Some question was raised by Deputy O.J. Flanagan before we adjourned last night that the main proposals here are delegation of functions of examiners of title and they are designed for the purpose of expediting work in that Department, mainly seeking items on the allocation of vendors' purchase money by the examination of title. That is the purpose of the section. There is, as Deputies will see, an appeal provided for by any aggrieved party but it is anticipated that this could considerably speed up the work rather than have to go before the Judicial Commissioner with all these matters.
Private Business. - Land Bill, 1963—Committee Stage (Resumed).
Question again proposed: "That section 15 stand part of the Bill".
I am not quite clear what these matters are. As I understand it, in relation to the draw from the Costs Fund, what will happen in future is that the Examiner will put down on the allocation sheets a draft for the figure for the Costs Fund and work out the basis of the allocation on that figure which he has made out from the Costs Fund. If the solicitor for the owner or any of the mortgagees or any of the parties appearing in the proceedings, is not satisfied with the draw the Examiner has made, he has the right of applying, on the allocation itself, to the Judicial Commissioner for a variation of that figure. I am not absolutely clear about that particular part. Is it only on the application they apply for a variation, or have they to go for a special motion on appeal from the decision of the Examiner? It seems to me if they have to go for a special motion, it will make it unnecessarily costly.
They have to go with a special motion. On the question of a draw, there are a number of other matters which are now being delegated to the Examiners—for instance, fixing redemption of claims.
The number of years' purchase, and so on?
Yes, and determining the amount due, mortgages and so on. These matters formerly had to be dealt with by the Judicial Commissioner himself and therefore the purpose of this is outside this question of draws. It is to enable them to do this work expeditiously and unless a dispute arises, it will not be necessary for them to go before the Judicial Commissioner. If a dispute arises, it can go by way of appeal.
I can understand the case the Minister is making without any difficulty. If it is a mortgage for a fixed sum, then there is nothing to do but put it in priority. The only argument would be about the order of priority or about the amount of accrued interest if there were a clause for half yearly rests, or something like that. But in 90 per cent of the cases there cannot be argument about the amount. I understood the practice at present was that it was automatically put on the allocation schedule by the Examiner at the fixed amount and that they went to the Judicial Commissioner to rule on it automatically.
I cannot see, therefore, in relation to that, that this section is doing anything to expedite matters. If there were a question, for example, of fixing the redemption of an annual charge only, there would be variation of the number of years' purchase that would be allowed. Then it seems to me that while I approve of this method of fixing it subject to appeal, the method of having to go on appeal is making for unnecessary delay and making it unnecessarily cumbersome. Surely it could be dealt with by the Examiner fixing the amount and, that being fixed, put it on the draft allocation schedule that goes to the Commissioner and the ruling on the allocation schedules by the Commissioner could also be the occasion on which he would determine the objection or appeal. It seems to me that method would save a separate application to the Commissioners.
The Deputy appreciates that under the present practice when the Examiner has finished his work and made out the application, there still must be settlement of these matters by the Judicial Commissioner, which generally entails the attendance of the solicitor concerned as well as his dealing with the Examiner. In future, the Examiner will rule on the allocation schedule as a whole and it would be only in matters where there would be a disagreement on the schedule with the Examiner that there would be subject for an appeal. In that way it is, in my view, bound to save a considerable amount of the Judicial Commissioner's time and indeed an amount of the legal man's time. In the vast majority of these cases, they agree with the Examiner and the matter does not go any further. Even assuming here and now that there is disagreement, it is only on the point of that disagreement that it would be necessary to go before the Judicial Commissioner.
Do I understand that after this section is enacted allocation schedules will not have to be ruled on formally by the Judicial Commissioner at all unless there is an objection to an item?
Yes.
I think it had to go to him anyway. I misunderstood it.
Question put and agreed to.
SECTION 16.
Question proposed: "That section 16 stand part of the Bill."
This section deals with the cutting down of the roots of title formerly prescribed and follows one for 12 years in the first instance and 30 years instead of 40, depending on circumstances. These roots can be dispensed with in small cases up to £2,000 under section 31 of this Bill but it is cutting down the prescribed periods for the roots of title and authorising a shorter roots of title than was the practice heretofore.
It is a matter which I think will be welcomed by all practitioners concerned with this line of country. Under section 50, subsection (3) of the Registration of Title Act, 1964, it is proposed to adopt a roots of title period of 12 and 20 years and the same thing is being done here. I understand under the Law of Property Act in England— Section 4 of the 1925 Act—there is provision for a period of 30 years. We are coming down to 30 years in one case and 12 in the other and this should in many cases ease troublesome titles for many owners.
I do not understand the drafting of the section, first of all. Subsection (1) begins:
The Judicial Commissioner may, notwithstanding the provisions of the Land Purchase Acts or any other enactment, at his discretion, issue general directions to an Examiner authorised for the purpose of subsection (1) of section 15 of this Act, to accept...
We have generally done that. As I understand that, though the Judicial Commissioner authorises the Examiner to accept this short root of title, he is so doing under the provisions for appeal under section 15. Therefore the commencement of the title with a good root as set out in paragraph (a) or (b) is not necessarily an absolute one before the Examiner. As I read the section, bringing in a reference to section 15 means that the Short Title can only be accepted by the Examiner if there is no objection to it. That does not seem to me to accord with the description the Minister just gave.
I am not clear if that is so. If not why is section 15 brought in at all? I understand the Minister in his explanation of section 15 to say that we are now going to start with a short title of 12 or 30 years as the case may be. Before we discuss this section itself is it the intention that we will always have the short title or will we only have the short title subject to the appeal of the Judicial Commissioner?
