We were discussing amendments Nos. 10, 11 and 12 together?
Committee on Finance. - Local Government (Sanitary Services) Bill, 1964—Committee Stage (Resumed).
Debate resumed on the following amendment:
Before subsection (7) to insert a new subsection as follows:
"(7) This subsection shall apply to a person who:
(i) is tenant of a dangerous structure or any part thereof and is required to vacate such structure by reason of the service of a notice under subsection (1) or paragraph (a) of subsection (9) of this section or by reason of a Court order made under paragraph (b) of subsection (9) of this section,
(ii) was not by virtue of his tenancy under legal obligation to prevent the structure from becoming a dangerous structure,
(iii) became tenant of the structure or any part thereof not less than six months before service of a notice on the owner under subsection (1) of this section."— (Deputy Jones.)
Amendments 12, 13 and 14 were being taken together.
On the last occasion I pointed out that these amendments were designed to deal with the situation of tenants who were removed from premises they occupied as dwellings or as business premises. I pointed out then that there were three different types of case. One is the case of the premises which is purely a dwelling and under the Rent Restrictions Act, I pointed out that a tenant was entitled to compensation on his application to the court and that the amount of compensation he could get was laid down under that Act. Where a local authority sought possession of a dwelling, the person was entitled to appeal to the courts and get compensation as laid down and in such cases the compensation was three years' rent.
I pointed out also that a certain amount of property, particularly in built-up areas, is of an old type and might be regarded as slum property. Sometimes people say that compensation of this nature is high but that is thinking in terms of the value of the present site becoming available to a landlord. However, as regards the tenant, his entitlement to compensation was limited by the Rent Restrictions Act of 1960 to three years' rent. Consequently in the case of a certain amount of this property it was bought cheaply and rented cheaply and the compensation therefore would not be very large.
The second type of compensation relates to the case of the person occupying premises as business premises. The question of compensation arose there because under the Landlord and Tenant Act of 1931, if a landlord sought possession of a premises used for business purposes he could say that the granting of a new tenancy, even in cases where a lease was expiring, would not be suitable and conducive to good estate management but the premises used in these cases would not be subject to control under the Rent Restrictions Act of 1960. The question then of compensation in this case is one which we suggest should be determined by the court and for that reason we seek to have inserted, before subsection 9, a new subsection which would lay down that the type of compensation payable in such cases should be determined by the circuit court.
When the Town Planning Act was before the House on a previous occasion, we argued that in quite a number of cases the amount of compensation awarded by an arbitrator, other than somebody acting in a judicial capacity, could well be, and has been, very misleading and very much under value. For that reason, we cannot see why the services of the circuit court which is available and has much experience of dealing with these matters of compensation should not be used, certainly in regard to the type of case we are dealing with at present.
When we reach the amendment the Minister had in mind concerning compensation of a certain type for people disturbed in this matter, it should be put beyond doubt what the amount of compensation will be and that it should be determined under the process by which it has been determined up to now in this type of case. We have two Acts dealing with this matter and we believe that getting a judicial decision would be the normal process, fair to everybody, and, accordingly, I urge that the amendment be accepted so that a person seeking compensation will have the protection of the circuit court in the determination of his case.
The first thing we should clearly understand is that there is no provision for such compensation in any other code passed by the House but one might be inclined to ask here why should there be a question of compensation being provided for a tenant only in cases where the local authority actually has put the tenant out because the building in which he happens to live is dangerous. There does not seem to me to be a great deal of sense in this proposal. The precedents we have do not dictate that it should be done.
I do not see substance in the arguments about the whole matter of compensation, particularly when in the following amendment provision will be made for what we might regard as the hardship cases. In that event I think it is an improvement on what was originally before the House and by providing it in the form of an official amendment, I felt it would in fact meet any difference of opinion we had in regard to looking after certain people who may be put in a rather awkward position at present because there is no power whereby the local authority, even if they want to do so, could give any sort of grant or assistance to tide people over or in some way make up for the disturbance and try to alleviate any hardship imposed on them.
