Wednesday, 13 July 1949
Seanad Éireann Debate
Members of the Seanad and the Parliamentary Secretary will agree that the success of this Bill and the works to be carried out under it will largely depend on the co-operation of the farmers, the county councils and their staffs and the public in general. To get that co-operation from the farmer in particular I put it to the Parliamentary Secretary that there must be consultation and you must first avoid, so far as possible, entering on a farmer's land without giving him due notification and, secondly, when you do enter on his land you must give every guarantee that as little damage as possible will be done during the carrying out of the works.
“Where any substance or thing is removed under this section from a watercourse, it may be deposited on land adjacent to the watercourse or the local authority may remove it, use it or dispose of it otherwise as they think fit.”
My amendment seeks to provide that such depositing of material removed from a watercourse should be carried out only with the consent of the owner. In the case of drainage schemes throughout the country, we find that whether the work is done by machinery or otherwise the deposit is usually left on the brink of the river which has been cleaned, and in a very short time what has been removed from the river finds its way back again and the last position is much worse than the first. If the material taken from a watercourse is to be deposited on a man's land, I suggest that it should be done only with his consent and in a manner which meets his wishes. If that is done, the scheme will receive more general co-operation from the farmer  and will be a greater success. The materials which may be removed include large trees or anything stopping the flow of water, and it would be unfair to give to the men engaged on this work authority to deposit such materials on a man's land in such a manner as not to conform with his wishes and probably to cause an obstruction. It is to overcome these difficulties that I have put down this amendment.
Mr. Baxter: I should like to be convinced that that is the purpose of the Senator in putting down the amendment. He is concerned about the farmer not having obstructions—trees, the roots of trees, tree stumps or such things—placed on his land. If that is all the trouble there is, nothing would please the farmer better than to have deposited on his land oak stumps out of the river and let him take them away. I agree with the Senator when he says that it is important to get the co-operation of everybody in this work. Suppose there is a decision to clean a drain. It is good for the people at the head of the stream that the drain should be cleaned, but when they come down to my farm they find that I intend to be, not an obstruction in the river, but an obstruction on the bank, because I decide that I will not give my consent to the material taken out being deposited on my land. What happens to the people upstream? They will continue to be flooded.
I do not know what experience Senator Hawkins has, but part of my farm is subject to a drainage rate, or at least is under a drainage scheme, and, if a contractor takes on the clean-of the river he notifies me that the river is to be cleaned and that if I want to save the few cocks of hay along the river bank, I had better do it within three or four days. If it is not done within that time, the sand, grit and clay from the bed of the river will be deposited on the grass. I do not raise any objection. I get out like a sensible person and clear the hay away and leave what is taken out of the stream to be turned up on the bank. and later on I scatter it across the field and I find it rather productive.
 It seems to me that if you give the power to one individual to say whether he will allow the material taken out of the bed of the stream to be deposited on his bank, that one individual could hold up a drainage scheme in which 40 or 50 persons were concerned. I should like to know how Senator Hawkins would get over that obstacle. Would he not in fact be creating an obstruction? On the other hand, I believe that courtesy ought to be shown to the farmer and his land should not be entered regardless of his rights and without saying anything to him. Little courtesies pay and that ought to be the policy of the local authority in carrying out these works. That can be secured not by legislation but by the spirit in which the work is approached and carried out.
Parliamentary Secretary to the Minister for Local Government (Mr. Corish): Senator Hawkins said that he expected the works undertaken under this Bill would be carried out with the local authority and the different landowners working in harmony and co-operation. He is absolutely right. It is our expectation that that will be the case and we have no reason to believe that schemes will be carried out in anything but a spirit of harmony and co-operation. If he examines the amendment, I do not think he will press it, because there would be certain restrictions on the local authority in cases of this kind, and I think the insertion of such an amendment might operate adversely against the landowner. In the Arterial Drainage Act, 1945, which contemplated far more extensive works, Section 9 (f) is practically the same section as that embodied in this Bill, and it says:—
There was no such safeguard, as Senator Hawkins would describe it, in the Arterial Drainage Act as this, and I do not believe that the insertion of such an amendment is necessary. The landowner has the right to appeal to the district justice if he thinks the local authority are going to inflict any damage on him or his land. If, after the 14 days and after consultation with the local authority, he still thinks the in any way or infringe upon his rights, he has absolute power to appeal to the district justice. The district justice may lay down certain conditions as to, if you like, the deposit of any things that may be taken from a river and as to whether they might or might not be deposited on the side of the banks. In that, I think, he has an adequate safeguard. The effect of the amendment would absolutely restrain the local authority from even putting gravel or sand or clay on the bank of the river even, say, for four or five hours if the particular landowner did not give his consent.
Say, for instance, that the landowner did give his consent to the local authority to the deposit on the bank of all the things that were taken from a river. You might then have a position whereby very objectionable things might be taken out of the stream and the local authority would be within their rights to deposit those things on the banks and the farmers would have no method of appeal against such an action. During the 14 days, if the landowner has any doubt as to what might be done, he can, by discussion with the local authority, make suitable arrangements. I should like to remind the Senator that if it was proposed—as local authorities are enabled to do under this Bill—that local authorities should build embankments, surely it would be ludicrous if the owner did not give his consent to the depositing of  materials on the bank. It would be ludicrous if you had a position whereby the local authority were forced to cart the deposit off by way of boat or barge to some other place and that they then had to bring back different material for the purpose of raising the bank and so making an embankment.
The members of the local authorities are truly representative of all sections of the community. I might say they are more especially representative of farmers and landowners. They, as reasonable men, will make sure that schemes under this particular Bill will be implemented without in any way upsetting any farmer or landowner in this particular respect.
Professor Stanford: I do not think the Parliamentary Secretary has met Senator Hawkins' point of view in this matter. For instance, a case of this kind might arise. A landowner knows that a certain job of work has to be done on his land. He admits that it is desirable. He knows the specifications of the work. But will he know where the substance removed is going to be put on his land, or must he trust to the goodwill of the authorities in this matter? It is quite possible, but, I know, not probable, that a landowner might even be victimised in this matter. He might give his consent to the removal of a certain obstruction and find that out of dislike or for some other motive the matter might be deposited in an entirely inconvenient place so far as he is concerned. Is there any clause in the Bill which ensures that the landowner will know in advance where this material will be placed when he undertakes to accept the proposed alterations? In other words, is the landowner safeguarded from having material deposited in an extremely inconvenient part of his land or not?
