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55 2001

TRANSPORT (RAILWAY INFRASTRUCTURE) ACT, 2001

PART 3

Railway Orders

Surveys and inspections.

36. —(1) The Agency or CIÉ may authorise in writing persons to be authorised persons for the purposes of this Part.

(2) An authorised person may, on production of his or her authorisation together with an appropriate form of identification if so requested by any person affected, for the purposes of this Part enter on any land and—

(a) inspect and survey the land and make any inquiry, investigation or examination for the purpose of ascertaining whether or not the land is suitable for the purposes of the construction of a railway,

(b) carry out any investigation or examination thereon preliminary or incidental to the purposes aforesaid,

(c) bring thereon such other persons or equipment as he or she may reasonably consider necessary for the purposes of his or her functions under this section,

(d) line sight, drill, bore, probe or excavate, or take such samples and carry out such tests as he or she reasonably considers necessary or expedient for the purposes of such functions,

(e) if authorised by the Agency, inspect and survey the land and make any inquiry, investigation or examination for the purpose of ascertaining whether or not the land is suitable for the purposes of fulfilling any of the related functions of the Agency.

(3) An authorised person shall not, other than with the consent of the occupier, enter a private dwelling unless he or she has obtained a warrant from the District Court under subsection (4) authorising such entry.

(4) Where an authorised person is refused entry to any land, the Agency or CIÉ, as the case may be, may apply to a judge of the District Court assigned to the district court district in which the land is situated for a warrant authorising such entry, and upon the hearing of the application the judge shall, if satisfied that such entry is necessary or expedient, by warrant authorise such entry, on production of the warrant, if so requested.

(5) Whenever an authorised person exercises any of the functions conferred on him or her by subsection (2), the Agency or CIÉ, as the case may be, shall be liable to make good all damage done to the land entered upon or interfered with by the exercise of such functions and to pay compensation in respect of any loss arising out of or in the course of the performance of the functions of an authorised person under this section, and, if there is a failure to do so, any person affected by the damage or loss shall be entitled to compensation in respect thereof and such compensation shall be recoverable from the Agency or CIÉ, as the case may be, in default of agreement, in any court of competent jurisdiction.

Application for a railway order.

37. —(1) The Agency, CIÉ, or any other person with the consent of the Agency, may apply to the Minister for a railway order.

(2) An application under subsection (1) shall be made in writing in such form as the Minister may specify and shall be accompanied by—

(a) a draft of the proposed order,

(b) a plan of the proposed railway works,

(c) in the case of an application by the Agency or a person with the consent of the Agency, a plan of any proposed commercial development of land adjacent to the proposed railway works,

(d) a book of reference to a plan required under this subsection (indicating the identity of the owners and of the occupiers of the lands described in the plan), and

(e) a statement of the likely effects on the environment (referred to subsequently in this Part as an “environmental impact statement”) of the proposed railway works,

and a draft plan and book of reference shall be in such form as the Minister may specify or in a form to the like effect.

(3) The Minister shall acknowledge receipt of an application under this section within 14 days of receiving it.

(4) The construction of railway works, the subject of an application for a railway order under this Part, shall not be undertaken unless the Minister has granted an order under section 43 .

Exempted development.

38. —Each of the following shall be exempted development for the purposes of the Act of 2000—

(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Minister and specified in a railway order or of any incidental or temporary works connected with such development;

(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order.

Environmental impact statement.

39. —(1) An environmental impact statement shall contain the following specified information—

(a) a description of the proposed railway works comprising information on the site, design and size of the proposed railway works,

(b) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,

(c) the data required to identify and assess the main effects which the proposed railway works are likely to have on the environment,

(d) an outline of the main alternatives studied by the applicant and an indication of the main reasons for its choice, taking into account the environmental effects, and

(e) a summary in non-technical language of the above information.

