Thursday, 11 November 2021
Land and Conveyancing Law Reform Bill 2021: Committee Stage
I will give a wider speech on my amendment a little later. On section 2, I will flag that it is good there is a provision allowing those who may have already registered under the current process to preserve that, yet we also protect those who may wish to register in future. It might, however, be an area that could require further clarification. One area I might look at on Report Stage concerns those who have started the process of registration. I warmly welcome the Minister back to the House and I thank her for her engagement, and that of her officials, on this area. I also acknowledge the Minister of State, Deputy James Browne, who has also been very constructive in engaging on this.
This is a collective piece of work where we are trying to come out with the best outcomes. One of the measures I wanted to signal for this section that I might look at on Report Stage is the question of those who have started the registration process or may be in the middle of it. I am sure the Minister will have heard that many people have hit last-minute barriers in registration, including the provision of additional pieces of paperwork. The problem we had was the 30 November deadline re-set was going to re-set the clock to zero. Thankfully, the general thrust of this Bill will not now mean re-setting the clock to zero on 30 November, yet those who have already registered before that deadline will preserve the 12-year right to register an easement. A little limbo space might be there for those who were nearly through the process and all the hoops before 30 November. For many of them, if they have invested quite a lot of time and effort into trying to register under the 12-year period, the return to the 20-year period might prove a little difficult. I just wanted to signal it as an area of concern. I might chat to the Minister and her officials about it between now and Report Stage.
I will raise two concerns and might table amendments on Report Stage. The first concern relates to the doctrine of lost modern grant, which is relied upon in the Bill. We are hearing concerns that it might not be sufficient to restore the law to the practice of the courts prior to the changes anticipated by sections 33 to 39 of the 2009 Act, which will be repealed by the Bill. In short, the Prescription Act 1832 may need to be revived. We may bring forward amendments reflecting necessary references to that and to any other relevant considerations.
We would welcome the views of the Minister on the rationale for not including reference to the Prescription Act 1832 in this Bill, particularly in section 2(b) and section 4, in addition to making adjustments to section 1. There is stuff on section 6 as well. We believe the 1832 Act was enacted to remedy difficulties that arose in the application of prescription at common law under the doctrines of use and lost modern grant. If this is correct, our concern is the repeal of the Prescription Act must be of concern to all conveyancing lawyers and not just those concerned with rights on the foreshore. I welcome the views of the Minister on the inclusion of references to the Prescription Act in the Bill.
On the Deputy's last point, it is my understanding that, under current law, people are able to use all three of the old rules, which are common law time immemorial rules, common law doctrine of lost modern grant and, as the Deputy mentioned, the Prescription Act 1832.I may be corrected on this, but the feeling was that there were more complexities and difficulties with the Prescription Act 1832. As a result, it was decided to go with the common law doctrine of lost modern grant, which obviously means that any period of 20 years would create that presumption, making it a much easier process for individuals. Perhaps I can come back to the Senator with more detail but that is my understanding of why that particular choice was made and the other has not been mentioned.
In response to the comments of Senator Higgins, my understanding is that anybody who is going through the process but has not concluded it by the set date at the end of the month will immediately return to the common law doctrine of lost modern grant, which is the 20-year period. I appreciate that a lot of work might have been done up to this point but adding a new date for people who might be halfway through the process adds another layer of complexity to all of this. I am happy to look at what the Senator suggested in that regard.
I have had a bit of back and forth with the Minister in respect of section 3. I appreciate the information and useful tables she supplied regarding applications. My question relates specifically to the foreshore and State lands. As I understand it, while the legislation is moving back in terms of the previous periods that applied, it is also effectively removing many of the provisions of the 2009 Act relating to private easements and profits á prendreon private land. However, for State land and foreshore, some of the shifts and changes that were brought in through the 2009 Act are still there, including the period involved.
I welcome the fact that I have had some assurances and perhaps the Minister could restate the assurance that there is no question of the clock resetting to zero and the time previously required for State lands, including State foreshore land, will disappear on 30 November. That is crucially important. I know there has been some discussion of what comes next. Everybody is clear that the solution we are putting in place with this Bill is not ideal and we are at the beginning of a process in that regard. I have a concern about the time periods involved. The 2009 Act extended the time periods, moving from a 30-year requirement to a 60-year requirement for acquired rights of easement or profit á prendreon State land and State foreshore land.
