the breeding grounds for rabbits, hares and foxes. It is certainly a very audacious power to seek to throw the whole responsibility on the adjoining land owners in the matter of the destruction of vermin. Anybody who knows anything about these matters knows that dealing with rabbits is a very technical matter, and, as a matter of fact, I have never known a farmer who could either trap or snare a rabbit. I am prepared to have a gamble with the Minister that he could set neither a snare nor a trap that would catch a rabbit. He will have to get his experts to deal with them if the farmer does not destroy them and he will then charge the farmer the cost of destroying them.
The Minister will hear more of this. It has been raised previously in relation to game protection, and I know places in my constituency which were planted only a few years ago by the Department and which are regular warrens of the most dangerous form of vermin, that is, foxes. Nobody can go into them, because, if he does so, he is a trespasser. The areas are wired in and if a man goes in with dogs to chase the foxes, he is liable to damage the young trees. The result is that the foxes are in there and can come out at night. There are gateways on roads leading into these new plantations and drains and streams running through them, and by any of these means hares and rabbits can get into the plantations, and, once inside, they are perfectly safe because nobody can get at them.
It is inside these planted areas that I see the menace of the propagation of all kinds of vermin, and it will have to be dealt with in some way other than on the drastic basis which the Minister proposes. If he wants to take power to destroy vermin, let him do so, but let him not impose the liability on the adjoining land owners. Nobody but an expert can destroy rabbits. A man must be an expert trapper, expert at setting a snare to destroy them, or it can be done by leaving the places open to young fellows to go in with lamps and greyhounds and have them destroyed in that way. There are not 12 farmers in the whole of Ireland who could destroy rabbits on their land, if they are there in any substantial numbers, and, as I say, I have never known a farmer who could set a snare for, or trap, a rabbit. I have never done it myself. I would never be capable of doing it——
Did you ever try a grain of salt?
——and I have been at the game since I was a young boy.
They are hard to catch in Northern Ireland.
It is ridiculous that the Minister should seek this power to compel farmers to destroy rabbits on their land, because it cannot be done. It is these new plantations which will be the source of all the trouble. They will be regular preserves for the breeding of every kind of vermin, apart from rabbits, such as foxes, weasels and badgers, as well as magpies, crows and hawks.
That is the problem the Department will create in the matter of game preservation. It is a very big problem, and will be very big in the future, and some official steps will have to be taken with regard to it. When the landlords had their houses throughout the country, they kept a head-keeper and under-keepers on the estates to destroy vermin. Now these people have all disappeared and the Land Commission have taken their place, but the Land Commission has done nothing to destroy vermin. Within the last week, I notice that steps have been taken in the city to form an organisation to deal with this matter, but, if we are to preserve game, we shall have to take some other active steps, to which the Department of Lands and the Forestry Department will have to be parties and very active parties. Very substantial sums of money will have to be found for anything that is to be done for the tourists in the matter of preserving game. These sections raise this whole question, which is not a one-sided one. The Minister is passing the baby on to the owners of adjoining land, whereas, in fact, his new plantations will be the root of all the trouble. It would be monstrous for the Minister to take powers to throw all the blame on the owners of the land surrounding these new plantations. If they refuse or neglect to destroy the rabbits and vermin, the Minister is going to get experts to do it. The experts are available to him, as he has the money to pay for them, but farmers have not the money. Then he is going to charge the farmer for the cost of destroying the vermin, whereas the vermin have emanated from the plantations. I would like to see the Minister take up this whole problem, not in a narrow, but in a broad sense, in relation to game preservation. At the moment, the country is full of vermin of all kinds—foxes, scald-crows, magpies, and so on. As a matter of fact, game is being extinguished—both grouse and partridge—in parts of the country as a result of this.
Perhaps the Minister would tell us about taking power to shoot deer. If deer come out of some deer forest like Glenveigh in Donegal, and go roaming about my land, and jump the wire into the Minister's plantation and destroy trees there, I wonder how he expects me to dispose of the deer, which belong to the owner of Glenveigh. Then we have the other wild animals he refers to, other than hares and rabbits. I would like to know what they are. The question of rabbits and hares is only a minor matter, but something will have to be done about the major thing. Otherwise, there is no use in putting up a huge sum of money to make the country attractive for tourists, as there will be nothing for them. When a man takes a stretch of river at a very excessive figure and stays at a tourist hotel, and it is dry weather unsuitable for fishing, he likes during those days to go out to shoot, since he cannot go fishing. Where is the use in getting a gun and ammunition if when he wanders around the moors he never sees a solitary bird? That is absolutely true now. Those plantations the Minister is planting up and down the country are amongst the greatest enemies of the tourist traffic, as they are destroying game. I would like to see the Minister dealing with that, but not in the fashion proposed in this and the subsequent section.
