This section deals with inspections of land in connection with the operation of the Bill. An authorised person carrying out an inspection under the Bill must either (a) get the consent of the owner or occupier of the land or (b) give him at least 14 days notice of the inspection. Where course (b) is chosen the owner/occupier will be entitled to seek a District Court order prohibiting entry on the land or allowing a conditional entry. In other words, if an authorised officer wants to enter on private land for the purposes of inspecting it, for the purposes of the Bill, he must either get the consent of the owner or occupier or serve a 14 days' notice on the owner or occupier, giving notice of his intention to enter on the land. In the latter event the owner or occupier will have the right to appeal to the District Court to prevent the authorised officer from entering. If the District Court holds with the objection the authorised officer will not be entitled to enter the land but the District Court may grant permission on conditions. I think that summarises it fairly accurately.
SECTION 68.
This is something the same as existed under the ESB Acts for wayleaves.
The ESB powers are more absolute than this. I doubt if a District Court order would be sufficient to prohibit entry on land; they have much too dictatorial powers altogether. I would not be in favour of giving the same powers now to the ESB if that legislation was going through again. It is known that they have planted poles in the middle of people's gardens, left the land useless, offended the landscape and the environment.
This is a very welcome section in that it gives the owner power to restrain persons from entering on his land. How does it stand in relation to other sections which we have passed and which seem to give the Minister compulsory powers to enter land?
Under a compulsory powers section the owner has the right to object before the Lay Commissioners of the Land Commission, and if they hold with him the Minister cannot acquire the land.
There are two things not clear to me in so far as they either overlap or conflict with each other. If the Minister wants to enter on somebody's land through his officials, he gives notice to the owner that he intends doing so. The owner can give notice that he is objecting and he can seek the protection of the District Court. If the court precludes the entry or lays down conditions provided here, can the Minister still use his compulsory purchase powers?
This section deals only with inspection. If the Minister wants to acquire the land compulsorily he proceeds under an entirely different section. There are very elaborate protective provisions afforded the owner.
Is there any other section of the legislation under which it might be necessary for one of the Minister's officers to enter on land?
To enter on private land?
Yes.
To trespass is an offence in common law.
There are the policing powers in sections 72 and 73.
Section 68 refers specifically to the Minister wanting an officer to operate under section 11 only.
I think it is section 11 of the 1946 Act.
What we have in mind here is this: the authorised officer might want to go in to see whether he should establish a preserve or a sanctuary, whether there were any special fauna habitats or flora available there, to investigate that sort of thing.
Mr. Kitt
Would the proposed Wildlife Advisory Council have any function in this as regards inspection?
Indeed, they would not.
Mr. Kitt
Who exactly would be the authorised officer?
The authorised officer would be an officer appointed by the Minister—an officer of the Department.
Mr. Kitt
Of the Land Commission?
The Forestry and Wildlife Service.
Mr. Kitt
What would be the relationship between him and the Wildlife Advisory Council?
The Wildlife Advisory Council is purely an advisory council.
Mr. Kitt
They might advise an officer as regards——
No. They would not have any control over the day to day operation.
They have no executive function, as such. The Minister exercises that. They are just advisory to the Minister. Is that correct?
Exactly.
They act as sort of common informers here by telling the Minister about lands they think should be acquired. The owner is given authority here, and rightly so, to restrain officials of the Minister's Department from inspection of the land. But if the Minister does not bother inspecting he can put a compulsory purchase order on the land.
The Act affords elaborate powers to the owner, in such an event, to object, to have his objection heard before the Law Commissioners, to appeal from the Lay Commissioners to the appeal tribunal, which is the District Court, on a question of law, to have his compensation fixed by the Appeal Tribunal, a judge of the High Court. There are very elaborate provisions there.
If he wants to resist the taking over of his land by the State he has no powers.
He has. He has the very same power. The man here has only the power to go before the District Court. If the District Court authorises the inspector to go in, in he goes. But if the District Court say he should not go in, he cannot go in. In the other case the Deputy has in mind, if the land has been acquired and the owner brings his case to the lay tribunal and the lay tribunal say: it is not reasonable that this land should be acquired, then it will not be acquired. But, if the lay tribunal say it should be acquired, subject to right of appeal to the Appeal Tribunal, then it is acquired.
Compulsory purchase powers, as we all know them, have been provided to meet cases where the owner is not willing to part with the land. The very terminology of the powers of the compulsory purchase order indicates just that. I have yet to learn of a case of any person successfully resisting a CPO.
I have, both in my capacity as a solicitor and as a Minister. I have come across several cases.
And I have been successful.
I do not want to rely on technicalities but obviously a general discussion on land acquisition is not suitable or relevant.
I think it is very relevant here. We are going into this burning question of compulsory acquisition.
