Thursday, 17 November 1960
Dáil Eireann Debate
Where a local authority consider that any land, whether situate within or outside their functional area, would, if acquired by them, be suitable for the provision of offices and halls and buildings ancillary thereto for the local authority...
Mr. Briscoe: Surely Deputy Dillon ought to know that if that word “ancillary” were accepted, we would have about ten years' litigation in the courts as to the proper interpretation of the word. I would ask him to let it go as it is. There is no doubt that the elected representatives of any  public body will not be frivolous in their requests for a compulsory order, that they will seek it for something that is stupid. If, by chance, there happen to be a majority of stupid people on any local authority, surely the Minister is there to examine the proposal and either to agree or disagree with it? Deputy Dillon might understand that this is a matter of great urgency. Once this Bill passes this House and becomes an Act, we shall be able not only to give employment to many people who are unemployed but also to get on with this much-needed work for the efficiency and economy of our capital city.
Mr. Dillon: These arguments are irrelevant. We are all agreed on what it is desired to express by this subsection. The Minister, I think, admits it when he proposes this amendment in the belief that the words “halls, buildings and” are governed by the word “offices”. I put it to him, as set out in the amendment, that that is not so. The subsection originally read:
I can sympathise with a member of any public body who is anxious to press forward with a project. Let us bear in mind that we are not legislating ad hoc for one project. We are legislating to give a local authority what appear to be almost revolutionary powers of compulsory acquisition for certain public purposes.
Commonsense demands that if we are very materially to short-circuit the  existing procedure for compulsory acquisition, we ought to be circumspect to see that we do not by inadvertence very widely extend the area in which the short-circuit procedure can be employed against property. We have heard the view expressed by Deputy Dr. Browne that any public authority in this country ought to be allowed to acquire anything compulsorily. Let us be quite clear on this. I dissent from that view.
Mr. Dillon: I think we all dissent from it. That is why I say that the view expressed by Deputy Dr. Browne is the kind of view that precipitates ill-will, lack of co-operation and general civil malaise in town and country. I think the purpose of this House should be to keep behind the idea of compulsory acquisition for proper objectives. That is why I urge on the Minister that he should turn this amendment around.
Deputies have expressed incredulity that a local authority should seek to acquire land to build a dance hall. One local authority in the country up to very recently was busily engaged doing that very thing—and acquiring it to build a dance hall in a town where already there were two commercial dance halls. That is a matter which can largely be controlled by public opinion in the locality. However, suppose you give a local authority power compulsorily to acquire somebody's land for so highly controversial a purpose, I think you are going far beyond what the generality of people will approve in the country. I only mention that to rebut the view sustained by Deputy Dr. Browne.
I think the bulk of us are substantially agreed on the limitations we would wish to retain on the power of a local authority compulsorily to acquire property. I would urge on the Minister to meet us at least by saying that if we are apprehensive that the location of the word “halls” in the subsection as it is proposed to amend it by amendment No. 3 would widen the power more than any of us intend, then, between now and the Report  Stage, he will look at this again and seek effectively to make the words “halls and buildings” be governed by the word “offices”. If he does that, he will come a reasonable distance to meet us.
Where a local authority consider that any land, whether situate within or outside their functional area, would, if acquired by them, be suitable for the provision of halls, buildings and offices for the local authority...
“Halls, buildings and offices for the local authority”: I want to make that quite clear. The context is “for the local authority” in reference to all three words. I want again to reiterate that my amendment does not give any new power to a local authority. No new power whatsoever is being given to a local authority, even though we may accept this amendment. The local authority already have powers of compulsory acquisition of land for halls, buildings and offices.
Mr. Blaney: They have compulsory powers for the acquisition of land for buildings, halls and offices. All the amendment seeks is that the procedure in compulsorily acquiring land for any or all of these purposes should be changed. The power to acquire compulsorily is already vested in the local authorities. That is the real point. It is merely a question of the procedure rather than the content.