It is my intention. I think the Deputy is incorrect in his interpretation. It is the intention to provide for shorter title with section 16 and notwithstanding what was provided in prior Land Acts that a Judicial Commissioner can give this direction so that examiners may in suitable cases accept this. That is my intention. If on re-examination of the facts the Deputy has stated I feel that something should be done to clarify the position I will have it done. That is my interpretation of it.
It seems to me that under subsection (2) of section 15 a decision of the examiner under section 16 would mean that there would be an appeal back and I do not think that is what was intended. Otherwise, I cannot understand why section 15 is brought into subsection (1) of section 16.
Under section 16, the intention is to provide for the shorter title and for the Judicial Commissioner to follow it through. I cannot see why an owner should want to appeal against a shorter title.
The owner would not. The owner would be delighted.
That is my assumption.
What I am wondering about is whether anyone else is entitled to come in if he alleges he has an interest arising before the date in question.
I appreciate the Deputy's point. In my view, it would be a different matter if somebody came in and claimed he had some legal interest that would be enforceable. Then it would be a question, if the Examiner disagreed, for an appeal. This section is an enabling one to provide for shorter titles. Unless some question of superior interest arose to create the difficulties feared by the Deputy, I do not think the Deputy is correct in his interpretation. I shall, however, have another look at section 15 before the Report Stage.
That is perfectly fair. I accept the Minister's assurance.
I should like to say I think it is all right as it stands but I shall have another look at it.
I accept the Minister's assurance because this is a drafting error. I came across a case the other day which is still a little fresh in my mind. A person had bought some property for a valuable consideration exactly 14 years before. The assignment made at that time, I think, by mistake, left out a restrictive covenant that was in an assignment of three years previously—17 years ago—also for a valuable consideration. It is, I think, perfectly clear that there had been a genuine clerical error in the 14-year-old deed and the person who had got the benefit of the restrictive covenant 17 years ago, when he came to sell, went and examined the situation in a very friendly way. Of course, a stranger would not look at it in the same way. They discovered there was that mistake in the 14-year-old document. What I am trying to do is to ensure that if there were some mistake 12 years ago and it is proved, the person has some way of being indemnified. So long as there is some way I am satisfied.
I have had a quick look at section 34 of the 1931 Land Act which is referred to in subsection (2) of section 16.
The example I have given was in an outside conveyancing case, not a Land Commission case. If the same problem arose in a Land Commission case——
There is provision for compensation.
That would mean the Minister for Finance would have to bear the brunt. It is not my business to defend him on this occasion.
Section 34 of the 1931 Act, to which this section refers, states:
Notwithstanding anything contained in the Land Purchase Acts, the following provisions shall have effect in relation to the distribution of purchase-money, that is to say:
(a) the Court may after publication by advertisement or otherwise of such notice as the Court shall consider sufficient direct payment of a claim in respect of which the Court is of opinion that the title of the claimant, though imperfect, is nevertheless such as to make it improbable that any claim adverse to such first-mentioned claim could be sustained.
It goes on to provide for different types of compensation for different periods. That would be applicable under subsection (2) of this section in the event of a shortening of the title. Though I have had only a quick look at this, I think it provides the answer to the Deputy's question. As I have said, I shall have a look at it before the Report Stage.
Before we leave the section, I should be obliged if the Minister would answer one more question. In the framework of this question, the Judicial Commissioner may accept 12 years as the period of the commencement of title or else 30 years. Is that another way of saying the Judicial Commissioner may accept the squatter's period of 30 years? The marginal note calls it "acceptable root of title" but in paragraph (b), the subsection says:
thirty years ending on the date on which the land or tenant's interest therein invested in the Land Commission,
It is the date of the vesting in the Land Commission.
That is the end, but you can go back 30 years. Supposing this Bill passes on 31st December this year and you had a case on 1st February next year. Then you would go back to 1st February, 1935. Do you start with the first documentary evidence you have before 1st February, 1935 or with an affidavit of title saying "Patrick Murphy was in possession of the lands as from that date"?
I would say either, though my recollection of such cases is not what it used to be. If you take the question of something recited in a document of 1935 or any recitement in a document 20 years old as prima facie evidence of the matters therein——
This is in fact saying a squatter's title for 30 years' ownership is a good title.
That is so, though many people regard squatter's title as being 12 years.
Is it that the Minister for Finance was frightened, since he will have to pay, of 12 years and decided that it should be 30 years?
I should like the Deputy and the House to understand that under these rules we are dealing with rather substantial cases. I do not know whether I stated already that under this section we can deal with cases to the extent of £2,000 and that we can accept six years title.
They could accept anything—your word or my word.
It might be as good a title as any.
We shall not say on this occasion which title would be the better.
Question put and agreed to.
SECTION 17.
Question proposed: That section 17 stand part of the Bill.
Surely a civil servant has automatic indemnity under the Civil Service Acts without it being written into a section?
I am advised that this is not so. In the first place, I do not know what view these men take of their own position themselves but the Deputy will appreciate that if there were any danger of their becoming personally liable, they would be very slow to operate the previous two sections. I also understand that there is protection given to the Public Trustee who is also Chief Examiner, by section 52 of the Land Act, 1903. The wording of the subsection in that Act is almost exactly the same as the wording of this; so, in case there were any doubts, it was felt that this should be done because it was certainly done in that particular case.
I am delighted.