I will refer to the grids, if I have them with me. As I understand it, there are two questions here. Those who had acquired time before 2009 would be in one situation. Am I right in thinking those who had started acquiring time after 2009 would be facing the requirement for a longer period? To whom does a 30-year requirement apply and to whom does a 60-year requirement apply in terms of easements? As I understood it, claims that were based on use before December 2009 were able to use the old time periods whereas claims in which all of the time involved related to the period after 1 December 2009 would require the longer period. Of course, many of them will not have achieved that yet but will achieve it later this century. I want to get clarity on that and to express some concern.
I am concerned that the 60-year period is very long. I understand that the 60-year period, particularly in the case of foreshore land being reclaimed, may create a very high bar. We are seeing extraordinary changes to our foreshore. A maritime planning Bill is before the Houses. The designation of marine protected areas and access to them should precede the marine planning Bill. That is of crucial importance. On a practical level, right around the country, we know there has always been a question about access to the sea and the shore. It is important for people. We have had many situations where a golf course has cut off that access and so forth. It is good that the changes we are making in this Bill will negate those private blockages of access to the foreshore. Where there is State land on the foreshore, it is important that we err on the side of ensuring access and connectivity. I indicate that issue. We might be able to tease it out a little more. The 60-year period is quite a long time for persons to have acquired and proved their rights. Perhaps the Minister can assure me this will not be the last part of this discussion.
I have similar concerns regarding the different prescription period proposed for State-owned land in section 3, which includes the foreshore. I echo what Senator Higgins has said. I would much prefer that we had designated protected areas before we gave planning permission for offshore wind, but that is why we are particularly concerned about this section. There is going to be so much change around our coastline.
Why should the State have a longer prescription period that is more favourable to it than that applicable to private landlords? As Senator Higgins said, a period of 60 years is proposed, which is a substantial increase from the 20 or 30 years required under the current system. It will thereby take away existing rights that may have accrued to seaweed harvesters.
There is also a difficulty faced by a claimant to rights on the foreshore through the rebuttal presumption in the Foreshore Act 1933 that the State is the owner of the foreshore if the foreshore concerned is not in private ownership. A claimant would not have access to knowledge of the ownership of the foreshore concerned. Only the private landowner would have that on his or her grant of title. In order to avoid taking rights away from, for example, seaweed harvesters who can prove 30 or 40 years of use, we will be considering essential amendments to section 3 on Report Stage. It is of the most serious concern that the change in section 3 seems to be in a completely different spirit to the effects of the other changes in the Bill which act to allow for other interests to be recognised and not to compromise them. We would welcome the opportunity to tease this out further with the Minister, particularly on Report Stage. As I said, we will probably submit amendments. We have concerns around the 60-year period, given the level of change that is going to be happening in that part of our country.
I echo what the previous two speakers said about this particular section. They have my support. Following on from the example given by Senator Higgins, I am aware of a situation in Donegal where a right of way had long been established across a beach. People enjoyed that right for many years but a developer bought a farm and land which ran down to the sea. The developer subsequently built holiday homes and a hotel, and advertised them with exclusive and private rights onto the beach. It proved a controversial development, so much so that arguments and rows are still going on today. Following on from the contributions of Senators Higgins and Boylan, I am wondering what will happen in the future. In the particular instance I have mentioned, planning permission was given to the applicant along the lines I described. The planning authority did not seem to know that a long-established right of way was in existence, one which the public had enjoyed for many years. After this legislation is enacted, will all public rights of way be registered in a central area so that a planner in a local authority will have sight of a right of way before the planning authority will either grant or refuse planning permission for subsequent development? I would welcome the Minister's comments on that issue.
As the Senator has rightly said, this is the only element of the 2009 Act that is being kept on in the Bill. The clock will not be set back. That will not happen in any instance, be it the 30 years for the State-owned lands or the 60 years for the foreshore. The longer periods were put in place on foot of the recommendation from the Law Reform Commission. This can be looked at as part of the review I have given a commitment to undertake. We hope the review will start in the new year and be concluded next year. Everything in this legislation has been included with the support and approval of the Law Reform Commission, the Bar Council, the Law Society and all of the stakeholders. We have gone through much of this and this is the recommendation they have made.