Taking these things into consideration, I do not really see the need for this amendment. There is no real precedent for it and I do not think there is any question that we should deal specially with this type of special case when in fact the same thing as is proposed in this Bill applies, for instance, where a house is acquired under the Housing Acts or, say, for road widening. I do not see why there should be any different code established for cases that may come under the legislation we are now proposing.
Mr. Ryan
I thought I was listening to a lawyer when I heard the Minister speaking. He seems to think we could not do anything because we had not a precedent to do it. I thought it was the lawyers who relied on that sort of argument and I was surprised to hear it from the Minister because I do not think he can boast of being a member of the legal fraternity.
Anybody can learn your language.
Mr. Ryan
Yes, but it is a good thing to understand the basis for the references of lawyers and I am afraid that has escaped the Minister. There is no provision in the 1890 Act for compensation in relation to business premises for the simple reason that that Act gave no power to Dublin Corporation to demolish business premises at all, although indeed the power has been used in the past year to demolish business premises. It is only recently there has been a judicial decision which clarifies the issue and interprets the Act to show that the only power in relation to business premises, and which is exercised here, is that where the wall of a building is dangerous, to require it to be fenced in and made safe. It does not give any power to protect persons from having the whole building demolished. It has been done without compensation. This amendment seeks to remedy a wrong which is improperly done. We believe the amendment by Deputy Jones is worthy of support because we seek to recover the compensation from the owner of the property. The owner of the property should pay the compensation because the owner of any property is under an obligation to maintain its structure.
If the owner of the property believes the structure is dangerous, then he should not let it. If the owner of a property believes it is likely to become dangerous within the letting period, then he should not let it. If the owner entices or permits people into dangerous premises or a building which is likely to become dangerous, then the owner of that property should pay compensation. The degree of compensation which Deputy Jones seeks is not great. If a building is so dangerous as to require demolition and to require people to be evicted from it, it is probably in a most profitable zone of a city or a town.
It is true to say that many of these properties are much more valuable as vacant sites, clear of buildings, than they are with tenants in them. Quite substantial profits can be made by demolition of structures certainly in the centre of Dublin at present by selling them for site value only. Deputy Jones seeks to recover reasonable compensation which is no greater than three years' rent. Indeed that would not in many cases even compensate people for the disturbance which they suffer. A serious problem has arisen in Dublin over the past year, and will multiply over the next few years, where small shopkeepers who are evacuated from premises in the centre of the city, in the poorer quarters, are unable to find any other shopping position. It is not a question of giving people compensation so that they can go to equivalent premises because equivalent premises are becoming scarcer on account of demolition of old buildings.
We do not consider the Bill as drafted takes that into account. An amendment by the Minister at a later stage leaves it to the discretion of the local authorities to assess whatever they consider would be adequate. It introduces all kinds of questions which would not be in the mind of valuers in court. It is not because of any desire to bring these cases into court in the hands of lawyers that these amendments are moved. I want to say, in case anybody is under that apprehension, that there would not be much profit for those engaged in representing people seeking compensation.
The amendments by Deputy Jones would in practice work out better and they would provide for the recovery from the people responsible of some degree of compensation. The burden of collecting compensation should not be put on the local authorities. We consider the burden of paying compensation should be put on the owners of property who have let them, when they were potentially dangerous, or who have failed to preserve the property in the first instance. The compensatiion which Deputy Jones seeks is to be recovered only by people who have no responsibility for the maintenance of the structure. The amendments to be discussed later on would give compensatiion to people who have responsibility for the maintenance of the structure. We do not think that is desirable. We consider compensation should be given to the innocent people.
