SEANAD IN COMMITTEE. - ARTERIAL DRAINAGE BILL, 1925—COMMITTEE STAGE.
Question—"That the title of the Bill be postponed"—put and agreed to.
Question—"That Section 1 stand part of the Bill"—put and agreed to.
SECTION 2.
(1) Any six or more persons being rated occupiers of lands which are liable to be flooded or injured by water or which are capable of being improved by drainage or being persons upon trust for whom or for whose benefit any such lands are held by the rated occupiers thereof may apply to the council of the county or to the respective councils of the several counties in which such lands are situate to have drainage works executed for the purpose of draining or improving such lands and to have such lands, either together with or without other lands in the neighbourhood thereof, constituted to be a separate drainage district.
(2) Every application to the council of a county under this section shall be made by petition presented to the council, and every such petition shall be in writing in such form as shall be prescribed by the Commissioners, and shall state in general terms the drainage works which it is thereby proposed should be executed and shall have annexed thereto a map showing the lands thereby proposed to be constituted a separate drainage district.
(3) Where the lands proposed by any such petition to be constituted a separated drainage district are situate in more than one county, the petition shall be presented to the council of every county in which any part of such lands is situate, notwithstanding that the portion of such lands occupied by the petitioners may not extend into every such county.
I move:—
Section 2, sub-section (1). After the word "situate" in line 31 to insert the words "or to the Commissioners as provided in sub-section (4) of this section."
I quite realise this Bill is one of very great importance to the country. The amendment I have proposed is with a view to making it more complete and beneficial than possibly it will be if it is passed in its present form. I have been inundated with letters and applications from people in the country who are alarmed at being thrown back for their only source of relief on the county councils. There is no use in shutting our eyes to the facts. The county councils have not always been bodies in which one could have the greatest confidence. There are a great many cases in which people may have made a mistake. We know, unfortunately, in the country that there are influential people on various public bodies who may not regard with a friendly feeling, people interested in the matter of drainage. The fundamental principle of this Bill is to take away from the Board of Works, who have hitherto had it, the responsibility of carrying out those projects and placing them in the hands of the county council. Almost all the amendments that stand in my name are directed towards altering that and leaving the people the option, if they so wish, of going to the Board of Works, as in the past. I know the feeling exists, and that difficulty will arise in the way of any people who are anxious to develop their lands. I urge on the Parliamentary Secretaries in charge of the Bill to adopt this amendment.
I would like to support the amendment, as it seems to leave another avenue of approach. It is quite possible, as Senator Barrington has suggested, that there may be cases where a certain body of men may not be very friendly disposed to, or have the interests of particular parties in mind. By the amendment they will be enabled to approach the body that is to be set up under the Bill.
I would like to know how I had better deal with this amendment. I do not like to use the word "consequential," but this amendment really depends on the next ones. The really substantative amendment in all this series of amendments proposed by Senator Barrington, except numbers 20 and 21, deals with the same subject and all hang together. Would it not be better to deal with the lot?
AN CATHAOIRLEACH
It would, as long as the Seanad understands that in this amendment they are dealing with the principle. The principle involved, as suggested by Senator Barrington, is that persons interested have a right to go to the body named in Section 2, the council of the county or of the respective counties. They have an alternative right to approach the Commissioners of Public Works.
Dealing with the general principle of all the amendments, it is not merely that they have an alternative way of approach to the Board of Works, but also that there would be an alternative body created, namely, drainage boards. That is really the purpose of the amendment. Is not that so?
Of the general amendments. The idea is to create or keep in existence drainage boards.
Not necessarily. Perhaps I might explain the procedure that was adopted in the past. Where a number of people felt that their land required drainage very badly, they presented a petition to the Board of Works. The Board appointed inspectors, who had all the necessary inquiries made. Then, if it was thought fit, a drainage board was constituted to carry out the works. I do not propose that that should be done now in every case. I propose that, if circumstances arise in which it was necessary to have a drainage board constituted, the Board of Works should have power to do so. The parties could apply to the county councils, and the county councils might then investigate or refuse to investigate. The onus would be thrown on the councils. I got a letter from a man who fears he may be at the mercy of people who, perhaps, will not be kindly disposed towards him. That man would prefer, if he could, to forward his application to the Board of Works with such a deposit as the Board think necessary for the purpose of having it investigated. There are still farmers in the country who have confidence in the Board of Works, and who are prepared to say that they will get better treatment and that their lands will be better developed if they put up the money necessary to enable the Board of Works to do it. They feel that if they make application to the county council under the Bill that body will not incur the expense.
I also desire to call attention to a report in a paper that I received yesterday, where a similar question was referred to the county surveyor. The idea is that when the county council receives the applications they will refer them to the county surveyors. In the case that I have referred to, the county surveyor refused to do anything in connection with the matter unless he was paid. I think the Bill is very defective as it stands, and in order to meet such a case this amendment should be added to it. The people concerned will have to deposit with the Board of Works such a sum as the Board thinks will be sufficient to have an application investigated. It is possible that county councils may not find themselves in a position to do the work.
