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1 1980

FISHERIES ACT, 1980

PART III

Acquisition and Transfer of Fisheries etc.

Acquisition of fisheries, etc.

37. —(1) Where on an application made to him by the Central Board the Minister is satisfied—

(a) that, for the purpose of enabling a development programme prepared by either the Central Board or a regional board to be carried out, it is necessary that a particular fishery be acquired under this section, or

(b) it is, for the purposes of managing, operating, protecting, conserving or developing any fishery in accordance with such a programme, expedient that the fishery should be acquired under this section,

he may, with the consent of the Minister for Finance, authorise such acquisition by the Central Board.

(2) (a) A fishery to which an authorisation under subsection (1) of this section relates may be acquired by the Central Board by agreement or, in default of agreement, by means of an order under this section made by the Minister.

(b) Paragraph (a) of this subsection shall be construed as enabling the Central Board to acquire, by agreement or by an order under this section, either or both of the following:

(i) the bed and soil of waters when they form part of a fishery,

(ii) any estate or interest in land, or any way-leave, right of access or other easement or other right over, in or under land which in the opinion of the Central Board is required for or in connection with the preservation, conservation, operation, development or improvement of the fishery being acquired under the agreement or order.

(3) (a) Every application for an authorisation under this section to acquire a way-leave or a right of way shall indicate, by reference to a plan sent with the application, the way-leave or right of way sought to be acquired.

(b) In determining an application under this section to acquire a way-leave or a right of way, the Minister or the Arbitrator may, if he thinks fit, substitute a way-leave on, over or under the proposed servient tenement, or a right of way over such tenement, different from that specified in the application; provided that the Minister or the Arbitrator shall not exercise the power conferred on him by this paragraph without first affording to the person on whom, pursuant to Article (1) (c) (i) of the Fifth Schedule to this Act, notice has been served an opportunity of stating why the power should not be exercised.

(4) Before giving an authorisation under subsection (1) of this section the Minister shall (in addition to consulting the Minister for Finance) consult such other Minister of the Government, if any, as appears to him to be concerned.

(5) Where it is proposed that a fishery be acquired under this section by the Central Board and the Minister is satisfied that a public right to fish exists in relation to the fishery, the fishery shall be so acquired only if the Minister is satisfied that, notwithstanding the existence of such right, it is in the public interest that the fishery should be so acquired.

(6) (a) Any person who is aggrieved by an authorisation of the Minister under subsection (1) of this section may, not later than thirty days after the day on which the authorisation is given, serve on the Minister a notice of appeal to the Arbitrator against the authorisation, and the Arbitrator may on such appeal either confirm or annul the authorisation.

(b) Any person who is aggrieved by an order made by the Minister under subsection (2) of this section may, not later than thirty days after the day on which the order is made, serve on the Minister a notice of appeal to the Arbitrator against the order, and the Arbitrator may on such appeal either confirm the order as made by the Minister or confirm the order with such modifications as he considers appropriate.

(7) Nothing in this section shall be construed as prohibiting or restricting the acquisition from the Minister by the Central Board, on such terms and conditions as may be agreed, of any fishery owned by the Minister.

(8) Nothing in this section shall authorise the Central Board to acquire compulsorily—

(a) any land vested in the State or any right over, in, under or in respect of such land;

(b) any dwellinghouse or the curtilage thereof, or any enclosed premises, yard, garden or land appurtenant to a dwellinghouse or any right over, in, under or in respect of such premises, yard, garden or land.

(9) Nothing in this section shall authorise the Central Board to acquire (either compulsorily or by agreement), save with the consent of the Irish Land Commission, any land which is subject to a land purchase annuity or any right over, in, under or in respect of such land.

(10) Where a fishery is acquired by the Central Board under this section, then, notwithstanding the existence in relation to the fishery of any public right to fish, the Central Board shall have power to prohibit or control the taking of fish from the fishery.

(11) The provisions contained in the Fifth Schedule to this Act shall, as the context requires, apply in relation to any or all of the following, namely, an application to the Minister under subsection (1) of this section, an authorisation or order under this section, an application for such an order, or a decision by the Minister or an appeal to the Arbitrator under this section.