(2) An environmental impact statement shall, in addition to and by way of explanation or amplification of the specified information referred to in subsection (1), contain further information on the following matters—

(a) (i)  a description of the physical characteristics of the whole proposed railway works and the land-use requirements during the construction and operational phases,

(ii)  an estimate, by type and quantity, of the expected residues and emissions (including water, air and soil pollution, noise, vibration, light, heat and radiation) resulting from the operation of the proposed railway works;

(b) a description of the aspects of the environment likely to be significantly affected by the proposed railway works, including in particular—

(i) human beings, fauna and flora,

(ii) soil, water, air, climatic factors and the landscape,

(iii) material assets, including the architectural and archaeological heritage, and the cultural heritage,

(iv) the inter-relationship between the matters referred to in this paragraph;

(c) a description of the likely significant effects (including direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative) of the proposed railway works on the environment resulting from—

(i) the existence of the proposed railway works,

(ii) the use of natural resources,

(iii) the emission of pollutants, the creation of nuisances and the elimination of waste,

and a description of the forecasting methods used to assess the effects on the environment;

(d) an indication of any difficulties (technical deficiencies or lack of know-how) encountered by the applicant in compiling the required information; and

(e) a summary in non-technical language of the above information,

to the extent that such information is relevant to a given stage of the consent procedure and to the specific characteristics of the railway works or type of railway works concerned, and of the environmental features likely to be affected, and the applicant may reasonably be required to compile such information having regard, inter alia, to current knowledge and methods of assessment.

(3) (a)  If a person, before applying to the Minister for a railway order, so requests, the Minister shall, after consulting the person and such bodies as may be specified by the Minister for that purpose, give a written opinion on the information to be contained in an environmental impact statement.

(b)  The giving of a written opinion in accordance with this subsection shall not prejudice the exercise by the Minister of his or her powers pursuant to this Act to require an applicant to furnish further information in relation to the effects on the environment of the proposed railway works.

(4) The European Communities (Environmental Impact Assessment) Regulations, 1989 to 2000, and the Local Government (Planning and Development) Regulations, 1994 to 2000, and the Act of 2000 and any regulation made thereunder in relation to environmental impact assessment shall not apply to anything done under an order made under this Act.

Publication of notice in relation to application for railway order.

40. —(1) Whenever an application is made for a railway order, the applicant shall, within 14 days of the Minister acknowledging receipt of the application—

(a) deposit and keep deposited at such place or places, being a place or places which is or are easily accessible to the public, as may be appointed by the Minister, a copy of the draft order and all documents which accompanied the application, for not less than 28 days following the publication of the notice referred to in paragraph (b),

(b) publish a notice in one or more newspapers circulating in the area to which the order relates—

(i) indicating that an application has been made for an order,

(ii) indicating the times at which, the period during which and the place or places where a copy of the draft order and accompanying documents deposited under this section may be inspected,

(iii) stating that a public inquiry will be held into the application,

(iv) stating that the Minister will consider any submissions in relation to the proposed order or in relation to the likely effects on the environment of the proposed railway works which are submitted in writing to him or her by any person not later than 14 days after the end of the period specified in the notice referred to in subparagraph (ii), and

(v) stating that a copy of or extract from the draft order and accompanying documents may be purchased on payment of a fee not exceeding the reasonable cost of making such copy or extract,

(c) serve on the planning authority in whose functional area (or any part thereof) the proposed railway works are proposed to be carried out and on such persons (if any) as the Minister may direct a copy of the draft order and accompanying documents and the notice referred to in paragraph (b), and

(d) serve a copy of the notice referred to in paragraph (b) together with relevant extracts from the documents referred to in paragraph (a) on every (if any) occupier and every (if any) owner of a land referred to in the draft order.

(2) Members of the public may inspect a copy of a draft railway order and accompanying documents deposited under this section free of charge at the times and during the period specified in the notice referred to in subsection (1)(b) and may purchase copies of or extracts from any of the documents aforesaid on payment of a fee to the applicant not exceeding the reasonable cost of making such copies or extracts as may be fixed by the applicant.

(3) A person may, not later than 30 days after the end of the period specified in subsection (2), make submissions in writing to the Minister in relation to the proposed railway order or the likely effects on the environment of the proposed railway works.

Further information to Minister.