AN CATHAOIRLEACH
I think the Secretary's point is a little different. It is not merely a question of inspection. After inspection, if the Board of Works thought it desirable to carry out the work, the Secretary, I think, is pointing out that that would involve the setting up of drainage boards.
No. Under the Bill the Board of Works have power to carry out the works themselves.
AN CATHAOIRLEACH
The issue between you will be this: possibly the Secretary will say that the Board of Works has not the machinery for carrying out the work locally and would have to do it through drainage boards. You say that drainage boards will not be necessary.
AN CATHAOIRLEACH
Would it not be better to dispose of the principle first? The Secretary will urge his objection to the adoption of the principle and will say that drainage boards are not necessary.
There are undoubtedly a couple of points involved in what Senator Barrington has put forward. There is the fear that the county council may simply throw the petition aside. In the preliminary stage it involves very little expense to the county council. The Senator has pointed out a case where the county surveyor may refuse to do the work. He said there was no provision in the Bill for that. There is provision in the Bill whereby a county council may appoint another qualified engineer to make an inspection if, in the view of the county council, it is not one of the ordinary duties of the county surveyor or if they feel that he is already overloaded with work. If the Senator reads Section 3 carefully, he will find the provision there. There is undoubtedly a question involved in these amendments, not merely as to approach to the Board of Works to take up this particular work, but—it is clearly provided for in Amendment 3 —the setting up of drainage boards. I do not say that is the only alternative. Drainage boards may not be necessary, but that is the proposal, and it is almost fundamental in these amendments.
Not necessary, but fundamental in the sense that there is a possibility of setting up drainage boards.
I do not think the words "fundamental" and "possibility" hang together.
Possibility may be fundamental. The Senator's main idea, I suggest, is the possibility of having drainage boards.
AN CATHAOIRLEACH
The distinction between you is that the Senator says drainage boards will not be necessary, and in the event of the Ministry thinking they are necessary, his amendment is providing for them.
We think that they are not only not necessary, but should not be allowed. This idea of drainage boards, in the first in stance, seems to me to cut across the whole idea involved in the Bill. It in volves, especially in the most important portions, finance in connection with the Bill, and co-operation between the central drainage authority and the county councils. I am not going to raise any objection about the drafting of the amendment. I am simply referring to the general idea, and if I refer to any particular amendment it will not be to criticise how it affects the drafting of the Bill, but how it seems to cut across the very idea of the Bill.
Take amendment 3, that I have already referred to, and make the change suggested by the Senator. The Senator proposes in Section 3, sub-section (3) to insert after the word "council" in line 14 the words "or any drainage board constituted under the provisions of this Act." The section would then read: "Every council to which a petition is presented under this Act shall refer such petition," and so on, and then finally "shall consider such petition and such report, and may, if they think fit, pass a resolution (c) undertaking that if the lands referred to in the petition or any part thereof, either together with or without other lands in the neighbourhood thereof are constituted a separate drainage district the council or any drainage board constituted under the provisions of this Act would maintain the drainage works, etc."
That is to say, that the council shall undertake that any drainage board constituted under the provisions of this Act shall do certain things. They shall undertake that a body over which they have no control shall do certain things.
That is not the meaning of the amendment. The meaning of it is, that if the county council refuse to undertake this liability the Board of Works can establish a body that would be prepared to do that.
I was giving that as an illustration of how the amendment cuts across the Act. Undoubtedly, as the amendment stands, it does provide that the council shall undertake that either the council itself or the drainage board shall do these things.
Either one or the other of them.
How could the county council undertake that the drainage board would do these things?
If the county council agrees to do it, then there is no need for the drainage board to do it, but if the county council refuses, then there is a necessity that a drainage board should be empowered to do it.
According to the amendment the county council is still to undertake that the drainage board shall do certain things. Under this amendment there is no co-operation because by it we are cutting out the county council. That is my objection to the amendment. The whole scheme of the Bill is based on co-operation between the county council and the Central Authority. The principal purpose of these amendments is to allow for the possibility of these drainage boards being set up. After the experience that the Board of Works has had, the main purpose of this Bill is to get rid as quickly as possible of the existing drainage boards, and certainly not to facilitate the creation of any new drainage boards. That is the point of view so far as this Bill is concerned.
The object of this Bill is very largely to get back to an old Act called the 5th and 6th Vic. That Act proved to be such an utter failure that drainage boards had to be established to obviate the difficulties that had arisen under it. It threw a certain amount of work on the Board of Works, and now the Board of Works are anxious to shuffle off all their responsibilities and put them on the backs of county councils. I think you will find that the county councils will not accept that responsibility.
AN CATHAOIRLEACH
I think, Senator, you ought to allow the Parliamentary Secretary to conclude his statement. You will have an opportunity of replying later.
The last point made by the Senator was that the Board of Works are trying to shuffle off, as he expressed it, their responsibility. The Senator ought to know that we have practically no responsibility under the Act of 1863. The Board of Works had much more responsibility under the Act of 1842 than they had under the Act of 1863. In going back to the principle of the Act of 1842, the Senator says that the Board of Works are shuffling off their responsibility, though there was less responsibility under the Act of 1863.
Are the Commissioners of Public Works the people who will have to do the work eventually?