Professor Stanford: But is there any clause in the Bill to that effect? It might be put on his front door step. I think some safeguard should be provided so that the landowner will know what is going to be done in regard  to the substance before he agrees to the right of entry. Would the Parliamentary Secretary give some assurance on that point?
Mr. J.T. O'Farrell: It is inconceivable that people engaged in a drainage scheme will go to the expense and labour of carrying material, which is lifted from the bed of a stream, some distance from the river.
Mr. J.T. O'Farrell: Their objective would be to deposit it on the banks of the stream. It may turn out that that will involve inconvenience or loss to the farmer in certain instances but Section 5 of the Bill definitely provides for compensation in such cases. Therefore, to the extent that the farmer may suffer loss or injury in any way in respect of his property or land, there is ample provision for a claim for compensation. Further, as the Parliamentary Secretary has said, if one person, through a sense of “cussedness” or otherwise, is capable of holding up a whole drainage scheme by preventing the deposit on his property of material which was lifted alongside his land from the bed of the stream, then the whole proceedings could be rendered absolutely farcical. From a purely commonsense point of view I would suggest to Senator Hawkins that people should be required to give reasonable facilities in a matter of this kind, seeing that, above all, if they suffer damage or injury in any way they have the power to recover compensation afterwards.
Professor Stanford: Would the Parliamentary Secretary make some provision so that the landowner will know where this material will be deposited when the proposition is put before him? In that case, the 14 days would be a safeguard.
Mr. S. O'Farrell: He will put it where it is handiest to put it—and that is the bank of the river. The Parliamentary Secretary made the point I had in mind. If it were necessary to get permission from the landowner to deposit anything on his land, even on the river bank, temporarily—even for half an hour—it would mean that every shovel-full of clay or sand removed from the river in the area of that man's land would have to be carried in a bucket, perhaps, to somewhere else. I do not think any landowner would be so unreasonable as to hold the scheme up and nobody who wants to facilitate other people in draining the land would object in regard to the question of the depositing of the material. Although the amendment is well-intentioned and meant to safeguard the farmer it would, if inserted in the Bill, make it possible for any contrary person to hold up the whole drainage scheme which would affect perhaps a dozen people who may live nearby.
Mr. Goulding: If the sub-section were so worded as to change the word “may” in line 21 and insert instead the word “must”, I submit that that would compel the local authority, if the owner of the land objected, to remove the material. It is quite possible that material could be taken from the bed of a river which would be of no advantage to the owner of the land. Senator Baxter pointed out that this material could be spread on the land afterwards by the owner but sand or gravel would be useless and, in fact, a deposit of sand or gravel on the land might prove a real injury to the land. On the other  hand, if the local authority were compelled to remove it at some time, in agreement with the owner that would overcome the difficulty.
Professor Stanford: Would the Parliamentary Secretary give us an undertaking that a landowner will know where this material is to be deposited and have time, within the 14 days, to object against that in advance: in other words, when the proposition is put before him, will he know that the substance is going to be put in a special place when removed from the bed of a river? Would the Parliamentary Secretary undertake to improve that somehow? Otherwise, a man is assenting to an incomplete proposition. He knows the substance has been taken out of the river, but does not know where it may be put down.
Mr. Hearne: Senator Baxter has pointed out that material which would be taken from the bed of the river has manurial value. That is quite true. There are two rivers on my land and in one case a certain amount of blasting will have to take place and there will be large rocks. Despite the fact that I can claim compensation, it is most unjust that the local authority may be able to put huge boulders on what is at present a rather good three-cornered meadow and leave them there for all time; and that my redress is to go to the District Court and there have to prove that so much damage has taken place as a result of the boulders being left there. That is entirely different from depositing on the bank of the river material that may be washed down, such as gravel or sand. Very often that can be spread easily and the land adjacent would benefit, but big boulders or rocks are another matter.
Colonel Ryan: It is very hard to deal with this point. Senator Hawkins  ought to understand that if the amendment were inserted it would make the schemes unworkable, as one man could hold up a scheme. This Bill has been brought in in a hurried manner, to a great extent, to relieve unemployment. If we put clauses in the Bill allowing people to appeal against the work being done, we will put the whole thing off.
In cleaning a stream, the stuff is deposited on the bank—that is the sum total of the scheme. That has been done by the Turf Board and under every drainage scheme at the moment. There is a fair safeguard for compensation afterwards if damage is done. There is neither sense nor meaning in upsetting this, as it would upset the whole scheme and hold up the giving of employment. No terrible injury will be done. Senator Hawkins knows very well that there is an odd disgruntled farmer here and there who will not agree to anything; no matter what the scheme is he will try to stop it, as he does not want a bucket of stuff thrown on the river bank. Every member of the county council knows that if you have to go to every owner to get his consent on a document in writing there are some who will battle with you, with the county engineer and the county manager, and who will want so much damages before you start at all. Let the Bill be put through and the scheme put to work as quickly as possible. We cannot do a lot of damage in one year, and more damage is being done by holding this up. After six months it will be found that there are very few claims for compensation. There may be a blunder here and there because of a few cartfuls of stuff thrown on the bank, but the farmer will not go any further about it. He has his remedy in Section 5 within a fortnight of the work being done. No one is fairer than the members of the county council and they will be able to help him in the matter. I appeal to Senator Hawkins to withdraw the amendment. If I thought that serious damage would be done I would support him.
