Chapter II.

Jurisdiction and powers of the Board.

20. —The Board may, in their discretion, having regard to the amount of any charitable devise or bequest or other special circumstances, exempt any person from the obligation imposed on him by section 52 either wholly or to such extent and upon such terms as they think fit.

21. —(1) Where the trustees of a charity apply to the Board for their opinion or advice respecting the charity or the administration thereof or the property thereof or the application of the property or any question or dispute relating thereto or where the executors of a will containing a charitable devise or bequest apply to the Board for their opinion or advice respecting the devise or bequest or the administration thereof or the application thereof or any question or dispute relating thereto, the Board shall consider the application and may, if they think fit, give such opinion or advice as they think expedient.

(2) The opinion or advice of the Board shall be given under the seal of the Board.

(3) Where the Board give their opinion or advice in relation to any matter, a trustee, executor or any other person who during any period (not being a period after the making of an order in relation to the matter by a Court of competent jurisdiction) acts on or in accordance with the opinion or advice shall, in respect of his so acting during that period, be deemed, so far as respects his own responsibility, to have acted in accordance with his trust.

(4) No order made subsequently by a Court shall have any such retrospective effect as to interfere with or impair the indemnity given by this section to a trustee, executor or other person who has acted on or in accordance with such opinion or advice.

(5) This section shall not indemnify a trustee or other person for any act done in accordance with an opinion or advice of the Board, if he has been guilty of fraud, wilful concealment or misrepresentation in obtaining the opinion or advice.

22. —(1) If it appears to the trustees of a charity that any claim against a person in relation to the charity may, with advantage to the charity, or should, in the special circumstances of the case, be compromised, the trustees or that person, with the consent of the trustees, may submit to the Board a statement and proposal for a compromise.

(2) If it appears to the trustees of a charity that any claim by any person against the charity or them may, with advantage to the charity, or should, in the special circumstances of the case, be compromised, the trustees or that person, with the consent of the trustees, may submit to the Board a statement and proposal for a compromise.

(3) Where the Board, after such inquiry as they think necessary, are of opinion that the proposal, with or without modification, is fit and proper and for the benefit of the charity, the Board may make such order in relation to the compromise as they think fit.

(4) If it appears to the Board that any claim by or against them in respect of any property of which they are trustees may, with advantage to the charity, or should, in the special circumstances of the case, be compromised, the Board may compromise the claim.

(5) Where a claim is authorised to be or is compromised under this section, then, upon due performance of the terms and conditions of the compromise, no action shall lie in respect of the claim.

23. —(1) The Board may, with the previous consent of the Attorney General, sue for the recovery of any charitable gift intended to be applied in the State which is improperly withheld, concealed or misapplied.

(2) The Board shall apply every charitable gift recovered by them under this section to charitable purposes according to the intention of the donor.

(3) The Board may deduct from any charitable gift recovered by them under this section all costs, charges and expenses incurred by them in such recovery.

24. —Whenever any sum is payable to or for any charitable purposes, the Board or the trustees of the charity, with the consent of the Board, may sue for and recover it, from the person for the time being liable therefor or whose duty it is to pay it, as a simple contract debt in any Court of competent jurisdiction without obtaining the consent of the Attorney General.

25. —If it appears to the Board desirable that legal proceedings should be instituted with respect to any charity by any person, other than the Attorney General, the Board may authorise or direct those legal proceedings to be instituted and give such directions in relation thereto as they think proper, and thereupon such legal proceedings may be instituted.

26. —(1) If in any case it appears to the Board desirable that legal proceedings with respect to any charity should be instituted by the Attorney General, the Board may certify the case, in writing under the hand of the Secretary, to the Attorney General, with such statements and particulars as may in their opinion be required for the explanation of the case.

(2) Where a case is so certified to the Attorney General, he may, if he thinks fit, institute such legal proceedings as he considers proper in the circumstances of the case.