The only thing I wish to say about this is contrary to what Deputy Ryan seems to imply. I am not relying merely on the fact that there is a precedent for it. I am going back a little further. The matter of putting dangerous premises in order is surely a matter for the Landlord and Tenant Act. The amendments we are now discussing are much more appropriate to amending legislation to that Act. It would be ridiculous to bring them into this Bill where the change does not purport to deal with that side of the affair at all. If there are changes now, it certainly seems they should be considered.
Would the Minister not agree that there are cases at present where the owners of property, which might fall to be dealt with under this Act, are going to get possession of premises? Is the Minister satisfied that this is not being done at present because of the circumstances which have arisen, particularly here in Dublin, in which people are being dispossessed without entitlement to compensation? There is provision at present, apart from this Act, for compensation for the person who is interfered with in his possession of his dwelling.
Perhaps quite a number of people do not know that they are entitled to compensation, even if it is only a small amount. We are seeking here in many of these cases, and in cases which are likely to happen when orders are served, and when sites become available, that the owners of these sites which will be readily marketable as available building sites, because they are in the main in the heart of the city, should not be charged with the amount of compensation laid down. Some of the tenants of these properties, who pay 5/- a week, would receive compensation of £39. If we were to assume there were four tenants in that dwelling, the amount of compensation payable would be £156.
Some of these properties which are coming on the market at present are of much more value. Consequently, it would be incumbent on the landlord, to obtain a claim of possession of the building, to accept an obligation to provide an amount of compensation which we have mentioned here and which is covered by the two Acts to which I have referred. Does the Minister see no merit in that?
I see merit in it but I do not see that it is relevant to the problem here. Surely what we are talking about has no relevance since it is covered by the Landlord and Tenant Acts? What we are dealing with in the Bill is what local authorities must do in order to save life. Whatever about the merits of the argument, I do not think it is relevant.
Mr. Ryan
The purpose of the amendment is this. At the moment the Corporation may move to have a place demolished. If the Corporation get the place demolished or the landlord issues an order at the behest of the Corporation demolishing it, the tenant gets no compensation at all. If the tenant does anything to obstruct the course of action of the Corporation or the landlord, he may hold on to the tenancy. If the landlord then serves notice to quit to get him out that way and to get an order for possession on a number of grounds, he must pay compensation to the tenant. In those circumstances, the tenant is compensated for being disturbed. We seek to preserve that right for any tenant who is ejected or has his place demolished at the behest of the Corporation before other legal remedies are available to him. Deputy Jones is seeking to apply these compensation provisions to people able to hold on to their tenancies until such time as notice to quit is served. Perhaps the Minister would consider it on Report Stage?
Then we would not be considering it until next November. We are dealing with the action local authorities have to take in cases of dangerous buildings, particularly those which are a danger to life. If we are to hedge this around with all sorts of restrictions concerning compensation and so on and making it unduly difficult and costly for local authorities to take action, we will not get these buildings cleared as quickly as they should be cleared. I would not agree that we should wait for months before coming to a decision on making it possible for this action to be taken.
Mr. Ryan
The Minister is contradicting himself. Deputy Jones's amendment would not encourage tenants to obstruct the Corporation or the landlord. Because the compensation provisions are not there at the moment, any prudent tenant will see to it the Corporation or the landlord are obstructed in every possible way so as to preserve the building or the shell of the building. Deputy Jones seeks to preserve the tenant's right to compensation, even though the building is swept away.
I am afraid we are at cross-purposes. My understanding of the amendment was that any existing rights under the Landlord and Tenant Acts would not be interfered with. Under the law at the moment, the court may step in to protect the rights of the tenant or the landlord where the action of the local authority appears to endanger those rights. That is the basis on which I am approaching this matter.
Mr. Ryan
If you adopt Deputy Jone's amendment, there will be no need for the court to intervene to protect those rights because those rights will continue long after the premises have gone.
You advocate bringing in the courts to protect this, that and the other. The cat's tail would seem to be an appropriate thing for the courts to protect, according to the attitude of mind displayed so far. Why should we reverse engines and say there is no need to bring in the courts? Why not leave the courts in?