Mr. Douglas: The debate has dealt mainly with the possibility of two cases —an unreasonable landlord or an unreasonable county council. Much though I regret it, I think where in legislation you have to decide between the two, you will have to let the local authority have preference over the unreasonable individual. I do not think that, as a matter of practical politics, you could insert the absolute right of the owner of the land to veto the scheme—which the words of the amendment would undoubtedly bring about in the case of an unreasonable person. At the same time, I am not too happy about the wording of this paragraph. There is a tendency on the part of the draftsman nowadays—very marked over the last ten or 12 years—to try and so draft legislation as to make it almost certain that the individual trying to protect his reasonable rights will find when he goes to court that he has not got a leg to stand on. It is perfectly right to provide that the stuff be deposited on land adjacent to the watercourse and I do not think it would be reasonable to give the owner the right to refuse his consent, but I am not convinced that it is reasonable to provide in an Act that the local authority may dispose of it otherwise as they think fit—which technically means that they could bring it to Dublin and dump it in here, and be within the law. That, of course, would be an absurd case; but it seems to me that, through the whole of this Bill, there is something lacking.
It should be possible for an owner to go to court and prove he has been unreasonably dealt with. When dealing with contracts between landlord and tenant you find it very common to provide for “consent, which shall not be unreasonably withheld”. I do not know if that would be feasible in a section of this kind but that is the idea I have in mind. The Parliamentary Secretary says there is a right of appeal. With very great respect to him, while that may be technically correct, I do not think that it is really correct. It seems to me that the section would rule you out immediately. All that would be necessary would be for the local authority to say: “We have power to put the stuff anywhere we think fit; that is where we thought  fit and that is the end of it” It would be possible to go to court if there were gross abuse, but I do not think the amendment would achieve that. In a later section, the question of appeal arises. To say you could go to court is correct, but when you know that the effective answer of the local authority is provided in this section, there is no possible way out and nothing to prove that they are acting unreasonably. I think an effort should be made to see if it is not possible to provide somewhere in the Bill that the court might stop certain works if satisfied they were not being carried on in a reasonable manner. Personally, I do not think that would happen in more than one case out of 1,000.
Mrs. Concannon: One matter that should be considered is that if the position arises under Section 3 of the Bill where a local authority is not able to undertake the works, the Minister can give directions to another local authority to do them. The question arises then as to which of the local authorities will have the powers and duties conferred under this particular section. That is a matter which should be cleared up.
Mr. G. Bennett: I would like to make reference to a matter dealt with by Senator Douglas, and that is in regard to the provision for dumping on banks. I think that the Minister ought to make some provision at some stage by which farmers and river owners might have some appeal in cases where they are unreasonably interfered with. I do not envisage that there is a likelihood of this happening, but there is always the possibility of a wrong being done by somebody even in a malicious way. It could happen that somebody might maliciously dump the rubbish from a river, which is being cleared, on to the bank of a farmer's land and do irreparable damage to a place which was used for watering cattle. I think the Minister ought to give some consideration to this matter.
Another point that I wish to raise, though I do not think it is one that will happen very often, is that it is not a matter of what comes out of a river  but of what is put into the banks. Some years ago I had a case in which the river was being drained near to my farm. It was later established that the people who did it had no right to be there at all, but that does not matter at the moment. The point was that my predecessors had built up a bank in a manner that nobody could afford to do to-day, with solid stones. When they blasted the river they blew the bank to blazes. I did not make any objection at all, because I am not a law-seeker. When, however, they blew up the river the stones were dislodged. Those stones would have been very useful to me, but because it was easier they placed the stones on the opposite bank, which was lower. The farmer who owned that other bank subsequently sold them for a considerable amount of money. I am only mentioning that because a similar thing could happen to some other landowner who could not afford to have it happen. There should be some place to which farmers could appeal in cases like that. The fact that there is no such provision in any other measure is no reason why we should not have provision in this one to give the farmers some redress in cases of wrongful damage.
Mr. J.T. O'Farrell: On a point of order, may I draw attention to the fact that every Senator is free to move amendments to this Bill, and it is rather wasting time discussing what the Minister should have brought in when in fact the House had an opportunity to table amendments to that effect.
Mr. Brennan: I feel that there is a general feeling on all sides that some amendment is necessary. I do not think anybody would suggest that unreasonableness on the part of any individual should get any encouragement but there is every possibility that landowners might suffer some damage by reason of the Bill. Therefore I do not see why the Parliamentary Secretary would not between this and the Report Stage consider the acceptance of an amendment providing for the appeal in cases where the consent of the owner  is not unreasonably withheld. Such an amendment would meet everybody.
Mr. Colgan: We are all reasonable when we get what we want but we are unreasonable when we do not get what we want. We hear a lot of talk about democracy and the rights of the individual, but in the Bill as I understand it it is proposed to go into a man's land and dump on it whatever comes out of the river. I suggest that what comes out of the river does really matter. It is not always mud that comes out but possibly old petrol tins and lots of other dirt which could be dumped on a man's land. Under the Bill this rubbish can be deposited anywhere.
It is all very well to talk about people further up the river but the man further down will probable have all the river deposits dumped on his land. I do not think there is anything unreasonable in asking that before a man's land is destroyed by what is taken out of the river, he should be consulted. I think that this is all that the amendment is asking.
Mr. Colgan: We are assuming that he will agree and if a man does not agree the Department have other ways of bringing compulsion on him if he is unreasonable. We can all be reasonable when things are in our favour. The amendment only asks that a man should be consulted. As the Bill stands the Department has the right to go in and clear up a river without let or leave from the individual concerned.
Mr. Ruane: In my view acceptance of this amendment is going to be a serious impediment to the main functions of this Bill which is mainly designed to benefit a large number of people. If it benefits a large number  of people and an individual here and there suffers, you cannot help that. I think it is unreasonable to have this phrase inserted in Section 2. When the Shannon hydro-electric scheme was being extended throughout the country and transformers had to be erected on people's land, I know people who regarded that as a serious obstruction and if they could only have been put there by consent they would never have been put there. If you accept this you will have applications for compensation, and it is doubtful if the Bill will ever function.
