Select Committee amendments to the Legal Services Regulation Bill 2011

Previously, I wrote about the Legal Services Regulation Bill 2011. I mentioned 3 misgivings I had with the text of the Bill and wrote the Minister with these concerns. see http://outside-of-the-walls.blogspot.ie/2011/12/letter-to-sundry-tds-about-legal.html

Happily, he seems to have listened and the amendment list published today deals reasonably well with one of my misgivings and decisively with the other. see http://www.oireachtas.ie/documents/bills28/bills/2011/5811/b5811d-dscn.pdf

Amendment 29 on this list deals with my main problem -the wording requiring the new Authority to merely keep legal education under review. Amendment 29 extends this to allow the Authority make proposals to the Minister also. While this is far more conservative than what I personally wanted to see, nevertheless it improves the bill considerably. It still falls short of what is in the explanatory memorandum and troika commitments: In particular, commitments to open up legal training to competition. However, it will create a foundation for such liberalisation at a later date, once the Authority is established.

Amendment 7 follows my advice for dispersing the power of appointing lay members to independent bodies seperate from the Govt. I think this is also an improvement.

Overall, I am quite happy with the list of amendments published. I think it will make the bill much better and addressess my 2 greatest concerns with it. These amendments deserve to be carried and the Bill to pass in its present form -however, I would still like to see a much more robust approach taken to the liberalisation of training places. An inexplicable monopoly.

Further correspondence with Coillte about Sralagagh

I have just sent the following letter to Coillte in response to correspondence from them received this week. My response and their letter pasted below.

XXXXXXXXXX,
Litigation Manager, Coillte.

Dear XXXXXXXX,

Thank you for your recent letter in response to previous correspondence.

I interpret your quotation of the definition of “Occupier” as meaning that you do not see Coillte as falling within this definition (please correct me if this is wrong, it is not completely clear from the previous letter).

However, I do not understand how you can think this. Clearly, as the landowner, Coillte exercises control over the lands. Turbary right holders have a right of access and a right to take mud –but that is all. They cannot buy or sell the land, deny entry, alter it beyond their specific rights etc. They are not leaseholders and have no control over the land. Indeed, your suggestion in the same letter that Coillte permit turfcutters to carry out the repairs only illustrates the control that Coillte retains over this land –and the consequent liability it retains also. I do not know how the Act could be interpreted differently.

Furthermore, without conceding that turbary rights amount to exercising control over the lands, I would also point out that the road is not subject to turbary rights anyway and passes between the plots unburdened. The only attachment of the turfcutters to this road is a right of way.

It seems obvious that Coillte is the sole occupier, turfcutters are mere visitors (entrants as of right) and section 3 of the Act places the burden on Coillte to make the lands safe for visitors and other entrants. Coillte has been in breach of section 3 since last Autumn.

I will not address your point that Coillte does not use this road –that is beside the point.

I am disappointed by Coillte’s reckless disregard for the danger to entrants at this location. I would not expect my neighbour to leave a roadway in such a dangerous condition –let alone a semi-state company.

However, I can see that this is useless. For whatever reason, Coillte is happy to leave the road in a dangerous condition, and no one else can sensibly repair the road without incurring liability themself. Preventable accidents will follow, hopefully not serious ones.

I will be making this correspondence available to whoever has the misfortune to have an accident at this spot so they can demonstrate that Coillte was made aware of the danger in ample time.

Thank you for your time, I only regret that we could not reach a more fitting resolution.

Sincerely

==============================

5^th July 2013

 

 

XXXXXXXXXXXXXXXXXXXXX

 

 

 

Re: Lands at Sralagagh, Ballycastle, Co. Mayo

 

 

Dear XXXXXXXXXXXXXXXXXXXXXXXXXXx,

 

I refer to previous correspondence with yourself and others, including An Taoiseach’s office and Michael Ring TD, Minister of State for Tourism and Sport.  The road you refer to is, as you state, a bog road used by turbary rights holders for bog cutting.  It appears it is a former Land Commission road which was in existence when Coillte or its predecessor in title acquired the lands.  Coillte has never used this road and has no requirement to do so in future. It is, as per your map, firmly within the turbary plots and is used for access to same by the rights holders. Coillte recognise that you and others have a right over same and have no objection to the users of the route maintaining and repairing it for their purposes and in accordance with the rights held.

 

With regard to your reference to the Occupiers Liability Act please note that the definition of “occupier” therein is as follows:

 

“occupier”, in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser;

 

 

 

Yours sincerely,

 

 

 

 

 

_________________________

XXXXXXXXXX

Litigation Manager

Letter to CEO of Coillte as frustration with the organisation mounts

Dear David,
I am writing to you in relation to lands owned by Coillte in Sralagagh, Ballycastle, Co. Mayo. Part of this land is burdened by a right of way and turbary rights owned by a large number of individuals. Turfcutting is very active on these lands.

The lands are accessed by 2 roads which were built in the 1940s and most of which has not received any maintenance in living memory -probably not since they were built.

