S.I. No. 404/1994:

TRANSPORT ACT, 1963 (RAILWAY WORKS) ORDER, 1994.

TRANSPORT ACT, 1963 (RAILWAY WORKS) ORDER, 1994.

I, BRIAN COWEN, Minister for Transport, Energy and Communications in exercise of the powers conferred on my by section 6 of the Transport Act, 1963 (No. 17 of 1963), the Communications (Transfer of Departmental Administration and Ministerial Functions) (No. 2) Order, 1987 ( S.I. No. 92 of 1987 ), and the Tourism, Transport and Communications (Alteration of Name of Department and Title of Minister) Order, 1993 ( S.I. No. 17 of 1993 ), being of opinion, after consideration of an application by Córas Iompair Éireann for a railway works order and after consultation with the Minister for the Environment 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, 1994.

2. In this Order--

"the Board" means Córas Iompair Éireann;

"the Company" means Iarnród Éireann/Irish Rail;

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

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

"the deposited plans" and "the deposited book of reference" mean respectively the copy of the plans and the copy of the book of reference deposited with the County Registrar as herein provided;

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

"the Minister" means the Minister for Transport, Energy and Communications;

"the plans" and "the book of reference" mean respectively the plans and book of reference to the plans (as amended by the Minister) which accompanied the application for this Order;

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

"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 town lands" means the townlands Highrath, Lavistown and Maddockstown all in the barony of Gowran and county of Kilkenny;

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

3. (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 by the Company of the works.

(2) The Board is hereby granted the right to use the land marked "site access" and shaded in yellow on the deposited plan for the purpose of the conveyance of plant, equipment, machinery, vehicles, men and materials to and from the site of the works and may carry out such works to that land as are necessary or expedient in order to render it suitable for the said purpose and may store and work plant, equipment, machinery and vehicles on the land and store materials thereon.

(3) The Board shall, as soon as practicable, after the making 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 or in respect of which rights are granted under paragraph (2), as the case may be, 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 or in respect of which rights are granted under paragraph (2), as the case may be, in which such person is or is reputed to be interested together with a sketch or plan of such lands which shall be annexed thereto.

4. (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) Compensation shall be paid by the Board to the several persons having estates or interests in the lands in respect of which rights are granted under Article 3 (2).

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

(4) 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 the State a notice stating that such arbitrator has been appointed.

5. The Lands Clauses Acts, as amended by the Second Schedule to the Housing of the Working Classes Act, 1890 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 promoters of the undertaking 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.

6. (1) Subject to this Order, the Board may within the townlands lay down, make and maintain within the limits of deviation shown on the deposited plans the railway described in paragraphs (2) and (3) (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.

(2) The railway referred to in paragraph (1) shall consist of a single line of railway 904 metres approximately in length forming a junction between the existing railway line from Dublin to Kilkenny at or near the point thereon measured at 77 miles 1600 yards from Dublin and the existing railway line from Kilkenny to Waterford at or near the point thereon measured at 31 miles 200 yards from Waterford by reference to the milestones on that railway and passing through the townlands and commencing at point "A" on the deposited plan and terminating at point "C" on the said plan.

(3) The line of the railway referred to in paragraph (1) shall consist of two steel rails each weighing not less than 42 kg per linear metre of either bullhead or flatbottom section resting on or secured to timber or concrete sleepers and laid on a bed of gravel or stone ballast.

7. The Board shall complete and finish ready for use by the Company 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.

8. The gauge of the railway shall be 1600 (5'3").

9. Subject to this Order, the Board or the Company may work the railway by mechanical power.

10. The railway shall form part of the undertaking of the Board and of the Company and may be used by the Board and the Company for any purposes connected with the powers and duties of the Board or of the Company.

11. 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.

12. (1) Sections 7 to 16, 18 to 24, 30 to 38, 40 to 44, 53 to 57, 68 to 75 and 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 ) a reference to the Company shall be construed as including a reference to the Board and a reference to the Company;

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

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

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

( e ) references in sections 7 to 10 to Clerks of the Peace, Parish Clerks or Postmasters shall be construed as references to the County Registrar and in section 8 a reference to Parliament shall be construed as a 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) a reference to the common datum line shall be construed as a reference to the Ordnance Datum,

(ii) a reference to the consent of two or more Justices of the Peace in petty sessions shall be construed as a 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 compulsorily acquired;

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

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

( k ) in sections 36,37,38,40 and 43 a 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 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 modified by this Order), 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 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.

13. 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 to do so, 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.

14. The Board is hereby authorised (by way of addition to and not in substitution for any other power), 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 such 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 3% per annum from the date of entry until payment of the price or compensation,

( b ) the Board shall, before so entering or taking possession, give to the occupier of such land at least one month's or in the case of an occupied dwelling house three months', prior notice in writing of its intention to enter on or take possession of the land, such notice to 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:

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

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

( c ) on the notice having been posted and addressed in the manner or any one of the manners herein before 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 posting it would have been delivered to him.

15. Whenever the Board acquires, or enters on and takes possession of 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 Minister for Agriculture, Food and Forestry 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 Minister for Agriculture, Food and Forestry or the said Commissioners, as the case may be, such periodical sum or such portion thereof as shall be apportioned by the Minister for Agriculture, Food and Forestry or the said Commissioners, as the case may be, as if the land has 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 Minister for Agriculture, Food and Forestry or the said Commissioners, as the case may be, to redeem the periodical sum or the portion thereof aforesaid.

16. Nothing in this Order shall authorise any interference with any telegraphic line of Bord Telecom Éireann or other property of Bord Telecom Éireann or any of the rights of Bord Telecom Éireann.

17. Nothing in this Order 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.

18. Nothing in this Order shall affect any property real or personal vested in the State or in any Minister thereof or be construed so as 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 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.

19. 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.

20. Nothing in this Order 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 2nd day of December, 1994.

BRIAN COWEN,

Minister for Transport, Energy

and Communications.

EXPLANATORY NOTE.

The effect of this Order is to confer on Coras Iompair Éireann the necessary power to construct and maintain a new rail link at Highrath for Lavistown Junction, Co. Kilkenny.