Section 11 of the Bill specifies that when an order has been made by the Minister for Finance confirming a drainage scheme the Commissioners of Public Works shall proceed to carry out the scheme. Surely if the farmers are allowed to go, in the first instance, to them, they would naturally ask them to do what they would have to do eventually.
I would ask Senators to remember that I cannot deal with several points at a time. I was replying to the last interruption of Senator Barrington's when he said that the Board of Works was trying to shuffle off its responsibilities under this Bill. What I want to say is this, that the Board of Works is taking more responsibility under this Bill than it had under the Act of 1863 or under the Act of 1842. Under the Act of 1863 the position was this: The initiative lay with the local people. They provided the plans and they paid the engineer, and the only responsibility of the Board of Works was "to vet" the scheme. It is true that the Board of Works came in as regards the final award. The carrying out of the scheme was in no sense in the hands of the Board of Works. It was in the hands of the promoters and their particular engineers. It was, as I have said, at the vetting of the scheme that the Board of Works came in, and after a final award had been made.
Once the drainage board was established, the Board of Works could not interfere except in one way. If the drainage district was badly neglected, the Board of Works could come in. They could do the work themselves, and put an extra charge on for what they had done, but otherwise they had no responsibility and no power whatever. They had more power, as I say, under the Act of 1842 than they had under the Act of 1863, but they have even more power and more responsibility under the Bill that we are now discussing than they had under the Act of 1842. Senator Barrington suggested that the county councils were not perfect. We never pretended that they were perfect. Drainage Boards, in our experience, have been extremely imperfect. Our recent experience has been that drainage boards are nowhere effective. I do not say that there is no place where they are not effective, but as regards any that we have examined the evidence is that they are not effective. During the past eighteen months we have examined, I suppose, sixty districts, and in none of these cases is there an effective drainage board in existence. The main idea of this amendment is to get back these drainage boards to the position under the Act of 1863. Senator Barrington condemned that Act. He also condemned the Act of 1842, which was replaced by the Act of 1863. The Act of 1842 failed possibly owing to extraneous reasons, such as the famine, and to the fact that famine works were carried out under it. The Act of 1863 failed owing to its own inherent defects, and owing to the great social changes that took place under the operations of the various land Acts passed since 1881. This amendment is an attempt to revive in essence and to keep alive the Act of 1863. I might say in passing that we are not repealing the Act of 1863. There is no repeal section in this Bill.
AN CATHAOIRLEACH
This is rather complicated, and I want to know if I am right in saying that if the county councils turn a local petition down, that then the petition is dead, and there is no redress. Would not Senator Barrington's object be met by giving the right of appeal to the Commissioners in any case in which the county council refuse to pass a scheme. The point is this, that there might be a very excellent scheme which the Board of Works would say was quite a good scheme on its merits, but if the county council turn it down it is dead, and the petitioners have no power to go behind the action of the county council. Would not the Senator's position be met if, instead of his elaborate proposals, there was a provision enabling the petitioners to go straight to the Commissioners and to appeal against the refusal of the county council to pass their scheme.
When the Bill was in the Dáil there was an amendment put down to that effect, but we felt that we could not consider that for the reason that the Bill involves close co-operation between the county council and the central authority. Under this Bill you are asking the county councils to undertake a very heavy responsibility, and therefore we did not think it fair that the county council should, so to speak, be saddled with responsibility in respect of a scheme which had been turned down by them. We are not repealing the Act of 1863. We are simply letting it die. I want to make it quite clear that there will be no more public money given under that Act of 1863. I fear that if this particular proposal were carried, people might be anxious to start more drainage boards. In view of our experience of the existing drainage boards, these people would not be likely to get very much from the Ministry of Finance.
The whole thing depends upon the finances of the scheme. One of the many reasons why the present legislation was a dead letter, as it was long before this Bill ever saw the light, was that the finance was defective. There was no means, owing to the various changes in the law and the splitting up of property, the passing of the land from the landlords to the tenants, to collect the drainage rates and the drainage maintenance rates. This Bill does provide a means for doing that. It faces that particular responsibility which was never, as far as the drainage maintenance was concerned, under the Act of 1863, the responsibility of the Board of Works. It was a responsibility of the local drainage board, and they have never been able to fulfil it. A drainage rate of sixpence or one penny cannot be recovered until six years, you cannot wait seven years, because then the statute of limitation would come in. But this Bill does provide a method of collecting the rates for the proper maintenance of those districts. It will be collected as the poor rate is collected, which is a much easier and less expensive way. The whole work of the Bill depends upon finance, and the finance depends upon the close working and co-operation between the county councils and the central authority.
If you set up a drainage board as suggested here who is to collect the rate? I have read the Senator's amendments in that direction, and I confess I am not quite clear about them when it comes to this point of the finance of the Bill, either in regard to Clause 17, 19 or 21 dealing with maintenance. The amendments he suggests there leave me in doubt as to whether it is the county council or the drainage board that is to decide what the amount of the rate is to be. If the drainage board decided what the amount is to be, who, then, is to collect it? The county council——
If the drainage board fixes the rate it is the drainage board who will collect it.
