First Previous (PART IV. Powers and Duties of the Corporation.)

54 1936

LIFFEY RESERVOIR ACT, 1936

SCEIDEAL.

SCHEDULE.

Co-Aontu dar data an 18adh la de Mheitheamh, 1936, agus do rinneadh idir an Bardas agus an Bord.

Agreement dated the 18th day of June, 1936, and made between the Corporation and the Board.

THIS AGREEMENT made the 18th day of June, 1936, between THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN (hereinafter called “the Corporation” which expression shall include the successors of the Corporation) of the one part and THE ELECTRICITY SUPPLY BOARD a Statutory Corporation (hereinafter called “the Board” which expression shall include the successors of the Board) of the other part: WHEREAS

(a) THE Corporation is desirous of providing an additional water supply to meet the requirements of the City of Dublin and is of opinion that for that purpose the Reservoir at Pollaphouca hereinafter mentioned should be constructed with as little delay as possible:

(b) THE Board has had under contemplation the provision of an additional supply of electricity for public consumption in Saorstát Eireann by means of the proposed electric generating station hereinafter mentioned, but the Board while being of opinion that the construction of such an electric power station would be beneficial are also of opinion that the development of consumption of electricity in Saorstát Eireann may not render the construction thereof necessary for some years to come:

(c) THE Corporation and the Board are agreed that the construction of the Reservoir hereinafter mentioned would be the best means of answering the respective requirements of the Corporation and of the Board for the purposes aforesaid:

(d) IT has been agreed between the Corporation and the Board that the Board shall proceed as soon as possible with the construction of the said Reservoir upon the terms that the Corporation shall make to the Board the payments hereinafter mentioned by way of contribution towards the costs and expenses to be incurred by the Board in the construction of the said Reservoir and by way of compensation to the Board for constructing the same at an earlier date than would otherwise have been decided by the Board, and that the Board shall (subject to the provisions hereinafter contained) be at liberty at such date as it thinks fit to proceed with the hydro-electric power development and the extension of the Reservoir for that purpose:

(e) IT has accordingly been agreed that these presents shall be entered into subject to the enactment by the Oireachtas of the necessary enabling legislation :

(f) THE works contemplated in this agreement consist of:

(i) A Reservoir to be created and constructed in one or more stages, by the Board:

(ii) An intake to be constructed by the Corporation for the purpose of drawing off water for the said water supply:

(iii) Hydro-electric works to be constructed by the Board:

NOW IT IS HEEEBY AGEEED AS FOLLOWS :

1.—THIS Agreement is entered into by and between the parties hereto subject to the enactment by the Oireachtas of the necessary enabling and empowering legislation (including legislation rendering lawful the impounding of water and the withdrawal thereof from other uses as hereinafter provided) and shall not become binding upon the parties hereto unless and until such legislation has been passed. In the event of the said legislation not having been enacted within twelve months from the date of these presents this Agreement shall cease to be of any force or effect:

2.—THE Board shall at the expense of the Board proceed to construct and create the Reservoir (hereinafter called “the Reservoir”) at Pollaphouca in the County of Wicklow (as shown upon the draft plans annexed hereto which plans may be altered by either party hereto with the consent of the other party hereto and such consent shall not in the case of any minor alterations be unreasonably withheld) and for that purpose shall proceed at the like cost to erect in accordance with the said plan the main dam which shall be constructed on or near the site shown upon the said plans in the Pollaphouca Gorge between 800 and 1,200 feet up stream of the existing road bridge over the Liffey at Pollaphouca and shall by the exercise of the statutory powers in that behalf to be conferred upon it by the enabling legislation acquire at the cost of the Board in fee simple the lands necessary for the said Reservoir together with all necessary rights of way and other casements and rights. The Board shall also proceed at the like cost to construct all such other dams, sluices and works as may be necessary for or incidental to the purpose of impounding and controlling the water in the Reservoir.