It is also in line with the statutory indemnity for registering authorities contained in the new Registration of Title Act. In case there was any doubt, it is essential that the examiners concerned here should feel they were fully protected in exercising these new powers.
In other words, this section is put in for the removal of doubt?
It is put in for the removal of doubt—put it that way.
The Minister will find on Report Stage that I will be quoting him in that respect on an amendment I propose to put down to section 12, how the removal of doubt is a good thing.
Question put and agreed to.
SECTION 18.
I move amendment No. 35:
In page 11, lines 10 to 13, to delete from "and," to the end of the section, and to insert the following: "the Register of Titles shall, if satisfactory evidence of the exercise of the said rights in such period is not forthcoming, cause the entry of the said rights to be cancelled in the appropriate register."
It will be seen from line 10 on page 11 that as the Bill stands a farmer who wished to obtain control of shooting rights over his land would have to produce proof of the fact that they had not been exercised for 20 years. It is well known that it can be difficult to prove a negative. Also, we are faced with the difficulty that the allottees of the Land Commission and the Land Commission themselves will frequently have no positive knowledge of what the position has been over the previous 20 years. If they seek proof among local people that a man has not exercised sporting rights for 20 years, they may be confronted with apathy or even opposition. To remove this obligation to prove a negative, it is proposed to amend the section to allow the Registrar of Titles to take action if he has some evidence of the non-existence of the shooting rights and if on the other side of the picture, there is no evidence forthcoming of their actual exercise. This is the purpose of amendment No. 35.
With the principle in the amendment, I agree, but the amendment does not say that. The amendment says that the Registrar shall remove it if he has evidence on one side but it does not say anything about the dominant tenant being able to adduce evidence in contradiction. All I want to be quite sure of there is that, if application is made, whoever is expressed on the folio—this will always be in respect of registered land, I think—it might not be as they might be reserved under the 1881 Act—they were not always registered under that Act—but 99.9 of the cases will be registered land—whoever in whose favour the right is expressed will get notice and that that person has the right then to adduce contradictory evidence if he so desires and that then it is for the Registrar to decide between the two sets of evidence, and I presume if the Registrar decides one way, either party has a right of appeal to the judge sitting as Land Registry Judge.
I think the answer to the point is that under section 80, which applies (a) to lands where lands have been registered under the Registration of Title Acts——
Yes, that is right.
——and (b) on such registration the sporting rights other than fishing rights——
The Minister is right. I was thinking of lands that had been bought other than lands registered.
He has to give them notice.
He must, but how he is to find them is another question.
That is the main reason for this section and this amendment. I will be dealing with it on another section but there is now much more interest in these matters, due to the new interest in the game movements in this country and it is necessary to deal with absentees or people whose sporting rights have not been exercised over a long period.
How is the Registrar to give notice to somebody who had these rights reserved on the folio in 1902? I am afraid that the Registrar of Titles, the Minister or myself will be unable to find that man's present address.
The answer would be the same as in the case of somebody the Registrar cannot find at the present time. I assume he has to publish notice.
Amendment agreed to.
Question proposed: That section 18, as amended, stand part of the Bill.
The Minister is aware, first of all, that in relation to this section various people, particularly the National Farmers Association, have indicated that the period of 20 years is too long. I must say that when I read the Bill I could not understand why the period of 20 years was taken instead of what, since the Statute of Limitations Act, 1957, makes virtually everything now 12 years. It seemed to me it would have been more natural to have made this fall into the 12-year period. The National Farmers Association asked for a period of ten years. I would not agree with them in that. I think the proper period is the period that is the statutory period generally of 12 years. Certainly, so far as I am concerned, I would feel that a period of 12 years was more appropriate in clause (c) than the period of 20 years included by the Minister, unless the Minister can advance to me some very strong argument of which I am not at present aware.
Secondly, a point was raised in relation to this section at a meeting of the National Farmers Association executive in Kildare the other night, which was attended by Deputies Dooley, Crinion, Boylan and myself, in relation to this, that is, what exactly is the exercise of sporting rights. The Minister will agree with me that he is introducing this section for the purpose of enabling farmers to own their own shooting rights and I think it is shooting rights as such in which he is interested rather than the wide sphere of sporting rights. Fishing rights, I know, are specifically excluded under the Act.
The case that was put to me was this: if you had a pack of fox hounds, a pack of harriers or a pack of beagles and some member of the family of the person who had the sporting rights reserved to him under the folio went over that land, as it would be, by implied consent, if you like, but it would not be by asking, so to speak, first of all, that would be such exercise of the rights as would prevent this section coming into operation. I do not think anybody wants that on any side of the fence, whether it is a jumping fence or a walking fence, or whether it is a political fence. The gentleman who raised that at the meeting is the secretary of the Game Council in Kildare and I must confess that once he had raised it, I found it extremely difficult reading the section, to discover where I could point out to him that he was wrong because it is, I think, correct to say that sporting rights are defined in the Land Acts as being hunting, fishing, fowling, shooting rights and so forth.
If there was any possibility whatever of the interpretation that was put forward that night being correct, it would, on the one hand most injuriously affect farmers whom the Minister and the House desire to benefit under section 18, and, on the other hand, mean that farmers would undoubtedly have to take certain action perhaps in relation to people going across their land which they would not wish to take. It seems to me that the act of a person riding a horse over the land would retain the shooting rights for the owner of that land but that was not at all envisaged and is not at all desired.