That is what I want to be clear about. That is the worst of the defects that have to be cleared in prospect of a drainage board being established. I was not quite clear from the amendments whether it was the drainage board or not that was to do that work. If it was the drainage board then it absolutely kills the whole purpose of these amendments. It has been found impossible under the existing law for the drainage boards to collect the rates. It would be still impossible under this Bill, and if it is impossible to collect the rates I think the State cannot give money which it cannot be paid back.
Would the Parliamentary Secretary consider this point: If a scheme were turned down by the county council the applicants might feel that they had not got due consideration. In that event would the applicants have the right to appeal to the Commissioners, and if the Commissioners sent back the case to the county council with their imprimatur and the suggestion that it might be more fully considered, then the county council might give it more full consideration, and that might be a step between the acceptance and the rejection of the amendments.
AN CATHAOIRLEACH
That might place the Commissioners in a very invidious position. If they approved of a scheme that had been rejected by the county council, and sent it back to the county council, that body might tell the Commissioners to mind their own business, and might put the Commissioners in a false position. If there is to be an appeal at all, it should be direct to the Commissioners to say whether they would or would not sanction the scheme.
I agree with that, were it not for the difficulty that the Parliamentary Secretary pointed out, that a direct appeal would put the Commissioners in the awkward position, perhaps, of compelling the county council to carry out a scheme that they were not anxious to carry out. I foresee great difficulties in that.
The point raised in this discussion is as to the action of the county council in turning down a scheme that might be presented to them and whether there should or should not be a right of appeal in that decision. There may be cases, and very deserving cases, in which the county council will think fit to turn down the scheme. County councils have large interests to consider; for example, whether drainage would benefit roads, and if it did you would possibly find it easy to get the co-operation of the county council. If a drainage scheme was of benefit to public health, that, possibly, also would interest the county council and would serve to get the co-operation of the county council. I can see the prospect of that co-operation all round which the Minister sees, and the probability of contributions coming through the county council or the county councils affected, though there will not be much work done under this scheme, because it leaves the liability on the petitioners. This is rather ambiguous. It does not clearly define the whole liability of the scheme and the cost of the works may rest entirely upon the petitioners eventually. Certainly there is a clause which permits a contribution from the Central Fund. Public health may come in there and public utility and the Central Government may make a contribution. If local interests other than the interests of the petitioners are served, such as roads, the local council may make a contribution if they so wish. But the position, so far as the liability of the petitioners is concerned, is left in doubt.
There was a movement made in my own locality, and the first question put to me was: "What is our liability of this scheme is set up? The ultimate cost may be considerable, and we may have to bear the brunt. We do not know how the liability is to be spaced out, whether it is to be for a number of years or not; the rate of interest and sinking fund and the question of contribution-in-aid, are all very doubtful, and we would like a clear definition before putting our names to anything of the sort." Possibly there are very good reasons for leaving the position in that ambiguous way and for not giving any closer or clearer definition. The principle running through this Bill, owing to the difficulties met in former schemes, is to get the co-operation of all parties concerned, both as to carrying out the work, the collection of rates, and the maintenance of the work when carried out. These matters can be more efficiently done through the county councils as they are a collecting body, and as the contribution will be collected with the poor rate and through the county councils. If the Minister would see his way to clear up some of these little points, I think it would make for the greater success of the operations of the Bill.
I think it is not necessary for me to say that we are all concerned in making this Bill as effective, efficient, and useful to the country as it can be made. I am speaking as one who in the past has been very intimately connected with these things. I think the Minister is extremely hopeful if he hopes, under the Bill as it stands, without any appeal from the county council, or without any chance of the petitioners approaching the Board of Works, that the Bill is going to be efficient to any great extent. I know that the whole question bristles with difficulties. I know that the Act of 1847 was a failure, and I know that the Acts 26 and 27 Vic. have been very largely a failure, and I am convinced that if this Act goes through as it stands it will also be a failure. I want to make it as efficient as possible.
Put yourselves in the position of a county council. Suppose there is a member of the county council who has spite or animus against some of the petitioners. Such things do unfortunately happen in the country. I think that last week there was a case in the newspapers in which a county council ruled out a certain class of people. The same thing may arise in connection with drainage. Supposing someone on the county council has an animus against anybody; the county council will consider how the ratepayers, whom they represent, how the roads, sanitary arrangements, and so forth, are affected by this cost. They may not, perhaps, be affected at all. The people promoting a scheme may not be people of great influence, but they feel the necessity of having drainage done, and the county council may say that they do not feel themselves bound to pledge the resources of the county to the scheme. I have had much experience in the past, and I cannot hold the Board of Works entirely free from blame in connection with this matter. They had vast powers which they did not call into force, and sometimes they called them into force at times which were not desirable. As the Minister has said, inquiries were made as to the maintenance work done during the last four or five years, and they were not found satisfactory. I would like to ask any Senator who knows the conditions that existed during the past four or five years whether anything in the way of maintenance of roads, bridges, or anything else has been satisfactorily carried out in that period. To quote the example of how such things have been done during the last few years is, I think, simply shelving the question. I have suggested what, in my opinion, is best to be done, but the Parliamentary Secretary does not see his way to fall in with my views, and I cannot do more. I am certain that, unless the Bill contains some appeal from the county council, it will be a failure.