Mr. Counihan: I believe the law as it stands at present is that if a river passing through a farmer's land does damage to a neighbour, the farmer is compelled to have the land cleared at his own expense, but now people are objecting to the Government clearing land and clearing an obstruction which is flooding land. I cannot understand the objection because anybody who knows the country knows perfectly well that a lot of rivers need to be cleared and they are causing a terrible lot of obstruction. They are creating a lot of flooding even in summer and at harvesting time, and washing away crops. The Government are going to do the work at their own expense and I do not see where the objection comes in. Senator Stanford says that he is greatly concerned about where the refuse will be put by the Board of Works. If that farmer did the clearance work himself to the satisfaction of the Board of Works and put the refuse wherever he likes it would be a solution for Senator Stanford, and he would not need to be concerned about what is going to happen to the deposits. I think that the Bill, as drafted, should be accepted without any amendments. I cannot see that there is any fault to find with it as it exists at present.
Dr. O'Connell: May I point out that, in view of what Senator Bennett has said about the value of the material taken from the river, there is a doubt as to whether the word “owner” refers to the ownership of the land or the ownership of the river. It will be a source of argument for the legal profession.
Mr. Meighan: The Senator has raised an important point with regard to draftsmanship. I think the Government officials are inclined to safeguard their own interests and it has been the same for the past 14 or 15 years. I know personally of a case where the Board of Works divided some bogs, and to divide and drain them it was necessary to take water through my own land. I was presented with a paper to sign to the effect that they would be accountable for damage to the land or trespass. I said I had no objection to their going through my land on going on with the scheme. I was informed by the man in charge that there was no more about it as, if I did not sign, no money would be expended. The neighbours were looking for the work and £200 or £300 was involved, and although it was not benefiting me to a great extent I signed. What happened? The bog up higher burst, and not alone water came, but all the sediment came and filled my drain and the water percolated from it. I do not think that is fair. That is the only case I know, but it is a case where the Government should at least be reasonable. I have seen a lot of drainage schemes and the usual procedure was to bank the stuff taken from the river on the banks of the river. I have not heard any complaints in this regard and, as a matter of fact, a lot of people looked on the stuff as having value as manure and spread it themselves over their land.
I think, as the Parliamentary Secretary said, the county council members are sympathetic to the landowners and I cannot fancy a local body approving of something wrong being done to a local ratepayer or landowner. I cannot conceive any local body giving sanction to taking stuff from a river and lodging it in front of the hall door, as Senator Stanford suggested. I would emphasise, however, that the Government should not be inclined to tie up and safeguard their own interests so much. After all, it makes the people suspicious. I have no hesitation in saying that if I were presented with a document to-morrow similar to the one I got before I would hesitate before  signing it, because what happened was very unfair and was never remedied.
I cannot speak too strongly in favour of this drainage scheme because from my personal experience over the last 15 or 20 years it is needed all over the West of Ireland, where there are small farms of five, ten, 15 or 20 acres with a valuation from £2 to £10. It is not unusual, with the exception of this year——
Mr. Meighan: The composition of the local bodies will be a safeguard. I would like to ask the Parliamentary Secretary to give us an assurance that the Government officials will take a reasonable view and that nothing unreasonable will be done. If that assurance is given I will be satisfied.
Mr. Sweetman: Although this amendment may appear innocent, I agree with Senator Brennan that it is destructive of the whole object of the Bill. Quite naturally, if you make the possibility of moving in on a river subject to the consent of the owner, if the consent is withheld, the scheme is withheld. While my own personal view would be that the rights of the owner should be protected as fully as possible against the executive power, I do think that this amendment does, partially at least, destroy the effect of the Bill. I think that Senator Brennan's suggestion of meeting the difficulty the other way, that is, that the consent of the owner should be got with the proviso that it must not be unreasonably withheld a good one. I am prepared to oppose the amendment as it stands for the reason that it is destructive of the object of the Bill which I consider to be a very worthy object.
An Cathaoirleach: The Senator has asked three times and perhaps, if he will give the Parliamentary Secretary an opportunity, he may reply. The Senator can put the question again if  the Parliamentary Secretary does not reply to him.
Mr. Hawkins: I should like to bring Senators' minds back to Senator Baxter's statement and to remove the doubt to which he seemed to give expression as to the motives which prompted the putting down of this amendment. I have said on several occasions in the past that each and every member of this House has a right, if not an obligation imposed upon him, to examine every Bill to see if he can suggest any way in which it can be amended or approved. I have on this occasion exercised that right to put forward what I think would be an improvement. We have had many statements about this amendment and the main case made is that the county councils are composed, in the main, of very reasonable people, almost entirely of the farming community, and that those employed by them, the county engineers and so on, also come from the farming community and therefore must be very reasonable men. If this amendment of mine is accepted, however, all the farmers suddenly become the most unreasonable of people ever placed on God's earth and no one of them will consent to the carrying out of the engineer's proposals. We cannot have it both ways.
Mr. Hawkins: I hold that the farmers in general are most reasonable, but if you attempt to do something which they do not fully understand, something which has not been explained to them, and if their co-operation is not sought through the proper channels, then they can become most unreasonable and will go to the greatest extremes to assert their rights. It has been suggested that acceptance of the amendment would involve, as Senator Baxter said, in the case of a scheme started upstream, a refusal by those downstream to give consent. It would  involve no such thing. This amendment has nothing whatever to do with the carrying out of a scheme, except in so far as the engineer in charge, on behalf of the county council, tries to get from the owner of each holding through which the scheme passes, consent to the depositing on his land in a particular way of the material raised from the watercourse—if at all possible in a way that will meet his wishes.
Mr. Hawkins: Senator Bennett has pointed out what can happen and what did happen in one case. He also pointed out that there may be a watering place in a particular field through which a river passes. It may be low-lying, and, in the opinion of some of the people carrying out the works, may be a very proper place for depositing material taken from the bed of the river, which may have the effect of depriving that farmer of what is the most essential service he had on his land. It was to avoid occurrences of this kind that I put down the amendment.