To clarify and to reassure the Senator, this is not about public rights of way. That would be a matter for the Minister for the Environment, Climate and Communications. This specifically focuses on prescriptive rights where one has private rights with regard to private land owned next to a foreshore where a right of way had been used to access the business or to carry it out. This will not in any way impact public rights of way. The longer periods are because of the recommendations. Time will not be reset. It will apply for the 30 and 60 years. In most instances, when we talk about State or foreshore land, that period of 60 years has already been met and it will not have any impact.
I should have mentioned this in the previous section. We are going back to the Land and Conveyancing Law Reform Act 2009. This legislation is moving forward in a very tight timeframe. With regard to easement versus profit à prendre, we could and should be looking at shorter periods for certain profits à prendre, as basic as the right to light, but that will potentially be part of the review. I will speak on the extinguishment of easements and profits à prendre. This Bill will not fix the legislation on easements. The issue of extinguishment is not named in my amendment coming later, but I hope the Minister will signal that it will be part of the review. It intersects with what was said about the public rights of way. We have these public rights of way, but in many cases, the network of public rights of way intersects with these prescriptive rights of way. The route that gets people from their house to the public right of way is a prescriptive right of way or an easement, or that is the path. They are almost like the rivulets that feed into our public rights of way.
I read with great interest the Second Stage debate and the call for awareness raising. As well as the call for awareness raising of the registration rights, we need to have more awareness raising cross-departmentally. I originally raised this issue with the Minister of State with responsibility for heritage and more than a year ago. Subsequently, I raised it with the Minister of State with responsibility for local government and planning, Deputy Peter Burke. He gave me some engagement on it, but was not able to progress it because it was not in his Department. I have gone the rounds, including with the Department of Justice before and after the summer. One of the problems is that this is regarded as being in and belonging to many Departments and we do not get a joined-up approach. When I was trying to raise the alarm on the 30 November deadline, almost 15 months ago, it took a long time to reach the right ears.
I have a real concern about what was mentioned about public rights of way and their extinguishment. Many local authorities across the country end up extinguishing public rights of way. We know these items, involving the extinguishment of rights of way, come up at the end of the agenda at local council meetings. Such a right of way might connect with other prescriptive rights of way and might be the piece needed to make a network of connectivity. We all want the 15-minute city and the ten-minute town. We all want access to nature and safe green networks around our cities and rural areas. I raise a flag of concern on extinguishments because sometimes they happen in a piecemeal fashion. A right of way might be extinguished because the five houses next to it might not see its importance, even though it might be very important in terms of what it connects to. I appeal to the Minister that when she is doing her review, as well as looking at the legal issues, she should give space for engagement on the policy space. As I will come to that later in my amendment on reviews, I will not go into it now. We need to look at how public rights of way intersect with prescriptive and permissive rights of way.
Senator Higgins has outlined not just how complex this legislation is, but also how it is interconnected in so many ways. Even though the 2009 Act was brought in to try to make things easier, the reason we are reverting back is that this section of the 2009 Bill just has not worked in this instance. In setting out the terms of reference for the review that will take place next year, I am open to getting the views of Senators and those who are especially interested in this to see where there is a crossover, be it in other Departments or other areas of law that need to be looked at. It is difficult to extinguish a private right of way and the Bill we are talking about does not provide for an extinguishment of public rights of way. We are talking about two different things, but I appreciate there is often a crossover when private and public are somewhat one and the same or connected. I am open to looking at how the terms of reference can be looked at and whether this can be included.
I want to flag again my concern that there may be a need for section 6 to be adjusted on the basis of the reference in the 2009 Act to the Prescription Act 1832. I refer to the provision that the reference in Part 4 to Schedule 2 to the 2009 Act is deleted and the effect of such reference is revoked. I may come back with amendments on Report Stage.
The point I would like to make relates to section 5, but it does not matter too much. I welcome that it has been recognised that the burden of proof in the 2009 Act was so high that it would, in some cases, almost be in conflict with legislation that has come in subsequently, such as the general data protection regulation. For example, people would be required to provide large amounts of information about their neighbours, which they could not do. I welcome the shift in that section where there is a recognition. The authority can be satisfied in relation to a registration, rather than having to prove something beyond reasonable doubt, such as the mental health and capacity of somebody who may have lived next to that land 15 or 20 years previously. I am pleased that this is going in a more common sense direction and one that will be more practicable. It is a positive comment.