I mentioned the fact that we had made inspections specifically during the last couple of years. It is not true that neglect on the part of drainage boards is confined to the last couple of years. Many of the boards have ceased to exist, and in very few cases have they raised proper maintenance rates to carry out the work. That experience extends over ten and twenty years, and these boards have, on the whole, worked extremely badly. I admit that there may be cases in which the county councils may have acted wrongly, even through wrong motives, but if you legislate for these exceptional cases, I fear that you are cutting across and destroying the Bill as a whole. I am willing to admit that in individual cases injustice may be done, but I am afraid that in trying to see that justice will be done in these cases, you will do damage in many cases, and you will operate against the whole idea of the Bill.
This preliminary examination by the county surveyor is not meant to be a very thoroughgoing examination. The idea is not that the county surveyor will prepare a scheme. The preparation of a scheme comes later by the expert engineer sent down by the Board of Works. All that is required is that the county council's engineer or the county surveyor shall see whether there is a prima facie case for examination. Senator Kenny raised a number of points, one of which was that people would not know what they are letting themselves in for. So far as we could arrange, we have made an effort to see that they will know as far as possible what they are letting themselves in for. That is provided in Section 6. Before there are any commitments on their part to a scheme, everything proposed to be done is set out and the amount required, so far as our engineers can estimate it, is to be set out and, not only that, but the contribution for which each person will be liable in that case is also to be set out. In sub-section (2) (h) you will see that the amount provided from public funds is to be set out. It is not because they have voted on a scheme that they are committed to anything. It is the people who are concerned in the scheme who will decide and not the Board of Works or the county council.
Is the Parliamentary Secretary correct in saying that the county councils will have all these opportunities before they incur any liability?
I was not referring to the county councils. Senator Kenny was not referring to the county councils but to the people whose lands were to benefit.
I understood Senator Kenny to say that the county councils were slow to undertake any liability until they knew where they were. This Bill compels the county council to undertake work which the Board of Works wish to have carried out.
The position seems to be most anomalous. We are mixing up the Committee Stage with the Second Reading of the Bill. The very principle of the Bill appears to be under discussion now and the debate has degenerated into a sort of conversazione.
AN CATHAOIRLEACH
It was going to, but I do not intend to let it.
I think, if we are going to discuss the matter in this way, that we will not get very much further.
AN CATHAOIRLEACH
We will progress. You see, Senator, I did not stop any wide discussion as there is a big principle involved in the first amendment. The big principle is this: whether in the event of the county council turning down a scheme, or, in view of the possibility that they might turn down a good scheme, there should be either an appeal to the Commissioners of Public Works, or a direct approach to them at the choice of the local people interested. That is the big question we are debating. That is not a Second Reading question, because it arises as an appropriate discussion on Senator Barrington's amendment. That is the reason I have allowed the discussion to roam on.
I would like to ask one or two questions, but I do not know to what amendments they would be applicable. As far as the maintenance is concerned, it appears to be primarily the duty of the county council to see that the works are maintained, but there may not be sufficient force in a district interested in the maintenance of the drainage to make strong representations to the county council. I have had some experience of drainage districts, and I know that a great cause of discontent is that some of those who are rated for the maintenance of these schemes think that they are over-rated and that they do not get as much benefit as some of their neighbours. In many cases they are influential people and they more or less obstruct the maintenance, even at the present day, of drainage schemes. I rather fear that unless it is specifically the duty of the county council to inspect periodically these drainage districts, unless this duty is allocated to either the poor rate collector, the county surveyor or the assistant surveyor, a great many drainage schemes, carried out at great expense in the first instance, may be allowed to go into disrepair and have to be gone over again with a repetition of the whole expense.
AN CATHAOIRLEACH
The answer to that, Senator, is that Clause 19 imposes a duty upon the county council to keep these works in repair once they are completed. The appropriate time to raise that matter will be when we reach that section.
I was not quite sure whether I was in order in raising it now.
AN CATHAOIRLEACH
You can there propose an amendment that they should be inspected by an individual or any other amendment you think necessary. That does not really touch very closely the principle we are now discussing.
I would suggest, in view of what the Parliamentary Secretary has stated, that the existing drainage schemes have all failed—a statement with which I am in agreement— that he should, under this Bill, empower the county council to have the existing drainage schemes carried out properly. What I want to convey is this: I have in mind a case where a large sum of money was expended many years ago on a drainage scheme. A local drainage board was set up and a collector was appointed, but the collector's poundage was so small that it was not worth his while to make the collection. As a result the drainage was allowed to go uncared for, and all this huge expenditure of money has gone for nothing because of the want of a little attention. If the Parliamentary Secretary would incorporate in his present Bill powers ample enough to enable the county council to levy the required rate, and to see that the work is carried out, I think it would be desirable.
AN CATHAOIRLEACH
That is a very wide and a new matter. It is not the matter we are discussing. That is a suggestion that the Commissioners should take power under this Bill to revive abandoned schemes and complete them if they thought fit.
I think I could satisfy the Senator on that point.
AN CATHAOIRLEACH
I think they have that power already. However, we must confine ourselves to the question before us.