The main case made by the Parliamentary Secretary was that a similar provision was not inserted in the main Drainage Act, but that is no reason why sympathetic consideration should not be given to this amendment. If an Act was passed on another occasion which contained no provision of this kind, surely it is no argument for refusing to accept this amendment. The fact that something was not done in 1897 is no reason why it should not be done in 1949. Senator Ryan made an appeal that the Bill should not be delayed, but should be allowed to pass as speedily as possible. The acceptance of this amendment would not alone enable the Bill to pass more speedily but would ensure that the works would meet with general approval. If, however, as it seems, the Parliamentary Secretary is not prepared to accept the amendment, I appeal to him to have it conveyed to the local authorities and to those who will be responsible for carrying out these works that they should, so far as possible, meet the wishes of the farmer.
Mr. Corish: Senators have given many examples as to what may happen in relation to the points at which materials from the bed of a river might be deposited. I think it is unreasonable to expect any Parliamentary draftsman to include in a Bill of this kind or any other Bill provision for all the different cases instanced here. I appreciate the point of view of Senator Hawkins when he wishes to provide every safeguard for the landowner in this matter, and I should like to say that the Minister certainly will communicate with the local authorities and advise them that they should consult the landowners in relation to the deposit of any materials taken from a river bed. I suggest that if it were embodied in this sub-section that consent must be given by the owner on every occasion, you would not have a local authority in the whole country who would undertake any scheme of works which they are enabled to do under this Bill.
Mr. Corish: I do not think we should embody in legislation any provision of that kind, but I suggest that any landowner on whose land a local authority proposes to engage in certain works may, after he has received 14 days' notice, consult or confer with the officials of the local authority as to where the material will be deposited. If he is not satisfied, if he does not get any sort of reasonable undertaking from the local authority official, he may go to the district justice and prevent the local authority from entering at all on his land for the purpose of doing any such works as are provided for in the Bill. If he feels that he has been damaged, so far as the deposit of materials is concerned, he still has the right to claim compensation, and, in determining  what compensation might be paid, the district justice may take into account the cost of the removal of any materials which may be deposited in any place to which the landowner objects.
This is a Bill, as I said on Second Reading, which is merely an enabling Bill. It will be worked entirely by the local authorities and again we must assume, if we can go no further, that the members of the local authorities are reasonable men. I do not think anybody would suggest that those on local authorities are the type of people who would, as was suggested by one Senator, do anything in a malicious way against a particular person. In that connection, I might also be entitled to say that, in a case where a river runs through the lands of ten landowners, one of these landowners could refuse consent because he was contrary or because he was politically opposed to the majority of the local authority. He has merely to say: “I will not give my consent”, and nine other landowners cannot secure the benefits which it is proposed to give them under the Bill. Let the House be assured that there is no intention on the part of the Minister, or, I am sure, on the part of local authorities, to infringe the rights of any individual or damage any landowner. I submit that, especially so far as Sections 4 and 5 are concerned, there is adequate provision for an appeal to the district justice and adequate means by which any person so aggrieved can claim compensation.
This matter was raised, I think, on the Second Stage also. While ample provision is made in relation to general works carried out—sub-section (2) provides  that before entering on the land under this section for a purpose other than the execution of urgent works, certain steps have to be taken by the local authority—I should like the Parliamentary Secretary to tell us exactly what works are really deemed to be “urgent works.” Sub-section (6) reads:—
“(6) In this section the expression ‘urgent works’ means works the immediate execution of which is, in the opinion of the local authority executing the works, necessary to prevent serious injury to any person, land or permanent construction.”
The local authority is the body to decide as between ordinary works and works of urgency. But the local authority empowered to carry out the majority of works under this Bill will be the county council. The county councils, as far as I am aware, meet once a month. The point was made on the Second Reading by the Parliamentary Secretary that where there is a case of flooding it has to be urgently attended to—or, perhaps the breakdown of a bridge—and that that comes under the heading of “urgent works”. Nevertheless, before that work can be carried out, there must be—if I am interpreting this section correctly—a meeting of the county council, the authority carrying out the works, to decide that the work in question is urgent work and that, therefore, it will not be necessary to conform to the regulations in regard to the giving of the usual 14 days' notice. If it is work of urgency, surely you cannot allow the state of affairs to exist—as was pointed out by the Parliamentary Secretary in making a case for this section on the last occasion—whereby a meeting of the county council must be called in order to deem that this work is urgent and can, therefore, be gone ahead with.
My amendment asks that in such cases a certificate of urgency be issued by the county manager or the county engineer. The first point is that the issue of such a certificate is a guarantee that, in the county engineer's opinion—the person who will be responsible for the carrying out of the work—the work is urgent and that,  therefore, the giving of the usual 14 days' notice must set aside. On the other hand, you will be placing the county engineer, whose function it will be to carry out the urgent works, in the position that he will not have the authority given by this House or the other House or by the local body. It is a matter which I think should get careful consideration. If we do not alter this section there is no reason why any works should be carried out or why the county council—the body carrying out the works—should go to the trouble, and probably the expense, of giving the usual notice prescribed. All they need to do is to deem that the work is urgent. I am sure that those of you who are familiar with the working of a county council will agree with me when I say that the procedure is that a meeting of the county council is called and certain schemes are put forward. Each county council will deem that the scheme put forward for its particular area is the most urgent scheme and that it must get priority over the others. Details of those are sent to the Department and, when sanctioned, come back.
A meeting of the county council is then called. The county surveyor is the person responsible for the implementation of the schemes. In his opinion every scheme will be one of urgency. Therefore, he will have set aside the provisions made here in regard to the giving of notice and in relation to giving an opportunity to the farmer, as I submitted on the other motion, to come before the court so that if he has a serious objection to the scheme being carried out he will be able to have the case tried in court. Therefore, I would ask the Parliamentary Secretary to accept this amendment.
Mr. Corish: I do not think it necessary to accept this amendment under the law as it stands because, as far as the direction of the carrying out of urgent work is concerned, the county manager will determine what are urgent works. It would be very difficult, on the lines that Senator Hawkins went on, to say actually what would be described as “urgent works.” It would mean a list of any particular  works that anybody thinks might be urgent. But I think sub-section (6) of Section 4 goes as far as any sub-section could go to define “urgent works”. I would refer the Senator to that particular sub-section, which reads as follows:—
“(6) In this section the expression ‘urgent works’ means works the immediate execution of which is, in the opinion of the local authority executing the works, necessary to prevent serious injury to any person, land or permanent construction.”