3.—(a) THE said Reservoir at Pollaphouca may be constructed by the Board either in one or in two stages which said two stages are herein termed “First Development” and “Second Development.” The Second Development may be carried out by the Board in one or more sub-stages. The “First Development” shall consist of such works as may be necessary to provide a top water level in the Reservoir of at least five hundred and seventy six feet (576 ft.) above Ordnance Datum (hereinafter called “O.D.”) and shall be completed and finished by the first January, 1940. For the purpose of this clause the completion and finishing shall be deemed to include the filling of the Reservoir with water to the said level.

THE “Second Development” shall consist of such further works as may be necessary to raise the top water level of the Reservoir to six hundred and ten feet (610 ft.) or more above O.D. and shall be completed and finished by the Board as and when the Board thinks fit, but not later than the 31st March nineteen hundred and fifty. For the purpose of this agreement “top water level” shall mean the highest level at which the water in the Reservoir shall be retained by the dam and sluices without overflow. For the purposes of this clause the completion and finishing shall be deemed to include the filling of the Reservoir with water to the said level of 610 feet or more above O.D. and the fencing of the Reservoir by a fence constructed of galvanised wire four feet high of five strands supported by H section steel or iron standards at nine feet centres. The Board shall maintain the said fence. The said dates for completion of the First and Second Development are fixed on the basis that no delay is occasioned in the execution of the works by war, civil commotion, riot, strikes, accidents, force majeure, abnormal weather conditions or any other cause not reasonably within the control of the Board (hereinafter referred to as “excepted causes”). In the event of the Board not completing the First Development by the first January nineteen hundred and forty it shall pay to the Corporation by way of liquidated damages and not as a penalty a sum of fifty pounds for each completed day by which completion shall be delayed beyond that date unless such delay shall be occasioned by any one or more of the excepted causes above mentioned. In the event of the Board not completing the Second Development by the 31st March, 1950, it shall pay to the Corporation by way of liquidated damages and not as a penalty a sum of twenty-five pounds for each completed day by which completion shall be delayed beyond that date unless such delay shall be occasioned by any or more of the excepted causes above mentioned. In the event of delay occurring through any of the excepted causes the time for completion shall be extended accordingly. The said respective stages of development shall be deemed to have been completed though minor and unimportant parts of the works shall not have been completed.

(b) THE Board shall not without the written consent of the Corporation first obtained (which consent shall not be unreasonably withheld) construct the Reservoir so as to produce a top water level above six hundred and fifteen feet O.D., but the Corporation works shall be designed and constructed at the Corporation's expense (so as to be suitable) for a permanent top water level of six hundred and eighteen feet O.D.

4.—(a) DURING the progress of the creation and construction of the said Reservoir and for the purpose of ensuring the purity of the water within the Reservoir so far as reasonably possible, the Board shall:—

(i) Cut down and remove from the site of the Reservoir all growing timber and undergrowth to the satisfaction of the Corporation:

(ii) Remove all dwelling-houses, sheds, stables, cow-byres, and piggeries, and shall render sanitary the sites of the same by sprinkling the site with chlorate of lime to the satisfaction of the Corporation:

(iii) Subject to obtaining all necessary ecclesiastical and other permissions, remove from any graveyard which may be flooded by the Reservoir the bodies buried therein and inter the same elsewhere and render sanitary the site of such graveyard and the vaults therein by sprinkling the sites with chlorate of lime to the satisfaction of the Corporation:

(iv) Remove and level down, or partly remove and level down as far as may be reasonably necessary, all mounds, fences, ditches and obstructions upon that part of the Reservoir which shall lie over five hundred and seventy-five feet (575 ft.) above O.D. in such a manner as not to impound water if the level of the Reservoir shall be lowered: (The Board shall be bound under this sub-clause to execute the said works only as the same may be found to be necessary and until the expiration of two years from the date of completion of the Second Development:)

(v) Execute and carry out such works as the Corporation engineer may reasonably require for the prevention of pollution of the water in the Reservoir by sewage or drainage from existing dwelling-houses, stables, cow-byres, or piggeries standing in the immediate vicinity of the Reservoir.

