Wednesday, 29 September 2021
Nithe i dtosach suíonna - Commencement Matters
I welcome the Minister of State. This matter relates to the negative consequences of schedule changes for the registration of rights of way after 30 November. What plans does the Government have to initiate or support legislative change to extend this deadline and prevent these changes? What the timeline is there for that action and what further engagement will the Department have with civil society, Oireachtas Members and the Law Reform Commission?
This is an issue I have been working on for over a year. I engaged initially with the Minister of State with responsibility for heritage. I did so from the perspective of heritage. Then I engaged with the Minister responsible for planning and development. I acknowledge that the Minister of State, Deputy Peter Burke, wrote to the Department of Justice last June to say that while he could not accept my amendments on planning he believed they should be considered by the Department. I also proposed and sought amendments to the Civil Law (Miscellaneous Provisions) Bill 2021 that came through from the Department of Justice before the summer.
This is an issue that has been coming up and that has been flagged for over a year. However, it seems that over the summer there has been a realisation of what the consequences could be, and I welcome that. I do not need to go through all of the law as the Minister of State will be very familiar with it but effectively, the Land and Conveyancing Law Reform Act 2009 and the subsequent 2011 Act brought in a change whereby there was a transition period for the registration of a private right of way or easement. Previously, one had to establish 20 years of continuous use. Following these changes in 2009 and 2011, a transition period was set whereby people would have to have formally registered and that period is due to expire on 1 December next. This trouble has been coming for a long time. It has been exacerbated by Covid and the fact that public awareness of this issue has been limited. It was signalled to the Government by the Law Society, which has stated that even if people lodged claims now, the likelihood of those claims being processed in time would be minimal. It has also been highlighted by the Irish Farmers Association, IFA. This issue is important in terms of the legal confusion that would be created but also because of the damage to accessibility, community, and connectivity. At a time when we are promoting the permeability of the ten-minute town and the 15-minute city, we are in danger of closing off a lot of the points of connection for many families. There is also that heritage component.
The Minister of State will be aware that yesterday I introduced my own legislation to extend the deadline by five years. This is in line with the Law Society's request for a six-year extension, while the IFA had looked for three years. I would be open to both of those but I lodged my Bill with the Bills Office last July so I had to proceed with my suggestion of five years, which, I think, represents a very reasonable compromise and gives space for further public engagement on the issue. Crucially, it will also allow the Law Reform Commission to look to the issue in more depth. This is important from the perspective of the past, in terms of preserving rights of way that have been used for generations, but also for the future.I have emphasised this at meetings of the climate committee. It is about the network of connectivity in rural Ireland and children being able to walk to visit their friends by means of some of these rights of way. It is also about the permeability of our cities so that people can be provided with alternative networks where they intersect with public rights of way to create a network of connectivity.
I welcome the Government's indication that it intends to act on this issue. It needs to be done urgently given the 30 November deadline. I was disappointed when I saw the legislative calendar for the autumn term circulated yesterday that I did not see legislation on this from the Department of Justice. I would like the Minister of State to clarify how and when this will be addressed. I urge that it will be stand-alone legislation and is not tagged into other potentially more controversial legislation and then not getting through, when it is an issue that has extraordinarily wide support from rural and urban areas, from the IFA, the Law Society and from lots of community groups. There are little things like where it is the way that the band goes to practice. I look forward to the Minister of State's response.
I thank the Senator for raising this matter. I know it is something she has been working on for some time. It is a matter of concern for quite a number of people.
This matter relates to a change in the law on prescriptive rights of way that was due to take effect on 30 November 2021. A prescriptive right of way is one acquired by long use as of right by a property owner over a neighbour's land which is not recorded in any surviving title deed. Common examples are rights to access a farm or dwelling house where the access laneway is privately owned by one or more neighbours. Public rights of way are rights contained in written title deeds are not affected.
As Senator Higgins rightly points out, the Land and Conveyancing Law Reform Act 2009, as amended in 2011, introduced a new requirement for these rights based on long use to be verified by a court order or an uncontested application for registration and register with the Property Registration Authority, PRA. Up to 30 November, this could be done based on existing legal rules on establishing long use. After that the registration would still be possible but only under new legal rules.
The Minister, Deputy Humphreys has consulted with a range of stakeholders, including the Law Society, Bar Council, Law Reform Commission and PRA, and listened carefully to the concerns raised. It is clear that there remains legal uncertainty about how the new rules may be interpreted and that it has not yet been possible to register many important rights of way that appear to have been enjoyed for many years without dispute. These problems are causing significant delays in conveyancing and in loan applications.
The Minister is satisfied that, if not addressed, the deadline was likely to lead to unnecessary litigation between neighbours, causing needless stress and legal costs. As an interim solution, on 21 September, the Minister secured Cabinet approval for a short amending Bill. It will be a stand-alone measure to be enacted before the November deadline. Consistent with the strong preference indicated by stakeholders, the Bill will remove the major changes to the law on prescriptive rights that were due to take effect after 30 November, thus removing and not extending the upcoming deadline. This is also expected to greatly reduce current conveyancing blockages. The reason that it is not on the priority legislation list is technical and relates to the fact that a Bill must be published before it can go onto the priority list. However, I assure the Senator that it is an absolute priority. It needs to be passed before the deadline. It now has Cabinet approval and will be a stand alone Bill. The Department of Justice is in ongoing consultation with stakeholders on this priority Bill. The Minister has also obtained agreement to set up a time-bound review, to identify any further legal reforms required after 30 November, in this complex legal area.
We need to grasp the nettle here. There have been several extensions. This matter is causing distress. It causes worry for the individual rights owners and communities and is causing untold headaches for solicitors, barristers and legal representatives. A decision must be made on whether it is removed altogether or on whether, perhaps, a different amendment needs to be brought in. We need to establish the permanent solution to the problem.
The concern relates to instances where a person might have had a right of way that has been used for many generations. The initial response I received from the Department was that people would still be able to register. However, the clock resets to zero which means that even if you have had 30 or 40 years of usage, it counts for nothing. We know that some have been moving blockages into place in certain rights of way and things have been set up for problems in anticipation of that.
I welcome that the Department is removing the provisions. I would appreciate engagement around that because I have my own legislation for extension and I need to see Government legislation before I remove it. The crucial thing is that we take action before 30 November in order that we have the space to look at what the solutions might be. I hope the Minister of State will indicate that he will engage with myself and others. When I see the detail of the Government's removal, it will help me decide whether I will press on my five-year extension. Some public awareness of rights of way would be valuable regardless. There has been huge confusion and quite an amount of alarm regarding this matter.
I agree about public awareness. My office was contacted by people asking what they should do about registering rights of way. Problems have arisen as Ireland has become more mobile. Where there might have been a farmer at the end of a laneway with one neighbour, there might be extra houses now and that can be challenging. I know of the case of a couple where the people who own the neighbouring land have dementia. Those people are in a home and getting all this resolved is proving very challenging. I 100% agree that we need to address the immediate problem and then come up with a final decision about what we are going to do here because we cannot simply keep extending it. That only creates new stress for people further down the line. I will certainly get the Department to engage with the Senator. I acknowledge that she has been raising this matter for quite some time. Under the Bill, the law applicable to prescriptive easements and profits will largely be reverted to judge-made law that was employed before the passing of the 2009 Act. As the Senator said, the majority of legal people believe the clock set to zero. There was some belief that equitable rights would still remain and that was creating confusion in the legal world. It is absolutely right that we take this action. We hope and expect that the urgent Bill will have cross-party support in both Houses. I will get the Department to liaise with the Senator in respect of her Bill.