27. —Where—

(a) a person has by will devised or bequeathed any property for charitable purposes, and

(b) a suit for the administration of the assets or carrying out the trusts of the will has been instituted by the personal representative of that person,

the Board (though not parties to the suit) may, on the ground of delay, apply to the Court in which the suit is pending to have the conduct of the suit transferred to the Board, and thereupon the Court, if of opinion that there has been undue or improper delay in proceeding with the suit, may—

(a) give the conduct of the suit to the Board, or

(b) impose on the party having conduct of the suit such terms as it deems necessary for bringing the suit to a speedy termination,

and may make such orders on the application as the Court thinks fit.

28. —Where any fund, standing to a separate credit in any matter within the jurisdiction of a Court, for the benefit of a charity or impressed with a charitable trust remains unapplied, the Board may apply to that Court for the transfer to them of the fund, to be held by them upon the charitable trust affecting the fund, and thereupon the Court may make such order as to the transfer of the fund to the Board or otherwise (including the payment of costs out of the fund) as the Court thinks fit.

29. —(1) For the purposes of this section—

(a) the value of land shall be taken to be fifty times the rateable valuation thereof,

(b) the value of any periodical payment to which land is subject shall be taken to be fifteen times the annual amount thereof, and

(c) the value of any other periodical payment shall be taken to be twenty times the annual amount thereof.

(2) Whenever—

(a) any of the circumstances specified in subsection (1) of section 47 exist in relation to any charitable gift, and

(b) the charitable gift does not exceed five thousand pounds in value,

the Board, if they think fit, may by order frame a scheme for the application cy-près of the property comprised in the charitable gift,

(3) Where—

(a) a charitable gift of any value has been made for the benefit of poor debtors formerly imprisoned in Ireland, and

(b) any of the circumstances specified in subsection (1) of section 47 exist in relation to the charitable gift,

the Board, if they think fit, may by order frame a scheme for the application cy-près of the property comprised in the charitable gift.

(4) Where—

(a) a scheme for the application of a charitable gift has been framed by order of a Court, and

(b) circumstances exist in relation to the scheme, being circumstances whose existence in relation to a charitable gift would enable the property comprised in the gift to be applied cy-près, and

(c) the charitable gift does not exceed five thousand pounds in value,

the Board, if they think fit, may by order revoke the scheme and frame, in lieu thereof, a new scheme for the application cy-près of the property comprised in the charitable gift.

(5) Where—

(a) a scheme for the application of a charitable gift has been framed by the Board under—

(i) section 6 of the Charitable Donations and Bequests Act (Ireland), 1871,

(ii) the said section 6, as replaced by section 1 of the Charitable Donations and Bequests (Amendment) Act, 1955 ,

(iii) section 58 of the General Prisons (Ireland) Act, 1877, or

(iv) this section (including this subsection), and

(b) circumstances exist in relation to the scheme, being circumstances whose existence in relation to a charitable gift would enable the property comprised in the gift to be applied cy-près,

the Board, if they think fit, may by order revoke the scheme and frame, in lieu thereof, a new scheme for the application cy-près of the property comprised in the charitable gift.

(6) An order framing a scheme under this section shall not be made until the expiration of one month after public notice of the proposal to make it has been given in such manner as the Board consider most effectual for ensuring publicity thereof and for bringing the proposal to the attention of persons interested.

(7) The notice shall—

(a) contain (so far as conveniently may be) sufficient particulars of the proposed order, and

(b) prescribe a reasonable time within which any objection thereto or suggestions thereon may be made to the Board,

and the Board shall consider any objections and suggestions so made to them and may act in reference thereto as they think expedient.

(8) If the Board modify any proposed order, it shall not be necessary for them to give notice of such modified order in accordance with subsections (6) and (7), unless the Board think further notice desirable.

30. —(1) In this section—

“the Act” means the Educational Endowments (Ireland) Act, 1885;

“scheme” means a scheme framed and approved under the Act;

“the enabling clause” means, in relation to a scheme, the clause (which empowers the Board to alter the scheme) inserted in the scheme in exercise of the powers conferred by section 18 of the Act;

references to a scheme shall, where the scheme has been altered under the enabling clause, be construed as references to the scheme as so altered.

