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13 1946

FORESTRY ACT, 1946

PART III.

Extinguishment of Easements, Creation of Rights of Way and Compulsory Acquisition of Land.

Chapter I.

Preliminary and General.

Definitions for purposes of Part III.

12. —In this Part—

the expression “acquisition order” means an order made under section 23 of this Act;

the expression “annual sum” means any annual or periodical payment charged on land, but does not include—

(a) any State annuity, or

(b) a rent payable to the Land Commission or the Commissioners under a contract of tenancy expressed to be made for temporary convenience, or

(c) interest on a mortgage, or

(d) a charge subsisting under a settlement;

the expression “the Appeal Tribunal” means the tribunal constituted by section 7 of the Land Act, 1933 (No. 38 of 1933);

the expression “assessment order” means an order made under subsection (2) of section 24 or subsection (1) of section 25 of this Act;

the expression “charge subsisting under a settlement” means a charge subsisting or to arise under a settlement, within the meaning of the Settled Land Acts, 1882 to 1890, not being a charge having priority to the settlement or a charge created for securing money actually raised;

the expression “the Commissioners” means the Commissioners of Public Works in Ireland;

the word “easement” includes any profit-à-prendre or other right in or over land;

the word “interest”, in relation to land, includes—

(a) an easement,

(b) an annual sum,

but does not include—

(c) a tenancy from year to year held under the Land Commission or the Commissioners and expressed in the contract of tenancy to be for temporary convenience, or

(d) a State annuity, or

(e) a mortgage on land, or

(f) a charge subsisting under a settlement affecting the land;

the expression “the Judicial Commissioner” means the Judge of the High Court for the time being assigned to discharge the office of Judicial Commissioner under the Land Law (Commission) Act, 1923 (No. 27 of 1923);

the expression “the Land Commission” means the Irish Land Commission;

the expression “the Lay Commissioners” means the Land Commissioners other than members of the Appeal Tribunal;

the word “lease” includes a fee farm grant and any contract of tenancy;

the word “mortgage” includes an equitable mortgage, a charge for securing any capital sum, and a judgment mortgage, but does not include a State annuity or a charge subsisting under a settlement, and the words “mortgagee” and “mortgagor” shall be construed accordingly and shall respectively include a person from time to time deriving title under the original mortgagee and a person from time to time deriving title under the original mortgagor;

the word “owner”, in relation to land, means—

(a) where the land is vested under the Land Purchase Acts in the Land Commission, but not in the tenant-purchaser or purchaser thereof, the person who is for the time being the tenant-purchaser or purchaser, as the case may be, of such land, and

(b) in any other case, the owner of the lowest estate in the land constituting an estate saleable under the Land Purchase Acts;

the expression “State annuity” means any sum being—

(a) any land purchase annuity or any annual sum equivalent to a purchase annuity, within the meaning of the Land Purchase Acts, payable to the Land Commission, or

(b) any land purchase annuity payable to the Commissioners, or

(c) any rent charge, annuity or yearly or half-yearly payment payable to the Commissioners in respect of any local loan, within the meaning of the Local Loans Fund Act, 1935 (No. 16 of 1935);

the expression “vesting date” means, in relation to any land which is the subject of a vesting order, the date specified in that order as the date on which the land is to vest in the Minister;

the expression “vested land” means land which is the subject of a vesting order;

the expression “vesting order” means an order made under section 26 of this Act.

Provisions in relation to applications and appeals under Part III.

13. —Every application and every appeal under any section contained in this Part shall be made and conducted in the prescribed manner.

Finality of decision of Appeal Tribunal on appeals under Part III.

14. —(1) The decision of the Appeal Tribunal on any appeal under any section contained in this Part shall be final.

(2) Where, in the course of the hearing of an appeal to the Appeal Tribunal under any section contained in this Part, any party to the appeal requests the Appeal Tribunal to refer a question of law arising on the appeal to the Supreme Court by way of case stated for the determination of the Supreme Court, the Appeal Tribunal shall refer the question to the Supreme Court accordingly, and adjourn its decision on the appeal pending the determination of such case stated.

