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3 1945

ARTERIAL DRAINAGE ACT, 1945

PART IV.

Existing Embankments.

Transfer of control and management of existing embankments to the Commissioners.

31. —(1) The Minister may by order (in this Part of this Act referred to as a transfer order), whenever he thinks proper so to do on the application of the Commissioners, transfer to the Commissioners the control and management of any existing embankment and, where such existing embankment is, immediately before the date of such order, vested in trustees, also transfer such existing embankment to the Commissioners and vest the same in them for the like estate as it was so vested in such trustees.

(2) A transfer order shall operate and have effect in accordance with the terms thereof and, if the existing embankment to which such order relates is included in the drainage works proposed in a drainage scheme to be executed, such transfer order shall operate to incorporate such existing embankment in such drainage works, and in any other case such transfer order shall operate to impose on the Commissioners the duties (in this Part of this Act referred to as duties of repair and maintenance) of putting the existing embankment to which such order relates into proper repair and effective condition and of maintaining it in such proper repair and effective condition.

(3) The Commissioners shall, for the purpose of performing the duties of repair and maintenance imposed on them in relation to an existing embankment by virtue of a transfer order, have power—

(a) to enter on any land and there do all such things as shall, in their opinion, be necessary for the said purpose and, in particular, to take soil and other materials from such land, and

(b) to determine all questions which shall arise in relation to such existing embankment and the repair or maintenance thereof and to define or prescribe the rights, obligations, and liabilities in relation thereto of all parties.

(4) A transfer order may relate to a part only of an existing embankment, and accordingly in this Part of this Act (including the foregoing sub-sections of this section) the expression “existing embankment” shall, where the context so admits, be construed as including a part of an existing embankment as well as the whole of an existing embankment.

Power to construct a substitute embankment.

32. —(1) Whenever the Commissioners are satisfied, in regard to an existing embankment in respect of which duties of repair and maintenance are imposed on them by virtue of a transfer order, that the construction of a new embankment on another site is necessary (in addition to or in substitution for such existing embankment) for the proper protection of the land or part of the land served by such existing embankment, it shall be lawful for the Commissioners to construct such new embankment on such site and according to such plans as they shall, after consultation with the Minister for Agriculture, consider suitable.

(2) For the purpose of the construction of a new embankment under the foregoing sub-section of this section, the Commissioners shall have power—

(a) to enter on the proposed site of such new embankment and there construct such new embankment and do all such things as shall, in their opinion, be necessary for or incidental to such construction, and

(b) to enter on any other land and there do such things as shall, in their opinion, be necessary for the purposes of the construction of such new embankment and, in particular, to take soil and other materials from such land, and

(c) to pay compensation for damage, whether permanent or temporary, to land occasioned by the exercise by the Commissioners of any of the powers conferred on them by the foregoing provisions of this sub-section.

(3) All claims for compensation payable by the Commissioners under the next preceding sub-section of this section shall, in default of agreement, be heard and determined by an arbitrator nominated by the Reference Committee from the Panel of Drainage Arbitrators, and the decision of such arbitrator (both as to the right to and the amount of such compensation) shall be final and conclusive.

(4) In determining, under the next preceding sub-section of this section, the right to or the amount of such compensation as is mentioned in that sub-section, the arbitrator shall have regard to the benefit (if any) conferred on the claimant for such compensation or on his land by the construction of such new embankment.

(5) Where a new embankment is constructed by the Commissioners under this section in addition to or in substitution for an existing embankment, the powers and duties conferred or imposed on the Commissioners by or under this Part of this Act in relation to the maintenance of such existing embankment shall apply and extend to such new embankment.

Defrayal of cost of maintenance of an existing embankment.

33. —(1) When the Commissioners have completed the work of putting into proper repair and effective condition (including, where a new embankment is constructed under the next preceding section, the construction of such new embankment) an existing embankment in relation to which duties of repair and maintenance are imposed on them by virtue of a transfer order, the Commissioners shall certify—

(a) the date (in this section and in Part V of this Act referred to as the date of completion) on which the said work of putting into proper repair and effective condition was completed, and

(b) the council of a county or the several councils of counties by whom the expenses of the maintenance of such existing embankment after the date of completion are to be borne under this section, and

(c) where such expenses are so certified to be borne by two or more such councils, the proportions in which such councils are so to bear such expenses.