This is not a compulsory acquisition section. This is purely an executive inspection.
It is very much the preliminary function leading up to it.
It may be, but it is restricted to this section only.
For the life of me, I cannot see the Minister acquiring lands for use under this legislation without having an inspection carried out.
He will be at some handicap if the owner of the land is successful in his objection. It gives the owner that extra weapon.
Could I ask the Minister to explain "may enter at any reasonable time". Could a person not say that any time might not be a reasonable time, for instance, the whole hay-making season?
No. The District Court will decide that. As the Deputy will note, subsection (1) of the section reads:
Any person appointed in writing by the Minister under section 11 of the Act of 1946 to be an authorised officer for the purposes of that section (which person is subsequently in this section referred to as an authorised officer) may at any reasonable time enter on, inspect and survey any land for the purpose of ascertaining whether there are fauna on the land which are in need of protection under section 17 of this Act, or for any other purpose (apart from the purpose mentioned in subsection (2) of this section) in connection with the performance by the Minister of his functions under this Act.
Obviously "reasonable time" is—
"reasonable time", that is legal jargon.
It might be argued that no time might be reasonable.
Yes, but the court will decide what is reasonable.
Section 11 of the 1946 Act gave the Minister permission to authorise persons to enter land for the purpose of acquisition.
For forestry.
For the purpose of acquisition. On the other hand, is it not provided in this legislation that that can be a continuing process, that the Minister's officers will in the matter, say, of designated areas or recognised areas have the right to continue that inspection?
The Minister will still have the power under the 1946 Act to enter land, subject to the provisions of the section, for forestry purposes. This section is giving him the same power for wildlife purposes.
But the original inspection was a once only inspection. He decided whether or not it would be proper for him to acquire that land.
Not necessarily.
He examined it with a view to its suitability for acquisition.
He has other duties under the Forestry Acts in relation to the felling, the replanting of trees and so on. He would have the right not merely for the purpose of acquiring land—
Would the Minister not agree that there would be much more frequent inspection under these provisions?
There might and there might not, but if the Minister's powers under this section were being abused, there is the greatest protection afforded to the owner. He has the right to go to the District Court and say: "This Minister is guilty of an abuse of his powers. He is sending out inspectors every day of the week. This inspector was here last week and got all the information we have. Why is he coming back?"
If the Minister can satisfy the court that he is doing it having regard to his obligations under this legislation, thereby disappears the right of the farmer or the owner.
We must assume that people will behave reasonably, and if they do not, I say, with respect, that the courts will restrain them.
That is something we leave open in legislation too often, that people will act reasonably. It is not provided for in legislation. The legislation is there for all time, and we do not know how people will behave.
You have the protection of an appeal to the court.
Yes, but I cannot visualise what would be a reasonable plea in order to restrain inspectors. I can see that the owner of land would try to use these provisions to prevent the taking over of his land. If a man has a limited amount of land—and land tends to become more valuable—he will worry about it being acquired by the State when he wants it himself. When an inspection takes place he will suspect this is a preliminary to the acquisition of the land by the State. That would not be a very good reason to give in court for preventing inspection. The actual reason behind it would be that he wanted to prevent the preliminaries taking place so that the land would not be ultimately acquired.
I find it difficult to understand the objection to this section. I do not think there is a real objection to it but that we are just wandering around and discussing it. Here we have a provision clearly written into the section that, if an officer of the Forest and Wildlife Service wants to go on land for the purposes outlined in subsection (1) he must either get the owner's consent or, failing that, get the authority of the court, and I put it to the Committee that that is adequate protection.
I am looking at the realities of the situation here. One can visualise the case of a landowner who has a limited amount of land. He finds it is a habitat of certain fauna which he may suspect could attract the attention of the Department for acquisition. He is afraid of losing this land and he might take other action that would not be in accordance with the provisions of this legislation to ensure that it was not a habitat, and would thus prevent it being acquired as such.
I have nothing further to add.
I am not opposing the section. It provides powers that are very necessary if we are to have protection for ownership and some regard for the rights of private ownership. What I am concerned about is the use that might be made of the legislation to prevent inspection. The owner might go to court and give other reasons, that these people entered on his land, stampeded his flocks and in some way interfered with the privacy and the other uses to which the land was being put.
That is the whole point of the appeal to the court.
While I am not opposing this section, I am pointing out the improper uses to which it could be put.
To go back to the first point the Deputy raised about the question of trespass by an officer going in, the only way a private individual could stop that would be by the rather expensive procedure of going to, say, the Circuit Court or the High Court, depending on the value of the land. It could be very expensive. This is a cheap method from the point of view of the landowner protecting his land. The cost of going for an injunction in the Circuit Court or the High Court would be very expensive. This is giving the landowner an extra remedy he would not otherwise have.