(b) The expenditure on materials and labour hereby undertaken by the Board in respect of all works to be executed by the Board under sub-clauses (a) (iv) and (a) (v) hereof shall be limited to the maximum sum of three thousand five hundred pounds (£3,500). In the event of the Corporation requiring an expenditure in excess of that sum or further or additional works for the purposes aforesaid, such additional expenditure shall be paid and such additional works shall be constructed at the cost of the Corporation provided that the Corporation shall be at liberty with the consent of the Board to carry out such additional work at its own expense. The written certificate of the Board as to the amount expended by the Board as aforesaid shall be accepted by the Corporation as conclusive.

5.—THE Board shall be at liberty at such times and in such manner as it may think proper and without supervision by the Corporation to erect, install and maintain such works as the Board may consider necessary for the purpose of the hydroelectric development proposed by the Board. Such works shall be so carried cut by the Board and shall be so designed and constructed that it shall not be necessary for the Board to lower the level of the waters in the Reservoir below the appropriate low water level hereinafter mentioned. Provided nevertheless that during the period which may elapse between the completion of the First Development and the completion of the Second Development it shall be lawful for the Board in times of flood to reduce the level of the water in the Reservoir for short periods to, but not below five hundred and seventy-five feet O.D., and in such event the low water level shall be restored as soon as reasonably practicable.

6.—THE Board shall control and regulate the sluices from the Reservoir and shall at all times be at liberty without restriction to utilise the water of the Reservoir for power development purposes so long as the water is not below low water level but the Board shall not so utilise the said water at any time or times at or during which the level of the water in the Reservoir is below low water level. The Board shall at all times (including times at which the level of the water in the Reservoir is below low water level as hereinafter defined) be at liberty to discharge water from the Reservoir in such manner as the Board may think fit at a rate not exceeding 1.5 cubic metres per second averaged over each week from noon on Monday to noon on the following Monday as flow for compensation (hereinafter referred to as “compensation water”) as compensation water to the river down stream of the dam and shall furthermore be at liberty at suitable seasons in the year and with the consent of the Corporation (to be given in writing on each occasion, but which may be refused by the Corporation without assigning a reason) to draw down the level of the water in the Reservoir below low water level. The “low water level” shall be as follows:—

After the completion of the First Development and until the completion of the Second Development it shall be 576 feet O.D. After the completion of Second Development (if completed before 1st January, 1945) and down to the 1st day of January, 1945, it shall be 576 feet O.D.

After the 1st day of January, 1945, or the completion of Second Development (whichever shall be later) and down to the 31st day of March, 1950, it shall be 578 feet O.D.

After the 31st day of March, 1950, and down to the 31st day of March, 1960, it shall be 580 feet O.D.

After the 31st day of March, 1960, it shall be 581 feet O.D.

Nothing herein contained shall be construed to impose any obligation on the Board to maintain the levels of the water in the Reservoir at a height above low water level.

7.—THE Corporation shall be at liberty at all times to draw from the Reservoir the water supply of the Corporation through an intake which shall be erected by and at the expense of the Corporation, upon a site at or in the Reservoir to be mutually agreed between the Corporation and the Board, which site shall be up stream of and away from both the dam and the intake of the pressure tunnel to the power station. The site for such intake shall be so selected as not to interfere with the execution of the hydro-electric works of the Board, or with the maintenance of and operation thereof by the Board.

8.—THE said Corporation intake for the water supply shall be constructed, operated and at all times maintained by the Corporation at its own expense. The intake and the conduits therefrom shall be so designed and constructed that they will not occasion or permit leakage or seepage of water from the Reservoir and shall be constructed at such stages as shall not impede the building programme of the Board. In the event of excessive leakage from the Reservoir taking place owing to the said intake or the works connected therewith or from any works under the control of the Corporation, the Corporation shall at its own expense forthwith carry out and execute such works to the satisfaction of the Board either in the vicinity of the intake and conduits, or elsewhere as the Board may require, as shall completely prevent or, if complete prevention is not reasonably possible, decrease the leakage to the minimum practical point. Should the Corporation neglect, after due notice, to carry out such works, the Board may carry out the same at the expense of the Corporation. In the event of excessive leakage from the Reservoir taking place owing to any works under the control of the Board, the Board shall at its own expense, if required by the Corporation forthwith carry out and execute such works as shall completely prevent or if complete prevention is not reasonably possible, decrease the leakage to the minimum practical point. Should the Board neglect after due notice to carry out such works the Corporation may carry out the same in a satisfactory manner at the expense of the Board.