I will come back to the 1832 Act. The view from stakeholder engagement is that it is problematic and difficult and that is why the reference is being taken out. I ask that we have some engagement prior to this going on to the next stage because any further amendments or changes might delay it. As people will appreciate, many problems could arise for individuals if this is not passed on time. However, I want to engage and go through any of the problems Senators might have.
I move amendment No. 1:
1.In page 5, between lines 10 and 11, to insert the following:
"Report on engagement
7. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining progress in relation to engagement with the Law Reform Commission, the Oireachtas, local authorities and other key stakeholders in
respect of the provisions of this Act and potential further legislative or policy measures in respect of prescriptive easements and rights of way.".
The Minister is aware that I have engaged in this issue over the past 15 months and have been round the Departments on it. Even my own understanding of the issue has really expanded. I started with the very simple idea of "wouldn't it be great if we could link up prescriptive rights of way with public rights of way". I know many people living in rural Ireland who have to use cars because their children would have to walk on a motorway to visit a neighbour. The idea of green networks is reflected in the report of the Oireachtas Joint Committee on Climate Action on transport - that this is part of what we need. It is almost a re-imagining of all of those little strands of connectivity in rural Ireland. We could take what were mass paths, cow roads and routes to water and make them things that give independence to family members because we know lots of households have one car and people are almost trapped on an island given road safety concerns. It came from that positive idea and then looking then at the law and realising that we are in danger of not just neglecting to take a step forward but of taking a significant step backwards. I went originally to the Department of Housing, Heritage and Local Government and tried to look at this in terms of planning because planning and development are where public rights of way sit. It eventually became clear that it is in conveyancing and the Department of Justice, which is why I have been engaging with that Department for the past six months. I thank the departmental officials because they have been really good in engaging, particularly in the past two months around this issue.
I say this in the context of the review because my amendment is looking for a review. I know the Minister has signalled a review so I am unlikely to press my amendment if I can hear more about the review. I wanted to unpack what was planned for the review because I know we have the standard implementation pieces. When we put forward legislation, we know it is not perfect. We are almost going back to the least bad of existing laws to address it but I want to get the Minister's sense on this issue. I acknowledge the conveyancing group within the Law Society, which has been really excellent and has really championed this issue, along with the Irish Farmers Association, IFA, and the Irish Farmers Journal, which have really pressed the issue. I tried to bring an amendment on a miscellaneous Bill to extend the period of time before the summer but over the summer, the practical effect, that is, the legal confusion that would be created and the extreme pragmatic difficulties people face in registering these rights of way, became so evident that the urgency arose. My comment is not directed at the Minister but I wish that there had been that engagement when the issue was flagged first. This is not in the sense of "I told you so". It is saying that sometimes, backbenchers in Government parties and Opposition Members flag an issue. If we had engaged with it last year, we might be in a position where we were putting forward legislation that would fix all the problems. What we are doing is producing "just in time" legislation that will remove the cliff edge of 30 November and make sure the clock does not reset to zero and that rights of way paths people have walked for generations do not get reset to zero. None of us want to see rocks rolled across paths and fences appearing on 1 December and years of usage being unacknowledged, which is why the Bill is urgent.
This is the context. This is why my amendment relates to the review. This is not a normal situation relating to a review where we introduce a law we think will work completely and we just want to check how it is going. It is in a situation where we have bought time. This legislation is just buying time. There are so many things to be teased out, particularly around foreshore, intersection with public land and questions about profit à prendre- even the phrase is archaic - because the meaning of the phrase is very different now. The amenity people might be accessing might not always be seaweed, turbary rights or access to grazing or water. It might be blackberry picking, access to nature and natural resources or the right to light, which is very important to people so there is a lot there. Again, I focused on rural Ireland, and I acknowledge this issue has been identified, but I think there is a significant constituency in urban Ireland when we even look at the housing estates in the 1950s and 1970s and their back lanes. I will not name any groups but there are groups that are worried about this. If a local brass band accesses a park to rehearse, would it be able to cut across that park because it is the only safe way for children to access the place? In particular, during Covid when so many people have had to seek out these places, particularly in our cities that do not have enough green spaces, the routes to access those spaces of nature, green spaces or shared public spaces have been important for people. What happens in someone's 2 km or 5 km radius has become really pressing for people. It has been a lifeline for people.