Mr. Dillon: If the Minister says this power has been enshrined in previous legislation, albeit the procedure was somewhat different, has there been any  judicial interpretation of these words? The Minister said earlier that he interpreted this subsection as amended to mean that the words “halls and buildings” are governed by “offices” and that they could be read only as meaning halls and buildings which were an integral part of offices. If that is so, is there any decision to that effect founded on existing legislation?
Mr. Blaney: Yes, but no land has been acquired for dance halls, as such, under the compulsory powers which local authorities have enjoyed for a number of years and which are continued in this context, but with a different procedure for attaining the same end.
Mr. Blaney: I shall. Since the Opposition Deputies have been quite reasonable I certainly shall look into the matter. I do not, however, wish Deputies to take from that that I am in any doubt as to what the intention is. Neither I nor my advisers have any fears in our minds with regard to the position. We shall, of course, look into it and if we find that what has been alleged might, or could, arise, we shall try to cure it.
This amendment brings in Section 36 of the Housing (Miscellaneous Provisions) Act, 1931, to get over the position that would obtain if that section were not included. Compensation would be payable only in the case of  a major claim or major interest. The introduction of Section 36 will mean that all claims for compensation may be considered.
Mr. Blaney: It means payments can be made which otherwise would not be allowable. Under the Bill, in its unamended form, compensation would be payable only where substantial claims for compensation arise. Weekly tenants occupying buildings on the lands acquired would not come within the provisions of the Bill. It is for that reason that we are now including Section 36 of the Housing (Miscellaneous Provisions) Act, 1931, in order to enable such people to be compensated.
(ii) apart from this paragraph, it would not be obligatory on the Minister to cause a public local inquiry to be held pursuant to Part I of the Second Schedule to the Housing (Miscellaneous Provisions) Act, 1931,
The purpose of this amendment is to ensure that an order cannot be made authorising a local authority to extinguish a public right of way, unless an inquiry has been held. It also provides that a right of way may not be extinguished by a compulsory purchase order. It can be extinguished only by a subsequent order, after the land has been acquired.
Mr. Larkin: Are we to take it, then, that, in the event of a local authority seeking a compulsory purchase order, it will not be possible for them at the same time to avoid repetition and duplication and all the work involved in applying for an order to extinguish rights?
Mr. Dillon: I think these things ought to be done with our eyes wide  open. Am I not right in believing that since Magna Carta up to the passage of this Bill, if it is passed, the extinguishing of a public right of way required specific legislation by Parliament? Up to now, it required an Act of Parliament to extinguish a public right of way. After the passage of this Bill, that can be done by order. I should be grateful to the Minister if he would tell us why it is deemed desirable to depart from the existing practice, which is hallowed by long observance, in this relatively casual way? I seem to remember an Act that was passed through this House within the past few years; I cannot remember absolutely now but it was a case in which some public body, some hospital, some board of governors, had to get an Act passed in order to extinguish a public right of way over land upon which they had been authorised to build.
Mr. T.F. O'Higgins: Is not the point under the 1931 Act that they could be extinguished for the acquisition of land for the purposes of housing the working classes? It was confined to the purposes set out in Part 3 of the 1931 Act?
Mr. Dillon: It should not pass through this House without the attention of the House being directed to it. This whole principle of compulsory acquisition was first accepted by this Parliament and its predecessors in order to enable local authorities to meet and overcome urgent social problems. It was felt that where there was an acute shortage of housing, or where there was some urgent public needs which an unsympathetic proprietor of land might avail of to force up the price of his land, on the ground that the community could not afford to do without the amenity which they proposed to erect on it and would pay a fancy price, it would be better to decide that local authorities would have the right compulsorily to acquire that land and subsequently refer the question of fair compensation to an independent arbitrator. That is a principle which it took a long time to persuade the majority of people in many parts of the world to accept, but now it has been generally accepted.
What I see in this Bill, particularly with reference to Section 10, is a general inclination to slither away from what I regard as the fundamental principle upon which all this compulsory acquisition legislation is built, and that is that there should be some urgent public need before the local authority or anybody else is authorised by Oireachtas Éireann to have recourse to compulsory powers of that kind. As the Minister now points out, we consented in 1931 to the extinguishment of public rights of way for a very restricted purpose, for the housing of the working classes.