I know many cases in Kildare where there were sporting rights reserved and where the descendants of the person who was not entitled to the interest that was reserved, or their children, might be out riding and would go across the land. It seems to me if they went across the land, it was exercising the sporting rights, which would have the effect of preventing the farmer over whose land they were riding getting the sporting rights, though the rider, the farmer, the Minister, the House and the Registrar of Title would not so desire.
The section is a good one which is made stronger by the amendment, but like Deputy Sweetman, I believe the period should be reduced to 12 years. There does not seem to be any reason for the period of 20 years. I should like to know where the Minister got it. Did he take it out of the air? There is a precedent for 12 years. In the explanatory memorandum issued with the Bill, it is the matter of shooting rights that is mainly referred to and it is long after time that this question was dealt with. There is nothing so annoying to a small farmer as to have somebody crossing his land who might have had, or some member of whose family might have had, some connection with the land long ago who can still retain the sporting rights and, whether the farmer likes it or not, claim to be entitled to use the land for hunting, shooting and fishing. As regards taking the hunting and shooting out of it, it is rather a pity the Minister did not go the whole hog and take the fishing out of it. In page five of the explanatory memorandum, another matter is referred to:
...in particular instances, the shooting rights over large compact areas of mountain or bog have been reserved to the Land Commission with a view to ordinary development —these will be retained and leased in the usual way to Sporting Groups, Gun Clubs, etc.
It is the "etc." that I am worried about. When the thing was being done, it should have been completed and the sporting rights should have been passed to the owner of the land in every case. In 1964 it is just too bad that people will still have to allow the descendants of those who in many cases were not very fair landlords to retain possession of sporting rights on their land.
There is another matter which I mentioned to the Minister before in a different context and if you will permit me, Sir, I should like to refer to it again very briefly, that is, the allocation of certain rights to clubs or groups of people from outside the district. This is particularly true of the fishing rights. People, particularly from Dublin city, come in to a district to fish and will not allow the farmer or any member of his family or his neighbours a day's fishing on this stretch of water. It is wrong, whether the Land Commission or anybody else leases it to them. When a person has a farm of land, he should get the entire rights to it, including the sporting and fishing rights.
I think Deputy Sweetman's point is very well taken. The main argument is that in 90 per cent of these cases, farmers would desire to give the right to people to cross their land, would like to see sport going on but they could find themselves in the position that in order to look after their own interest as far as these sporting rights are concerned, they would have to refuse to allow people to cross their land in the pursuit of game or vermin. The Minister might well look into that.
On the point about the period of 12 years, there is very little difference between the NFA suggestion and ours, a difference of only two years. However, the difference between ten and 20 years is very great and Deputy Dillon is quite right when he says the trend of thought in 1964 is that people who own the land should own the sporting rights. From experience, it can be said that 90 per cent of the farmers want to allow people to shoot and hunt and they really enjoy to see sport, even though they may not indulge in it themselves. It may well be the Minister would be prepared to look at the matter again and maybe on the Report Stage do something for us in the matter.
I regard it as past the time when this section should be introduced. What were known as sporting rights 40 or 50 years ago would bear no resemblance at all to what we have today. This type of thing today involves nothing but trespassers, poachers and rogues' rights and it is time to close the gap and eliminate those.
We all know that what is everybody's business is nobody's business and the existence of these rights, which have a very doubtful past, means simply that places are overrun by poachers and trespassers who just shoot game indiscriminately and do damage. I would appeal to the Minister to reduce the period to 12 years anyway. Twenty years is too long a period. After all we have had our freedom for 40 years and this matter should have been dealt with before now.
There are other extraordinary pieces of writing in this explanatory memorandum. In page five there is this reference:
...in particular instances, the shooting rights over large compact areas of mountain or bog have been reserved to the Land Commission with a view to orderly development...
Whoever wrote that must not know much about the orderly development which takes place on these stretches of mountain and bog. Of course, no such thing happens. If that were published in the west, it would make most entertaining reading. Where in the West are these stretches of mountain or bog developed by anybody, except perhaps by a few odd sporting people? Then, because of laxity in the implementation of the regulations, someone goes out a night or two before the season opens and shoots up the whole place. If these rights are held by the Land Commission, and if they are being developed, I should like information to be made available here so that we will know what it is all about. The west of Ireland seems to have been forgotten. I do not know whether British landlords had these rights and succeeded in retaining them after the land was given over. Not only should the rights lapse but these people should be kicked out and there should be a section put in here to fire them out. It is time that was done.
As Deputy Tully said, it is a great pity that something is not being done about fishing rights. They are much more important than shooting rights. However, I support the section, but I ask the Minister to reduce the period to 12 years, or less, if possible.
(South Tipperary): On a point of information, I want to ask the Minister why have fishing rights been excluded. I am sure there must be some specific reason for doing so.
To take the points in order, I cannot accept that what has been propounded by Deputy Sweetman would work out in practice, but I shall have a look at the implications of the case made to him. I do not think it could arise under the section. There is one immediate answer. If a descendant of one of the former owners has exercised a right of some kind in the way in which Deputy Sweetman suggests, then the owner is traceable and, under the existing law, that owner's rights can be compulsorily taken over by the Land Commission on the application of the tenant owner. A number of tenant owners are exercising that right at the present time.
I am aware that a number have applied but, as far as I know, nothing has happened in four years.
I cannot concede that. Many more have made application since I informed the NFA of the existence of these provisions.