Acquisition of portions of rivers or lakes contiguous to certain weir (freshwater) fisheries.

38. —(1) Where the bed and soil of any portion of a river or lake contiguous to a fishery to which this section applies, is not in the same ownership as such fishery, the Minister may, if to him it appears necessary or expedient for the maintenance, operation, improvement or development of such fishery, by order transfer to—

(a) in case such bed and soil is contiguous to a fishery owned by the Minister, the Minister,

(b) in case such bed and soil is contiguous to a fishery acquired by the Central Board under section 37 of this Act, the Central Board,

so much of such bed and soil, not exceeding fifty yards (45.72 metres) either above or below, of fifty yards (45.72 metres) above and fifty yards (45.72 metres) below, such fishery, as the Minister shall specify in the order.

(2) An order under this section shall be expressed and operate to transfer to the Minister or the Central Board, as the case may be, as on and from the date specified therein in that behalf the bed and soil of the portion of the river of lake to which the order relates, in fee simple, free from encumbrances and from all estates and interests therein (except such angling right, if any, as may be reserved by the order).

(3) Section 37 (6) (b) of, and Articles 4, 5, 8 and 9 of the Fifth Schedule to, this Act shall, with the necessary modifications, apply to an order under this section.

(4) Nothing in this section shall enable the Central Board to acquire compulsorily any land vested in the State.

(5) Where the Minister makes an order under this section he shall cause a copy of such order to be served on the owner of the bed and soil of the river or lake to which such order relates.

(6) This section applies to a fishery which is either owned by the Minister or acquired by the Central Board under section 37 of this Act and which, in either case, is a weir (freshwater) fishery.

(7) In this section “weir (freshwater) fishery” means a fishery for salmon, trout or eels carried on in freshwater by means of a fishing weir, and the structure of such weir and the land on which such weir is erected and all other rights of fishing for salmon, trout and eels in or on the site of such fishery.

Right of way (acquisition).

39. —(1) The Central Board or a regional board may apply to the Minister for an order under this section effecting the compulsory acquisition of a right of way (in this Act referred to as “the required right of way”) by a particular route over any land.

(2) Every application for an order under this section shall indicate, by reference to a plan sent with the application, the right of way sought to be acquired.

(3) Where an application for an order under this section is made, subject to subsection (4) of this section, the following provisions shall apply:

(a) the Minister, after considering the application—

(i) if he is satisfied that the right of way sought is either required to enable the applicant to perform a function assigned to the applicant under this Act or is necessary to enable fishermen to gain access to fishing waters for the purpose of lawfully fishing and, in either case, that, in the circumstances of the case, to make an order under this section would be reasonable, may make an order creating a right of way (being, as he thinks fit, either the required right of way or another right of way) over the proposed servient tenement, or

(ii) refuse the application;

(b) if the Minister makes an order under this section, the occupier or the owner of the proposed servient tenement may, within the period of two months beginning on the day on which the order is made, serve on the Minister a notice of appeal to the Arbitrator against the order, and the Arbitrator may, on such appeal—

(i) if he is so satisfied, confirm the order, or confirm the order but alter the route over the proposed servient tenement of the right of way thereby created, or

(ii) if he is not so satisfied, revoke the order;

(c) if the Minister refuses to make an order under this section, the applicant may, within the period of two months beginning on the date of such refusal, serve on the Minister a notice of appeal to the Arbitrator against such refusal, and the Arbitrator may, on such appeal—

(i) confirm the refusal, or

(ii) if he is so satisfied, make an order under this section creating a right of way (being, as he shall think fit, either the required right of way or another right of way) over the proposed servient tenement,

(d) if the Minister makes an order under this section but thereby creates a right of way other than the required right of way, the applicant may, within the period of two months beginning on the day on which the order is made, serve on the Minister a notice of appeal to the Arbitrator against the order, in so far as it creates a right of way other than the required right of way, and the Arbitrator may, on such appeal—

(i) confirm the order as made by the Minister, or

(ii) vary such order by substituting a right of way over the proposed servient tenement different from that specified in the order.

