S.I. No. 252/1968:

TRANSPORT ACT, 1963 (RAILWAY WORKS) ORDER, 1968.

TRANSPORT ACT, 1963 (RAILWAY WORKS) ORDER, 1968.

ARRANGEMENT OF ARTICLES.

1. Short title.

2. Definitions.

3. Deposit of plan and book of reference.

4. Compulsory acquisition of land.

5. Compensation.

6. Application of the Lands Clauses Acts.

7. Power to make railway and other works.

8. Period for completion of railway.

9. Gauge.

10. Motive power.

11. User of railway.

12. Opening of railway.

13. Application of Railways Clauses Consolidation Act, 1845.

14. Construction of the railway across roads.

15. Regulation of working of railway across roads.

16. Level crossings.

17. Repair by Board of roads across which railway is laid.

18. Power of Board to open and break up roads.

19. Restoration of roads opened or broken up by the Board.

20. Non-interference with traffic along roads.

21. Restrictions on rights of the Board as regards roads.

22. Maintenance of the railway across roads.

23. Indemnity of the County Council by the Board.

24. Agreement between the Board and the County Council.

25. Interference with the roads in the course of executing the works.

26. Rights of County Council and other persons to open roads.

27. Disputes with County Council.

28. Interference with private roads in the course of executing the works.

29. Power of entry on land before conveyance or payment.

30. Redemption of annuities and other periodical payments.

31. Protection of telegraphic lines.

32. Protection of Electricity Supply Board.

33. Protection of State property.

34. Expenses of the Minister.

35. Saving for General Acts relating to railways.

S.I. No. 252 of 1968.

TRANSPORT ACT, 1963 (RAILWAY WORKS) ORDER, 1968.

I, ERSKINE H. CHILDERS, Minister for Transport and Power, in exercise of the powers conferred on me by section 6 of the Transport Act, 1963 (No. 17 of 1963), being of opinion, after consideration of an application by Córas Iompair Éireann for a railway works order, after consultation with the Minister for Local Government and after due compliance by Córas Iompair Éireann with section 3 of that Act, that the said application should be granted, hereby order as follows:

1. This Order may be cited as the Transport Act, 1963 (Railway Works) Order, 1968.

2. In this Order--

"the Board" means Córas Iompair Éireann;

" the Minister" means the Minister for Transport and Power;

"the townlands" means the following townlands in the barony of Decies-without-Drum and county of Waterford, viz. the townlands of Garrynageragh East, Tallacoolbeg and Ballynacourty all in the parish of Dungarvan, the townland of Tallacoolmore in the parish of Kilgobnet and the townland of Kilgrovan in the parish of Clonea;

"the works" means the works authorised by this Order;

"the County Council" means the council of the county of Waterford;

"the County Registrar" means the County Registrar for the county of Waterford;

"road", except when used in the expression "private road", means any public road and includes any bridge, pipe, arch, gulley, footway, pavement, fence, railing or wall (where such fence, railing or wall was erected by or is liable to be maintained by the County Council) forming part thereof;

"the railway" means the railway authorised by this Order;

"mechanical power" means electrical and any other motive power not being animal power;

"the plan" and "the book of reference" mean, respectively, the plan and the book of reference to the plan which accompanied the application for this Order;

"the deposited plan" and "the deposited book of reference" mean, respectively, the copy of the plan and the copy of the book of reference deposited with the County Registrar as hereinafter provided.

3. The Board shall deposit with the County Registrar as soon as possible after the making of this Order true copies of the plan and the book of reference and shall publish notice of such deposit in such newspaper or newspapers as the Minister shall direct.

4. (1) The Board is hereby authorised to acquire compulsorily the land situate within the limits of deviation shown on the deposited plan for the purpose of the construction, maintenance and operation of the works.

(2) The Board shall, as soon as practicable after the making of the deposit required by Article 3 of this Order, send a notice by prepaid ordinary post to each person having or reputed to have an estate or interest in any of the lands proposed to be acquired so far as the names and present addresses of such persons are known to the Board, setting out the situation and area of the lands proposed to be acquired in which such person is, or is reputed to be, interested, together with a sketch or plan of such lands annexed thereto.

5. (1) Compensation shall be paid by the Board to the several persons having estates or interests in the lands compulsorily acquired by it hereunder.

(2) Any question of disputed compensation shall be determined under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919.

(3) Upon the appointment of an arbitrator to determine any question of disputed compensation in accordance with this Article, the Board shall cause to be published on two separate days in a daily newspaper circulating in Ireland a notice stating that such arbitrator has been appointed.