As far as shooting rights are concerned, the proposal is simply a method of cancelling reservations of rights which have not been exercised for a period of 20 years by those entitled to them or appearing to be entitled to them. Under the law—this is dealt with in the explanatory memorandum—the Land Commission, when they take over big estates, acquire the sporting rights, unless these rights are not in the one ownership but are reserved to a superior interest. Where the rights are taken over, the policy of the Land Commission is to vest them in the tenant farmers. They have done that, with the exceptions that have been mentioned here. Where the Land Commission have important shooting or fishing rights, they advertise them, and they are taken in the main by local clubs or associations, whose rules are sufficiently liberal to cover everybody. That is the new policy now laid down. As the game movement develops, we expect many more clubs or associations to become interested in taking over these rights and rehabilitating the preserves. It is the intention of the Land Commission to advise associations and clubs of any unwanted shooting rights in areas in which the Land Commission at the moment hold the rights.
Deputy Leneghan and Deputy P. Hogan, I think, and some others, made a point about this 12 year period and suggested ten years. The usual period in matters of this kind used to be 20 years. That is why it is here. I am not tied to 20 years.
The Minister said the usual period used to be 20 years. Since the Statute of Limitations Act of 1957, is it now 12 years?
Since the last Act, yes.
Let us make it that period and keep everything the same.
It was 20 years. As Deputy Sweetman well knows, 12 years is not an extraordinary period when dealing with titles. We are dealing here with the elimination of legal rights, however they were got, and be they right or wrong——
Or illegal.
——the House should be somewhat slow in wiping them out without due examination. I am not tied to 20 years, but, in considering the matter, I thought that in rights of this kind it might be rather dangerous to provide a shorter period. However, I shall have another look at the matter between now and the Report Stage.
I should make it clear that I am dealing here only with shooting rights. There is ample legislation covering fishing rights. There is certainly provision for the taking over of fisheries under the 1939 Act, should that policy be officially decided. No Government so far have tackled that problem. It is a very big one and it would be a very expensive one nationally.
I take it the Minister visualises the way in which the section will operate is that the owner of the land will make application in some form or other to the Registrar of Titles. Would it not be more normal to have a period of 20 years, and I favour 12 years myself, ending on the enactment of this Bill, because it seems to me that, as it stands, it is a period of 12 years ending on the date on which the owner of the land takes positive action? It seems to me automatically that the positive action the owner takes is the application to the Registrar.
Yes.
The owner of the land can take that positive action only after this Bill is passed and comes into operation. Therefore if one said 12 years, or whatever the period of years is, ending on the date of the application, it would mean that you would not have to have the designation in the alternative that there is in subsection (c) on the one hand, and equally, on the other, it would make it clear that it was the ordinary form of statutory title which is 12 years—I am not arguing about the period of years at the moment—from the time a person went to prove that he had that squatter's title. It seems to me that it is unusual drafting to put the ending of the period here, either on the date of the Act or a date subsequent. If you had it on the date 12 years prior to the date of the application, it would be the proper one.
Let me make another point. Suppose an application goes in and between the date of this Act and the filing of the application, shall we say, in 1967, the owner of the shooting rights has regularly exercised those rights and built up a game farm on them but only started to build them up, to exercise those rights, after this Act became law and nobody was objecting. He built it up for three years and what he had done would all go for nothing. It does not seem to me that that is the correct way of doing it. I am all in favour of the rights being struck out in the case of a person who is not bothering about conserving the game rights but in the other case I think it would be better to have as the date the date of the application to the Registrar.
I read subsection (c) in a different way:
the said rights so reserved have not been exercised in the period of twenty years ending on the passing of this Act or in any period of twenty years ending on a date subsequent to the passing of this Act.
Surely that means that in 20 or 30 years once you come along with an application—forget about the 20 years for the moment—to the Registrar, it is for 20 years prior to the date subsequent to this Act. That is my reading of subsection (c) of section 18. That is the intention of subsection (c).
I do not quite appreciate the other point made by the Deputy. We are dealing here with registered rights on folios. I do not quite understand the point about somebody who has started in comparatively recent times.
What I am think-about is that a person starts a game farm and he gets the outlying rights from the outlying farms for the purpose of making a ring fence to prevent poaching on his land. I can see difficulties arising then but I can see another type of difficulty arising. As I read the section—I am not suggesting that the Minister wanted to draw it this way—you could come along in 1974 and have an argument as to whether the rights were or were not used in the 12 years prior to 1964. I do not think that matters. I think the argument you must have is whether the rights were or were not used in the 12 years preceding the time the man goes to the Registrar. I want that provided for in some way. If the Minister can assure me that this section means that, then very well.
If that is put in, then people who had no intention of using rights could build up——
No.
You think not?
No.
I have given the House my interpetation of this section and certainly that is the intention. If the draftsman thinks——
He will see my remarks on the record.
He can deal with them.
Question put and agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
It is proposed to confirm the Land Commission's power to resell turbary rights, shooting rights, sealing rights, et cetera, by way of advances, in the same way as they resell parcels of land. The resale transactions under our present law are covered in section 31 of the Land Act 1923 which states that:
Advances may be made to the following persons or bodies for the purchase by them from the Land Commission of parcels of land...
and then it goes on to name six different classes of allottees. The section is silent about incorporeal hereditaments, and does not say anything about them. Since 1923 it has been assumed that the rights of turbary, for example, could be allotted in the same way as fee simple. It has been accepted that a simple vesting procedure can be applied to this and other allotments but while these practices have not been challenged, there is no authority for a number of them under the 1923 Act, in my view. The purpose of this section is to include incorporeal hereditaments and for the Land Commission to be able to allot them in the same way as they are giving land.