(2) For the avoidance of doubt, it is hereby declared that, subject to subsection (3),—

(a) the power of altering a scheme in any matter or manner conferred on the Board by the enabling clause includes power to make in the scheme all such alterations as may be requested by the person or persons upon whose application the Board are, under the enabling clause, empowered to make alterations in that matter or manner;

(b) the alterations in the scheme may include—

(i) provision for any of the matters mentioned in section 6 of the Act, and

(ii) where the endowment consists in whole or in part of school premises, provisions authorising the sale of the premises and the application of the moneys arising therefrom for any purpose which in the opinion of the Board is in furtherance of education;

(c) any alterations so made shall be deemed not to be contrary to anything contained in the Act.

(3) The Board shall not under the enabling clause of a scheme so alter the scheme that any endowment applicable under the scheme would become applicable for any purposes other than such as are, in the opinion of the Board, in furtherance of education.

(4) Any alterations made in a scheme before the commencement of this Act in purported exercise of the powers conferred by the enabling clause shall, if made at the request of the person or persons upon whose application the Board are under the enabling clause empowered to make alterations, be deemed to have been duly made.

(5) Alterations of a scheme under the enabling clause shall, unless the Board are of opinion that the alterations are of a formal or minor nature, not be made until the expiration of one month after public notice of the proposal to make the alterations has been given in such manner as the Board consider most effectual for ensuring publicity thereof and for bringing the proposal to the attention of persons interested.

(6) The notice shall—

(a) contain (so far as conveniently may be) sufficient particulars of the proposed alterations, and

(b) prescribe a reasonable time within which any objection thereto or suggestions thereon may be made to the Board,

and the Board shall consider any objections and suggestions so made to them and may, subject to subsection (7), act in reference thereto as they think expedient.

(7) The Board shall not, as the result of any objections or suggestions made to them, modify the proposed alterations of a scheme except with the consent of the person or persons upon whose application the Board are under the enabling clause empowered to make alterations of the scheme.

(8) If the Board modify any proposed alterations, it shall not be necessary to give notice of such modified alterations in accordance with subsections (5) and (6), unless the Board think further notice desirable.

31. —(1) In this section “land” includes any periodical payment to which land is subject.

(2) The Board may, if they think fit, accept a gift of any land or fund in trust for any charitable purpose.

(3) (a) Subject to paragraphs (b) and (c), any person in whom any land or fund is vested in trust for any charitable purpose may, with the previous consent in writing of the Board, transfer all or any part thereof to the Board to be held by them for that purpose.

(b) Where a charitable gift was originally vested in more than one trustee and not more than six trustees, a transfer shall not be made under this subsection so long as there are fewer trustees than the original number appointed to act in the trusts or execution of the charitable gift or without the consent of all the trustees having first been signified in writing signed by them, such writing to be deposited with the Board.

(c) Where a charitable gift was originally vested in more than six trustees, a transfer shall not be made under this subsection without the consent of two-thirds of the trustees (not being less than six in number) having been first signified in writing signed by them, such writing to be deposited with the Board.

(4) Any land or fund vested in the Board in accordance with this section shall thenceforth be held by the Board upon and for the trusts and purposes upon and for which the land or fund was so vested or such of those trusts and purposes as are for the time being subsisting or capable of taking effect.

(5) The Board may by order from time to time nominate such persons as they think proper to administer, distribute or apply the land or fund or the profits or income thereof under their directions and from time to time by order remove any such persons and nominate! others in their place.

32. —(1) The Board may, in their discretion, invest any fund held by them upon any charitable trust in such manner as they think proper.

(2) The Board may, if they think fit, on the application of the trustees of any fund held upon any charitable trust, by order confer upon the trustees, either generally or in any particular instance, power to invest the fund in such manner, on such terms and subject to such conditions as the Board may think proper.