6. The Lands Clauses Acts as amended by the Housing of the Working Classes Act, 1890 in the Second Schedule thereto shall be incorporated with this Order subject to the following modifications :--

(a) for the purposes of the Lands Clauses Acts, the Board shall be deemed to be the promoter and this Order shall be deemed to be the Special Act;

(b) for the purposes of the Second Schedule to the Housing of the Working Classes Act, 1890, the Board shall be deemed to be the local authority, the Minister shall be deemed to be the confirming authority and this Order shall be deemed to be the confirming Act;

(c) sections 127 to 130 of the Lands Clauses Consolidation Act, 1845, shall not apply;

(d) sections 4 and 8 of the Railways Act (Ireland), 1851, and Articles 1, 2, 3 and 6 of the Second Schedule to the Housing of the Working Classes Act, 1890, shall not apply.

7. (1) Subject to this Order, the Board may within the townlands lay down, make and maintain in the lines and within the boundaries and according to the levels shown on the deposited plan, the railway and railway lines hereinafter described, together with all proper sidings, loops, passing points, junctions, rails, fastenings, approach roads, works and conveniences connected therewith and may use such of the lands delineated on the deposited plan as may be required for such purposes, that is to say :--

a single line of railway 1.5 miles approximately in total length forming a junction with the existing railway of the Board between the towns of Dungarvan and Waterford at or near a point thereon measured 49 miles 910 yards by reference to the milestones on that railway and passing through the townlands of Garrynageragh East, Tallacool-beg, Tallacoolmore and Kilgrovan, and terminating in the townland of Ballynacourty on the southern side of the road numbered 14 in that townland on the plan near to the entrance of the approach road to Ballynacourty lighthouse, all in the county of Waterford.

(2) The line of railway shall consist of two steel rails each weighing approximately 85 Ibs. per linear yard, of either bullhead or flatbottom section, resting on cast iron chairs or metal plates which shall be secured to timber sleepers by means of two bolts in respect of each such chair or plate, and laid on a bed of not less than four inches of gravel or stone ballast.

8. The Board shall complete and finish, ready for use, the railway works within five years from the date of this Order or such further period not exceeding one year as the Minister may allow, and on the expiration of the said period of five years, or such further period as may be allowed, the powers by this Order granted to the Board for executing the same or otherwise in relation thereto shall cease except as to so much thereof as shall then be completed.

9. The gauge of the railway shall be 5 feet 3 inches.

10. Subject to this Order, the Board may work the railway by mechanical power.

11. The railway shall form part of the undertaking of the Board and may be used by the Board for any purpose connected with the powers and duties of the Board.

12. No part of the railway shall be opened for traffic until the railway has been inspected and certified fit for traffic by an Inspector duly appointed by the Minister under the Regulation of Railways Act, 1871.

13. (1) Sections 7 to 16, sections 18 to 24, sections 30 to 38, sections 40 to 44, sections 53 to 57, sections 68 to 75 and sections 77 to 85 of the Railways Clauses Consolidation Act, 1845, shall (except where inconsistent with any other Article of this Order) apply in respect of the railway subject to the following modifications, that is to say :--

(a) reference to the Company shall be construed as reference to the Board;

(b) reference to the Special Act shall be construed as reference to this Order;

(c) reference in any of the said sections to the plans or sections or books of reference, whether with or without the addition of any qualifying description, shall be construed as reference to the deposited plan or the deposited book of reference, as the case may be;

(d) reference in section 7 to two Justices shall be construed as reference to the Minister;

(e) reference in sections 7 to 10 to clerks of the peace or postmasters shall be construed as reference to the County Registrar and in section 8 reference to Parliament shall be construed as reference to the Minister;

(f) the words in section 9 commencing with " in the like manner " to the end of the section shall be deleted;

(g) in section 11--

(i) reference to the common datum line described in the section approved of by Parliament and in the said section 11 stated to have been marked on such approved section shall be construed as reference to the Ordnance datum; (ii) reference to the consent of two or more Justices of the Peace in Petty Sessions assembled for the purpose and acting for the District in which a street or public highway may be situated shall be construed as reference to the consent of the Minister;

(iii) the second proviso shall not apply;

(h) in lieu of the provisions of sections 30, 44 and 78 for determining the amount of compensation in the cases mentioned therein such compensation shall be determined by arbitration under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, in like manner in all respects as if such compensation were part of the price of land compulsory acquired;