I have no doubt whatever that if 12 months ago I had got up in this House and alleged, shall we say, that section 31 of the 1923 Act did not permit the Land Commission to sell turbary as an incorporeal hereditament, the Minister for Lands would have told me that I was talking through my hat and that that had been the practice for 40 years since the Act was passed.
I would prefer to see the quotation on that occasion.
It is a hypothetical quotation.
I am paraphrasing in polite language what the Minister would have said in somewhat impolite language and I agree on that account that I would not be able to quote him. Everybody assumed that this was so. Everybody assumed that it was proper for the Land Commission to deal with turbary rights in this manner. I agree I assumed it and we all assumed it. Now, some doubt has been expressed by somebody. As far as I know there has been no judicial decision but somebody has had some doubt and the Minister very properly comes along and opens this section with the phrase "For the removal of doubt, it is hereby declared ..." Of course he is right, in order to avoid having somebody take a new case. I do not think there is any case on the stocks but it will avoid somebody going on a purely technical point to the Supreme Court, and avoid a lot of cost which would be involved.
The point I am making is that 12 months ago the Minister for Lands would have been just as adamant on this point as he has been in relation to agistment and conacre lettings under section 12. Why will he not do the same thing in section 12: put in a phrase "for the removal of doubt, it is hereby declared that agistment and conacre lettings are not the subject of the prohibition contained in the section"? This is the second time in the short space of an hour in which he has given me, out of his own mouth, an opportunity of convicting him; and I shall have great pleasure also on the Report Stage in referring to it again.
When we come to the Report Stage, I will get the book of words and we will see exactly what the Deputy did say. I have not a photographic memory, nor can I recall what I said to the Deputy 12 months ago. The House has given elaborate consideration to section 12 and I do not propose to extend this discussion this evening. Suffice it to say, I reiterate that conacre and agistment lettings are not and never were within the Land Acts. The Deputy can quote me on that in or outside the House.
Until this section was introduced, the Minister would have been just as adamant that vesting orders could have been made about turbary rights. I gave the Minister the chance of removing the other doubt also.
Question put and agreed to.
NEW SECTION.
I move amendment No. 36:
In page 11, before section 20, to insert the following section:
(1) The powers of the Land Commission to expend money for the benefit or improvement of any lands shall, in addition to the matters mentioned in section 43 of the Land Act, 1923, and section 39 (as amended by section 32 of this Act) of the Land Act, 1931, include power to confer on the Land Commission and their licensees, and to define and extend or improve, ways and rights of way over any land whatsoever (including any accretion, through alluvion or dereliction, whether or not caused by drainage), for the purpose of facilitating passage to and from the sea or to and from a lake or river which adjoins lands sold or agreed to be sold under the Land Purchase Acts, whether such rights of way are or are not conferred as to be appurtenant to any land, and whether any terminal point of such ways and rights of way is or is not situate on lands sold or agreed to be sold under the Land Purchase Acts.
(2) The powers conferred on the Land Commission by section 43 of the Land Act, 1923, and section 39 (as amended by section 32 of this Act) of the Land Act, 1931, and extended by this section, may be exercised for the purposes of conferring and defining—
(a) rights to park vehicles or to beach boats, and
(b) rights to moor or anchor boats.
(3) The powers of the Land Commission under this section to define and extend or improve rights of way to and from the sea or to and from a lake or river shall not be exercised compulsorily in relation to any right of way over land adjoining an occupied dwellinghouse which was in existence at the commencement of the period of one year ending on the date of the notice in respect of that right of way served by the Land Commission.
The purpose of this amendment, which inserts a new section in the Bill, is to cover a gap which exists between the provisions of section 32 and parts of sections 34 and 41. On page 15, lines 2-5, there is a provision for the acquisition of a landing place on the shore of a lake or river for the benefit of fishermen, and on page 17, lines 45-48, there is a similar provision about the resumption of tenanted land for the same purpose. In section 32 and in the original section of the 1931 Act, which it amends, there is ample provision for the creation of rights-of-way to land. None of these sections, however, empowers the Land Commission to create a right-of-way to water for the use of persons fishing or boating. In many instances and, perhaps, in most instances, the landowners would regard it as the lesser of two evils that the Land Commission should create rights over the land and water rather than that they should resort to outright acquisition; and it would be anomalous if the Land Commission could not take the less drastic action in suitable cases. The new section covers three main activities associated with fishing: passing to and from the water; standing vehicles and boats; and mooring and anchoring boats. In these days when more and more attention is being focussed on the potentialities of our fisheries, I think it reasonable that the Land Commission should have the power to deal with these matters.
As with the existing procedures for rights-of-way to land, the new orders will provide for compensation and they will be open to objection by the land owner. Objections are commonly talked out between the servient owner and the Land Commission officials, because these cases do not always justify the trouble and expense of formal hearings. But a small minority proved impossible of settlement and must be listed for hearing before the Lay Commissioners who make final decisions on the merits and who may concede an increase in compensation where appropriate or may recommend some variations such as additional gates, fences and so on. That is done under section 43 of the Land Act, 1923, and Order XL of the Provisional Rules of 1924.
Briefly, the purpose of this is to give the Land Commission the same or similar powers as they now have for the creation of rights-of-way to land— to give them the same power for the creation of rights-of-way to lakes and rivers, to beach and anchor boats and to park cars.
Is there any power for the person over whose land the right is being given to go to the Judicial Commissioners for a decision or to say: "I do not want to give a right-of-way. I would rather that you acquire the land"?
He can go to the Lay Commissioners. I remember cases of that happening in connection with rights-of-way over lands.
Would the Minister mind verifying it before the Report Stage?
