Tuesday, 16 November 2021
Land and Conveyancing Law Reform Bill 2021: Report and Final Stages
Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion on the amendment. On Report Stage, each non-Government amendment must be seconded.
Amendment No. 1, in the name of Senators Boylan, Warfield, Gavan, Ó Donnghaile, Higgins and Black arises out of committee proceedings. Amendments Nos. 1, 2, 8 and 9 are related and may be discussed together, by agreement.
That is not agreed. I think the debate today will be efficient. We have had lengthy discussion on it. I think that amendments Nos. 1, 2, 8 and 9 should be taken separately for policy reasons. They have a slightly different remit. There is also the pragmatic reason, that I know that a number of the Senators proposing them are on their way to the Chamber. The other factor is that amendment No. 1 relates to those rights of way previously acquired by prescription. Amendment No. 1 is seeking to avoid what has been described as the cliff-edge effect of rights of way being lost. Amendments Nos. 8 and 9 are more related to the role that the Act of 1832 might or should have in future. I would appreciate if we might separate these amendments or move them separately. Perhaps amendments Nos. 1 and 2, which is technical, could be taken together, but amendments Nos. 8 and 9 might be taken separately.
I am not agreeing to it. Is there any objection to that? Amendment No. 2 is a technical amendment on the name of the Prescription Act, to be clear about what we mean by the Act of 1832. Amendment No. 1 relates to rights of way acquired by prescription. Amendments Nos. 8 and 9 relate to what we have heard from the Minister on Committee Stage, which is the complicated intersection between-----
Amendment No. 3 in the name of Senators Boylan, Warfield, Gavan and Ó Donnghaile arises out of committee proceedings. Amendments Nos. 3 and 4 are related. Amendment No. 4 is a physical alternative to No. 3. Amendments Nos. 3 and 4 may be discussed together, by agreement. Is that agreed? Agreed.
The amendments are all interlinked. Amendment No. 3 is a consequence of amendment No. 6, which deletes section 3 in its entirety, and is consequential to the reference to that section earlier in section 2.Our concern, which we raised on Committee Stage, is that the Bill repeals the prescription period of 12 years given to users against private owners of land but seeks to retain the prescription periods of 30 years and 60 years for foreshore in respect of land owned by a Minister, the State or the Commissioners of Public Works, referred to in the 2009 Act as State authorities. These prescription periods and the different treatment of those State authorities than the treatment of private landlords were introduced by the Land and Conveyancing Law Reform Act 2009 and may have had some justification, at least in respect of the 30-year period where the general period of prescription was being reduced to 12 years. With the repeal of the 12-year period by the Bill, the rationale for treating land in the ownership of these State authorities differently from other land has ceased. We are concerned that these prescription periods are unduly onerous to users of easements. The term-----
I am sorry, but could everyone stop speaking across the Chamber, please? Amendments Nos. 3 and 4 are grouped. Despite the fact that Senator Boylan wishes to withdraw amendment No. 3, she can still speak to amendment No. 4 now. I will give everyone an opportunity to speak to it.
I will be brief. There is an amendment that I had intended to introduce but I have not done so. I support amendment No. 4. These issues have been highlighted in terms of the other rights that have been acquired that could potentially be extinguished, which we do not want to be the case. There are plans to address these issues in the review that is planned for next year. While I welcome the Minister of State's indication of the Government's intention to engage in that review with interested Members of the Oireachtas as well as stakeholders and interested members of the public, the concern outlined in a number of the amendments, particularly amendment No. 4, is that the cliff-edge effect of the 30 November deadline does not apply to any easement. We do not have a list of the cohort of easements, rights of way or profits à prendrethat may have been acquired under diverse Acts rather than the doctrine of lost ground that may be lost or distinguished, and we may end up being unable to address such issues in a review retrospectively because there have been extinguishments. This matter arises more in the later amendments.
For the purposes of brevity, I wish to highlight the amendment that I did not table but that should be taken into account in the review. The period of 60 years in respect of access to the foreshore on State land, which is the forthcoming change, is too long. A 30-year or 40-year period is more appropriate. I am concerned that the 60-year period will create an unreachable burden of proof in terms of rights of way, easements and-----
Based on extensive legal advice, the options being proposed by the Senators would further complicate matters for all concerned, be likely to incur litigation and increase legal costs, and bring little benefit, if any, compared with the legal rules already set out in the Bill. I will give a number of reasons for this.