(2) When the Commissioners have certified in accordance with the foregoing sub-section of this section in respect of an existing embankment, all expenses incurred by the Commissioners in the maintenance of such existing embankment after the date of completion shall be borne and paid to the Commissioners by the council or councils named in that behalf in the said certificate under the foregoing sub-section in accordance with the relevant provisions of Part V of this Act.

Abandonment of an existing embankment.

34. —(1) The Minister may by order (in this Part of this Act referred to as an abandonment order) whenever he thinks proper so to do on the application of the Commissioners, authorise the abandonment of the whole or any specified part of an existing embankment in relation to which duties of repair and maintenance are imposed on the Commissioners by virtue of a transfer order.

(2) An abandonment order shall operate to authorise the Commissioners to abandon the existing embankment or the part of an existing embankment to which such order relates and to relieve and discharge the Commissioners, as from the date of such order, of and from the duties of repair and maintenance imposed on them by virtue of the relevant transfer order.

(3) Every person who suffers loss or damage by reason of the flooding of land owned or occupied by him shall, where such flooding is due directly to the abandonment of an existing embankment in pursuance of an abandonment order, be entitled to be paid by the Commissioners compensation in respect of such loss or damage.

(4) Every claim for compensation under this section—

(a) shall be made in writing to the Commissioners within one year after the loss or damage to which the claim relates is first suffered, and

(b) shall, in default of agreement, be heard and determined by an arbitrator nominated by the Reference Committee from the Panel of Drainage Arbitrators whose decision, both as to the right to and the amount of such compensation, shall be final and conclusive.

(5) Compensation payable under this section in respect of the flooding of land (in this sub-section referred to as flooded land) which is subject, either alone or in conjunction with other land, to a Land Purchase Annuity or other annual payment (not being merely rent under a contract of tenancy) payable to the Irish Land Commission or to the Commissioners shall be applied by the Commissioners in or towards the redemption of so much (whether the whole or a part) of such annuity or annual payment as is charged on or apportioned to the flooded land exclusively, and only the surplus (if any) of such compensation remaining after such redemption shall be paid to the owner or occupier of the flooded land.

Trust funds in respect of existing embankments.

35. —Where, at the date of a transfer order, a trust fund, whether vested in the Public Trustee, or the Irish Land Commission, or trustees, exists for the maintenance (whether permanently or during a specified period or otherwise) of the existing embankment (either alone or in conjunction with other works) to which or to a part of which such transfer order relates, such of the following provisions as are applicable shall apply and have effect, that is to say:—

(a) if such transfer order relates to the whole of such existing embankment and such trust fund relates to such existing embankment alone, such trust fund shall, as soon as may be after the making of such transfer order, be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister shall direct;

(b) if such transfer order relates to a part only of such existing embankment and such trust fund relates to such existing embankment alone, the Judicial Commissioner of the Irish Land Commission shall, on the application of the Commissioners and on notice to all parties concerned and having given such parties an opportunity of being heard, apportion such trust fund as between the part of such existing embankment to which such transfer order relates and the residue of such existing embankment, and thereupon the portion of such trust fund which is so apportioned to the part of such existing embankment to which such transfer order relates shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister shall direct;

(c) if such transfer order relates to the whole of such existing embankment and such trust fund relates to such existing embankment and also to other works, the said Judicial Commissioner shall, on the application of the Commissioners and on notice to all parties concerned and having given such parties an opportunity of being heard, apportion such trust fund as between such existing embankment and such other works, and thereupon the portion of such trust fund which is so apportioned to such existing embankment shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister shall direct;

(d) if such transfer order relates to a part only of such embankment and such trust fund relates to such existing embankment and also to other works, the said Judicial Commissioner shall, on the application of the Commissioners and on notice to all parties concerned and having given such parties an opportunity of being heard, apportion such trust fund as between, on the one hand, the part of such existing embankment to which such transfer order relates and, on the other hand, the residue of such existing embankment and the said other works, and thereupon the portion of such trust fund which is so apportioned to the part of such existing embankment to which such transfer order relates shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister shall direct;

(e) wherever a trust fund or part of a trust fund is required by any of the foregoing provisions of this section to be paid into or disposed of for the benefit of the Exchequer, it shall be lawful for the Public Trustee, the Irish Land Commission, or the trustees (as the case may be) to sell, for the purpose of making such payment or disposition, the whole or so much as may be necessary of the investments (if any) then representing such trust fund;