41. —(1) Where the Minister is of the opinion that an environmental impact statement furnished under section 37 does not comply with the provisions of section 39 , or where he or she otherwise considers it necessary so to do, he or she shall require the applicant to furnish him or her with a document containing such further information in relation to the likely effects on the environment of the proposed railway works as he or she may specify and the applicant shall comply with any such requirement within any timescale decided by the Minister.

(2) (a)  If the document furnished under subsection (1) contains significant data in relation to the likely effects on the environment of the proposed railway works, the Minister shall require the applicant—

(i) to deposit and keep deposited at the place or each of the places appointed by the Minister, a copy of the aforesaid document,

(ii) to publish in one or more newspapers circulating in the area to which the proposed railway order relates a notice stating that further information in relation to the likely effects on the environment of the proposed railway works has been furnished to the Minister, that copies of the document containing the information will be available for inspection free of charge and for purchase by members of the public, at the place or each of the places appointed by the Minister, at specified times during the period of 28 days beginning on the day of publication of the notice and that submissions in relation to the further information may be made to the Minister before the expiration of the said period, and

(iii) to serve notice of the furnishing of the further information to the Minister, together with relevant extracts from the document aforesaid, on any person on whom notice was served pursuant to section 40 (1) and to indicate to the person concerned that submissions in relation to the further information may be made to the Minister during the period of 28 days beginning on the day on which the notice is sent to the person concerned by the applicant.

(b)  Copies of further information in respect of which notice is published pursuant to a requirement under subsection (2)(a)(ii) shall be made available for purchase by members of the public during the period specified therein for such fee as the applicant may fix not exceeding the reasonable cost of making such copies.

(3) Members of the public may inspect the further information deposited under this section free of charge at the times and during the period specified in the notice referred to in subsection (2)(a)(ii).

(4) A person may, during the appropriate period specified in subsection (2), make submissions in writing to the Minister in relation to the further information deposited under this section.

Public inquiry into application for railway order.

42. —(1) (a) Where an application is made to the Minister for a railway order, the Minister shall, within 14 days of acknowledging such application, direct a public inquiry to be held into the application in the functional area of the local authority in which the railway is proposed to be situated or such one of the local authorities in which it is proposed to be situated as the Minister may determine.

(b) Within 28 days of acknowledging such an application, the Minister shall, after consultation with An Bord Pleanála, appoint a person to be an inspector to hold the inquiry referred to in paragraph (a).

(c) The person appointed under paragraph (b) shall be a person who in the opinion of the Minister is independent, and has satisfactory experience, and competence in one or more of the following areas:

(i) transportation planning,

(ii) civil engineering,

(iii) land use planning,

(iv) architecture,

(v) law,

(vi) finance,

(vii) environmental matters, or

(viii) administration.

(d) The inspector appointed to hold an inquiry shall publish in one or more newspapers circulating in the area to which the proposed railway order relates a notice stating where and when the inquiry shall commence and where the application for the order may be viewed and inviting submissions to the inquiry.

(e) The inspector appointed to hold an inquiry shall hold the inquiry, which shall commence no earlier than the final date allowed for written submissions to the Minister under section 40 (3) or 41(4), and shall prepare and submit to the Minister a report in writing of the findings of the inquiry and he or she may, if he or she so thinks fit, include in the report any recommendations he or she considers appropriate having regard to the inquiry and the Minister shall, without delay after such submission, cause the report to be published.

(f) Where an inspector is appointed under paragraph (b), the Minister may appoint a person or persons to act as an assessor or assessors to assist the inspector in relation to his or her functions under this section and a person or persons so appointed shall not take any part in the preparation of the report, the making of the findings or the recommendations (if any) under paragraph (e).

(g) Any interested person shall be entitled to appear and be heard at an inquiry under this section.

(2) The inspector appointed to hold an inquiry shall, for the purposes of the inquiry, consider—

(a) the application made to the Minister under section 37 ;

(b) the draft order and documents that accompanied the application;

(c) any submission, whether written or oral, made to the inquiry, or any written submission to the Minister under section 40 (3) or 41(4);

(d) any alternatives to the application submitted to the inquiry;

(e) the impact of the proposed railway, the subject of the application, on local communities;

and such other matters as the inspector considers appropriate.