I must say that I have the greatest desire that this Bill should not be interfered with. I think it is an admirable Bill. I still reiterate what I started with, the suggestion that something should be done to meet the Secretary's great objection, that this amendment would involve a drainage board. I think the first two amendments can be met without instituting any board. The whole machinery, except the imposition on the county council for the maintenance of the districts afterwards, is there. I do not think that is much of a difficulty. I think it would be a great improvement to an admirable Bill. I do not wish to press it further, however.
My objection was to the drainage board, and also that it outstepped the county council. There are two points, one pushing aside the county council and the other setting up drainage boards. I have really two objections to the amendments.
I think this amendment is not necessary, because it presupposes that some of the county councils would not carry out their duties as responsible people in charge of local administration, including drainage. I should imagine that that objection was met in the Bill. It is laid down clearly that the county council shall—it is mandatory on the county council—direct their county surveyor or some other engineer to examine the petition and then after the petition has been examined by the engineer, whether he is the local county surveyor or an engineer specially employed for the purpose, when his report is submitted that a special meeting of the county council shall be held to consider his report. The county council may then pass a resolution approving of the petition. I am not one of those who have lost all faith in our people and if the councils are not prepared to do what they think is best in the interests of the locality and the people, if they are not satisfied to act themselves on the report they get from the engineer, they can pass a resolution requesting the Commissioners to inquire into the details before they do anything further. I think the case is met there.
AN CATHAOIRLEACH
Is that power conferred on them?
It is in sub-section B, Section 3. I would imagine that a commonsense view to take is that if the county council themselves were not satisfied with the report of the engineer, and did not like to embark on a scheme themselves, with the advice which they had, the obvious step would be to request the Commissioners to examine the whole thing.
AN CATHAOIRLEACH
That is a very important provision, of course, that you have called attention to, but it is only after they have approved of proposals that they can refer them to the Commissioners, "and may, if they think fit, pass a resolution approving of the proposals and requesting"—the two go together. That is only where they approve of the proposals. If they reject the proposals all the rest goes by the board.
I would ask you to read sub-section C, immediately following.
AN CATHAOIRLEACH
What is the point of that?
Their undertaking to incur expense.
AN CATHAOIRLEACH
That is where they accept the scheme, but their power to refer it to the Commissioners arises only when they have accepted the report.
That is quite so. But in reference to the point that has been raised by Senator Barrington, perhaps it may unintentionally set some of the Senators astray if he means to convey that there is any expense in that way imposed on the county council-expense which they do not wish to undertake. It is quite true that they undertake to maintain the drainage of the district, but if the Seanad will turn to the maintenance portion of the Bill they will see that that charge can be levied and will be levied off the men whose lands are benefited and will not be paid out of the county rates.
They make themselves liable for the arrears.
AN CATHAOIRLEACH
Would it solve the position to change the word "and" into the word "or"? That is giving them power when they get the report of the County Surveyor either to approve of the proposals or to request the Commissioners to examine them and to decide whether the drainage scheme could be started.
I think I could consider that and see whether it could be introduced on Report Stage.
AN CATHAOIRLEACH
That is worth considering. It would go a long way to meet the case. Suppose we leave this matter over and let it be discussed again on report.
I agree that this is not an amendment that could be made on the spur of the moment.
What I had in mind with regard to the amendment was that if we adopted it, and if the county council were compelled, or if the Commissioners made them do this work, if the county council are not willing to co-operate in the carrying out of the drainage scheme they can make it impossible for anyone else to do it. For that reason I do not think we can drive them.
AN CATHAOIRLEACH
That will avoid any further discussion on the consequential amendments of Senator Barrington.
Yes. These are consequential.
Amendment, by leave, withdrawn.
Question—"That Section 2 stand part of the Bill"—put and agreed to.
Question—"That Sections 3 to 18 stand part of the Bill"—put and agreed to.
SECTION 19.
With reference to Section 19, as to what the maintenance of drainage works might mean, I would ask the Minister if he will kindly tell us what provision is made for periodical inspection of the drainage works. I cannot find anything in the Bill where it is laid down that the county councils should have periodical inspections. Unless these inspections are made, undoubtedly these schemes will be lost. These schemes will be carried out perhaps at great expense, as they were in the past, and we would have them absolutely lost and the whole original expense would have to be incurred over again. I have had experience of such cases.
If I were to make a suggestion, it would be that the inspection should be made by the Board of Works.
That is what I was going to remark to the Senator. We have this power under the Act of last year. This is in reference to the creation of new districts. Last year there was a Drainage Maintenance Act passed, and it is now in force. Under that we have power to inspect the districts. If they are not maintained, we can, under the Drainage Maintenance Act of last year, do the work. That applies to the new districts as well. The Board of Works have power to come in and inspect them, and if the work is not done they can do it themselves.
AN CATHAOIRLEACH
What is the section that incorporates the Act?
I think it would be necessary to do more than give them power, because they had power in the past and they did not exercise it.
The point that I try to make is this, that a body, whether the county council or the Commissioners, ought not only to have power to do this, but it is their duty, and some controlling authority should see that they do their duty. That is my only object in drawing the attention of the Seanad to that particular point. I know that whoever was responsible in the past, that duty was grossly neglected.