(3) (a) Notwithstanding anything contained in any enactment (including this Act) or rule of law, a Court or the Board shall not invest or order, empower, consent to or approve of the investment of any fund held upon any charitable trust in manner other than the following, that is to say :

(i) in investments authorised by the terms of the trust or for the time being authorised by law as investments for trust funds,

(ii) in any debentures, debenture stock or guaranteed or preference or ordinary stock or shares of any industrial or commercial company incorporated in the State or maintaining in the State at the time of the proposed investment a register of its share-holders resident in the State, provided the ordinary stock or shares of any such company are quoted on the Dublin Stock Exchange or the Cork Stock Exchange,

(iii) in the purchase of freehold or leasehold land in the State.

(b) Notwithstanding anything contained in paragraph (a), the whole or any part of a fund held upon any charitable trust which immediately before the commencement of this Act stood invested in a manner other than that specified in paragraph (a) may continue to stand so invested and, where the investment is in any securities to the holders of which other securities of the same kind are offered on advantageous terms, the fund may, whether at the time in a state of investment or not, be invested, to the extent of the offer made in respect of the fund's holding of such securities, in the other securities.

(c) A fund held upon any charitable trust shall not by virtue of paragraph (a) be invested in any manner expressly forbidden by the terms of the trust.

(d) A Court or the Board may from time to time vary or order, empower, consent to or approve of the variation of an investment made in the manner specified in paragraph (a).

(e) This subsection does not restrict the power of the Board to grant authorisations in relation to land under the subsequent provisions of this Part.

(4) Subsection (2) does not apply to a fund to which section 33 for the time being applies.

33. —Where—

(1) any fund is held upon trust, after the determination of or subject to any prior life interest or other limited interest, for any charitable purposes, and

(2) the trustees desire to invest the fund, or vary the investment of the fund by investing it, in investments specified in subparagraph (ii) or (iii) of paragraph (a) of subsection (3) of section 32 but not authorised by the terms of the trust and not for the time being authorised by law as investments for trust funds, the following provisions shall have effect—

(a) the trustees shall, before doing so, give notice in writing to the Board of their proposal;

(b) the Board shall consider the proposal and inform the trustees in writing whether or not they object to the proposal;

(c) if the Board inform the trustees that they object to the proposal, the trustees may apply to the High Court for leave to make or vary the investment and shall give notice of the application to the Board and to such other persons as the Court may direct, and the Court may make such, order thereon as the Court thinks fit;

(d) if the Board inform the trustees that they do not object to the proposal, it shall be lawful for the trustees to make or vary the investment in the manner specified in the proposal.

34. —(1) In this section “disposition”, in relation to land, means a disposition of the land by—

(a) selling it, or

(b) exchanging it for other land, or

(c) surrendering a lease of it.

(2) Where an application is made to the Board by the trustees of any charity comprising land representing that a specified disposition of the land can be effected on terms which would be advantageous to the charity, the Board may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed disposition would be advantageous to the charity, they may authorise the applicants to make that disposition and give such directions in relation thereto and for securing the due investment of the money arising therefrom, for the benefit of the charity, as they think fit.

(3) The Board may, if they think proper, authorise, with retrospective effect, a specific disposition made without such authority.

(4) If it appears to the Board in respect of any charity comprising land of which they are trustees that any disposition of the land would be beneficial to the charity, they may make that disposition of the land and the money arising therefrom shall be invested for the benefit of the charity in such manner as the Board think fit.

35. —(1) Where—

(a) any land is subject to a periodical payment payable to or for the benefit of a charity or applicable to charitable purposes, and

(b) an application is made to the Board by the trustees of the charity representing that a sale of the periodical payment to the owner of the land would be advantageous to the charity,

the Board may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed sale can be effected on terms which would be advantageous to the charity, they may authorise the applicants to sell the periodical payment to the owner of the land on such terms and conditions as they deem beneficial to the charity and give such directions for securing the due investment of the money arising from such sale for the benefit of the charity or for securing the due application thereof to such charitable purposes as they think fit.

(2) If it appears to the Board in respect of any charity comprising land of which they are trustees to be advantageous to the charity to make a sale to the owner of the land of any periodical payment charged upon the land and payable to or for the benefit of the charity or applicable to charitable purposes, the Board may sell the periodical payment to the said owner upon such terms and conditions as they deem beneficial to the charity, and give such directions for securing the due investment of the money arising from such sale for the benefit of the charity or for securing the due application thereof to such charitable purposes as they think fit.