(3) The inspector appointed to hold an inquiry may, for the purposes of the inquiry—

(a) require, by summons, any person to attend as a witness to give evidence,

(b) require any person to produce such plans, books, papers and other documents (being in that person's custody or under his or her control) which the inspector may consider relevant and retain such plans, books, papers and documents for such time as he or she may reasonably require them,

(c) administer or cause to be administered an oath and take evidence under oath.

(4) If a person—

(a) on being duly summoned to attend as a witness under subsection (3) before an inquiry without just cause or excuse disobeys the summons,

(b) being in attendance as a witness refuses to take an oath or to make an affirmation when legally required by the inspector to do so, or to produce any documents in his or her custody or control legally required by the inspector to be produced by him or her or to answer any question to which the inspector may legally require an answer,

(c) wilfully gives evidence which is material to the inquiry and which he or she knows to be false or does not believe to be true,

(d) by act or omission, obstructs or hinders the inspector in the performance of his or her functions, or

(e) fails, neglects or refuses to comply with any requirement provided for under subsection (3)(b), or does or omits to do any other thing and if such doing or omission would, if the inquiry had been the High Court, have been contempt of that Court,

the person is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 (£1,575.13) or to imprisonment for a term not exceeding 3 months or to both.

(5) A statement or admission made by a person before an inspector under this section shall not be admissible in evidence against that person in any criminal proceedings other than proceedings in relation to an offence under subsection (4).

(6) A person duly summoned to attend as a witness under subsection (3) before an inquiry shall be allowed such expenses to be paid out of moneys provided by the Oireachtas as would be allowed to a witness summoned to attend before a court of record and, in case of dispute as to the amount to be allowed, the dispute shall be referred by the inspector to a taxing master of the High Court who, on request signed by the inspector, shall ascertain and certify the proper amount of the expenses.

(7) A witness at an inquiry under this section shall be entitled to the same immunities and privileges as a witness in a court.

(8) The Minister may, if he or she so thinks fit, appoint more than one person to be an inspector for the purposes of this section and references in this section to an inspector shall, in the case where more than one is so appointed, be construed accordingly.

(9) An inspector shall be independent in the performance of his or her functions.

(10) (a)  Where a public inquiry has been held under this section and the inspector is of the opinion that, having regard to the findings of the inquiry and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the inspector may recommend that the whole or part of the costs of any person appearing before the inquiry be paid to the person by the Minister, with the consent of the Minister for Finance.

(b)  Any costs referred to in paragraph (a) which refer to costs incurred by a person represented by counsel or solicitor shall be taxed by a taxing master of the High Court.

(11) An inspector shall cause copies of any documents or written submissions given or made to him or her at an inquiry under this section to be made available during the inquiry at the place where the inquiry is being held for inspection by members of the public.

(12) “inspector” means an inspector appointed under subsection (1)(b).

Railway order.

43. —(1) Whenever an application is made under section 37 , the Minister shall, before deciding whether to grant the order to which the application relates, consider the following—

(a) the application,

(b) the draft order and documents that accompanied the application,

(c) the report of the public inquiry held under section 42 , and the recommendations (if any) contained therein,

(d) any submission duly made to him or her under section 40 (3) or 41(4) and not withdrawn,

(e) any submission duly made to him or her by a planning authority referred to in section 40 (1)(c),

(f) any additional information furnished to him or her under section 41 .

(2) If, after such consideration, the Minister is of opinion that the application should be granted, he or she shall make an order authorising the applicant to construct, maintain, improve and, subject to section 11 (7) in the case of the Agency, operate the railway or the railway works specified in the order or any part thereof, in such manner and subject to such conditions, restrictions and requirements (and on such other terms) as the Minister thinks proper and specifies in the order and the Minister shall furnish the applicant with a copy of the order.

(3) Where the Minister makes an order under subsection (2) which constitutes a substantial material departure from the recommendations contained in the report of the public inquiry held under section 42 , the Minister shall lay a statement in writing before each House of the Oireachtas stating his or her reasons for such departure when the order is being laid before the Houses of the Oireachtas.