AN CATHAOIRLEACH
You can give that by a short amendment saying it should be the duty of the Minister to prescribe the regulations providing for annual or biennial inspections or inspections twice a year of these drainage schemes.
I would say annual inspections.
Just before you decide on an amendment of that kind I would like to say that there are at present about 160 drainage districts in the country——
AN CATHAOIRLEACH
I would not ask you to accept this now, but just to turn it over in your mind.
Yes. Under this Bill there may be any number of other districts created—at least we hope so—and if there were annual inspections it would mean that a great amount of work would be thrown on the Board of Works.
I do not suggest that. And I would like to ask the Minister is this duty imposed on any body by this Bill and, if not, will the Minister bring up an amendment on Report defining the body to which the duty belongs? Does the Minister consent to do so?
AN CATHAOIRLEACH
The Ministers points out that by incorporating the previous Acts the duty is there and it is imposed upon the Commissioners.
I am afraid we have only power under that Act. The duty of maintenance is not made obligatory. The power is there. I do not think there is an obligation. I quite admit that.
Would the Minister bring up an amendment on Report promising that?
I would not promise that.
AN CATHAOIRLEACH
It would be better if the Senator would bring up an amendment and let the Minister consider it.
Question—"That Sections 19, 20, 21 and 22 stand part of the Bill"—put and agreed to.
SECTION 23.
At least one of the persons, not members of the county council or any of the county councils concerned, who are elected to be members of any committee or joint committee appointed under this section in relation to any drainage works shall be a ratepayer liable to pay drainage rate in respect of such drainage works.
This amendment, No. 20, stands in my name:—
Section 23, sub-section (4). To delete the words "At least one of" in line 67, and to substitute therefor the word "all."
There is only one point in connection with that. If I may epitomise what the section means it is this-it will be the duty of the county council to maintain these districts and appoint a small board to do that, and it says that at least one person not a member of the county council or of any county councils concerned who are elected to be members of any committee or joint committee appointed under this section "shall be a ratepayer liable to pay drainage rates in respect of such drainage works." That is that they shall have power to call in persons outside the county council and form them into a board. It is the same class of board that the Minister objects to. This board is to see that the drainage shall be properly maintained. Now, instead of having one person, I propose that all the members of the board shall be persons interested in the lands and liable to pay rates for them. I think that people interested in the land would be more suitable. It is more their business to see that the work is properly maintained, and I think they should be ratepayers.
This amendment would impose an unnecessary and undue restriction on the county council in the selection of a committee. The principle is all right that the members of the committee should be ratepayers and liable to be rated in respect of the drainage scheme. It is quite possible, however, that outside of these people there might be one or more people who would be experts in matters of this kind, and simply because they did not happen to be ratepayers they would not be eligible to go on this committee and they would be excluded from fulfilling any service on this committee. It is proposed that one of them shall be a ratepayer, and so the principle is admitted, but to exclude persons who are not ratepayers would be imposing a ridiculous restriction. It might be impracticable in some districts to form a committee with the necessary information and managing abilities if the personnel were restricted to the ratepayers. It may turn out that it would be largely in the interests of those rateable people that someone outside their immediate circle should be selected. I suppose the claims of the rateable people in respect of misrepresentation will receive consideration, for I do not suppose that there will be great competition for appointment to these committees. I think it would be injurious to the whole scheme to limit representation to the ratepayers.
I do not think the intention was to limit it to ratepayers in a general sense, but to ratepayers in the drainage district.
I am opposed to the amendment. I agree with Senator O'Farrell that there may be excellent non-ratepayers in a drainage district, and it would be desirable that they should be on the committee.
If the Seanad will permit me, I would propose to say "the majority" instead of "all."
There is no provision that would prevent all the people on a committee being ratepayers. It leaves it open, so that if a person with expert knowledge, who does not pay drainage rates, would be of advantage to the people who pay drainage rates, he would be eligible for election.
"The majority" would cover that.
AN CATHAOIRLEACH
You wish to change your proposal to the words "the majority"?
Yes.
The amendment as altered—"To delete the words ‘at least one' and to substitute therefor ‘the majority'"— put and declared lost.
Sections 23, 24, 25 and 26 put and agreed to.
SECTION 27.
Sub-section (2).—Every person who after any drainage works constructed under this Act are completed—
(a) shall wilfully obstruct the county council or county councils charged by virtue of this Act with the maintenance of such drainage works or any committee or joint committee of such council or councils or any officer or servant of any such council, councils, committee or joint committee in the exercise of any of their powers or the performance of any of their duties in relation to such drainage works, or
(b) shall pull down, remove, or in anywise injure any such drainage works or any part thereof, or
(c) shall obstruct the flow of water to, through, or from any such drainage works in such manner as to prevent or hinder the efficient operation thereof or to cause flooding of such works or any lands drained thereby shall be guilty of an offence under this section and shall be punishable accordingly.
I move:—
Section 27, sub-section (2). To add at the end of the sub-section a new paragraph (d) as follows:—
"(d) any person who permits his cattle to trespass upon, damage or injure any embankments or other works erected under the provisions of this Act or who is owner of the lands immediately adjoining such embankments and who neglects to take sufficient precaution to prevent such trespass shall be liable to the penalties provided by sub-section (3) of this section."