 Deputies resident in cities will not be familiar with this, but I think the Minister himself ought to know what I am about to refer to now. He knows the importance that attaches to a Mass path, which is what a public right of way is commonly described as in rural Ireland, and everybody knows the trouble that occurs when somebody tries to close one. I have lived most of my life among neighbours who have known Mass paths that they never use, but the moment somebody places a few strands of barbed wire across one of these paths, the whole parish will travel quite a long distance to go over that Mass path. I remember myself cutting a wire that was put across a Mass path and I would do it again.
Mr. Dillon: It was put across a public right of way, and I took particular care to travel that right of way until I was satisfied the person who wanted to sequester it unlawfully had abandoned his intention. Most people in rural Ireland know the importance that attaches to such rights of way but, if it is demonstrated to them that it is necessary to extinguish a public right of way for a public purpose, they will consent, but they will not consent willingly to the casual extinction of what is here described correctly as a public right of way but in the country is ordinarily described as a Mass path.
There are other public rights of way in addition to Mass paths, but I suppose 70 per cent. of the people living in rural Ireland know all about Mass paths, and I recoil from a wide extension of the purposes for which a local authority may, by order, extinguish such rights of way.
I am obliged to confess I much prefer the amendment now submitted by the Minister to the subsection as originally proposed by him and which I had marked for discussion here but, even at that, I think a word of caution is necessary, though I think I can see that, inasmuch as the Minister binds himself to holding a public inquiry in any case where he contemplates consenting to the extinguishment of a  public right of way, he has come some way to meet us, and that the only case in which he does not impose upon himself the obligation of holding a public inquiry is where he has decided to reject an application to extinguish a public right of way. Therefore, I assume I can take it that no public right of way will be extinguished under this subsection without a proper public inquiry being held——
Mr. T.F. O'Higgins: I feel with Deputy Dillon in relation to certain things he said, but I suggest we might agree to the Minister's amendment and then discuss the policy involved in the section when it incorporates the amendment.
Mr. Briscoe: When we got this Bill in the City Council it was on advice from our law agent that I raised the point first. I held the very view Deputy Dillon has been expressing and I stated, as quoted in Volume 184, No. 3, Column 443 of the Official Report:—
We feel that is giving a local authority too much power. We feel that such authorisation should only be given with the right of appeal to the Minister for Local Government by any person affected by our attempt to extinguish the public rights. We feel that there might be some little safeguards included in this subsection.
I suggested there should be an amendment introduced to give the very type of protection about which Deputy Dillon has been talking and the Minister has brought in a very severe safeguard because, if there is to be an acquisition of land on which there will be a closing of a right of way, then the Minister can say: “You cannot close it.” That ends the  matter but, if he is going to sanction the closing, he is inserting in the Bill a provision for the holding of a public inquiry before such closing takes place.
Deputy Dillon introduced many matters in relation to private dwellings but we are dealing with a local authority that wants to make progress and carry through development in the public interest. It is not a question of acquiring something for private gain. It is a question of a local authority, acting in the best interests of the community, acquiring a little piece of ground on which there may be a right of way, and it must extinguish the right of way to provide for the benefit of the community. I remember when there used to be a right of way from Kildare Street to Merrion Square and I do not remember an Act of Parliament being introduced to close that.
Mr. Briscoe: For instance, when I was young, there used to be a right of way adjacent to the Castle. I cannot remember the name of it, but it no longer exists. I used to go up and down the steps myself and through it. But this one here we all know about.
We are dealing with legislation to empower a local authority to operate in the public welfare for the improvement of our city. The local authority itself requested the Minister to take steps in his proposed legislation to control us so that we could not go mad about the thing and that we would have to have regard to private rights. We shall probably have to exercise this section in connection with our town planning in the development of new roads in time to come.  I do not know whether Deputy Dillon or I will be spared by Providence to witness some very good improvements in the creation of new throughways in our city. Nevertheless, we are taking steps now to plan ways and means. We shall have to knock down houses, extinguish rights of way, and so on, in order to get these amenities. I do not know if Deputy Dillon was looking to see to what extent that applied in this legislation, but the principle is the same.