(4) As soon as may be after the making of a railway order, the Minister shall publish a notice, in Iris Oifigiúil and in at least 2 newspapers circulating in the area to which the order relates, of the making of the railway order and of the places where, the period during which and the times at which copies thereof and any plan referred to therein may be inspected or purchased at a cost not exceeding the reasonable cost of making such copies.

(5) A railway order shall come into operation—

(a) in case an application for leave to apply for judicial review of the order has not been made, upon the expiration of 8 weeks, and

(b) in case such an application has been made and has not been withdrawn, in so far as it has not been declared invalid or quashed pursuant to that review, upon the final determination of the proceedings concerned or such other date as may be determined in those proceedings, and

(c) in case such an application has been made and is withdrawn, upon the date of the withdrawal.

(6) A person who has been granted a railway order may, with the consent of the Minister, make arrangements with another person to construct, maintain, improve or operate the railway or the railway works to which the order relates.

(7) (a)  Subject to paragraph (b), on application in that behalf by the railway undertaking to the Minister, the Minister may, if he or she considers it appropriate to do so, by order amend a railway order or the plan or book of reference relating to it and amendments under this paragraph may include a provision varying the route of the railway.

(b)  Where, in the opinion of the Minister, an amendment of a railway order would, if made, constitute a substantial material variation in the railway works, the subject of the order, and the Minister so declares in a notice published in Iris Oifigiúil, sections 37 to 43 shall apply in relation to the making of an order under paragraph (a) as they apply to a railway order and the application shall be deemed for the purposes of this Part to be an application for a railway order and this Part shall apply accordingly in relation to the application with any necessary modifications.

(8) The Minister may, if there is a failure or refusal to comply with a condition, restriction or requirement specified in a railway order, revoke the order.

(9) (a)  Where the Minister proposes to revoke an order under this section, he or she shall notify the railway undertaking in writing of his or her proposal and of the reasons for it.

(b)  The railway undertaking may, not later than 21 days from the date of the sending of the notification, make submissions in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any submissions duly made to him or her under this paragraph in relation to the proposal and not withdrawn, and

(ii) notify the railway undertaking in writing of his or her decision and of the reasons for it.

(10) A notification of a proposal of the Minister under subsection (9) shall include a statement that the railway undertaking may make submissions to the Minister not later than 21 days from the date of the sending of the notification and a notification of a decision of the Minister under subsection (9) shall include a statement that the railway undertaking may appeal to the High Court under subsection (11) against the decision not later than 21 days from the date of the sending of the notification.

(11) The railway undertaking may appeal to the High Court against a decision of the Minister under this section and that Court may, as it thinks proper, on the hearing of the appeal, confirm the decision of the Minister or direct the Minister to withdraw his or her decision and prohibit the making of the proposed order concerned.

Provisions in relation to railway order.

44. —(1) A railway order shall contain such provisions as the Minister considers necessary or expedient for the purpose of the order.

(2) Without prejudice to the generality of subsection (1)

(a) a railway order may specify any land or any substratum of land, the acquisition of which is, in the opinion of the Minister, necessary for giving effect to the order,

(b) the order may specify any rights in, under or over land or water or, subject to the consent of the Minister for the Environment and Local Government, in, under or over any public road, the acquisition of which is, in the opinion of the Minister, necessary for giving effect to the order,

(c) the order may specify the manner in which the railway or the railway works or any part thereof to which the order relates are to be constructed,

(d) the order may fix the period within which the construction of the railway works is to be completed,

(e) the order may contain provisions as to the manner in which the railway works are to be operated and maintained,

(f) the order may contain such provisions as the Minister thinks proper for the protection of the public generally, of local communities and of any persons affected by the order,

(g) the order may provide for the determination by arbitration of any specified questions arising thereunder,

(h) the order may contain such provisions ancillary or incidental to any of the matters aforesaid as the Minister considers necessary and proper.

(3) The Minister may, in a railway order, designate the railway to which the order relates as a light railway or as a metro.