However, one of the roads has developed a problem at a small bridge. This bridge started to collapse last year and has since been totally washed away. The gap in the road is being filled in by people to maintain the right of way, but the crossing is very dangerous as it brings the driver (including quite a lot of heavy machinery) past a sharp drop of about 12 foot on an unsuitable base of sponge. It is also being washed away at every rainfall.

I urge you to take action to make this bridge safe for traffic. Apart from upholding the right of way that burdens the land, I would also point to the Occupier's Liability Acts which require all landowners to keep their lands in a safe condition. I would also point out that the cost of fixing this bridge is quite small (in the hundreds, not the thousands), it only needs a new pipe, some filling material, and a bit of cased concrete on the side with the big fall. The cost of this repair is miniscule when you consider the risk to human life that its current state presents.

I do not wish to conduct the repairs myself (as suggested by one of your staff to our local TD) as I do not want to take the responsibility/liability for this problem onto myself. That should rightly belong to the landowner.

I have been corresponding with your litigation section on this matter since February, however they do not seem to appreciate the urgency of it, and especially the risk to human life. In the last 5 months, I have written twice to them myself and also I know a local TD has written at least twice to them urging them to respond to me -all I have received in response to this is a holding letter. I feel we are getting nowhere and are drifting towards an inevitable disaster.

Please, I ask you to speak with your staff on this matter, and impress upon them that action is needed on this soon. Fully loaded trailers will be crossing this bridge within weeks. This matter should have been wrapped up in the early spring, but is being allowed to drift indefinitely.
sincerely

Follow up letter to Coillte as the road in Sralagagh was left incompleted

Dear XXXXX,
I am a little disappointed not to have received any reply from Coillte to my previous letter about the ownership of lands in Sralagagh, Ballycastle, Co. Mayo (sent in the last week of February 2013). Since my letter was sent, alerting you to the reckless state of Coillte's lands in Sralagagh (and reminding you of the obligations of landowners under the Occupier's Liability Acts) nothing productive has been done to fix the dangerous bridge I referred to.
The bridge is needed by dozens of local people who are now crossing over a perilous bridge which has been left to crumble away. The danger to even light traffic should be obvious from my previous photographs. Pretty soon heavy machinery with full loads will be making their way across this reckless crossing which Coillte is liable to maintain in a safe condition.
I ask you to please respond to this letter. In particular, to confirm that Coillte is indeed the owner of this land and to explain what actions you intend to take to safeguard against loss of life.

It really is too bad that lives are being endangered for the want of a few hundred euros worth of pipes, gravel and labour. The fact that nothing has been done with this road since the 1940s is in itself disgaceful, but the continuing disregard for endangering life and property is something that will damn Coillte when inevitably an accident actually does occur at this spot. I feel I am taking my life in my hands literally every weekend as I cross this treacherous bridge.

Some better pictures of the work done so far in sralagagh. I'll take another picture when the work is complete

Success in sralagagh

I was just back in Sralagagh, and it seems that work has commenced on repairing the bridge. The whole thing has been excavated. I have not heard anything back from Coillte, but given the more committed approach this time, I assume the bridge is being repaired by Coillte.

This is a good outcome for everyone, and indeed nothing has been done with this road since the 1940s, so the involvement of Coillte in a bit of road maintenance here could be the beginning of a more general improvement to the road. The benefit to Ballycastle would be significant as many people are reliant on Sralagagh banks.

If indeed it is Coillte doing this, then I will write a nice letter to them to thank them on behalf of everyone.

I'll pop over again and take better pictures if i can.

After discovering that in fact Coillte now owns the lands in Sralagagh, I wrote to them instead

Dear sir/madam,
I am writing to you in connection with lands owned by Coillte in Sralagagh, Ballycastle, Co. Mayo (folio 647f -the former of estate of John Mennis). Much of this land is under forestry, but there is also an area that is subject to turbary rights which are owned by many people in the locality. The roads in and out of this area are relatively busy for bogland -with turfcutting in the summer, heavy machinery passing up and down and also local tourists using the area for the "Sralagagh loop walk" and also deer spotting.

Unfortunately, one of the bridges into the bog has become dangerous. Despite some well meaning repair attempts by locals, the situation has not improved and the bridge is slowly crumbling. Please see pictures attached. This bridge has been dangerous for some time, and has gotten worse over the winter. I believe it is only a matter of time before there is a serious accident at this bridge and a vehicle will topple into a big gulley (possibly with a heavy cargo on board) creating a serious danger to human life. At the very least there is a risk to the property of visitors.

As the landowner in this location, and conscious of the Occupier's liability acts, and furthermore conscious that previous spontaneous repairs (in this location and elsewhere on the bogs) by locals have been counterproductive at times -I ask you to move quickly to repair this bridge. The rest of the roads on this land would also benefit from a general upgrade (and indeed they are relatively short and would be inexpensive to improve) -however, this spot is an urgent risk to human life and turfcutter's property, and regardless of whether the rest of the road is improved it is vital that this bridge is repaired ASAP..

I attach a map to identify the location of the bridge I speak of.