Mr. Ryan
Obviously the Minister and ourselves are at cross-purposes. This shows how important it is to reconsider this matter over the next week before Report Stage.
There will be no Report Stage next week.
Amendment, by leave, withdrawn.
Amendments Nos. 13 and 14 not moved.
Amendment No. 15 has been adjudged to be out of order as creating a charge on State funds.
Amendment No. 15 not moved.
I move amendment No. 16:—
In page 6, after subsection (10), to insert the following subsection:
"(11) (a) A sanitary authority may, if they so think fit, make a grant of such amount as they think proper to any person who—
(i) on or after the 1st day of June, 1963, has left or leaves a dangerous structure at the request of the authority or in pursuance of a requisition under subsection (9) of this section,
(ii) immediately before such leaving carried on a trade or business in the structure, and
(iii) in the opinion of the authority, by reason of such leaving, has suffered or will suffer hardship.
(b) In determining the amount of a grant to a person under this subsection, a sanitary authority shall have regard to the length of the period during which the person carried on a trade or business in the structure in relation to which the grant is proposed to be made."
This is an attempt to cover a type of case that may arise and which, according to some Deputies, has already arisen during the past year. It is to enable local authorities to deal with such cases so that hardship by accident, as it were, will not occur in so far as these operations are concerned. We are enabling local authorities to look after these cases with the knowledge they undoubtedly have of the circumstances of the people disturbed or of any particular loss or hardship. This will enable them to act towards these people in a fair and reasonable manner and give them help where it is necessary.
The Minister's amendment is permissive. They may do this if they think fit. The second point that strikes one is this: the Minister says they may do these things if a person leaves the structure after 1st June, 1963. Why the Minister sets that date I do not know. Why should it not go back to 1962, 1961 or the date when there was evidence first of these things occurring? Is there any reason why we should confine it to 1st June, 1963?
Three conditions are being imposed in respect of the payment of compensation in this case. The first relates to the date of the compensation. The second mentions that the premises must have been such that trade or business was carried on—no question of their having been a dwelling. Why should compensation not be payable in the latter case? The third point is that in determining the payment, the length of the period during which the person carried on trade or business enters. In other words, it is being determined on the length of the tenancy rather than on the volume of the business.
It is apparent that a person could have a considerable volume of trade, irrespective of the length of time he occupied the premises. That ought to be considered in determining the amount of compensation. The method of compensation we proposed earlier would have been better from the point of view that we were refraining from imposing a burden on the rates. We suggested charging compensation on the property. The Minister said he did not wish to penalise local authorities, but the basis of this provision is to penalise the local authority rather than the bad landlord who allowed the premises to become so decadent that they were no longer fit to stand.
Another thing is that all sites becoming available in this way in the city have a high market value and there is no reason, therefore, why the site itself should not bear the type of compensation payable rather than that the local authority should pay it. Still another thing is that money would be readily available from the sale of such sites. One has only to look at the building taking place in Dublin at the moment to realise that most modern buildings are being erected on older portions of the city.
In his amendment, the Minister does not set out in any detail to whom this will be paid or on what terms the compensation will be paid. In our amendment, we attempted to set out in some detail the people to whom compensation would be payable and the amounts. The ministerial amendment leaves this matter open. Perhaps the Minister will defend that by saying the local authority are the better judges in these things.
I say again, as I said on an earlier amendment, that the local authority should not be confused with the elected representatives. In all these cases, the local authority are in effect the executive power, in which the elected representatives will not have any say. I agree the Minister's amendment is a big step in the right direction but I would urge him to be more specific in regard to the type of compensation he proposes to pay, the classes to whom it may be paid and the conditions which will apply to its payment—what factors are taken into account in the measurement of compensation.