9.—THE said intake for the Corporation water supply and the accessories and equipment thereof shall be so designed and constructed as to render it unnecessary to lower the level of waters in the Reservoir for the purpose of the maintenance and repair of the intake and so as to permit of alterations or future development of the Reservoir and its storage and of the erection and maintenance of the power plant of the Board and of alterations in the Corporation water supply.

10.—AFTER the First Development Stage has been completed and until such time as the Second Development Stage has been completed, the Corporation shall have the sole right to utilise for the said water supply all the water impounded, except compensation water, as provided in Clause 6 hereof. After the Second Development Stage has been completed the Corporation shall have the absolute and prior right to a maximum quantity of twenty million gallons per day so long as the level of the waters in the Reservoir is not below low water level and subject to the aforesaid right of the Corporation, the Board shall have the right to draw all other water for the purposes of the Board. When the level of the waters in the Reservoir is below low water level the Corporation shall have the sole right to utilise for the said water supply all the water impounded subject to the right of the Board to withdraw compensation water, but the Corporation shall not withdraw more than twenty million gallons of water per day Provided always that should the Board so assent in writing previously it shall be lawful to the Corporation from time to time to withdraw water in excess of the quantities permitted by this agreement to such extent and for such period or periods as may be expressly provided in such assent PROVIDED further that it shall be lawful to the Board to refuse such assent without giving any reason.

11.—THE Corporation shall, without cost to the Board, provide and at all times maintain in good condition and satisfactory working order, apparatus of a type to be approved by the Board, for the accurate recording and measuring of the flow of water from the Reservoir through the Corporation intake and shall furnish to the Board each day, or at such periods as may be agreed, a true written certified copy of the record of the daily flow thereby recorded through the said intake. The Board shall be entitled from time to time, and at all times if it so desires, to check the accuracy of the said apparatus and method of recording and to have the said apparatus calibrated, and may inspect the said apparatus at any time. Such apparatus shall be located at a position to be approved of by the Board, as near to the Corporation intake from the Reservoir as practicable. In the event of the Corporation drawing water in excess of the amount to which it is entitled under these presents the Corporation shall pay to the Board as liquidated damages and not as a penalty a sum of two hundred pounds (£200) for each million gallons (or part of one million gallons) which shall have been drawn on each day in excess of the permitted quantity of twenty million gallons PROVIDED always that (a) where the water withdrawn by the Corporation in any week from noon on Monday to noon on the following Monday does not exceed the quantity permitted during such week by more than five per cent. and if the Corporation satisfy the Board to the reasonable satisfaction of the Board that the withdrawal of the excess quantity was due to any cause not within the reasonable control of the Corporation, or if the excess is withdrawn with the written consent of the Board previously obtained, the Corporation shall be subject to no damages: and (b) where such excess does not exceed five per cent. as aforesaid, but the Corporation is unable to satisfy the Board that its withdrawal was due to causes outside the control of the Corporation, the Corporation shall pay as liquidated damages but not as a penalty a sum of ten pounds (£10) for each one million gallons or part of same withdrawn in excess of the permitted quantity.

12.—THE Board shall, without cost to the Corporation provide and at all times maintain in good condition, and satisfactory working order, apparatus of a type to be approved by the Corporation, for the accurate recording and measuring of the flow of compensation water from the Reservoir, and shall furnish to the Corporation each day, or at such periods as may be agreed, a true written certified copy of the record of the daily flow thereby recorded. The Corporation shall be entitled from time to time and at all times, if it so desires, to check the accuracy of the said apparatus and method of recording and to have the said apparatus calibrated, and may inspect the said apparatus at any time. Such apparatus shall be located at a position to be approved of by the Corporation. In the event of the Board discharging or permitting the discharge of compensation water in excess of the permitted flow for compensation during a period when the level of the water in the Reservoir is below low water level, the Board shall pay to the Corporation as liquidated damages and not as penalty a sum of one hundred pounds (£100) for each million gallons so discharged in excess PROVIDED that (a) where the water withdrawn by the Board in any week from noon on Monday to noon on the following Monday does not exceed the permitted compensation water by more than five per cent. and if the Board satisfies the Corporation to the reasonable satisfaction of the Corporation that the withdrawal of the excess quantity was due to any cause not within the reasonable control of the Board, the Board shall be subject to no damages: (b) where the excess does not exceed five per cent. but the Board is unable to satisfy the Corporation that its withdrawal was due to causes outside the control of the Board, the Board shall pay as liquidated damages but not as a penalty a sum of ten pounds (£10) for each one million gallons or part of same withdrawn in excess of the permitted quantity:

13.—IN the event of any extreme or immediate danger of catastrophe arising from any cause either to the Reservoir and/or to the works of the Corporation and/or to the works of the Board, which may render it imperative in the opinion of the Board to lower the level of the water in the Reservoir below the low water level hereinbefore fixed, and to do so with such speed that to get the previous consent of the Corporation would involve undue risk the Board may take such steps as may be necessary to lower the level of the said waters in the Reservoir, giving such reasonable and, if possible, previous notice in writing to the Corporation, as the circumstances of emergency and danger may in the opinion of the Board reasonably permit.

14.—IN the event of any emergency arising (other than an emergency provided for in Clause 13 hereof) such as to render it necessary to lower the level of the water in the Reservoir below low water level, then the Board may (or if the request comes from the Corporation, shall) take such steps to lower the level of the water to such extent as may be necessary PROVIDED ALWAYS that should the Board desire the level to be so lowered it shall first notify and shall consult with the Corporation and obtain their consent and similarly if the Corporation shall require the level to be so lowered it shall first notify and shall consult with the Board and obtain their consent and in the event of a disagreement taking place between the parties as to such lowering, either party shall be at liberty to summon forthwith on twenty-four hours' notice to the other, a meeting of the Arbitration Tribunal as is provided in Clause 25 hereof PROVIDED ALWAYS and it is hereby agreed and declared that a necessity on the part of the Board to generate electrical power shall not be deemed to be an emergency within the meaning of this clause. In the event of the level of the waters in the Reservoir being lowered as provided by Clause 13 or 14 the party responsible for the execution of the necessary works shall with all possible speed carry out at its own expense such works as may be necessary to permit the Reservoir to be refilled to low water level.

15.—THE Reservoir and dam, and all works ancillary thereto (save only the Corporation intake) shall be and remain the property of the Board, who shall maintain, regulate and operate the same and the Corporation shall be indemnified by the Board against any liability arising out of the construction and maintenance of the Reservoir, dam and ancillary works of the Board, and in respect of the withdrawal by the Corporation of water from the Reservoir, including liability to any riparian owner, mill owner or other person having water or fishing rights. The Board shall from time to time take all necessary steps to keep the Reservoir in order and repair but this clause shall not imply any liability upon the Board to carry out works solely for the purpose of keeping the water free from pollution. The Corporation shall however have no claim against the Board for compensation in the event of any injury or damage occurring to the Reservoir by which an escape or loss of water may occur. The Corporation shall have access to the Reservoir at all times and shall have the right after consultation with the Board to take such measures as may be reasonably necessary but at the expense of the Corporation, to prevent the pollution of the waters therein.

16.—SAVE to the extent of carrying out the sanitary works hereinbefore specified during construction of the Reservoir, the Board shall be under no responsibility to the Corporation for the sanitary condition or nature of the water in the Reservoir, nor for keeping the same clean or fit for drinking.

17.—THE Board shall be at liberty to instal in the power station of the Board and for the purposes of generation of electricity such turbines and generating plant and machinery generally as it may from time to time desire, without the approval of, or consultation with the Corporation. The Board shall be at liberty to operate such power plant in whatever manner it may deem necessary or desirable, and shall be at full liberty to make use of the storage water between top and low water levels for the operation of the said plant, in such manner as it may think necessary or desirable PROVIDED ALWAYS that the Board shall not be under any liability to the Corporation in the event of the said water level being lowered through any accident to the Board's said plant.