36. —(1) Where—

(a) any land belonging to a charity is subject to a periodical payment, and

(b) an application is made to the Board by the trustees of the charity representing that a purchase by the applicants of the periodical payment would be advantageous to the charity,

the Board may, if they think fit, inquire into the circumstances, and if, after inquiry, they are satisfied that the proposed purchase would be advantageous to the charity, they may authorise the trustees to purchase the periodical payment on such terms and conditions as the Board deem beneficial to the charity.

(2) Where—

(a) a charity comprising land of which the Board are trustees is subject to a periodical payment, and

(b) the Board are of opinion that the purchase of the periodical payment would be advantageous to the charity,

the Board may purchase, out of any funds belonging to the charity, the periodical payment.

37. —(1) In this section “act to which this section applies” means, in relation to a charity comprising land, any of the following—

(a) the letting of the land on building, repairing, improving or other leases, or on leases for working any mine,

(b) the digging or raising of stone, clay, gravel or other minerals on the land,

(c) the cutting of timber on the land,

(d) the forming or laying out of any new road or street through the land,

(e) the making of drains or sewers through the land,

(f) the erection of any new building on the land,

(g) the repair, alteration, rebuilding or total removal of any existing building on the land,

(h) the making of any other improvements or alterations in the state or condition of the land.

(2) If it appears to the trustees of any charity comprising land that the doing of any act to which this section applies would be for the benefit of the charity, they may lay before the Board a statement and proposal in relation to the doing of that act, and thereupon—

(a) the Board, if they think that the doing of the act to which the statement and proposal relate (with or without modifications or alterations) would be beneficial to the charity, may make such order for or in relation to the doing of the act and any circumstances connected therewith, as they think fit, though the act is not authorised or permitted by the trust;

(b) the Board may by that order authorise the application of any moneys belonging to the charity for the act, and, if necessary, may authorise the trustees to raise any sum of money by mortgage of all or any part of the land of the charity.

(3) If it appears to the Board in respect of any charity comprising land of which they are trustees that the doing of any act to which this section applies would be for the benefit of the charity—

(a) they may do that act, and

(b) they may for that purpose, if necessary, raise any sum of money by mortgage of all or any part of the land belonging to the charity.

(4) Every mortgage made under subsection (2) or (3) shall provide for—

(a) the payment of the principal money by annual instalments,

(b) the redemption and reconveyance of the mortgaged land within a period of not more than thirty years.

(5) The Board may, if they think proper, authorise, with retrospective effect, any act to which this section applies done without such authority.

38. —The Board may, in relation to money arising from any transaction to which, section 34, 35 or 37 applies, direct the trustees to pay the money to the Board and, in that case, the money shall be invested by the Board for the benefit of the charity in such manner as the Board think fit.

39. —(1) Where—

(a) any land is required for the erection or construction of any house or building, with or without garden, playground, or other appurtenances for the purpose of any charity, and

(b) the Board or the trustees of the charity are authorised to purchase the land, but by reason of the disability of any person having an estate or interest therein or of any defect of title, a valid and perfect assurance of that land cannot be made to the Board or the trustees in the ordinary manner,

the Board or the trustees (with the consent of the Board, certified under the hand of the Secretary), as the case may be, may take and purchase the land according to the provisions of the Lands Clauses Consolidation Act, 1845.

(2) For the purposes of subsection (1), the following clauses of the Lands Clauses Consolidation Act, 1845, namely—

(a) the clauses with respect to the purchase of lands by agreement,

(b) the clauses with respect to the purchase money or compensation coming to parties having limited interests, or prevented from treating, or not making title,

(c) the clauses with respect to conveyances of land,

shall be incorporated in this Act subject to the following modifications—

(i) “the special Act” shall mean this Act,

(ii) “the promoters of the undertaking” shall mean the Board or the trustees of the charity in question (as the case may be).

40. —All sales, leases, exchanges and other transactions authorised by the Board under this Act shall have the like effect and validity as if they had been authorised by the express terms of the trust affecting the charity.

