Brendan Howlin (Wexford, Labour) | Oireachtas source

I am glad to have an opportunity to say a few words on this rather unusual legislation. First, I must refer to the Minister's final scripted sentence, which was, "Time is short – we have just under two weeks." I welcomed her back yesterday but, in her absence, I raised on numerous occasions with the Minister of State, Deputy James Browne, the fact that a series of Bills was introduced here to transpose EU directives, some of which dated back almost 20 years. We were told that we had to do it because there was a deadline or that the European Court of Justice was about to fine us. As a matter of principle, I want to make a point before I get into the meat of what I have to say: the Oireachtas now seems to be the last thing to be considered, on the assumption that, if it is told a matter is urgent, its Members will all rubber-stamp whatever is put in from of them, be it an EU directive or otherwise. Quite frankly, that is not good enough. We used to have a committee on secondary legislation in the House whereby all secondary legislation was presented. There was a schedule so people were aware of what needed to happen. As a matter of principle, I make the point that it is not good enough for any Minister to tell both Houses of the Oireachtas they have two weeks to amend legislation we have known for years has presented difficulties for years and that they should get their skates on. This is very unusual legislation. It is not unheard of, but unusual because its impact is to undo what was presented as a reforming measure enacted by these Houses in 2009. I am referring to the Land and Conveyancing Law Reform Act of that year. That is not ancient history. The proposal at the time was to require mandatory registration of so-called prescriptive easements or profits à prendre of 30 November 2021. These lovely legalistic phrases – "profits à prendre" and "prescriptive easements" – mean nothing not only to most people in this House but also to any citizen who reads them. These are phrases that have very real and profound meanings, however. Easements are private rights held by a property owner over a property of a neighbour, including the right to access farmland or a home, or the right of way to use a laneway that runs through a neighbour's land. These are not small matters; these are profound matters. Distinguished playwrights have written impactive plays on these matters in this country. Rights include the right to use water or sewerage pipes going through a neighbour's land and a right of support between adjacent buildings under different ownerships. I have come across cases in respect of each of these rights. I, and, I am sure, others Deputies, know of purchases that fell through because a right of way could not be certified by a solicitor in respect of access to a sewage pipe, or even access to a piece of land to get to a septic tank or water scheme or system. These are extremely important matters for thousands of individuals and families. They entail access to the fundamental way of living. I know from talking to the Acting Chairman, Deputy Sherlock, that he has a long list of cases in east Cork. I would say every Deputy in the House has been aware of this issue arising in recent times.

Before 2009, a prescriptive easement or profits à prendrewas usually verified by a simple statutory declaration of long use. That was not an onerous task. If one had made use of whatever the right entailed for years or decades, one made one's statutory declaration and that was acceptable. One's legal right was established.

Part 8 of the 2009 Act introduced a new requirement for a prescriptive easement or profits à prendreto be verified by a court order and registered by the PRA. We are aware that an amendment was introduced by the Civil Law (Miscellaneous Provisions) Act 2011 to add that if the prescriptive right was not contested by the owner of land affected, the claimant or applicant could, as an alternative, apply directly to the PRA to validate and register that right based on long use, without the requirement of going to court and bringing upon himself or herself the legal costs that would involve.

As with many laws that are considered good at the time of their introduction, not an awful lot is done subsequent to enactment to realise their intentions. This is also the case if, on reflection, they are not considered to have been good ideas to begin with. To ensure the implementation of the legislation in question, little was done until the reality finally dawned that a date regarded as distant in 2009, November 2021, was no longer distant. It is now upon us. The effect of the wholesale ignoring of requirements, whereby none of the rights has been registered or the great bulk of them have not been, is such that we are going to face a shock to the system and a monumental legal mess in a couple of weeks. It is a monumental legal mess largely unknown to those most directly affected because most of those who have not registered the rights they assume they have were unaware that those rights were going to vanish legally in a fortnight. In a way, we are going to enact legislation to take away that awful vista from them, and they will never know it was there in the first place. Maybe that is good but it is not the best way of doing business. We are now to reverse engines to avoid the chaos.

Unfortunately, all of this is dressed up in impenetrable language. I mentioned a few of the phrases.

With all due respect to my distinguished legal colleague who made a contribution but who has now left the Chamber, he was able to reference the doctrine of lost modern grant as if it is something about which we all know. I have no idea what the doctrine of lost modern grant is. Maybe it trips off the tongue of the Acting Chairman. Apparently, it is a very important doctrine. In essence, what we are being asked to do is to revert to the old rules, but we are also told that the people who gave us the 2009 Act are going to have another go as there is going to be another review and it will report next year. Colleagues have stated that if it is not broken, do not fix it. The issue of how rights of way and easements are registered, vindicated and passed on on sale is impenetrable and a cause of enormous concern to many people. These are important fundamental issues for many citizens, so we certainly need clarity in all of these things. We do not want to make it more difficult or impossible.