(i) any penalty under sections 23, 24, 57 or 75 may be recovered by summary proceedings before a Justice of the District Court;

(j) in sections 69 to 71 reference to two Justices or to such Justices shall be construed as reference to a Justice of the District Court;

(k) in sections 36, 37, 38, 40, 41 and 43 reference to any Justice or to two Justices or to such Justice or Justices or to any two Magistrates shall be construed as reference to a Justice of the District Court;

(l) the arbitration mentioned in section 81 shall be carried out by a person appointed by the Minister;

(m) any dispute between the Board and any person in relation to the amount of the compensation mentioned in section 82 shall be determined by a person appointed by the Minister;

(n) prior to the determination of any dispute between the Board and any owner or occupier under section 69 (as herein-before modified) the Board shall serve on such owner or occupier a notice with a sketch or plan attached thereto setting out the nature and position of the accommodation works (if any) proposed by the Board, service of such notice to be by prepaid ordinary post addressed to such owner or occupier by name at his usual or last known address.

(2) None of the provisions of the Railways Clauses Consolidation Act, 1845, save those expressly applied by this Article, shall apply in respect of the railway.

14. (1) The Board may construct and maintain the railway across and on the level of any road and may alter the level of any footpath or road in accordance with the deposited plan, and the Board shall not, in constructing the railway across any road, deviate from such last-mentioned level without the consent of the County Council.

(2) Where the railway authorised by this Order is laid across and on the level of any road it shall be laid and maintained in such manner that the uppermost surface of the rails shall be on a level with the surface of the road.

(3) The form of rail to be laid across any road shall be approved by the County Council.

15. Where the railway is laid across and on the level of any road, the Board or any other person using the railway shall be subject to and shall abide by all such directions with regard to the working of traffic or to the speed of trains over the railway as may be given from time to time by the Minister.

16. (1) Section 9 of the Railway Regulation Act, 1842, shall not apply to the railway.

(2) Where the railway crosses a road on the level, the Board shall--

(a) construct a level crossing in accordance with plans and sections which shall show the longitudinal profile of the road through the crossing and for one hundred feet on each side thereof and which shall be prepared by the Board and first approved by the County Council,

(b) ensure that, when the crossing gates are closed across the road, the nearer gate shall be visible, in conditions of clear visibility, to road traffic for a distance of 300 feet measured along the road in the case of the road numbered 14 on the plan in the townland of Ballynacourty, and for a distance of 350 feet likewise so measured in the case of any other road,

(c) erect or cause to be erected to the satisfaction of the Minister good and sufficient gates of width first approved by the County Council,

(d) fix or cause to be fixed a red disc or target to the said gates on each side of the crossing,

(e) construct or cause to be constructed the said gates so that they alternately close completely across the railway and across the road,

(f) ensure that the said discs or targets show towards the road and towards the railway according to the position of the said gates, and

(g) recoup the road authority for the costs of providing and maintaining any traffic sign indicating approach to the level crossing.

(3) It shall be the duty of the Board to--

(a) cause the gates referred to in sub-article (2) of this Article to be kept constantly closed across the railway except during the times when locomotives or trains passing along the railway shall have occasion to cross the road at such level crossing,

(b) cause any locomotives or trains to be stopped at the level crossing, and cause the said gates to be opened to the railway and closed to the road and the locomotives or trains to pass over the crossing immediately after the gates have been so opened,

(c) cause the said gates to be closed to the railway and opened to the road immediately after any locomotives or trains on the railway have passed over the crossing, and

(d) light suitably by red lamps the said gates when they are closed against the road after sunset or whenever by fog or falling snow traffic on the road is deprived of a clear view for a distance of at least 200 feet.

17. The Board shall, at its own expense, at all times under the superintendence and to the reasonable satisfaction of the County Council, maintain and keep in good condition and repair so much of any road across which the railway is laid

(i) as lies between the crossing gates when they are closed across the road, and

(ii) as extends one foot beyond the crossing gates on each side of the railway when they are so closed across the road.

18. The Board, for the purpose of laying down, making, maintaining and renewing the railway or any part or parts thereof respectively, may from time to time open and break up any road, provided that--

(a) the Board shall, not later than seven days before commencing to open or break up any road, give to the County Council notice of its intention to do so and such notice shall specify the time at which it is proposed to commence operations and the portion of the road proposed to be opened or broken up,

(b) the Board shall not open or break up any road except under the superintendence and to the reasonable satisfaction of the County Council unless the County Council refuses or neglects to give such superintendence at the time specified in the Board's notice or discontinues to give such superintendence at any time during the progress of the work,

(c) the Board shall pay all reasonable expenses to which the County Council is put on account of such superintendence.