I think that is fairly well defined. If it is the opinion of the local authority that it is necessary to carry out works to prevent serious injury to any person, land or permanent construction then these works should be carried out. I do not think that, in matters such as this, we should embody in legislation any long procedure or any procedure which will merely cause delay. The House will appreciate that the type of urgent work that would spring to one's mind would be where an embankment would be broken down and, as a result, there would be danger of land being flooded entirely if the county council, or its officials in this case, did not act promptly and do something to repair it. Another example is a case which came to my notice recently and which, as a matter of fact, happened in my own town. About 50 houses were flooded as high as the first floor. It would be futile to attempt to do anything to alleviate flooding in that particular area if any elaborate procedure had to be gone through. The Water Supply Act, as far as the signing of any certificates or the giving of any certificates is concerned, does not require any such certificate to be given. I appreciate — as Senator Hawkins has said, I think, on the last amendment—that if a certain thing was done in 1897 it is no reason why we should do it now. I hope he will excuse me if I read sub-section 10 of Section 17 of the Water Supply Act. The sub-section is as follows:—
“In this section, the expression ‘urgent repairs’ means repairs the immediate carrying out of which is necessary to prevent a stoppage or  diminution of the relevant supply of water or to prevent serious injury to persons or property.”
I think that the county manager and the officials will best be able to determine what are urgent works under this particular Bill. If it merely means getting in touch with the county manager in whatever part of the county or functional area the local authority may be, and describing the particular damage which is being done or which might be done if certain action were not taken, and getting his O.K. on it and having the work carried out immediately, I think that that is the fastest procedure and the only procedure which could be adopted in cases where repairs are necessary.
Mr. Douglas: I am not too happy about the wording in this case. Although I take, in the main, the point of view of the Parliamentary Secretary that there should not be any delays, I am not convinced that the section as it stands is the best way of doing it. If you go back to sub-section (2), you find the reason for the definition of urgent works. It is provided that the normal procedure will be that the local authority shall either obtain the consent of the occupier or shall give 14 days' notice within which the owner or occupier may appeal. That is perfectly satisfactory and about as fair as it could be provided. But you may have something so urgent that damage could be done during those 14 days and it is for that purpose, it seems to me, that sub-section (6) has been introduced. It provides:—
“(6) In this section the expression ‘urgent works’ means works the immediate execution of which is, in the opinion of the local authority executing the works, necessary to prevent serious injury to any person, land or permanent construction.”
The Parliamentary Secretary read from an Act of 1943, but I think he will find that it did not have that proviso. It provided that urgent works were those that were necessary and did not say “in the opinion of the local authority”. This sub-section (6) does not prove they are necessary; it  only proves they are necessary in the opinion of the local authority. You could not appeal against that if you have a certificate. If you have no certificate, the owner could go to court and say these were not urgent works and then it would be a matter for the local authority to produce some form of proof that, in their opinion, they were urgent. I think that could be the opinion of the local authority six months after—though I am not quite sure; there is nothing to the contrary here—there was a dispute about damage.
Again, we are only dealing with the case where the owner objects. If he is not a complete fool and if the works are genuinely urgent, he should be the last person to object. If he really believes they are not urgent, his remedy is to go to the District Court immediately and get them to step in, not under this Act but under the ordinary law. I suggest that, between this and the Report Stage, the Parliamentary Secretary might go into that. If he wants to prevent that procedure, he should provide for some certificate. I do not know whether the two persons in the amendment—the manager or the county engineer—are the best, but from a practical point of view, when it comes to court, it would be better to have a certificate. It is extremely vague as it stands.
Mr. Hawkins: We come back to the position I have put before the House, that the meeting of the county council must be held. Far from being anxious  to hold this up, I am anxious to expedite it. Even with this bad law, it is giving the local authority power to put forward a scheme and have the work carried out, but before entry is made into land there should be some certificate given by the county manager or county engineer. I would appeal to the Parliamentary Secretary, with Senator Douglas, to have the matter further examined between this and the Report Stage, and I am prepared to withdraw the amendment.
This is by far the most important and most serious amendment we are asked to consider to-day. The Bill provides for certain works being carried out, for which the necessary finance will be provided from central funds, I understand. County councils will be obliged to undertake the carrying out of the works and to make good the amounts in respect of engineering staff and also meet compensation claims. The compensation under this Bill, in the opinion of many people who have given it close consideration and examination, will be considerable. The possibilities of large sums being demanded for compensation can be easily seen. The provision made for claiming compensation under Section 5 (2) is that the claim must be made within either two years from the beginning of the scheme or one year after it has been completed.
A drainage scheme can have many serious effects, which may not come to light for a considerable time after the work has been carried out. A period of one year is too short, in fairness to a number of people, to give an opportunity of assessing the real damage. If a drainage scheme were begun early this year, with the weather we are having at present and which looks like  continuing over a long period, and the period expired in 12 months, you could not say that that was a justifiable term in which to assess the damage. It is reasonable to ask for an extension of time for those persons whose property has been damaged. I would go even further than two years, but the amendment asks only for that. I am sure it is not necessary to make any further case for it, as the majority of members of this House are farmers and know what a drainage scheme means and what the results may be in certain cases. Therefore, I shall say no more but ask the Parliamentary Secretary to accept the amendment as being a reasonable one.
Mr. Baxter: It is very unfortunate that this whole scheme is being approached from the point of view of how much damage will be done as a result of it. That is unfortunate, but it seems to be the frame of mind in which Senator Hawkins finds himself this evening. I am sure there will be general agreement that a great deal of good can be done by local authorities utilising the powers conferred on them in the Bill. That is my view and I hope that it is also the view of Senator Hawkins. I believe that most county councils will utilise these powers to the full and that those county councils who do not do so will be very foolish indeed. So I think it is wrong to approach the Bill from the angle that you are going to do damage and that you must make provision for the damage that you are going to do because you are going to do good. That sounds contradictory, but nevertheless that is the conclusion that one must arrive at after listening to Senator Hawkins moving his amendment. As I see this problem of drainage, and speaking as a member of a local authority, my view about it is that the local authorities and the engineers to local authorities will look on every work executed, and for which they are responsible, from the point of view of whether or not there is going to be damage and claims for compensation as a result of these works being carried out. I am quite certain that the engineers to the local authorities, instead of acting in a foolhardy fashion  and rushing in to do works, are going to be very careful indeed and it is going to be very difficult to get them to do work that ought to be carried out if they have to look on the fact that there will be claims for compensation and that they will have to bear responsibility for having done something that was not wise.