It is worth recalling that, before the Land and Conveyancing Law Reform Act 2009, there were effectively three different and parallel sets of rules under which a person could claim a prescriptive easement or profit over another person's land, those being, the doctrine of lost modern grant, the provisions of the Prescription Act 1832 and the old common law rule of showing use as of right since time immemorial. Each of these sets of rules differs from the other, with different requirements and conditions. Claimants often claim under all three sets of rules in the alternative. That is one of the main reasons for the law in this area being needlessly complicated and confusing.
The approach taken by the Bill is already to preserve the pre-2009 law, including the provisions of the Prescription Act 1832, for two groups of transitional cases, those being, all cases that are already pending before the courts or the Property Registration Authority on 30 November 2021 and all cases where the claimant had already completed a prescription period required under the pre-2009 law before that year's Act came into force in December 2009. This is provided for in section 6(2)(a) of the Bill. The intention is to ensure that any right that might have already accrued is fully respected.
The Bill provides that, after 30 November 2021, new non-transitional claims will be made under just one of the three sets of pre-2009 rules, namely, the doctrine of lost modern grant. The other two sets of pre-2009 rules were abolished by the 2009 Act for all but transitional claims and are not revived by the Bill. The reason for choosing the doctrine of lost modern grant is simple, in that it is not sustainable or desirable to maintain all three sets of rules into the future. That would be a recipe for confusion and needless complexity and would add considerably to delays and legal costs. After detailed analysis and legal advice, it was evident that the doctrine of lost modern grant was the simplest, clearest and most favourable of the three sets of rules and, importantly, there were few, if any, cases where a right to prescriptive easement or profit could be more successfully acquired under the 1832 Act than under the doctrine of lost modern grant. It is worth noting that the stakeholders with the widest experience of prescriptive rights in practice - the Law Society and the Bar Council - expressed a strong preference for this choice when consulted. The Bill is seeking to put in place an interim set of rules that are as clear and familiar as possible. This area of the law will now be examined by an expert review, which will consider whether any further or more detailed changes are desirable.
The rules under the 1832 Act are generally considered to be particularly badly drafted and unclear. As someone who practised law for 14 years and dealt with the Prescription Act, I heartily endorse this view. The English law reform committee described it in 1966 as having the "unenviable reputation of being one of the worst drafted Acts on the Statute Book." The English Law Commission repeated this opinion recently. In 1969, the Ontario Law Reform Commission stated that it was "a mystery to many a practising lawyer". Our Law Reform Commission stated in 2002 that the Act was designed to reduce the difficulties and uncertainties of prescription but had instead added complications to the process of establishing the rights belonging to users. The main Irish authorities variously describe it as "the spectacularly botched Prescription Act 1832" in an article by Mr. Peter Bland, SC, in 2011, the badly drafted Prescription Act 1832 by Professor John Mee in 2021, notorious and creating its own difficulties by Professor J. C. W. Wylie in 2021, etc.
It may be useful to give some concrete examples of how the Prescription Act's rules compare in practice with the rules proposed by the Bill under the doctrine of lost modern grant.The rules on prescription periods are more complicated under the Prescription Act and can be significantly longer. For example, 20 years' use as of right is generally sufficient under lost modern grant for either an easement or profit à prendre. However, the Prescription Act requires at least 30 years for profits à prendre. The Prescription Act expressly refers to a claimant who has applied to court to validate a prescriptive right. Some authorities argue that it only applies in that context. That creates an incentive to litigate, adding to legal costs and creating uncertainty and unnecessary stress between neighbours.
Under the Prescription Act, claimants must show not only that they have completed the required prescription period, but also that their prescription period continued right up to the date that they asserted their claim by bringing legal proceedings, the next before suit condition. Any gap or interruption at this point creates problems for the claim. As the Law Reform Commission pointed out, this is not required under the lost modern grant. Altogether, I think it is clear that there are good reasons the proposed amendments are not necessary or desirable in connection with the Prescription Act. Given the gravity of the concerns that have been raised consistently throughout history since this Act was passed, there is little or no justification for raising it from its deathbed and bringing it back into Irish law.