19. When the Board has opened or broken up a road or any part thereof the Board shall be under the following obligations, namely : --

(a) the Board shall, with all convenient speed and (unless the County Council otherwise consents in writing) within three weeks at the most, complete the work on account of which it opened or broke up the road and (subject to the laying down, making, maintenance, repair or renewal of the railway) fill in the ground level and make good the surface and, to the satisfaction of the County Council, restore the portion of the road to as good a condition as that in which it was before it was opened or broken up;

(b) the Board shall cause the place where the road is opened or broken up to be fenced and watched and to be properly lighted at night and provide and maintain sufficient and proper means of passage and re-passage for all passenger, vehicular, animal and other traffic along such road to the satisfaction of the County Council;

(c) the Board shall bear all reasonable expenses of the repair of those portions of such road so opened or broken up for six calendar months after the same is restored, such expenses to be certified by the County Council whose certificate shall be conclusive.

20. During the execution of the works authorised by this Order in connection with the laying down, making, maintenance, repair or renewal of the railway, the Board shall make such arrangements in relation to the execution of such works to the satisfaction of the County Council as may be adequate to prevent the traffic along any road being unnecessarily interfered with.

21. The Board shall not acquire, or be deemed to have acquired, by virtue of this Order any property or right over or in respect of any road across which the railway may be laid other than the right of user of such road by the locomotives, trains and servants of the Board or of any person working the railway on behalf of the Board, and, save for the payment of expenses and execution of works as provided by this Order, the Board shall not be bound or liable to compensate the County Council or any person in respect of the acquisition of such right of user.

22. Where the railway is laid across any road the Board shall at all times maintain and keep in good condition and repair, and so as not to be a danger or annoyance to ordinary traffic, the rails of which the railway for the time being consists and the sub-structure on which the same rest.

23. The Board shall at all times indemnify and keep indemnified the County Council against all actions, proceedings, claims and demands, costs, damages and expenses which may be brought or made against the County Council or which the County Council may sustain or incur by reason of the wrongful acts or defaults of the Board or of any person having a contract with the Board or a subcontract with a contractor of the Board or any person employed by the Board for or in the execution of the works or the exercise of any power conferred on the Board by this Order.

24. The Board may from time to time enter into and carry into effect and from time to time alter, renew or vary contracts, agreements or arrangements with the County Council with respect to laying down, making, paving, metalling or keeping in repair any road and the railway thereon, or in respect of altering the levels of the whole or any portion of any road across which the Board is authorised to lay down the railway, or in respect of any of the works to be performed under the provisions of Article 26 hereof, and the proportion to be paid by them or either of them of the expenses of laying down, making, paving, metalling, keeping in repair or altering such railway or roads or the levels thereof.

25. If in the course of executing the works the Board shall use or interfere with any road, it shall from time to time make good all damage done by it to such road, and if any dispute shall arise between the Board and the County Council regarding the damage done to such road or the sufficiency of the making good thereof, it shall be referred by either party thereto to the Minister, whose decision shall be final.

26. Nothing in this Order shall take away or abridge any power to open or break up any road across which the railway is laid or any other power vested in the County Council or in any person for the purpose or laying down, repairing, altering or removing any sewers, drains, mains or pipes for the supply of water, oil, petrol or gas, or any tubes, wires or apparatus for telegraphic, electrical or other purposes; but in the exercise of such power the County Council and every such person save the Minister for Posts and Telegraphs shall--

(a) before they commence any such work whereby the traffic on the railway will be interrupted, give notice to the Board, not later (except in case of urgency) than forty-eight hours before such commencement, of their intention to commence such work;

(b) not be liable to pay to the Board any compensation for unavoidable injury done to the railway or for loss of traffic occasioned by the execution of such work or for the reasonable exercise of the power vested in them as aforesaid;

(c) where such work immediately affects the railway, execute such work at their own expense and to the reasonable satisfaction of the Board.

27. In the event of any dispute arising between the Board and the County Council in relation to any request, direction, superintendence or satisfying of the demands of the County Council or of the Board, or in relation to any expenses or contributions to be paid by the Board to the County Council, save the expenses provided for in paragraph (c) of Article 19 of this Order, such dispute shall be referred by either party thereto to the Minister, whose decision shall be final.