I say that if some of the schemes that have been carried out in the last ten or 15 years had been viewed from that angle they would not have been done. I am speaking from personal experience. A scheme was carried out in my own county by the Board of Works and they started at the head and let the water away down and flooded much greater areas than were flooded before the start of the scheme. That happened under other people's direction and the local authority had to pay compensation. If the local engineers had been responsible for that scheme that would not have been done and I suggest, therefore, that Senator Hawkins is not sound in his approach in this discussion. I think it is probable that our engineers everywhere will be over-cautious and instead of running in to carry out schemes where there are bound to be claims for compensation we will find it difficult to urge them to go into those areas lest the execution of the works will mean claims for compensation against the local authority.
I know that, speaking at the moment, it is not a time when we are in a position to judge what damage may be done as a result of the schemes that may have been carried out if this Bill had been in operation for the last three months, but who knows what is going to happen in the next eight or nine months. Senator Hawkins is very optimistic in regard to the weather but very pessimistic about the other things. I think as the Bill stands the farmer will be given a fair deal.
A further point which I do not think has occurred to the Parliamentary Secretary and which I wish to mention is that I have seen drainage work carried out in our county. It was in connection with the Erne and cost about £120,000. The local authority has had to take that over from the Board of  Works. There has been a great deal of silting up since the original work and there is maintenance which we have to carry on and which is going to be a considerable drain on our resources. It is conceivable that after carrying out certain drainage works you are going to have other residue carried down and deposited and flooding will result. I suggest to Senator Hawkins that the attitude of local authorities should be to use the powers of this Bill to the full, and we should approach the matter in the light that the local authorities, county councillors and engineers will use these powers in such a way as to get the best good and by doing the least possible damage. If you are going to make such provision for compensation you are likely to create the position in which our people will be looking to see what damage they can claim as a result of the work being carried out. I do not think that that is a good spirit to inculcate and develop. It is too much like making a fellow prove that he is idle so that he can claim from the unemployment fund.
Liam Ó Buachalla: Iarraim ar an Rúnaí Pairliminte glacadh leis an leasú seo. Is dócha, ar mo nós féin, gur chuir caint an tSeanadóra Baxter ionadh air. Is cosúil go bhfuil an oiread sin droch-mheasa ag an Seanadóir Baxter ar an Seanadóir Hawkins nach féidir leis a chreidiúint go bhféadfadh focal fírinne a theacht as béal an tSeanadóra Hawkins ar chor ar bith. Ní hé an Seanadóir Hawkins adúirt go mba cheart go mbeadh cúiteamh nó compensation le fáil ag daoine; ní eisean a cheap é sin, beag ná mór. Tá sé ráite ag an Aire agus ag an Rialtas atá freagarthach as an mBille in alt 5 gur dócha go mbeidh ocáidí ann go mbeidh cúiteamh dhá éileamh ag daoine agus admhaíonn an Rialtas atá freagarthach gur cheart go mbeadh bliain i gcásanna áirithe agus dhá bhliain i gcásanna eile ag na daoine leis an éileamh a chur isteach. Tá sé sin sásúil chomh fada is a théann sé, ach tá muide ag iarraidh ar an Rúnaí Pairliminte dul níos fuide ná sin. Sin é an méid. Nílimid ag leathnú an scóip le haghaidh cúitimh, beag ná mór,  ná nílimid ag súil go mbeidh gá le cúiteamh nuair a bheas an scéim ag dul ar aghaidh. Tá súil againn nach mbeidh; tá súil againn go gceapfar na scéimeanna chomh cúramach agus chomh maith sin go raghaidh siad ar aghaidh ón gcéad lá, ach más gá do dhuine éileamh ar chúiteamh a chur isteach is dóigh liom gur cheart go mbeadh dá bhliain de thréimhse aige chun é sin a dhéanamh. Níor chuimhnigh an Rúnaí Pairliminte ná an tAire go mbeidh bliain ann, b'fhéidir, mar an bhliain seo. Ní argóint an-láidir é sin, ach is baol nach bhfeicfear toradh na scéime maidir leis an dochar a dhéanfas sí taobh istigh de bhliain amháin. B'fhéidir gur fada go bhfeicfimid bliain mar í seo, ach do réir na dtuairisc eile atá againn ba cheart dhá bhliain a bheith ann chun éilimh a chur isteach. Ní dóigh liom gur iarratas mí-réasúnta é sin. Admhaíonn an Rúnaí Pairliminte gur cheart bliain a bheith ann i gcásanna áirithe agus dhá bhliain i gcásanna eile agus tá muide ag iarraidh air a theacht píosa den bhealach linn agus dhá bhliain a chur isteach i áit bliana amháin. Ní gá dhom a rá leis an Rúnaí Pairliminte go bhfuil súil againn agus dóchas againn go ndéanfar maitheas de thoradh an Bille. Teastaíonn uainn go raghaidh an obair ar aghaidh chomh maith, chomh tairbheach, chomh fóntach agus chomh sásúil agus is féidir, is cuma céard adeir an Seanadóir Baxter nó duine ar bith eile in a aghaidh sin.