(4) Where an application is made under this section, neither the Minister nor the Arbitrator shall exercise the power conferred on him by this section to create or substitute a right of way different from that indicated in accordance with subsection (2) of this section without first affording to the person on whom, pursuant to Article 1 (c) (i) of the Fifth Schedule to this Act, notice has been served an opportunity of stating why the power should not be exercised.

(5) The provisions contained in the Fifth Schedule to this Act shall, as the context requires, apply in relation to either an order under this section or an application for such an order.

Transfer of fisheries to Minister or Central Board by Commissioners.

40. —(1) The Commissioners may by order under their seal transfer to the Minister or, with the consent of the Minister, to the Central Board, on such terms and conditions as, with the consent of the Minister for Finance, shall be agreed upon between the Commissioners and the Minister, all the estate and interest of the Commissioners in any fishery or fishing right which is in the possession or occupation of the Commissioners and also any land, way-leave, water-right, right of access or other easement or other right which is in the possession or occupation of the Commissioners and is ancillary to any such fishery or fishing right so transferred.

(2) An order made under this section shall operate to vest in the Minister or the Central Board, as may be appropriate, without any further or other conveyance, all the estate and interest of the Commissioners in every fishery and fishing right and in all lands, way-leaves, water-rights, rights of access and other easements or other rights purported to be transferred to the Minister or the Central Board by the order.

Transfer of fisheries to Minister or Central Board by Irish Land Commission.

41. —(1) The Irish Land Commission may by order under their seal transfer to the Minister or, with the consent of the Minister, to the Central Board, on such terms and conditions as, with the consent of the Minister for Finance, shall be agreed upon between the said Commission and the Minister, all the estate and interest of the said Commission in any fishery or fishing right which is in the possession or occupation of the said Commission and also any land, way-leave, water-right, right of access or other easement or other right in, over or under land which is in the possession or occupation of the said Commission and is ancillary to any such fishery or fishing right so transferred.

(2) An order made under this section shall operate to vest in the Minister or the Central Board, as may be appropriate, without any further or other conveyance, all the estate and interest of the Irish Land Commission in every fishery and fishing right and in all lands, way-leaves, water-rights, rights of access and other easements or other rights purported to be transferred to the Minister or the Central Board by such order.

Transfer of certain fisheries to Central Board by Minister.

42. —(1) The Minister may, with the consent of the Minister for Finance, transfer to the Central Board by order any fishery or fishing right to which this section applies.

(2) This section applies to—

(a) any fishery or fishing right acquired by or vested in the Minister under the Forestry Acts, 1919 and 1928, or the Forestry Acts, 1946 to 1976, or so vested by virtue of the Forestry (Redistribution of Public Services) Order, 1933,

(b) any fishery or fishing right transferred to the Minister under section 40 or 41 of this Act,

(c) any fishery or fishing right otherwise acquired by the Minister.

(3) An order under this section shall operate to vest in the Central Board without any further or other conveyance, all the estate and interest of the Minister in every fishery and fishing right and in all lands, way-leaves, water-rights, rights of access or other easements or rights purported to be transferred to the Central Board by such order.

Compensation.

43. —(1) Subject to subsection (3) of this section, the exercise of any power under section 18 , 37 , 38 or 39 of this Act shall be subject to payment of compensation in respect of—

(a) any estate or interest in any fishery, or any other estate or interest in land, acquired under or by virtue of this Act,

(b) any easement or other right in, over, under or in respect of land or any estate or interest in an easement or such another right, so acquired,

(c) any diminution, by reason of the exercise of the power, in the value of any easement or other right in, over, under or in respect of land, or any other estate or interest in any land or in any easement or such right,

and the compensation, together with any interest payable thereon by virtue of subsection (2) of this section, shall be paid by—

(i) in case the power is exercised under the said section 37, the Central Board, and

(ii) in any other case, the person in whose favour the power is exercised.