Mr. Briscoe: I do not know whether Deputy Dillon ever inquired as to why this legislation became necessary. It was because in the development of certain works and undertakings, we found under the law we had not the right or power to do certain things, and this is legislation for the purpose of making that possible. I have no doubt, as progress takes place and things develop, we shall be coming here as a local authority looking for legislation——
Mr. Briscoe: More and more facilities. We want to get away from the ancient legislation which hamstrung this nation right from the time of its conquest. The Deputy ought to know that when you look up some old Act of Parliament to which you are referred when you want to embark on some development, you find that according to such-and-such a statute of goodness-knows-when, you are bound by this and that. The time is coming when we shall have legislation to enable us to drive on under our own steam.
Mr. T.F. O'Higgins: This section is one to which I certainly take some exception. As was pointed out in the earlier discussions on the two amendments proposed by the Minister, under this section, very wide powers of compulsory acquisition are being given to the local authority. Deputy Briscoe feels such powers are necessary and should be given. The House should appreciate what is involved in this section. We have always, as a Party, been conscious of the need to give very sweeping powers to local authorities where there is a strong social or community need. Accordingly, in the Housing of the Working Classes Acts, carried through from the days of the British Parliament to our Parliament here, there has been laid down a provision whereby if property is required for housing purposes, the local authorities desiring such property may acquire compulsorily, subject to Ministerial sanction. That has meant that when they exercise their powers in that regard, the courts cannot be consulted and cannot interfere, and once a compulsory order under the Housing of the Working Classes Acts is made and there is an objection, then the Minister may order a local inquiry but on the Minister's approval of the compulsory order, it becomes final and complete.
That has been tolerated because of the social need to provide for the housing of the poorer sections of the community and to meet the endemic housing problem that has faced this State over the past 40 years. Here there is an extension. We are giving now to all local authorities a similar power to acquire any land or any property for any purpose they think fit. That appears to be what is involved in this section.
Mr. T.F. O'Higgins: Yes. Where a local authority intend to acquire compulsorily any land for purposes outside the purposes of the Housing of the Working Classes Acts and the local authority consider it convenient to effect acquisition through those Acts, they may decide to do so. I should like Deputies to appreciate what is involved in this. It is not merely to deal with the problem facing Dublin Corporation. That could have been dealt with by special legislation giving special powers to Dublin Corporation.
Mr. T.F. O'Higgins: It could have been. It has been done frequently in the past and the precedent is there. Possibly because of some office accommodation problem in Dublin, here is a section of general application introduced into this legislation. Under this general section henceforth, if passed, any local authority in Ireland, provided they consider it convenient to do so, may decide to acquire any property for any purpose they think proper. If they get Ministerial sanction, then the process of compulsory acquisition proceeds.
I think this is going far too far. As far as I know at the moment, it is unnecessary; and I shall be interested to hear the Minister's defence of the section. If it appears that the section is thought necessary because of a particular problem facing a local authority, or even a number of local authorities, it is possible to give them that power in relation to their problem, but it should not be done in the way proposed in this section—to give a general power to all local authorities to acquire anything for any purpose. Once that power is passed, it will be used. Let us make no mistake about that.
If this section becomes law, every local authority will find it more convenient to acquire compulsorily under the Housing of the Working Classes Acts, although the purpose of the acquisition has nothing to do with  housing. It will be quite simple: the local authority's compulsorily acquisition order will be confirmed by the Minister. The only sanction against confirmation will be the usual local inquiry which generally will have reality only in relation to compensation but the convenience to local authorities of this power will be so obvious that it will be used.
I know that often in legislation of this kind, we, as Deputies, in our different spheres of interest forget the fact that we are sent here not as representatives of local authorities but as representing a quota of ordinary individuals in our constituencies and it should be our duty to be an guard against the growth of bureaucracy. This is another example of the manner in which bureaucracy is creeping into our legislation. It is more convenient from a bureaucratic point of view to provide a simple means of acquisition by local authorities. The convenience is obvious and because, it seems to me, there is a particular problem facing some local authorities the solution from the bureaucratic point of view is to use that problem as an excuse for giving a power never before given, to all local authorities in the State.