I am in concurrence with much of what Deputy McMenamin has said. Some parts of the country are badly affected by foxes. In my native country, there is a big tract of land—usually hunted by the Duhallow, Limerick, the Black and Tans, Tipperary and West Waterford packs— where there is country 40 or 50 miles wide and no hunting. There is any amount of forestry and woods and the foxes are a perfect nuisance. There is one story of a fox who sits on the windowsill and listens to the wireless at night. We are in a bad way with foxes and the hunting men do not want to say anything about them. They are getting too plentiful in that tract of country. No hunting is done and these vermin should be done away with.
I raised this matter on the Second Stage of the Bill. This section, in its amended and original forms, gives the Minister power to compel the owners of land adjoining plantations to rid the lands of vermin —and vermin here includes deer and all kinds of wild animals. It is a very serious injustice on people with farms adjoining plantations if they have to carry out these drastic provisions. It is not very easy to clear land of all types of vermin, particularly when it it is adjoining a plantation. It might be a costly operation. If a farmer fails to comply with this section, the Minister may send his own agents in on the land and charge the farmer for the cost of destroying the vermin. In addition, those agents may do considerable damage. We know it is very easy to exterminate rabbits completely if you set out to destroy the fences in the process; and if the Minister's employees do that there is no provision here for compensation.
Another question raised on the Second Reading was the damage which vermin, protected in the plantations, may do to farmers' poultry and gardens. There is no provision in the Bill for compensation for such farmers. I had to make application on behalf of farmers who complained in this respect some years ago and I learned from the Forestry Department that they had no power to provide any compensation for the damage done. We have now a Forestry Bill going through the House and should take steps to provide the Department with power to compensate farmers for any damage done by vermin protected in the forest?
The Minister wants to have it one way, to impose a penalty on the farmer for raising vermin which damage his plantations, but he cannot have it only one way; he should also compensate the farmer for any damage done by foxes or other vermin protected in the woods. I am referring particularly to foxes, as there have been very grave complaints in many parts of County Wicklow in regard to this particular damage.
On this particular question of destruction of vermin, we had tourists and the "hunting, shooting and fishing" crowd. I wonder if we are to regard these as vermin. There is the difficulty in regard to forestry development that we are bound to have certain wild animals protected as a result of the shelter they get in forests. The only provision that can be made against that is the provision of trappers. I think we must develop the trapping system more adequately. That would be the best guarantee of compensation for farmers generally. In view of the fact that there is no compensation to farmers for destruction of vermin which find shelter in forests, it may be well to consider on the Report Stage the views expressed by Deputy Cogan, and I will give the matter consideration.
Has the Minister anything to say about the destruction in these plantations? What steps will be taken with regard to the destruction of the foxes that are taking cover in these plantations? These animals that are swarming all over the country come out of these plantations and this is becoming a serious matter. Something will have to be done about it.
In these things usually what is everybody's business is nobody's business. I wish the Minister and other Deputies would express their views. I know that Deputy Halliden is interested in this matter, and I should like to hear an expression of opinion from him. He is deeply interested in this subject and knows all about it, not only from a local point of view, but because of the information he may obtain from all over the country. I should like an undertaking from the Minister that he will see that every effort will be made to take care of the young forests and that he will supply the foresters, if necessary, with guns and ammunition for the purpose of destroying the foxes and badgers that take shelter in the forests.
There is no use in placing responsibility on the owners of the land in the vicinity, the owners of adjoining land. That is no good so long as you have these places practically preserved, wired around and made places of absolute security for these animals. They are perfectly safe in these forests that are wired in. They have perfect breeding dens there and the little animals swarm out and destroy everything in the countryside—poultry and young game. These animals walk around in daylight—I have seen them myself— and they have not left a solitary game bird in the country. So far as experts in these matters can calculate, I am told a dog fox and a vixen, with their pups, can destroy 300 head of game. That is a huge amount of destruction. A vixen, a dog fox and three pups will destroy as many as 300 game birds. When you take into consideration how plentiful these animals are, you will realise how much destruction can be caused. The young forests are so protected that they are perfect breeding grounds for those animals that play such havoc through the country.
The foresters are intelligent, competent fellows and if they were given guns it would be a good thing. It would be well worth while paying the foresters to enable them to take out a firearms licence and also supply them with ammunition. They would quickly put an end to the foxes and the badgers. Why not take such steps now before the country becomes infested with these animals? There is nobody to look after them. Those little forests are their hiding places, their main sources of security.