Mr. Ryan
Deputy Jones has put his finger very properly on a number of very difficult points certain to arise from the efforts of the Department to apply the section. There are no canons we can use in assessing compensation. The section as proposed by the Minister is to apply where, in the opinion of the local authority, hardship is suffered. Will this involve a means test? In a family where all or some of the children may be bringing in an income, where the husband may be in a position independent of the business, is it the position that no compensation whatsoever will be paid to the woman of the house if she is the person responsible for the shop?
That case illustrates clearly what is quite common: there are quite a number of shops in the city known as hucksters' shops in which the woman of the house has run a reasonably lucrative business for years, supplementing the family income. The local authority here would not offer any compensation to a person in those circumstances and that would be patently unjust. Whether the person is of ample family means or otherwise, he or she should not have all right to compensation taken away because he or she did not suffer immediate stringent hardship.
Here, no compensation will be paid unless the person involved is thrown on the breadlines. I do not think we should permit the local authority to worsen people's conditions by obliging them to suffer hardship before receiving compensation. Obviously it is undesirable that where the local authority are in the position of executioner, they should also be judges of the damage they have done. Surely there should be some form of independent arbitration.
In this case, it would also appear that the burden of compensation is to be borne entirely by the rates. I may be wrong in that. I had thought I had seen a section allowing the local authority to recover the various costs they would incur from the people responsible, but I am not now able to find it. If that be so, it means the managers will be concerned to a great extent with the burden on the rates imposed by the application of this section.
During the Second Stage, the Minister referred to the problem which would have to be considered where the removal of dangerous private dwellings in an area took away from a business premises its customers of the past and possible customers of the future. This brings us to a problem we have seen develop over the years where a local authority have a general plan for an area, be it road widening or rebuilding. It may occur that there have been demolitions over the years of private dwellings, leaving business premises until they are forced, because of bankruptcy or serious financial circumstances, to close without compensation, or leaving them until the local authority are prepared to initiate their rebuilding programme. Only then is an effort made by the local authority to pay compensation.
We in Fine Gael believe that if a local authority have plans for the redevelopment of an area, they will, according to this, deprive people of legitimate compensation they would have got if their premises were demolished during the first stage of the development. That is the sort of compensation that ought to have been provided for in this Bill. Our suggestion is that if the local authority find an area dangerous, they should treat the area as a unit and should pay compensation to traders based on an assessment of the profits they would have enjoyed if the private dwellers had not been taken away. If this is not done, we are going to have a situation in which a shopkeeper in the middle of Bolton Street who in the past, enjoyed a lucrative trade because of the presence of families all round him has now nothing left but the shell of a business and no hope of customers or business in the future. That is the kind of situation which the Minister intends the local authority to consider and it is the kind of situation which will cause suffering because such a person may not get any compensation at all.
One of the things which prevent many small shopkeepers from seeking compensation is that many of them do not keep proper accounts. That may or may not be because they have sought to defraud the Revenue Commissioners with regard to income tax or it may be because the business is a small family concern and because they have not efficient methods of accounting. Many people in the past have been deprived of their reasonable compensation where street widening projects have taken place because of their inability to produce books. I do not think local authorities should avail of the failure of people to produce records of that kind. Some kind of generous effort should be made to compensate these people and that is why Deputy Jones is right when he says the Minister should attempt to set out the considerations which should be in the minds of those who will assess this compensation. The person who is paying the compensation will be the person who is going to assess it and if his assessment is not satisfactory, there is no comeback.
The 1st June, 1963 has been set down as the operative date of this amendment. Obviously, there has to be some date and I have been more than mindful of the situation as we know it. The obvious date is the date of enactment but because of the fact that during the past 12 months the rate of demolition of property has been accelerated and because there are 71 of these people concerned, of whom 25 have been allowed to remain, I thought it only right that we should go back and cover that period. That is why the operative date has been made 1st June, 1963 rather than any other date.