28. If, in the course of executing the works, the Board shall use or interfere with any private road, it shall from time to time make good all damage done by it to the same, and, if it shall fail so to do, the owners of such private road shall be entitled to compensation for such failure, such compensation to be assessed pursuant to the provisions of section 30 of the Railways Clauses Consolidation Act, 1845, as amended in its application hereto.

29. The Board is hereby authorised by way of addition to and not in substitution for any other power in that behalf herein contained, at any time before conveyance of, or ascertainment of the price or compensation for, land being compulsorily acquired by the Board under this Order, to enter and take possession of the land provided that--

(a) the Board shall, if it so enters and takes possession, be liable to pay to the occupier of the land interest on the amount of the price or compensation payable to him hereunder at the rate of three per cent per annum from the date of entry until payment of the price or compensation;

(b) the Board shall have, before so entering or taking possession, given to the occupier of such land at least one month's, or, in the case of an occupied dwellinghouse, three months' previous notice in writing of its intention to enter on or take possession of the land;

(c) the notice required by the immediately preceding paragraph hereof may be served--

(i) by sending it by prepaid post in an envelope addressed to the occupier by name at his usual or last known address, or

(ii) in the event of the name or the usual or last known address of the occupier not being known to the Board, by sending the notice by prepaid post in an envelope addressed in either or both of the following ways, that is to say : --

(a) by the description "the occupier" without stating his name,

(b) at the land or the situation of the property to which the notice contained in the envelope relates;

(d) on the notice hereinbefore required having being posted and addressed in the manner or any one of the manners hereinbefore set out, it shall be deemed, for the purpose of complying with the conditions contained in this Article, to have been served on the person who is the occupier at the time when in the ordinary course of post it would have been delivered to him.

30. Whenever the Board acquires, or enters on and takes possession of, any land under this Order which is subject, either alone or in conjunction with other land, to a land purchase annuity or a reclamation annuity, payment in lieu of rent or other sum payable periodically (not being merely rent under a contract of tenancy) payable to the Irish Land Commission or to the Commissioners of Public Works in Ireland, the Board shall--

(a) as from the date on which it acquires, or enters on and takes possession of the land, whichever date is the earlier, become and be liable to pay to the Irish Land Commission or the said Commissioners (as the case may be) such periodical sum, or such portion thereof as shall be apportioned by the Irish Land Commission or the said Commissioners (as the case may be) on the land, as if the land had been transferred to the Board by the owner thereof on that date,

(b) be entitled, if the Board so thinks fit, to redeem the periodical sum or the portion thereof aforesaid, and

(c) be obliged, if required by the Irish Land Commission or the said Commissioners (as the case may be) so to do, to redeem the periodical sum or the portion thereof aforesaid.

31. Nothing in this Order contained shall authorise any interference with any telegraphic line of the Minister for Posts and Telegraphs as defined by the Telegraph Acts, 1863 to 1953, or other property of the Minister for Posts and Telegraphs or of any of the rights of the Minister for Posts and Telegraphs under the said Acts.

32. Nothing in this Order contained shall authorise the Board to interfere with any of the electric wires or works of the Electricity Supply Board except with the consent of the Minister and subject to such terms and conditions as the Minister, after consultation with the Electricity Supply Board, thinks proper.

33. Nothing in this Order contained shall affect any property, real or personal, vested in the State or in any Minister thereof or be construed to restrict or prejudice the rights of the State or any right, power, privilege or duty vested by law in any Minister or any officer of the State, and, in particular, any powers of erecting, constructing, altering or extending any works on any such property as aforesaid shall not be construed to confer on the Board any rights of entry into or any estate or interest in any such property, but this Article shall not operate to prevent the exercise in accordance with this Order by the Board of such powers if and when such right of entry as aforesaid has been duly obtained according to law by the Board.

34. Any expenses incurred by the Minister in the exercise of his powers and functions under this Order shall, to such extent as may be determined by the Minister for Finance, be paid to the Minister by the Board.

35. Nothing in this Order contained shall exempt the Board from the provisions of any General Act relating to railways and such provisions shall have effect to the extent to which they are not inconsistent with the provisions of this Order.

GIVEN under my Official Seal, this 4th day of December, 1968.

ERSKINE H. CHILDERS,

Minister for Transport and Power.

EXPLANATORY NOTE.

The effect of this Order is to confer on Córas Iompair Éireann the powers necessary to construct, maintain and operate an extension railway line and ancillary works in the townlands of Garrynageragh East, Tallacoolbeg, Tallacoolmore, Kilgrovan and Ballynacourty, in the county of Waterford, and to acquire land compulsorily for that purpose.