I see in paragraph (c) that the Minister may recover from the occupier as a simple contract debt in any court of competent jurisdiction any expenses necessarily and properly incurred under paragraph (b); that is, any expenses incurred by the Minister through the failure of the owner of the adjacent planted land to remove the vermin. I assume the Minister, if and when he takes such steps, will see that value is given for the money expended. Possibly he might employ trappers to trap the rabbits. I presume the officials of the Department will see that that is done within a reasonable time and that the amount of money expended will not be so big as to make it practically impossible for the occupier of the lands to pay; in other words, we do not want people to get it into their heads that because they trap rabbits for the Forestry Department, they can spend a month where a fortnight would do and thereby penalise the occupier. He may not be possessed of very much money and he may not be in a position to pay what is demanded of him by the Minister.
The other point I would like to be clear on is, who will dispose of those rabbits and where will the money that will be realised as a result of the sale of such rabbits—let the quantity be large or small—go? Would I be right in assuming that the money realised will go towards the payment of the men engaged, or will it go to the Forestry Department and they will pay the wages of the men, subtracting one amount from the other, and retaining what is left, if there is anything left? In the event of the money received as a result of the sale of these rabbits being greater than the amount that would be demanded from the occupier, will he get the difference?
I would like the Minister to explain what steps he intends to take. I am always assuming there will be a certain amount of discretion in the hands of Departmental officials and they will not make things too awkward for the occupier of the land adjacent to the plantation; but it is as well to have made clear what the Minister's intentions are. In the event that he will have to employ men, what steps will be taken to see that the work will be done within a reasonable period and that there is no rubbing in, say, to the occupier of the adjacent land?
The Minister has already given an undertaking to Deputy Cogan that if it can be demonstrated that the vermin come from one of the Minister's plantations, then the Minister will consider the question of compensating the party who will suffer as a result of any depredation caused. But whether, as Deputy McMenamin says, the foxes come from the Minister's plantations or from other plantations, the fact of the matter is that the country is overrun with foxes and they are doing an enormous lot of destruction. If the Minister can assist in helping to exterminate these vermin, I am sure the country people will appreciate his efforts very much. I have heard that foxes in great numbers frequent some of the forestry plantations in Donegal—two of them, at all events. What truth there is in that, I am not quite sure. However, that is a small point.
The important thing is that some steps should be taken to destroy the vermin, and prevent the depredations they are carrying out on poultry-runs and young game. No doubt, the cutting down of so much timber during the emergency is responsible for the number of foxes at large. In any event, I am satisfied to allow this section to go through if the Minister gives an undertaking that between now and Report he will look into the question of compensation for the people who suffer as a consequence of the depredations of vermin coming from forestry plantations. That is the only essential point in connection with this section.
Foxes are found not alone in the woodlands of the Forestry Department. Any amount of foxes are to be found in every isolated area in my constituency. I have seen particular parts of the country absolutely covered with foxes. Deputy McMenamin made an appeal to Deputy Halliden. I know that Deputy Halliden would love to have a few foxes for the hunting people in his part of the country. In the Forestry Department we have a number of trappers, and the number is growing. Each forester is supplied with a large number of traps. All lettings of shootings are made to people whose interest it is to destroy vermin. Deputy Roddy said that owing to the cutting down of trees, foxes had become more prevalent. Other Deputies said that the more trees we grow the more foxes we produce. I do not know, but anyhow I think that the only Deputy who made any important points was Deputy Cogan, and I will have them examined before the Report Stage.
Amendment agreed to.
Amendment No. 61 not moved.
Section 58, as amended, agreed to.
NEW SECTION.
I move amendment No. 62:
Before Section 59 to insert the following new section:—
(1) Notwithstanding anything contained in the Game Preservation Act, 1930 (No. 11 of 1930), it shall be lawful for the Minister and the servants and agents of the Minister to take and destroy hares by any reasonable means at any time of any day on any land held by the Minister for the purposes of this Act.
(2) In this section the word "hares" includes leverets.
Hares do a tremendous amount of damage to young trees, and steps must be taken, inside the woodlands, to put a stop to their depredations.
Amendment agreed to.
SECTION 59.
I move amendment No. 63:—
In sub-section (1), page 49, lines 44 and 45, to delete the words "in its vicinity" and substitute the words "adjoining the planted land".
Amendment agreed to.
I move amendment No. 64:
In sub-section (2), page 50, line 13, to delete the words "in the vicinity of" and substitute the word "adjoining".
Amendment agreed to.
Amendment No. 65 not moved.