In so far as outlining, specifying and determining the conditions under which the local authority will pay, I tried to draw the scheme as widely as possible. Seeing that the power provided in the amendment is a discretionary or permissive one, I felt it should be drawn in wide terms because we cannot altogether foresee what type of claim for compensation will arise in the future. In regard to the compensation of which we have had experience up to the present, we may not quite see the full picture to the degree that we can set out for the local authority how they should do this job. This matter is permissive and discretionary and we could not set out the lines on which the matter of compensation would be dealt with by the local authority.
The objection that this amendment refers to the local authority itself and not to the elected members is quite true but the elected members of the local authority can require the manager to pay compensation in a specific case if he was not inclined to do so. On the other hand, the elected members will have to vote the money necessary to provide the compensation and they will have the power to restrain the manager if he is inclined to pay too much compensation or to overdo the matter. No matter which way we look at it, the elected representatives have control in the matter.
Would that power be reserved to the elected representatives?
Not reserved to them. By the operation of section 4, the manager is to do a specific thing and if the manager tends to over-pay, the elected representatives can refuse to vote him the money. While the manager has the responsibility to determine the compensation, the local authority has the power to make him pay compensation or to restrain him from paying too much.
Will the manager be covered by that or would it depend on the Minister?
Not necessarily, unless the manager refuses.
If the manager refuses, the local authority can go to the Minister?
Yes. The Minister will either agree or disagree with their argument.
Mr. Ryan
Would the Minister consider a further amendment to sub-paragraph 3 to change the word "hardship" to the word "loss". Hardship is too severe a test. If people suffer loss, they should be compensated and to require them to be in dire poverty before they are compensated would be too strict.
The term is wide enough. The Deputy may, in his own interpretation, narrow it down but I think that we should keep in mind that in the type of case we will deal with under this section where loss is incurred, it will also mean that hardship will arise because of the nature of the business that has diminished or vanished due to an area becoming obsolete. I think the substitution of the word "loss" would not make a great deal of difference. The term "hardship" is quite wide enough to be used to the best advantage of those people we are trying to help in this particular situation.
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 and 5 agreed to.
Amendment No. 17 not moved.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
Will these maps be available at one centre only and not anywhere else? Will they be deposited, for instance, where there are assistant county engineers?
It could be anywhere. Generally speaking, probably it will be available only at the county offices but there is no restriction on other centres being used also.
There are assistant engineers in various areas and there are offices, and it would be convenient if landowners in the area could see them there.
We could indicate in the administrative directions or suggestions we send out that that should be done. It can be done under the terms of the section but we could suggest that it should be done.
Question put and agreed to.
SECTION 18.
I move amendment No. 18:—
In page 9, line 54, and in page 10, lines 7 and 17, to delete "this section" and to substitute "this Act."
This is purely a technical amendment really covering a drafting error discovered after introduction.
Amendment agreed to.
Section 8, as amended, agreed to.
Sections 9 to 17, inclusive, agreed to.
SECTION 18.
I move amendment No. 19:—
In page 14, subsection (4), line 3, to delete "subsection (2)" and to substitute "section (3)."
This, again, is a technical amendment to rectify a drafting error discovered after introduction.
Amendment agreed to.
Section 18, as amended, agreed to.
Section 19 to 23, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Next stage?
Tuesday next.
I am afraid it will not be; November next.
Wednesday, then.
The second Wednesday in November.
If the Minister wants it that way, that is all right.
It is not I who want it.
Next Wednesday. The House is sitting next week.
That is all right. You can take it or leave it.
It is a matter for yourself.
You have dealt with it in this manner this week and last week. You now have succeeded in obstructing it for another four months.
Mr. Ryan
The Minister is paid to be here next week. We will do our job here next week.
It is the Minister who is putting it back.
The Fine Gael Party.
Mr. Ryan
If the Minister will be here in Dublin next week, instead of in Roscommon, we will be here to take the Bill.
Donegal Mafia.
The Deputy knows about that and they know a little more about the Deputy.
Report Stage ordered for Wednesday, 11th November, 1964.