(2) (a) Subject to paragraph (b) of this subsection, where compensation is payable to a person under this section in respect of the exercise of a power under this Act, there shall be paid in accordance with subsection (1) of this section interest on the amount of the compensation payable to the person, at such rate as shall be determined from time to time for the purposes of this section by the Minister for Finance, from the date on which the power is exercised until the payment of such compensation.

(b) If—

(i) the person by whom compensation under this section is payable makes an unconditional offer in writing of any sum as compensation to the person to whom the compensation is payable, and

(ii) the offer is not accepted by the person to whom it is made, and

(iii) the sum awarded as compensation by the official arbitrator does not exceed the sum so offered,

no interest shall be payable on such compensation.

(3) A claim under this section for payment of compensation shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by any subsequent enactment, in like manner in all respects as if such claim arose in relation to compulsory acquisition of land, and for this purpose the Central Board or the regional board concerned, as may be appropriate, shall be deemed to be a public authority within the meaning of the said Act, and the reference in section 69 (1) of the Local Government (Planning and Development) Act, 1963 , to a planning authority shall be construed as including a reference to the Central Board or to such regional board, as may be appropriate.

(4) The following provisions shall have effect in relation to the fixing of the compansation payable under this section in respect of a fishery to which an authorisation under section 37 of this Act relates, namely, the Central Board or the official arbitrator, as may be appropriate, may have regard to the following:

(a) the current market value of the fishery,

(b) evidence of profitability of the fishery by reference to both—

(i) profits for a period ending prior to such authorisation, and

(ii) a profit forecast regarding the fishery which is—

(A) related to a period equal in length to the period referred to in subparagraph (i) of this paragraph but beginning on a day which is subsequent to such authorisation, and

(B) estimated both on a reasonable basis and on the assumption that the fishery continued to be used by the occupier and had not been so acquired.

(5) Sections 69 to 74 and 76 to 80 of the Lands Clauses Consolidation Act, 1845, shall apply to any compensation payable under this section, and for the purposes of such application the Central Board or the regional board concerned, as may be appropriate, shall be deemed to be the promoter of the undertaking.

(6) A claim for compensation under this section shall be brought within—

(a) in case the person entitled to the compensation is a minor or a person of unsound mind, a period of six years from the date when such person ceases to be under such disability or dies, whichever event first occurs, but not more than thirty years after the exercise of the relevant power under this Act,

(b) in any other case, a period of six years from the date of the exercise of such power.

(7) Subject to paragraphs (a) and (b) of subsection (6) of this section, compensation under this section may be paid to the personal representatives of a person entitled thereto.

(8) In this section “the official arbitrator” means the official arbitrator under the Acquisition of Land (Assessment of Compensation) Act, 1919.

Arbitrator.

44. —(1) A person appointed under this section by the Minister is in this Act, other than section 43, referred to as “the Arbitrator”.

(2) In case the Minister receives a notice of appeal under section 37 , 39 or 54 of this Act, or by virtue of section 38 (3) of this Act, he shall as soon as may be appoint a person, who shall be a barrister of not less than seven years' standing, to hear the appeal (which person is hereby authorised to determine the appeal).

(3) In case the Minister proposes to amend an order made under section 37 , 38 or 39 of this Act, he shall as soon as may be appoint a person, who shall be a barrister described in subsection (2) of this section, to perform the functions assigned to the Arbitrator by subparagraphs (i), (iv), (v), (vi) and (vii) of section 5 (2) (b) of this Act.

Sale by Minister of certain fisheries, fishing rights and businesses.

45. —(1) The Minister may, with the consent of the Minister for Finance, sell (otherwise than to the Central Board) any fishery or fishing right vested in him, whether in pursuance of section 40 or 41 of this Act or otherwise, and also the goodwill and stock in trade and other assets of any business (being a business ancillary or incidental to the operation of a fishery) carried on by him at such price as he may with the concurrence of the Minister for Finance think proper.

(2) Any moneys received on a sale under this section shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.