Application of Acquisition of Land (Assessment of Compensation) Act, 1919.

15. —Section 2 of the Acquisition of Land (Assessment of Compensation) Act, 1919, shall apply in relation to—

(a) the fixing of compensation under sections 19 , 20 or 21 of this Act,

(b) the assessing, under sections 24 or 25 of this Act, of any value,

(c) the fixing of compensation under section 31 of this Act,

with the modification that the references in the said section 2 to the official arbitrator shall be construed as references to the Lay Commissioners.

Powers of Lay Commissioners and Appeal Tribunal to award costs in proceedings under Part III.

16. —(1) (a) In any proceedings under this Part heard and determined by the Lay Commissioners or the Appeal Tribunal, the Lay Commissioners or the Appeal Tribunal, as the case may be, may direct that the costs and expenses of any party to such proceedings shall be paid by any other party thereto, and they may also, on the application of such first-mentioned party, issue an order for the levying of the amount (as taxed or measured in accordance with paragraph (b) of this subsection) of such costs and expenses together with the costs of obtaining such order.

(b) Where the Lay Commissioners or the Appeal Tribunal direct, under paragraph (a) of this subsection, that the costs and expenses of any party to proceedings heard and determined by them shall be paid by any other party thereto, the said costs and expenses shall be taxed by a Taxing Master of the High Court, unless both the said parties agree that the said costs and expenses should be measured by the Lay Commissioners or the Appeal Tribunal, as the case may be, in which case the said costs and expenses shall be so measured.

(2) Every order made by the Lay Commissioners or the Appeal Tribunal under this section shall be executed by a county registrar in like manner as if it were an execution order within the meaning of the Enforcement of Court Orders Act, 1926 (No. 18 of 1926).

(3) In the application of subsection (2) of this section in relation to a county or county borough for which there is for the time being an under-sheriff, the said subsection shall have effect as if the word “under-sheriff” were substituted for the expression “county registrar”.

(4) In the application of subsection (2) of this section in relation to a county or county borough in which there is for the time being a sheriff, appointed under section 12 of the Court Officers Act, 1945 (No. 25 of 1945), in whom the functions of the county registrar for such county or county borough in relation to the execution of execution orders are for the time being vested, the said subsection shall have effect as if the word “sheriff” were substituted for the expression “county registrar”.

Payment of compensation under sections 19 , 20 , 21 and 30 of this Act.

17. —(1) In this section the expression “mortgaged interest” means any interest, which was immediately before the vesting date subject to any mortgages, in vested land.

(2) The following provisions shall apply in respect of compensation for an interest in vested land which is not a mortgaged interest:—

(a) in case, within three months after the final determination, of the compensation, any person applies to the Minister for payment thereof, and satisfies the Minister that he is competent to give an effective discharge therefor, the compensation being regarded for this purpose as the proceeds of a sale of such interest effected immediately before the vesting date, the Minister shall pay the compensation to that person;

(b) in any other case,—

(i) if the compensation does not exceed one thousand pounds, the Minister shall pay it into the Circuit Court and the Circuit Court shall thereupon have with respect thereto all the jurisdiction exercisable by the High Court under the Lands Clauses Acts,

(ii) if the compensation exceeds one thousand pounds, it shall be paid, applied and dealt with in accordance with the provisions of the Lands Clauses Consolidation Act, 1845, with respect to purchase money or compensation coming to parties having limited interests or prevented from treating or not making title, and those provisions shall have effect accordingly.

(3) The following provisions shall apply in respect of any sum (representing the whole or part of compensation for an interest in vested land which is a mortgaged interest) allocated to a mortgagee under section 32 of this Act:—

(a) in case, within three months after such allocation, any person applies to the Minister for payment thereof and satisfies the Minister that he is competent to give an effective discharge therefor, the Minister shall pay the said sum to that person;

(b) in any other case, subparagraphs (i) and (ii) of paragraph (b) of subsection (2) of this section shall apply in relation to the said sum as the said subparagraphs apply to the compensation referred to therein.