Those are my general comments about the issues, particularly amendment No. 4, which refers to section 2(b), one of the most important provisions of the Bill. That subsection essentially sets out the legal rules to apply following the coming into operation of the Bill to claim to a prescriptive easement or profit à prendre, saving the two groups of cases covered by section 2(a) and section 6(2), as mentioned previously. The rules to apply are those of the doctrine of the lost modern grant, following the strong preference expressed by the stakeholders who consider the most familiar and satisfactory set of rules, pending the proposed detail review. However, the effect of proposed amendment No. 4 is that rules under the Prescription Act of 1832 would also be revived and would apply to claims made after 30 November 2021, alongside the doctrine of the lost modern grant. The Minister and Department are firmly opposed to this amendment for all the reasons I outlined. My views on the matter are clear.
I take umbrage at the fact that the Law Reform Commission of Ireland was the only stakeholder consulted. We consulted Coastwatch Ireland, which pointed out that the people who are harvesting seaweed, mussels, kelp, sea vegetables and periwinkles by hand have not been consulted on this legislation. They will be directly impacted by it and want their concerns about the dismantling of the provisions of the 2009 Act raised. They had expected to benefit from that as of 1 December 2021. We want to work with the Minister of State and we understand the urgency of the legislation. However,organisations that are directly impacted by this legislation have not been consulted, which is the reason they have asked me to speak on their behalf. I understand that this is a technical Bill, but these organisations believe they have not been consulted in any way, shape or form. They will be directly impacted by the implications of this legislation.
I move amendment No. 5:
In page 3, after line 28, to insert the following: “(c) Paragraph (a)shall be interpreted as including any application made in advance of the relevant date, even where a final determination has not yet been made by the authority.”.
This is a simple amendment. I raised this issue on Committee Stage. I believe the current wording covers my concern but I am looking for an assurance. Perhaps the Minister of State might provide one. Many people were extremely worried about this deadline. People have been trying to pull together the paperwork for a large number of applications fearing the cut-off date of 31 November. A large number of people have made applications under the 2009 rules. However, their applications may not yet have reached determinations. There have been many cases where, for example, supplementary information has been sought.
Section 2(a) states that “in a case where the prescription period was completed before the relevant date, in accordance with the law that applied to the acquisition of an easement or profit à prendreby prescription before the relevant date”. I wanted to be sure that the interpretation of that covers those who may have completed the 12 years that were required under the 2009 laws and have lodged their application. Will they be covered, even if the authority has not yet been able to make determination on their application? They have completed the prescription period and engaged with the law that applied at that time. I wanted clarity on that from the Minister of State. Some people are concerned that although their applications have been submitted, the process has not finished. We need to ensure they do not fall into a limbo and find themselves back at the start of a new process.
I thank the Senator for her amendment. I also thank for her engagement on this matter and for raising the importance of addressing matter, which has caused considerable distress for some people. Section 2 of the Bill already makes provision for cases that are pending on 30 November 2021 when the Bill will come into operation, including court proceedings and applications under the Registration of Title Act. Its effect is that the pre-2009 Act of law applies to those cases such as it does under section 2(a) to cases where the prescription period was completed before 1 December 2009. It may be, therefore, that section 2 would already cover the applications the Senators are intending to address via this amendment. It is my understanding that what the Senators are attempting to here is already covered by the provisions of the Bill. In those circumstances, I ask the Senator to withdraw the amendment.
Our concern relates to the repeal of the prescription period of 12 years given to users against private owners of land in seeking to retain the prescriptive period of 30 years and 60 years for foreshore. Again, our concerns and the reasons we are flagging this is that we do not believe there has been proper consultation with the people who will be directly impacted by this. I ask the Minister of State to at least give a commitment that these issues will be examined as part of the review. On the basis of such a commitment, we would consider withdrawing the amendments. We would like a commitment from the Minister of State to look at our concerns around the prescriptive period.
I apologise for speaking to this amendment earlier. I have the same concerns about foreshore. It is a pity this was not acted on earlier as it would have allowed us to produce legislation that is fit for purpose and works. Instead, we have legislation that has us return to the least bad option, pending a review of rights of way. I hope we can do a good review that does not only protect rights of way and easements but imagines them in a constructive way. It should address historic issues of foreshore access, which Senator Boylan has spoken about, and some of the other issues of foreshore access that are important to people, for example, access to nature, as we saw during Covid-19.The 60-year period is too long. I worry that the huge leap to more than doubling the amount of usage that needs to be shown is going to create too high a burden. It is a transgenerational burden. For example, it would be very hard for any one generation of a family to show that period of usage. I urge the Minister of State to take that on board. I know he has been constrained in engagement on this as we literally have been trying to avoid legal chaos on 30 November but there are significant community access and environmental impacts and implications arising from the way we approach rights of way. I urge that there would be consultation at the wider forum, not just legal consultation but wider social and community consultation and engagement as part of the review. I strongly urge that the period for foreshore access would be reduced, as suggested in the amendment, down to 40 years, as with other State land. I personally think 30 years or 20 would be better, but I am willing to be flexible. It would be ideal if 40 years is accepted and the amendment would not have to delay the Bill at all, as it could proceed onwards to the Dáil and still pass, but if the Minister of State is not in a position to accept the amendment at this point, I hope it will be central to the review as a question.