Section 59, as amended, agreed to.
Question proposed: "That Section 60, stand part of the Bill."
On the section, I desire to call the Minister's attention to the fact that campers do a considerable amount of damage on the Dublin mountains by leaving fires lighting at the end of a day's outing, or by throwing the ends of lighted cigarettes around. These outbreaks cause a good deal of trouble to the Guards. There is no means of dealing with damage of this sort. It is not covered by the Malicious Damage to Property Act of 1861. The damage, of course, is caused by those campers through negligence. Perhaps the Minister would look into the matter between now and Report Stage, and see if it would be possible to prevent fires being lighted by those people unless on a roadway or in some other approved place. It has been pointed out to me by some of the Gárda authorities that they have considerable trouble in connection with these outbreaks and that the section as it stands does not meet the situation. Neither is it met by the Act to which I have referred.
Would the Minister tell me what is the distinction that is meant to be drawn by the words in the section "some person other than the owner of the property"? I take it the intention is to protect the forest from the danger of fires. Surely, the owner of the land where the fire is started would be as big a menace to the plantation as anybody else.
The section, as I read it, asks that the owner of land adjoining woodlands would give notice of his intention to destroy vegetation. It is only reasonable that the foresters and workers should get due notice of that in order that they may protect the woodlands against fire. That does not seem an unreasonable imposition to put on anybody, particularly in view of the damage that is being done by those people who start fires on mountain sides. I know that in the County Wicklow a tremendous amount of damage has been done, not through malice or anything like that, but through carelessness. The object of this section is to ensure that the foresters will get notice so that they may protect the woodlands from the result of such carelessness. I do not think I could deal in a Bill like this with campers or hikers. A good deal of damage may be done by carelessness on their part. I think the only remedy for that is to try to promote a spirit of good citizenship, or perhaps something might be done through organisations such as An Oige.
Why say that the vegetation shall not be burned within a mile of a wood?
It is surprising how those fires spread. I was driving to Cork early one morning recently, and saw a fire in the County Tipperary. When I was coming back in the evening the fire was three miles long.
Does the Minister think it would be possible to prohibit the lighting of camp fires unless under the supervision of an association like An Oige?
I think that a Forestry Bill is not the Bill to handle a problem of that sort. I also think that a prohibition would be useless because I do not think you could enforce it.
Question put, and agreed to.
SECTION 61.
I move amendment No. 66:—
In sub-section (1), to delete paragraph (c).
The section deals with the removal or destruction of vegetation on land adjoining woods, and provides that where the Minister is satisfied that a wood is liable to be damaged by fire originating on uncultivated land adjoining such a wood, by reason of the presence thereon of vegetation, the Minister may serve on the occupier of the land a notice stating that such vegetation constitutes a potential danger to the wood and should be removed or sufficiently destroyed within a certain period. Now, under paragraph (c) the Minister or the person whom he authorised might recover from the occupier, as a simple contract debt, any expenses necessarily and properly incurred under paragraph (b) of the section for the removal or destruction of vegetation, and so on, as a measure of fire protection in relation to the wood. It was felt that it would be unreasonable that such expenses should be borne by the occupier in the circumstances set out in paragraph (b), and accordingly paragraph (c) is being deleted.
Unfortunately, I was not present during the whole of this debate and I should like to know what is being done about the hurleys. I know that the Leas-Cheann Comhairle himself played the game in many places, and I understand that the Minister was no mean footballer himself.
Amendment agreed to.
Question proposed: "That Section 61, as amended, stand part of the Bill."
On the section, Sir, take the case of a farmer who keeps on the summer grass in order to fill a gap during the winter time: what will happen to him when that grass dries up? Surely the Minister will not take power to compel a farmer to destroy a crop of grass that he is preserving for his cattle for feeding purposes in the winter time. I can quite understand that being done if it is a question of rank grass, weeds and so on, but in this country it is the general practice for a farmer to keep a certain amount of grass land available, which might become inflammable during the warm season, so as to be able to feed his cattle in the winter, but the farmer himself generally takes precautions. I think there should be a distinction made there, and that he should be allowed to keep a crop of, say, 40 or 50 acres of grass for feeding purposes in the winter.
The section deals with inflammable furze and peat or heather.
Will the Minister tell us something about the hurleys?
I shall look after that.
Section, as amended, agreed to.
Sections 62, 63 and 64 agreed to.
Schedule and Title of the Bill agreed to.
Bill reported with amendments.
Report Stage ordered for next Tuesday.
The Dáil adjourned at 10.30 p.m. until 10.30 a.m., Friday, 29th.