18.—THE Corporation shall pay to the Board as a contribution by the Corporation to the expenses of the construction of the Reservoir by the Board the sum of one hundred and twenty-six thousand pounds (£126,000), which sum shall be payable as to the sum of sixty-three thousand pounds forthwith upon the Board furnishing to the Corporation a certificate in writing by the Board that that sum has been expended by the Board on the works referred to in this Agreement or on acquisition of lands, and the balance of £63,000 shall be payable on certificate of the Board that the first development has been completed. The said payment of £126,000 to be made by the Corporation shall be accepted by the Board in full and complete discharge of all liabilities whatsoever immediate and future of the Corporation in connection with the construction, maintenance and operation of the Reservoir and of the right to the withdrawal of water therefrom by the Corporation in any quantity not exceeding 20,000,000 gallons per day PROVIDED ALWAYS that should the Board find it necessary (pursuant to its power on that behalf contained in Clause 20 hereof) to abandon the creation of the Reservoir, the Corporation shall be liable to pay and shall pay to the Board such sum and such sum only as shall be equal to one-half of the net expenditure (after disposal of the lands and realisation of other property acquired for the purposes of creating the Reservoir) which shall actually have been incurred by the Board to the date of such abandonment or the sum of £126,000, whichever shall be the lesser sum, and in such event should the Corporation have already paid to the Board a larger sum the Board shall refund the excess to the Corporation.

19.—NOTHING in this agreement shall be deemed to imply any liability on the part of the Board to the Corporation in the event of the supply of water available to the Reservoir when constructed not being sufficient for any of the purposes or objects aforesaid.

20.—THE Board shall be under no liability to the Corporation in the event of its being found that for any natural reasons defects in the soil, faults in the rock, or other causes of a similar nature or otherwise, the erection and maintenance of the Reservoir should prove impracticable.

21.—(i) THE Board shall be at liberty to carry out all or any of the works herein specified by Contractors or Sub-Contractors.

(ii) THE Board and the Corporation, respectively, may exercise all or any of the powers and discretions hereby conferred on or reserved to them, respectively, through their respective engineers, viz., the City Engineer and the Board's Chief Engineer for Civil Works or his substitute (appointed by resolution of the Board) for the time being:

(iii) NOTICE to be served by the Corporation upon the Board under this Agreement shall be served at the Principal Office of the Board. Notices to be served by the Board upon the Corporation under this Agreement shall be served at the City Hall, Dublin.

22.—NOTHING contained in this Agreement shall be deemed to preclude the Corporation at any time hereafter from acquiring the right by agreement with the Board to withdraw water from the Reservoir above the maximum quantity of twenty million gallons a day.

23.—ANY consent to be given under this Agreement by the Corporation may be given under the hand of the City Engineer, and any consent to be given under this Agreement by the Board may be given under the hand of the Board's Chief Engineer for Civil Works for the time being:

24.—WHERE a party (hereinafter called the first party) to this Agreement claims that the other party (hereinafter called the second party) to this Agreement is liable to pay damages or compensation to the first party in respect of any breach, omission, neglect or otherwise of the second party of any of the terms and stipulations of this Agreement, the first party shall notify the second party in writing of such claim within one calendar month of the date upon which the first party became aware or should with reasonable diligence have become aware of such claim, and should the first party fail so to notify the second party, the first party shall be deemed to have waived and abandoned such claim PROVIDED ALWAYS that where the claim arises out of continuing circumstances, one such notification shall be deemed sufficient.

25.—SHOULD any dispute arise as to this Agreement or as to the true construction thereof or as to any matter or thing done or to be done thereunder, or as to the rights, obligations and duties of the parties hereto or either of them otherwise howsoever arising out of this Agreement, such dispute shall be submitted for arbitration by the parties to the President for the time being of the Institution of Civil Engineers of Ireland or to such other person as may be nominated in writing by the said President. The decision of such arbitrator shall be final and binding in all respects. The provisions of the Common Law Procedure (Ireland) Amendment Act, 1856, and of any Act replacing, amending or extending the same, shall apply to such arbitration and the award thereof:

IN WITNESS whereof the Corporation and the Board have ________________________ hereunto caused their respective Seals to be hereunto affixed the day and year first herein written:

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