41. —Where—

(a) a person is liable to make any payment to or for any charitable purposes, and

(b) difficulty arises in making the payment by reason of the death, absence, incapacity or non-existence of a person competent to give an effectual discharge,

the Board may, if they think fit, accept the payment (to be applied by them according to the trusts affecting it) and the receipt of the Board shall be an effectual discharge to the person making the payment.

42. —(1) The Board may request any person having the custody of any documents relating to any charity to furnish such copies or extracts of or from those documents as the Board may specify and that person shall comply with the request.

(2) The Secretary or any other officer of the Board authorised in that behalf by the Board may, without payment, examine and search the registers and records of any Court, and any public registry and office of records and take copies of and extracts from any document recorded or registered or deposited therein.

43. —(1) Where for any reason the appointment of a new trustee or new trustees of any charity appears to the Board to be necessary, the Board—

(a) on the application of the trustee or trustees of the charity, or

(b) if there are no trustees of the charity, or they cannot be found, on the application of any person having an interest, or

(c) in any case, of their own motion,

may make—

(i) an order under the seal of the Board appointing a new trustee or new trustees of the charity either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee, and

(ii) an order under the seal of the Board vesting the property of the charity for such estate as the Board may direct in the persons who on the appointment are the trustees, and the order shall have the same effect as if the persons who before the appointment were the trustees (if any) had duly executed all proper conveyances of the land for such estate as the Board direct, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate as the Board direct.

(2) Every trustee of a charity appointed under this section shall, as well before as after the property of the charity becomes by law vested in him, have the same powers, authorities and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust.

(3) The Board may order the costs and expenses of and incidental to any application or order under this section to be paid or raised out of the property of the charity or the income thereof or to be borne and paid in such manner and by such persons as the Board may consider just.

(4) The Board shall—

(a) not less than one month before the date on which they propose to make an order under this section, give public notice of the proposed order, and

(b) on the day immediately following the date of the making of the order, give public notice of the making, and of the date of the making, of the order,

in such manner as the Board consider most effectual for ensuring publicity for the proposal or order, as the case may be; and for bringing it to the attention of persons interested.

(5) (a) Any person having an interest may, within twenty-one days after the date of the making of an order under this section, appeal to the High Court against the making of the order and on such appeal the High Court may make such order confirming, annulling or varying the order under this section and such order as to costs as it thinks fit.

(b) The Board and the trustees (if any) of the charity shall be entitled to be represented and heard on any appeal under this subsection.

(c) An order under this section shall, if no appeal is brought against it, become operative on the expiration of the period of twenty-one days mentioned in paragraph (a) of this subsection, and an order against which an appeal is brought shall become operative—

(i) if and so far as it is confirmed by the Court, from the date of the final determination of the appeal, and

(ii) if the appeal is withdrawn, from the date of the withdrawal.

(6) An order under this section shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

(7) Nothing in this section shall give power to appoint an executor or administrator.

(8) Where a body corporate is appointed by order under this section to be, or a body corporate appointed under this section becomes, sole trustee of a charitable trust the terms of which provide for or require the appointment of more than one trustee, then during such time as the body corporate holds the office of trustee of the trust—

(a) the terms of the trust shall be deemed to provide for or require the appointment of one trustee only, and

(b) one trustee only shall be deemed to have been originally appointed under the terms of the trust.

(9) Where any land of which the ownership is registered under the Registration of Title Acts, 1891 and 1942, becomes vested, by order under this section, in any person or persons, the registering authority under those Acts shall, upon production of a copy under the seal of the Board of the order and upon payment of the appropriate fee, register that person or those persons in the appropriate register maintained under those Acts as owner (within the meaning of those Acts) of the land.

44. —The Board may order the bill of costs claimed by a solicitor on account of business conducted or transacted by him on behalf of a charity, or the trustees thereof, to be taxed and ascertained by a Taxing Master, and where costs which are the subject of an order under this section will fall to be paid out of a fund, the Taxing Master shall have regard to that fact in taxing and ascertaining them.