(f) where under any of the foregoing provisions of this section the whole of such trust fund is required to be paid into or disposed of for the benefit of the Exchequer, whichever of them, the Public Trustee, the Irish Land Commission, or the trustees, such trust fund was vested in immediately before such payment or disposal shall, immediately upon such payment or disposal, be discharged by virtue of this Act from the trusts and duties upon which they so held such trust fund (whether by virtue of a Deed of Trust, a Scheme, or otherwise) and any other persons who were, immediately before such payment or disposal, in a fiduciary capacity in relation to such trust fund shall similarly be discharged from the trusts and duties imposed on them by virtue of such fiduciary capacity;

(g) where under any of the foregoing provisions of this section a portion only of such trust fund is required to be paid into or disposed of for the benefit of the Exchequer, the next preceding paragraph of this section shall apply and have effect in relation to the said portion of such trust fund as if that portion were the whole of such trust fund, but nothing in this Act shall operate to relieve or discharge in respect of the residue of such trust fund the Public Trustee, the Irish Land Commission, or the trustees (as the case may be) or any other person from any trust or duty for the time being imposed on them or him (whether by Deed of Trust, Scheme, or otherwise) in respect of such trust fund so far as such trust or duty relates to the residue of the existing embankment.

Provisions in respect of certain existing embankments.

36. —(1) Whenever the Judicial Commissioner of the Irish Land Commission, in exercise of the powers conferred on him by section 44 of the Land Act, 1923 (No. 42 of 1923), or section 45 of the Land Act, 1931 (No. 11 of 1931), directs, in relation to an existing embankment in respect of which duties of repair and maintenance are imposed on the Commissioners under this Act whether by virtue of a transfer order or otherwise, that land bonds be paid or repaid to the Public Trustee, whichever of the following provisions is applicable shall apply and have effect, that is to say:—

(a) if such duties of repair and maintenance relate to the whole of such existing embankment, the land bonds paid or repaid (as the case may be) to the Public Trustee in pursuance of such direction shall, notwithstanding anything contained in the said section 44 or the said section 45 , be disposed of by the Public Trustee for the benefit of the Exchequer in such manner as the Minister shall direct;

(b) if such duties of repair and maintenance relate to part only of such existing embankment, the said Judicial Commissioner, when directing as aforesaid land bonds to be paid or repaid to the Public Trustee, shall apportion such land bonds between the part of such existing embankment to which such duties of repair and maintenance relate and the residue of such existing embankment, and the Public Trustee, when such land bonds are paid or repaid (as the case may be) to him in pursuance of such direction, shall, notwithstanding anything contained in the said section 44 or the said section 45 , dispose of for the benefit of the Exchequer in such manner as the Minister shall direct so much of such land bonds as is so apportioned to the part of such existing embankment in respect of which such duties of repair and maintenance are imposed on the Commissioners.

(2) The following provisions shall, where applicable, apply and have effect in relation to transfer orders, that is to say:—

(a) the powers conferred on the Irish Land Commission by section 44 of the Land Act, 1923 (No. 42 of 1923), or section 45 of the Land Act, 1931 (No. 11 of 1931), of making an application to the Judicial Commissioner under such section shall not be prejudiced or affected by the fact (where it exists) that the relevant transfer order is made before the relevant appointed day within the meaning of the Land Purchase Acts;

(b) sub-section (2) of the said section 44 or sub-section (2) of the said section 45 (as the case may be) shall not apply or have effect in relation to an existing embankment in respect of which a transfer order has been made;

(c) where, after a transfer order has been made in respect of an existing embankment, the Commissioners incur expenses in executing works of cleansing, repair, or restoration in respect of such existing embankment which, but for such transfer order, would have been required to be executed by the Irish Land Commission, it shall be lawful for the Judicial Commissioner, on the application of the Irish Land Commission, to make an order either (as the case may be) under section 20 of the Land Act, 1927 (No. 19 of 1927), or under section 46 of the Land Act, 1931 (No. 11 of 1931), for the transfer to the Irish Land Commission of land bonds to meet the expenses so incurred by the Commissioners;

(d) land bonds transferred to the Irish Land Commission under any such order as is mentioned in the next preceding paragraph of this sub-section shall be disposed of for the benefit of the Exchequer in such manner as the Minister shall direct.