I shall verify it, certainly, but that is my understanding of the position.
It is mine, too, but I want to be certain.
If this becomes law, will the Minister ensure that these rights-of-way will not be merely animal passes? The Minister is well aware of what I am talking about—the narrow rights-of-way that have caused all the trouble up and down the country. Will he ensure they will be adequate for the usage for which they were intended, for the passage of machinery and so on? Will he also ensure that before anything like this is done, the necessary consultations will take place with local authorities, so that, if at any future time the local authority decide to acquire the road or lane and make it a public road, that can be done with the least possible trouble? Will he ensure that a road of the right size and type will be there for the local authority to take over and not have the present situation where small, twisted lanes are being built by the Land Commission and left there? It costs more to turn them into decent roads than they originally cost. If the Minister would look into that it would help a lot.
I have already given instructions to my officials that in the case of ordinary roads for development and rearrangement schemes there should be consultations with the local authority and that roads should be constructed of sufficient width to enable them to be taken over by the local authority. However, this is rather a different matter because the local authority would not have any power, so far as I know, to acquire rights-of-way to some of these lakes, rivers and waterways. But I do not see any objection in principle to the points the Deputy has made. Indeed, for this purpose it would be necessary to have them sufficiently wide to take modern vehicular traffic, because that is the intention here. I have in mind some well-known lakes that badly need access for the benefit of local fishing clubs and others concerned in this matter. Without going into the matter too deeply, I think I can give an assurance that, if the local authority wants to take over and maintain any of these roads, we will be very happy that they do so.
The Minister probably is aware that under an Act of this House if these are roads of public utility, the local authority has such power. I would assume the roads referred to in this section are roads which would be of public utility, or otherwise they would not have been put into the Bill. I am glad of the Minister's assurance that he has asked his officials to consult with local authorities, but there is at least one they have not consulted with on a recent occasion, causing a lot of unnecessary trouble.
Deputy Tully may be complaining about Meath constituency. I do not know anything about that except as regards one corner of the county. But I know as far as Kildare is concerned we are littered with roads that have caused immense trouble from the time they were put in by the Land Commission. We have arrived at a method of dealing with them in Kildare now, but it is no thanks to the Land Commission that we have done so. In Kildare we have brought up these roads to a standard and then taken them over, but the standard in which they were left by the Land Commission is, frankly, a standard that did not do them any credit at all.
In the day of the pony and trap, they might have passed as reasonable tracks, but particularly in the day of the milk lorry which provides a substantial part of the income of the small farmers who are allottees, they are out of the question, with the result that in many cases in Kildare allottees have had to get together and look for a grant under the rural improvements schemes. When some of the users refused pointblank to have anything to do with it, they had to pay for their neighbours, too, which, as the Minister knows, is a little too much. That was the only alternative. Unless a grant was obtained under the rural improvements schemes, the work done, and the road brought to a proper standard, the milk could not be collected and the position was that the allottees concerned would lose far more.
Some short time ago there was a suggestion that the Land Commission were going to considerable trouble to get a better type of house for the allottees. Unless I am mistaken, a model was displayed in this House. I am not asking the Minister to display a model of a road, but I am asking him to make certain that the roads which are being put in by the Land Commission will bear some reality to modern conditions, and not merely be grass tracks covered with a sliver of gravel, and that there will be the proper width between the two fences on either side so that there will not be a need for the acquisition of additional land.
As my recollection goes, a road taken by a local authority must be 11 feet wide in the clear. Usually it is, but I have come across cases where it was not 11 feet wide in the clear. The view of the Land Commission in relation to roads has been different from their view in relation to improvements in fences and the building of fences. Their attitude has been: "The less we can get out of them for the roads, the better for everyone concerned". That is bad economy and results in a running sore being left behind which has to be cleared up by someone else at some stage.
The allottees concerned with the new holdings being created in Leinster would be far happier to pay a little more and have proper roads built by the Land Commission which could be taken over by the local authority. Some roads are in such condition with holes, potholes and muck that no one can travel on them, particularly the milk cars which collect what is the most ready source of ready money going into the holdings of virtually every allottee.
The original Bill contained a great deal of practically incomprehensible Civil Service jargon but the amendments seem to be the last straw. Subsection (3) of amendment No. 36 reads:
(3) The powers of the Land Commission under this section to define and extend or improve rights of way to and from the sea or to and from a lake or river shall not be exercised compulsorily in relation to any right of way over land adjoining an occupied dwellinghouse which was in existence at the commencement of the period of one year ending on the date of the notice in respect of that right of way served by the Land Commission.
There may be people here who understand what that means, but I think it could be the foundation for one of the finest legal battles in history. It reads:
...shall not be exercised compulsorily in relation to any right of way over land adjoining an occupied dwellinghouse which was in existence at the commencement of the period of one year ending on the date of the notice in respect of that right of way served by the Land Commission.
I should like the Minister to try to interpret that because it does not make any sense to me, nor I am sure, to a good many others. I think it could be interpreted in 50 different ways, which would mean that the whole section would end up in smoke. I do not know what was intended by the civil servants who put in that priceless piece of jargon.
The Minister's predecessor had his attention very seriously directed to the case of a right of way involving a number of Land Commission allottees in Errill in Laois where the Land Commission caused not only serious embarrassment but very serious financial loss by their failure properly to construct a road through the estate which was divided.