The best of neighbours may suddenly become difficult with one another when it comes to yielding a right of way. They may ask what it means, what are the consequences of it and whether it is forevermore. It might involve the laying of a pipe across a lane, but one never knows what the other landowner might do with that lane in the future. These are really difficult matters and can become matters of monumental importance on which local wars, and certainly local feuds, are often built.

The issue of rights of way is one on which we might have a more general discussion. I listened to Deputy Martin Kenny speak about common land and walking on it. Our neighbouring jurisdiction has rambling rights. There is no such thing as being able to sue if your child breaks a leg while walking on common land. You have responsibilities not to cause damage, leave litter or leave gates open, but you have a right to access the great outdoors and that is something we need to consider in any event.

Much more germane to the legislation before the House is the growing practice of the eradication of established rights of way. I can think of two such cases in my county, one current and one previous. The previous case involved a long-established right of way from a road down to the foreshore simply being extinguished by a local landowner. An existing lane was simply ploughed up and incorporated into a field and people were not allowed access anymore. That caused enormous aggravation and it was very foolish because although it was used only infrequently as a right of way, as soon as it was extinguished, by God, there was a major demand and march to ensure that right of way was vindicated. There is an existing case involving a lovely narrow coastal path fenced off by the council and so on. One local landowner said "No" and put up a monumental gate, which was electrified just in case anybody might be able to climb over it, to stop access to the next field where the right of way continues. We need a more general discussion on rights of way.

Apparently, all this is going to be reviewed again when, under the Bill, we revert to the situation prior to 2009. However, although this will settle old and existing claims and rights, a different approach might be taken in respect of new claims made after the enactment of the Bill. As the Minister indicated, special arrangements are proposed in respect of State land, including foreshore. It is envisaged there will be more onerous obligations on those applying for a right of way against the State and its property than those making a claim against a private company or individual. Why would it be right for that to be the case? One would think that if you are going to establish a right of way, irrespective of who owns the land, if you have the right of way, the same obligations would apply. Why does the Minister believe that proving a right of way against the State should be more challenging for a citizen than proving a right of way against a fellow citizen? Why are these special arrangements necessary?

As regards foreshore, it is an extraordinarily complicated area. I know a major motorway project was almost held up because a foreshore licence was required to be given to the public private partnership company for 25 years and could not be established. Eventually, we actually had to use the State Property Act to overcome that difficulty. It is to be hoped that the marine area regulatory authority will be established next year once the legislation governing it is enacted. I assume it will be the body that will deal with foreshore after that date. How does it fit into the legislative approach envisaged by the Minister? Perhaps she will give an indication in that regard when responding to the debate.

Insofar as the Bill goes, we are up against a deadline that would have, in my judgment, chaotic results if we did not undo the legislative buffer put in place in 2009 and would leave a significant number of people literally in a legal quagmire without rights they think they enjoy right now. Thankfully, the vast majority of them are largely oblivious to the fact those rights were to be taken from them a couple of weeks from now. In that context, we do need to enact this legislation.

The consultation by the Minister with the Law Society and legal practitioners is all well and good, but I ask that she consult Members of this House before the finished product arrives for us to deal with. With all due respect to legal practitioners, their business is about making money, and the usage of more opaque language, such as prescriptive easements, profits à prendreand all these doctrines of lost modern grant, is designed to ensure you have to go to your solicitor or legal practitioner for advice on how to proceed. It is like doctors writing prescriptions in Latin. It is devised as a mechanism to ensure you need to go to the professionals. All present are aware there is a legal cost for even modest adjustment in land boundaries. I have been involved in one or two such cases myself. As soon as you go to a solicitor to do that, there is no problem with it, but the clock is ticking. Even though a person may do a lot of the work himself or herself in terms of gathering title and everything else and presenting it to the solicitor, there is still a significant legal bill for the legal practitioner actually handling the conveyancing.

In the context of the review upon which the Minister is now embarking I ask her to consider that many Deputies have significant direct experience of these matters and that it might be worthwhile to speak to us in shaping this legislation from an early date through an appropriate committee, presumably the Committee on Justice, in order that we could start from first principles in terms of what is needed in a very complicated area of legislation and ensure we protect people to the best of our ability, as well as protecting individual property rights where that is appropriate, but also allow for transfer of rights in a way that is not ruinously expensive for individuals. I hope we could do that early next year and come back with reformed legislation.

We must do this to ensure we are not finding, in ten or 15 years' time, that it is not fit for purpose and we have either to, as in this case, expunge from the legal register and from legislation altogether or substantially amend. As far as is practicable, and I am not sure if it is possible, we must make the law understandable for people, whether they are farmers, homeowners or any citizens of the State, so that they can understand exactly what their legal position is. We must ensure it is not an impenetrable legal morass, that if you say the law in this area goes back to the 19th century, it already sounds expensive before you say another word. These are matters on which the practical experience of Members of the House can bring a lot of useful thought to bear at an early stage.

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