The Minister will see that in respect of the review, I am talking about the law and fixing the law. What I am hoping for is for this review can have a slightly wider scope so we are not just addressing past rights and rights acquired over generations but are also building in a vision for the future in terms of rights of way and something that will be fit for purpose and a bit more ambitious about the accessibility, permeability and inclusiveness of our shared island and shared places.
Again, I find myself supporting the Senator's proposal. I think it is common sense. The Minister said that this is a very complex area and the more we talk about it, the more complex it becomes. From my limited knowledge of this, I have come across a few disputes recently. For example, one related to a public right of way where I spoke to a lady down south regarding a public right of way enjoyed by the public for years. A planning application was received that could have had an adverse effect on that and the lady went to the local authority and asked it whether it was aware of the long-established right of way over the particular property. The local authority said it was aware but that it was not up to it to register that right as such and that it was up to the public to do so. This is neither right nor fair. We need joined-up thinking across various Departments to ensure things like that are covered.
Never mind looking back, looking forward is another good point. It is a very complex area and if we are going to do it at all, it is important we do it right. This is rushed legislation. I brought forward a Commencement matter on this issue a number of months ago and it was full steam ahead for 30 November deadline. Thankfully, through the good work of Senator Higgins, this has been overcome. I compliment the Minister on taking it on board but it is a very complex area and it will take time to do it properly. A review after 12 months would be very worthwhile. We can take the learnings from that and possibly shape the future with them.
There are rights to declare public rights of way but local authorities do not use them. Compulsory purchase order powers tend not to be used. There are a lot of powers that are not used and it is a sad fact that in a lot of local authorities, members do not feel empowered to suggest new rights of way. We do not tend to add new public rights of way very often but we can. We extinguish public rights of way all the time. I will not go into it because it is a separate piece but it is also around making sure local authorities have the resources to support public rights of way. It is in tune with Government policy across lots of different Departments even from the climate and environmental perspective, leaving aside others such as health and child safety.Supporting local authorities and local authority members to feel confident to propose new rights of way and declare them would be something really great that could come out of this discussion.
I ask the Minister to give an indication in respect of timelines. It probably is a little more pressing. I tried to give it scope of 12 months but it would be very useful for the Minister to indicate how she plans to engage with stakeholders and Oireachtas Members, as well as giving her sense in terms of potential timelines for the review.
I thank the Senator for her engagement on this issue. I know it is a matter in which she has had a long-standing interest and I appreciate that she has been engaging with my officials for some time. I thank those officials because this has been a lengthy and complex issue and, as all present will agree, it is a matter we need to resolve before the deadline because of the impacts it could have on people. I have moved house and, this week, my new neighbour came to me. My neighbour is trying to sell their home but cannot do so or cannot register due to the complexities in the context of the landowners along the lane. For a person not to be able to sell a home - a house built in the 1800s and with what has been used as a private right of way for a long time - is not good enough. The practical implications are significant.
I appreciate the support of all present in ensuring the Bill will pass in a timely manner. I appreciate that what the Senator is seeking in the review is more about looking to the future than the past. As she stated, to review law we do not think is right may not be the correct way to go about it. The aim is to review how we plan to put new laws in place. Although we are reverting to the law as it stood prior to 2009, that is not the ultimate solution. We need to decide what to do next. There is a pressing need for this to be addressed. The intention is to have the review established early in the new year. I reassure Senators that I hope to have an eminent jurist or a person of similar distinction to lead the review and it will be concluded by summer. The terms of reference have not been fully finalised, so I will engage with Senators and others who wish to have an input on this matter. I am happy to do so. Although we need to look at the fact that there are complications and complexities in the context of private and public rights of way, I cannot, as Minister for Justice, deal with the public right of way. It is not within my remit. However, I am happy to engage with the relevant Ministers in that regard to raise these concerns, highlight the fact that the review is taking place and is specific to private rights of way, and see where we can go from there. I appreciate that the Senator may not press the amendment. I commit to the review happening in a timely manner. We are aiming for summer next year, rather than 12 months.