Heather Humphreys (Cavan-Monaghan, Fine Gael) | Oireachtas source

I move amendment No. 2:

In page 3, to delete line 15 and substitute the following: “(a) in subsection (1)—

(i) by the substitution of the following paragraph for paragraph (b):

“(b) that where the permanent buildings comprise, in whole or in part, an alteration or reconstruction, the alteration or reconstruction caused those buildings to lose their original identity;”,

and

(ii) by the substitution of the following paragraph for paragraph (c):

“(c) that the permanent buildings and, where applicable, any alteration or reconstruction referred to in paragraph (b) which caused those buildings to lose their original identity, were not erected in contravention of a covenant in the lease; and”,”.

Section 2 contained proposed amendments to the eligibility conditions in section 9 of the 1978 Act as far as those conditions apply to the buildings on the land. Currently, eligibility to acquire the freehold title does not exist in the case of an improvement to such buildings but does arise where alteration or reconstruction causes the buildings to lose their original identity. It is hardly surprising that this formulation has given rise to some confusion and uncertainty. The Government amendments, based on the expert group recommendation, adopted a somewhat different approach to achieve the same objective as the Private Members' Bill.

The Government amendment, which is based on the expert group's recommendation, adopts a somewhat different approach to the achievement of the same objective as the Private Members' Bill. It seeks to do so in a manner that reduces the risk of a future constitutional challenge. The proposal in the Bill to delete sections 9(1)(b) and 9(2) of the 1978 Act would remove the provision which requires "that the permanent buildings are not an improvement", as defined under section 9(2). The expert group has agreed that the concept of "an improvement" creates uncertainty and should be dropped from the legislation. The group has proposed that rather than simply repealing section 9(1)(b) and providing for a new definition of "permanent buildings" in a new section 9(6), section 9(1)(b) should be amended to exclude the reference to "an improvement" and to contain a revised focus on whether the buildings in question have lost "their original identity". The group has also proposed a revised wording of section 9(1)(c). These amendments will be complemented by the new section 9(6), which sets out a number of factors to be taken into account for the purpose of determining "whether the permanent buildings have lost their original identity". The expert group was particularly concerned that the proposal in the Private Members' Bill for a new section 9(6), which refers to "an extension in its usable area by not less than 50 per cent", could create a possible risk of a future constitutional challenge. The basis on which 50% was selected as a percentage for these purposes was not clear to the expert group. The group felt that a provision along those lines could be regarded as somewhat arbitrary and could be vulnerable to a constitutional challenge for that reason.