(4) The following provisions shall apply in respect of any sum (representing part of compensation for an interest in vested land which is a mortgaged interest) allocated to the mortgagor under section 32 of this Act:—

(a) in case, within three months after such allocation, any person applies to the Minister for payment thereof and satisfies the Minister that he is competent to give an effective discharge therefor, the said sum being regarded for this purpose as the net proceeds of a sale of such interest effected immediately before the vesting date, the Minister shall pay the said sum to that person;

(b) in any other case, subparagraphs (i) and (ii) of paragraph (b) of subsection (2) of this section shall apply in relation to the said sum as the said subparagraphs apply to the compensation referred to therein.

(5) The following provisions shall apply in respect of compensation payable under sections 19 or 21 of this Act or payable by the Minister under section 20 of this Act:—

(a) in case, within three months after the final determination of the compensation, any person applies to the Minister for payment thereof and satisfies the Minister that he is competent to give an effective discharge therefor, the Minister shall pay the compensation to that person,

(b) in any other case, subparagraphs (i) and (ii) of paragraph (b) of subsection (2) of this section shall apply in relation to the said compensation as the said subparagraphs apply to the compensation referred to therein.

(6) The Minister, if he thinks proper, may, in any particular case, extend the period of three months mentioned in subsections (2), (3), (4) and (5) of this section.

(7) (a) The compensation referred to or part of compensation referred to in subsection (2), (3) or (4) of this section shall bear interest at the rate of three pounds per cent. per annum in respect of the period from the vesting date until the date on which it is paid.

(b) The compensation referred to in subsection (5) of this section shall bear interest at the rate of three pounds per cent. per annum from the date on which the relevant extinguishment order or order under section 20 or 21 of this Act, as the case may be, comes into force to the date on which it is paid.

(8) Where—

(a) the Minister is required by subsections (2), (3), (4) or (5) of this section to pay to any person any sum, and

(b) any money (in this subsection referred to as the State debt) is owing by that person to a Minister of State, the Revenue Commissioners, the Commissioners or the Land Commission,

the Minister may, in lieu of paying the said sum (including interest thereon) to that person, apply the said sum and interest in or towards the payment of the State debt and pay to that person the balance (if any) thereof remaining.

(9) (a) The following provisions shall apply in respect of compensation payable by any person (other than the Minister) under section 20 of this Act:—

(i) in case, within three months after the final determination of the compensation, any person (in this paragraph referred to as the applicant) applies to the person liable to pay the compensation (in this paragraph referred to as the liable person) for payment thereof and satisfies the liable person that the applicant is competent to give an effective discharge therefor, the liable person shall pay the compensation to the applicant,

(ii) in any other case, subparagraphs (i) and (ii) of paragraph (b) of subsection (2) of this section shall apply to the said compensation as the said subparagraphs apply to the compensation referred to therein, and as if the reference therein to the Minister were a reference to the liable person.

(b) The compensation referred to in paragraph (a) of this subsection shall bear interest at the rate of three pounds per cent. per annum from the date on which the relevant order under section 20 of this Act comes into force to the date on which it is paid.

(c) If any person (other than the Minister), who is liable to pay compensation under section 20 of this Act, fails to comply with the provisions of the foregoing paragraphs of this subsection, any person, who is competent to give an effective discharge for such compensation, may recover from such first-mentioned person such compensation and the interest payable thereon under paragraph (b) of this subsection as a simple contract debt in a court of competent jurisdiction.

(10) The payment of compensation or part of compensation and interest in accordance with the foregoing provisions of this section shall be a good discharge therefor.

Costs of deducing title to compensation under sections 19 , 20 , 21 or 30 of this Act.

18. —Where any sum (being compensation under section 19 , 20 or 21 of this Act or compensation or part of compensation under section 30 of this Act) is payable to any person, then, unless such sum is deposited in Court under section 17 of this Act by reason of the wilful default of that person to make a good title thereto, the person liable to pay such sum shall pay to such first-mentioned person the costs incurred by him in deducing, evidencing and verifying the title to such sum, and section 83 of the Lands Clauses Consolidation Act, 1845, shall apply in relation to such costs, and for the purposes of such application the person liable to pay such sum shall be deemed to be promoter of the undertaking.