This is dealing with an entirely different matter. It has been found utterly impossible properly to protect the embankments, which very often form an essential portion of an arterial drainage scheme. People will allow their cattle to trespass unless there is some penalty imposed for trespass on the embankments. Any person with experience knows that the embankments will not remain for long if cattle keep trespassing on them. When cattle are found trespassing on an embankment, if you speak to the owner of the adjoining lands about the matter, he will say that the cattle do not belong to him but to somebody else. The onus is put on the drainage board to prove the ownership of the cattle trespassing, and that is impossible to do. It is obvious that no person is going to allow other people's cattle to trespass on his land if he can help it, and if cattle are found regularly grazing on these embankments and ruining them, it is obvious that they belong to the owner of the land adjoining. The principle in the amendment has been embodied in some Drainage Acts, but it is left out in this Bill.
There is no condition of things which leads to greater quarrelling between neighbours than rivers and drainage. A further penal provision, such as proposed, would only accentuate that sort of trouble. Wherever there are small rivers there is the greatest difficulty in keeping the cattle from trespassing and crossing from one farm to another. I do not think you can devise a perfect system that will prevent trespassing. I think the amendment is impracticable, and would lead to trouble.
I have a certain amount of sympathy with what Senator Barrington has said, so much so that we had a provision of this kind in the Bill when introduced first, but as the result of strong representations made to us from the Dáil, and also as a result of very careful consideration of the matter by our own engineers, we came to the conclusion that the proposal would be unworkable. A man could not in practice prevent his cattle, even with the greatest care, from trespassing except he, or the drainage board puts up a fence. If you ask people along the banks of the river to put up drainage fences, I think they would vote against the scheme as they would imagine that no benefit they would get from the drainage would compensate them for the expense of putting up that particular fence. It was with reluctance, therefore, I had to drop that particular sub-section. I would be the last person to deny that the Act of 1869 in this particular was very ineffective. On one occasion there was an eminent engineer—I think his name was Barrington—who gave evidence before a commission, to the effect that he had known several cases in which this particular provision had been invoked, and in which the ludicrous penalty of 1/-, with costs, had been imposed, and so strongly was he impressed with the necessity for a proper provision of this kind that he suggested that the only way was to have a minimum penalty of £3, with costs as well. I do not wish to enter into the law on the matter, but I have a vague idea that under common law a man could be summoned for trespass. I am not sure that a man is bound to fence his land under common law to keep his cattle in, but in any case it is with reluctance that I was compelled to drop this particular provision.
I would ask Senator Barrington to withdraw this amendment. I consider it is impracticable. Without any very high embankments it would be almost impossible to prevent cattle trespassing on them. Any damage caused by the trespass would be found out by periodical inspection, and it is the repair that is done in time that counts. I do not see that any penalty is to be imposed for damage done to drainage by cattle walking through a stream, and in that way carrying down all sorts of dirt, and blocking and damming up a great deal of water.
My reason for bringing forward this amendment was because of many years' experience. I had before me cases where important drainage was carried out, and there were miles and miles of embankments. One man allowed his cattle to go on these embankments and damage them to such an extent that the next flood that came up burst them, and for miles around serious damage was caused. They took proceedings against the drainage board and the damages recovered were something in the nature of £700.
That is the law at present.
Has it happened since 1869?
Then that is the law since 1869.
Amendment, by leave, withdrawn.
Question—"That Section 27 stand part of the Bill"—put and agreed to.
The following amendment stood in the name of Senator Linehan:—
Before Section 28 to insert a new section as follows:—
"(1) The occupier of any lands not included in a drainage district and adjoining any river or stream not more than sixteen feet in width shall once in every year cause to be dragged or cleansed from weeds the portion of such river or stream which abuts on the said lands.
(2) Any occupier who neglects or refuses to comply with the requirements of the foregoing sub-section shall be guilty of an offence under this Act and shall be liable on conviction by a court of summary jurisdiction to a fine not exceeding £5. Any occupier of lands adjoining such river, or stream, or the council of the county, shall be competent to prosecute for an offence under this section."
AN CATHAOIRLEACH
I see Senator Linehan's amendment, if passed, is to be put in before Section 28.
Is it within the scope of the Bill? It does not create a new drainage system. The whole scope of the Bill is for creating drainage districts.
AN CATHAOIRLEACH
The object of this amendment is to prevent persons who occupy lands that adjoin those within the scheme from doing anything to damage the drainage works. Is not that so?
I submit the title of the Bill is
"An Act to make provision for the drainage of land and the improvement of land by drainage."
Therefore my amendment is in order.
On the title, certainly, but not on the scope of the Bill.
AN CATHAOIRLEACH
The objection of the Secretary was not that this was going outside the title but outside the actual contents or what is called the scope of the Bill. This is a general clause dealing with the upkeep and the cleansing of drains and rivers wholly regardless of the question of a drainage scheme. I am afraid the amendment is outside the scope of the Bill.
Amendment not moved.
Section 28 put and agreed to.
Question—"That the title stand part of the Bill"—put and agreed to.