It is highly desirable when the Land Commission are dividing an estate and it is necessary to have roads constructed through the estate, that those roads should be constructed by the Land Commission in a manner which will meet with the approval of the local authority engineers, so that the local authority may take them over and be responsible for their maintenance. Many of the roads in Land Commission holdings are narrow and many of the bridges they provided are unsuitable, in my opinion. We have now reached a period in modern farming when large-scale machinery is worked by most of our farmers. I have known of cases where it was impossible to take a combine across a bridge constructed by the Land Commission. That type of thing causes very serious inconvenience and hardship to the local land owners.
The engineering section of the Land Commission should reconsider their attitude to the Land Commission policy of road making. Now that this Bill is going through the House the Minister has an opportunity to review the whole question of road construction through estates that are being divided and allotted. Arrangements should be made for greater Land Commission expenditure on roadmaking. The roads through most of the large estates that have been divided can to a great degree be described as patchwork. Some of them are without any proper surface. Those roads, most of them rights of way, may have a reasonably good foundation but the surface consists of potholes, muck and sludge and cannot be described as satisfactory. When one considers the rates and the Land Commission annuity the allottees must pay, one would expect that they would be provided by the Land Commission with a proper entrance to their holdings. Tractors, combines, motor cars, lorries, creamery lorries and beet lorries have to use those roads.
The engineering section of the Land Commission must bear in mind that the roads they are now making on Land Commission holdings should be designed to carry heavy traffic. The policy of the Land Commission to date in regard to Land Commission roads has been to get out of it as easily as possible and with the least possible expenditure and to throw the responsibility for the roads on to the tenant. Such a policy is penny wise and pound foolish. I feel that the Minister is in agreement with the views that have been expressed from many sides of the House.
Where roadways are improved under the rural improvements scheme, the local authorities are now taking over most of the roads. In recent times, the Office of Public Works have been tarring as well as steamrolling those roads under the rural improvements scheme. Land Commission roads should be of such a standard that the county engineer can recommend to his council that they are in good condition and of sufficient width. The construction of Land Commission bridges should be such that the county councils can take them over for all future maintenance.
We do not expect the Land Commission to repair roads and rights of way for which they are not responsible. I have often wondered whether they have considered putting all farm roadways in existing holdings for which they are responsible into a first class state of repair. Would it not be desirable if the engineering section consulted the local authorities with a view to making some arrangements for the taking over of these roads for future maintenance by the local authorities, provided, of course, that all the tenants are satisfied, that there is no objection from any of the tenants and that the county council are of opinion that these roads should be taken over and maintained.
Material for roads and rights of way is extremely costly. Landowners and the allottees who receive holdings from the Land Commission are of the opinion that the great drawbacks in rural Ireland are the cul-de-sac, the right of way and the road which is not in good repair. There is certainly great ground for grievance in most of the complaints. Therefore, the Land Commission should review this matter and formulate a new scheme.
I am sure the legal position in all cases is put right by the Land Commission before holdings are allotted. That being so, the Land Commission should see to is that as far as possible their allottees are provided with as good a road as may be to their holdings and that the same facilities as are enjoyed by those living alongside county roads will be available to them, bearing in mind that they must pay a county rate and are entitled to that facility.
I trust that, from the passage of this Bill, there will be a new look in the road construction policy of the Land Commission and that there will be a departure from the most undesirable practice of leaving roads and rights of way in a most deplorable state. There should also be some question about rights of way which are not fenced off but where a number of tenants may have legal rights to go from one holding to another.
Of course, this is irrelevant.
This does not arise.
We shall have an opportunity of dealing with that on another section.
Amendment agreed to.
SECTION 20.
I move amendment No. 37:
In page 11, after "section" in line 47 to insert "and as if for the references in subsection (3) of that section to the date of registration there were substituted references to the date of the vesting order".
On a study of subsection (2) in the context of the Registration of Title Act, it has been found that the wording of lines 45-47 in this Bill is not entirely satisfactory. As stated in the explanatory memorandum, it is intended to confirm that an exchange carried out by means of a vesting order shall have a similar effect to an exchange carried out by signed documents under section 46 of the Land Act, 1923, in relation to the transfer of burdens and charges from the old holding to the new. But in an exchange of land pursuant to section 46 the transfer of burdens does not take place until the migrant's new holding has been vested and the time has come to register him as owner of the new holding and the Land Commission as owner of the old. This is the present position and it will also be the future position under section 51 (2) of the Registration Act.
This time lag between the carrying out of an exchange and the legal transfer of burdens and charges is not of great importance in the case of a simple exchange but it could give rise to serious difficulties where a complex rearrangement, involving many interlocking exchange transactions, is being carried out. In such a case it is most advisable that the burdens and charges on all the holdings should transfer simultaneously — each to its own appropriate holding as rearranged. These complicated cases are in the main dealt with under the vesting order procedure, so the amendment lays down that the transfer of burdens and charges will take place at the time of the vesting and will not wait upon the registration of all these varied transactions in Land Registry.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
I move amendment No. 38 :
In page 12, line 7, to delete "person" and insert "parties".
In the text of subsection (2) as introduced the word "person" occurs three times in the first seven lines. The third mention of the word relates back to the first. The second person mentioned is another party altogether. Although the meaning of the subsection is clear enough, I think we should avoid the possibility of confusion by substituting "parties" for "person" in line 7. The use of the plural gives further emphasis to the distinction. This is purely a drafting amendment.
On a point of order, is the Chair aware that this is an intrusion on Private Members' Time?
There is no intrusion on the Deputy's Bill.
In other words, I shall be compensated for whatever time is lost between six o'clock and whenever this discussion ceases?
May I report progress?
Progress reported: Committee to sit again.