I do not think that is justified and I urge the Minister not to press this section on the House. It should be possible, on reconsideration, to deal with any particular problems that face local authorities by ad hoc legislation, but I certainly would regard with some anxiety a power being given to all local authorities which excludes any review or examination by the courts which are envisaged under the Constitution, which deprives the person affected of any appeal. I think that is wrong unless there are some urgent social reasons for it.
I can see that there could be such a case. This Parliament recognised it in the past in regard to housing: I cannot see that there would be such a case in regard to other matters such as acquisition for road purposes or provision of extra office accommodation for the local authority. These things do not appear to me to have the urgent social need that housing has. Accordingly, I feel that this section is  far too drastic and cannot be justified on any general ground. It may be justified in particular instances, but, if so, particular ad hoc legislation is the solution.
Mr. Blaney: Might I reiterate that no new power is conferred on local authorities under this Bill, whether as it was or as it is now proposed to amend it? Might I refer the Deputy to Section 10 (1) (a) which says:
(a) a local authority intend to acquire compulsorily any land, whether situate within or outside their functional area, for purposes for which they are capable of being authorised by law to acquire land compulsorily——
That is the really significant part of the measure which I think must have escaped the Deputy in his approach to the matter. No new power of compulsion or compulsory acquisition is being conferred on local authorities. Listening to the Deputy, I felt for a moment that it was a plug for C.I.E., the theme being that any local authority may acquire land anywhere for anything at any time. Nothing could be further from the truth, even though it was possible to conceive that local authorities would behave in such a manner.
Let me refer to another point that was raised that all these things can be done anywhere by any local authority and that there was no right of appeal by anybody against any such proposals. It is well to note that there are appeals and appeal procedures against all compulsory purchase orders, no matter under what guise they are made. That appeal is in the last instance by review of the High Court after the confirmation of any such order by the Minister. This facility may be availed of within three weeks of publication of the notice of confirmation.
Mr. Blaney: It is the Deputy's assertion that within this Bill new and sweeping powers are contained enabling any local authority to acquire land anywhere any time and that there is no right of appeal anywhere to anybody. I am saying that is not so and that no additional or new powers are being conferred on local authorities and that that is clearly and without question stated in Section 10 (1) (a) of the Bill as it is now before the House. Finally, all compulsory purchase orders can be reviewed by the High Court, subject to the appeal being brought to notice within three weeks after the confirmation of the order by the Minister.
Mr. Blaney: I feel that is being put forward by the Deputy as something that is not really there. I merely rose to reiterate that no new power is being given to local authorities and that any other reading is really a misreading of the section.
Mr. T.F. O'Higgins: I do not accept in the slightest what the Minister says. There are new powers given by the section and they are sweeping, new powers. At the moment, a local authority may exercise acquisition powers for housing, road-widening or as a sanitary authority or as a health authority but in relation to the purpose for which it is exercised, there are different procedures entailed. So far as acquisition for housing purposes is concerned, it is the simplest acquisition power open to a local authority because the individual affected—and I want the Minister to consider what I am saying—has only his right to object at a local inquiry ordered by the Minister, under the provisions of the 1931 Act.
 The individual qua individual in relation to his own plot of ground has no other remedy. If he wishes, he can challenge the entire scheme in the High Court, as was done not so long ago, but the individual generally is interested only in his own property that is affected. He is not concerned with the local authority's wide scheme and whether the scheme as such is desirable or not. In fact, therefore, there is no effective remedy open to the individual through the courts. This section as it affects the individual will be applied to the acquisition by local authorities of any property and, as I said, for any purpose. The Minister said “for the purposes for which local authorities are capable of being authorised by law to acquire.” Local authorities can be authorised by law here to acquire land for a variety of purposes. They have wide powers at the moment and it is possible to give them extra powers, and under this section——
Mr. T.F. O'Higgins: Under this section this unfettered power of acquisition is being given to local authorities in relation to any purpose for which they are capable of being authorised by law to acquire land; that means in relation to all the powers they have now—and they are rather extensive—or in relation to any additional  powers that may be given to them at any time in the future. Surely that is going too far.