The acceptance of the amendment would delete section 3 of the Bill, which refers to special restriction periods for State lands and for foreshore. Senator Boylan spoke to amendment No. 6 but Senator Higgins spoke to amendment No. 7.
I must make a couple of important points. As with the earlier amendments seeking to delete section 2(b), this proposes a significant shift in established policy and a change on that scale would require careful analysis. I suggest it is not suited to this type of Bill, especially one that has to move through the Houses very quickly, as has been stated, to avoid effective legal chaos in this area.
The Law Reform Commission recommended the longer 36-year prescription periods for State-owned land in its 2002 report on prescriptive easements and profits à prendre, pointing out that it is significantly more difficult for the State than for a private person to be aware of any prescriptive use affecting its widespread and fragmented land portfolio. That difficulty applies in particular to the foreshore, given that of its nature it is frequently submerged or difficult to access. There is also public interest in showing there is effective State control over the foreshore. When we talk about State lands, we are talking about lands that are in effect owned by the citizens and residents of this country. It is important to reiterate that the Bill is concerned with prescriptive rights which are private rights, it does not address public rights of way. I know genuine concern was previously raised about public rights of way. It is a concern that affects almost anybody in communities across the country. The Bill is addressing the issue of private rights. It is also used to address some other concerns that were raised in previous debates to ensure there is clarity for those who are following this legislation.
The 2009 Act would have reset the clock to zero on 1 December 2021, with new claims for prescriptive rights only taking account of user periods starting on or after that date. However, this Bill does not do that. It was already mentioned that prescription periods that were completed before 1 December 2009 will be decided under the pre-2009 rules, including a 20-year prescription period for State lands and foreshore, as will all claims that are pending before the courts or the Property Registration Authority on 30 November 2021. In respect of claims regarding State land and foreshore that are brought after 30 November, the longer prescription periods will apply but section 3 expressly specifies that the claimant may rely on any period of 30 years or 60 years for foreshore, so established use before 30 November will still be counted.
No seaweed harvester with a vested right over the foreshore, and no water holder with a prescriptive easement or profits à prendreof any kind will lose their rights. The example I gave in a previous debate of seaweed harvesters who can prove 30 to 40 years established use before 30 November is not an example of rights being taken away by this Bill. They will not be. In fact, under the Bill, those users are better protected. The rights of those users who had completed their 20-year prescriptive period under the old law before 1 December 2009 have vested and, under section 2(a) of the Bill, they are entitled to have them validated after the Bill comes into operation. Under the 2009 Act, they would have lost their rights if they had not applied to the Property Registration Authority before that, but that is not the case under the Bill, which improves their position.
I will go further and I assure Senator Boylan that the matter can be re-examined under the review process. Looking at the Bill and the additional rights that are included in it, seaweed harvesters are protected but there is no difficulty examining the matter again when the situation is being reviewed as part of the wider review that will be carried out.
I move amendment No. 8:
In page 4, to delete lines 19 to 22 and substitute the following:
"4. It is hereby declared for the avoidance of doubt that section 39 (repealed by section 6(1))of the Act of 2009 was without prejudice to the application of the Act of 1832 and the common law with regard to the extinguishment of an easement or profit à prendrehowsoever or whenever acquired and, accordingly, the Act of 1832 or the common law,or both, as the Court shall determine in any particular case, shall apply to such extinguishment.”.
The only comment I will make on it is that we will engage with the Department on some of the concerns that we have before the Bill goes to Committee Stage in the Dáil. I hope the matter can be teased out and the assurances the organisations require can be provided.
I thank the Minister of State for his engagement and all Senators for their engagement. It was a very time-sensitive Bill. It got through this House in a timely fashion and I hope that will be the case in the Dáil also. I thank the Minister of State and his officials. While the Bill is a quite technical one, it is important. I thank everybody for their co-operation, in particular the Acting Chair.