Mr. Douglas: On this amendment I have a completely different point of view to Senator Hawkins. I do not favour a long period of time during which claims can be made, either from the point of view of the individual or of the local authority, the people who have to pay the compensation. I am of the opinion definitely that one year from the finish of the works, which is the shortest time if I read the section correctly, is ample. If there are disputes about the claim it can be altered or amended afterwards, but it seems to me that few things are more unsatisfactory than to try to ascertain compensation for damages a long time after the event has occurred. If common sense were exercised the claim should be put  in at the earliest possible date after the damage. I do not think it is good from the point of view of justice or equity to lengthen that period nor frankly do I think it helps in this case the individual who wants to claim. He weakens his case, proof is more difficult after long delay. A claim should be put in as quickly as possible. I should like to see the practice observed when work of this kind is being done that the local authority should be obliged—I do not say that it should be put in the Bill—to notify the person concerned that if he has claims they should be sent in within a year. He should be made aware of that fact, but apart from that there is ample time.
Mr. Corish: Senator Hawkins started off on the promotion of this amendment on the basis that compensation claims will be many. We have certain information from the local authorities in the schemes they have submitted and the indications are that in a very small percentage of the schemes submitted will there be any compensation whatever. The sub-section originally read that the claim should be made within 18 months from the date of the commencement of the works. That was amended to provide, as the section reads now, that a claim could be made two years after the commencement of the works or one year after the completion of such works, whichever is the later period, and I would suggest to Senators that in most cases the period during which a person can make a claim will be 20 months. This is not an arterial drainage Bill nor is it proposed to do works which will cause any substantial damage whatsoever. While it may be unfair to say this in view of the fact that Senators have not examined the schemes which we have in the Department, I should like to state that most of the schemes provide for a period of, say, three or four months so, in effect, the period for making claims in the vast majority of cases will be 20 months. I would like to refer to the Arterial Drainage Act under which it was intended to do works of drainage which would be very much larger than those intended under this Bill. Claims for compensation  under that Act in sub-section (2) of Section 15—
Mr. Hawkins: With regard to Senator Baxter's opening remarks on this amendment, I would like to point out that it was not I who raised the question of compensation at all. I did not encourage people to line up to make applications for compensation any more than I am responsible for the line-up at the labour exchanges to which Senator Baxter referred. Provision for compensation claims to be sent in was made in the Bill by the Minister himself and therefore the person who drafted the Bill, the Minister, thought it reasonable that that provision should be made. We accept that. We agree that that is just and proper just as we agree that a number of people will benefit from the Bill. In saying this I am sure that I speak for the other members on this side of the House: we would like to see this Bill doing all the good the Minister and the Parliamentary Secretary expect it to do. There was no reason from the remarks I made on this amendment for Senator Baxter to come to any conclusion other than that we wish the Bill every success. It was because of that I went to the trouble of putting some amendments down which, I hoped, would help to create a better feeling between persons involved in the scheme. The Minister has accepted the principle of compensation and provided for it and it is now a question of what is a reasonable length of time to estimate in justice the damage done to such persons as a result of improvement to other persons' property.
Remember that it is because of an improvement to other people's property the damage is done. If we appreciate that a certain amount of good will be done to the national advantage— because we must assume that when we are providing money for the scheme from the national purse—it is only reasonable that people, whose property or position has been much worsened as a result of an improvement to other people's property or position, should be amply rewarded. In deciding that reward we should give as long a term as possible in justice so that we can come to a conclusion regarding the amount of damage done. With the work this Bill does, the clearing of watercourses, it will take a considerable time to estimate the damage. There must be changes of weather. You may have a fine summer as we have at present, a bad winter or other circumstances that should be taken into consideration in estimating what damage has been done to a man's property. What I am asking in the amendment is to extend that time from one year from the completion of the works to two years. The Parliamentary Secretary has drawn attention to  the Arterial Drainage Act where a time is specified from the commencement of the work, but I put it to the Parliamentary Secretary that no other provision could have been made because, certainly, it would be most unreasonable to provide that claims could not be made until after the completion of schemes which it might take six, seven, ten or 20 years to complete. There is a difference between arterial drainage and the work this Bill proposes to do. I ask the Parliamentary Secretary to accept this amendment as being reasonable.
Campbell, Seán P.
Clarkin, Andrew S.
|Honan, Thomas V.
O Buachalla, Liam.
Nic Phiarais, Maighréad M.
|Baxter, Patrick F.
Bennett, George C.
Bigger, Joseph W.
Burke, Robert M.
Butler, Eleanor G.
Counihan, John J.
Douglas, James G.
Fearon, William R.
Ireland, Denis L.
Lavery, Cecil P.L.
Meighan, John J.
O'Connell, Thomas J.
O'Farrell, John T.
Orpen, Edward R.R.
Ruane, Seán T.
Stanford, William B.
Summerfield, Frederick M.
Sweetman, Edmund T.
Tellers:—Tá: Senators Hawkins and Loughman; Níl: Senators Baxter and Ruane.
Amendment declared negatived.
Question proposed: “That Section 5 stand part of the Bill.”
Mr. Hawkins: I should like information as to whether, in the case of works carried out by the county council in respect of which the county  council is responsible for the payment of compensation, the county council will also be responsible for the maintenance of these works when executed. If not, the money expended will, after a period of years, be more or less wasted and the works will fall into disrepair. If that is so, will not the county council also be responsible for any damage which may be incurred by reason of stock being drowned in the rivers or drains? Will the county council not be responsible for any compensation over any period of years once the works have been carried out and once they are responsible for their maintenance?
Mr. Corish: No. The county council is not liable for maintenance after they have executed works. I should like to stress again that this is an enabling Bill and they may do it by themselves, if they like. The Bill does not impose any obligation on local authorities in respect of the maintenance of any works they do, but they still have the power to do them again, if they want to. I agree that it is desirable, but they may treat it as maintenance or as a new scheme for the protection of their own property or other property when they consider that it is in the public interest to do so. With regard to the Senator's last point, I cannot imagine how anybody could blame a county council for the death of a cow after the two years' period laid down in the Act. I could not reply to that point, because I cannot imagine how any works carried out two years before could be held to be responsible for the death of a cow or a sheep.
Mr. M. Hayes: Would a civil action not lie, if anything of the kind occurred?
Question put and agreed to.
Sections 6 and 7 and Title agreed to.
Bill reported without amendment.
Report Stage ordered for Thursday, July 14th.
|Last Updated: 18/05/2011 09:19:58||Page of 8|