The Minister says this is not giving them any powers they have not got already. That is special pleading, may I say, with respect to the Minister. It is giving them powers they have not at the moment because it is giving them the right to acquire land without the individual being in a position to do much about it. If the Minister were right in saying this is not giving them any power they have not got already, why is the section necessary? We all know that the section is one that has been very much advocated by the bureaucrats——
Mr. T.F. O'Higgins: I understand Deputy Briscoe's problem and I understand the Dublin situation but this is a section which will be welcomed by those who seek to have the power to do things neatly and finally by simply writing a signature on a piece of paper. Of course it is neat, conclusive and final, but I do not think it is right. We should not be invited to wear blinkers, as the Minister suggests we should, and act as though we are not doing anything extraordinary. We are. We are extending very widely the powers of compulsory acquisition at present exercisable by local authorities and I object to the section. I am not satisfied by anything the Minister has said that this section is justified and it is not right that the Minister should try to fob off the objection I have made by suggesting that these powers are already there. They are not there. These rights are entirely new and I am not satisfied they are justified.
Mr. Briscoe: I would suggest to Deputy O'Higgins that he should look at this matter from another angle. The local Authority acts in the interests of the community which it serves, and the local authority would never have  need to request legislation even under the Housing Acts if they in the development of their housing policy to provide houses for the people who need them, did not meet people who wanted money, the money being regulated in their minds in accordance with the need; the greater the need the greater their demands. There has to be protection of the community against this type of person.
We may go ahead to acquire a certain amount of property for a very important scheme and we may find within a small part of that area one or two people who will hold the whole city up to ransom if the local authority has no means by which a reasonable arrangement can be brought about. Remember, this is not appropriation without compensation. There are reasonable ways and a variety of ways of fixing compensation and we always find in our local authority that whatever we want to acquire has a very high price because the Dublin Corporation is a very wealthy body. The whole community are shareholders in it.
The Dublin Corporation—and I am sure the same applies to other local authorities, although I am surprised to hear certain references to them — is not a private institution for profit making, the directors and shareholders being the local representatives. These are people who take their work seriously. Deputy O'Higgins in a very subtle way suggested that members of this House had an allegiance and a responsibility to the citizens of the area that sent them here as distinct from their allegiance to the local authority. There are members of this House who belong to both, who were sent to both, and we should, by virtue of being representatives of a local authority be better informed as to the need and the general welfare of the community as a whole.
Deputy Larkin and I belong to different political Parties. We have different views on many things. We are both members of the Dublin Corporation and we invariably agree on matters which concern the city of Dublin. It has nothing to do with his politics or mine but concerns the  welfare and the wellbeing of our people. There is too much——
Mr. Briscoe: There is too much importance attached to the rights of private property without any regard to the duties of the owners of this private property. A row was kicked up in regard to a business which could hold up the whole community under the present law, because we are now finding ways and means of dealing with the person involved. We had laws in this country at one time where leases under Queen Elizabeth forbade under penalties Deputy O'Higgins or myself to improve whatever little plot of land we might have. Today we have legislation which says that if I have a piece of property I can still go to court and get consent, if it is unreasonably withheld by my landlord, for the development of my property.
Mr. Briscoe: Yes. We are still  sticking to tags of that old system when we oppose legislation of this kind which is giving the representatives of a community certain ways and means of defending the rights of the citizens against rapacious property owners.
When there is power given to the local authority through the elected representatives of the national Parliament, in the persons of the Minister for Local Government and the Government, as such, to see that there is fair play and that rights under our Constitution are guaranteed, people should not come in here not knowing the details of problems and concern themselves only with an inadequate approach to the modern development of society.
Mr. Larkin: I find myself having to examine this section to see whether it is necessary for the public good. We represent the public good here and many of us have experience over many years of deliberate attempts by people who own property to obstruct the application of social legislation approved and passed by this House.
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