Compulsory acquisition of land.

45. —(1) Upon the commencement of a railway order, the Agency or CIÉ shall thereupon be authorised to acquire compulsorily any land or rights in, under or over land or any substratum of land specified in the order and, for that purpose, the railway order shall have effect as if it were a compulsory purchase order referred to in section 10(1) of the Local Government (No. 2) Act, 1960 (inserted by section 86 of the Housing Act, 1966), which has been duly made and confirmed and, accordingly, that section shall apply and have effect in relation to the order with the modifications that—

(a) references to the local authority shall be construed as including references to the Agency or CIÉ as the case may be,

(b) references to the Minister for the Environment and Local Government shall be construed as including references to the Minister,

(c) the reference in subsection (4)(a) to section 78 of the Housing Act, 1966, shall be construed as including a reference to subsections (1), (4) and (5) of that section,

and with any other necessary modifications.

(2) Where the Agency or CIÉ proposes to acquire land pursuant to subsection (1) and, in the opinion of the Agency or CIÉ, as the case may be, it is more efficient and economical to acquire additional adjoining land, the Agency or CIÉ, as the case may be, may do so with the consent of the Minister and of any person having an interest in or right in, under or over the adjoining land notwithstanding the fact that the adjoining land is not specified in the railway order.

(3) The Agency or CIÉ shall comply with any directions of the Minister in relation to land acquired by it pursuant to subsection (1).

Notification of grant of railway order.

46. —As soon as may be after the making of a railway order, the railway undertaking shall—

(a) deposit and keep deposited at the head office of the railway undertaking and at such other place as may be specified by the Minister, during the period of 5 years following the opening for traffic of the railway, a copy of the order and the plan referred to therein and the aforesaid order and plan shall, while so deposited, be open to inspection by members of the public free of charge, at all reasonable times, and copies of or extracts from any of the documents aforesaid may be purchased on payment of a fee to the railway undertaking not exceeding the reasonable cost of making such copies or extracts, and

(b) serve a copy of relevant extracts from the railway order and the plan referred to therein on every planning authority for the area (or any part thereof) to which the order relates and to every (if any) occupier and every (if any) owner of land referred to in the railway order.

Judicial review of railway order.

47. —(1) A person shall not question the validity of a railway order otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (“the Order”).

(2) An application for leave to apply for judicial review under the Order in respect of a railway order or part thereof referred to in subsection (1) shall—

(a) be made within the period of 8 weeks commencing on the date on which the railway order was made unless the court considers that there is good and sufficient reason for extending the period within which the application shall be made, and

(b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Minister and the railway undertaking, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the railway order is invalid or ought to be quashed, and that the applicant has a substantial interest (not limited to an interest in land or other financial interest) in the matter which is the subject of the application.

(3) The High Court may, before hearing an application referred to in subsection (2), direct that notice of the application be also served on such persons (including any person who made a submission to the Minister in accordance with section 40 (3) or 41(4) as the Court may specify.

(4) Notwithstanding an application for leave to apply for judicial review under the Order against a railway order, the application shall not affect the validity of the railway order and its operation unless, upon an application to the High Court, that Court suspends the railway order until the application is determined or withdrawn.

(5) (a)  The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court or Supreme Court, which leave shall only be granted where the Court certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(b)  This subsection shall not apply to a determination of the High Court, in so far as it involves a question as to the validity of any law, having regard to the provisions of the Constitution.

(6) Where an application is made for judicial review in respect of part only of a railway order, the High Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring to be invalid or quashing the remainder of the railway order or part of the railway order, and if the Court does so, it may make any consequential amendments to the remainder of the railway order or part of the railway order that it considers appropriate.

(7) References in this section to the Order shall be construed as including references to the Order as amended or re-enacted (with or without modification) by rules of court.

Power of railway undertaking to carry out railway works and to enter land.

48. —(1) (a) Upon the commencement of a railway order, the railway undertaking may, for the purposes of carrying out the works allowed under that order—

(i) enter on any land the subject of the order and carry out on the land railway works authorised by the order,

(ii) enter on any other land and occupy it or otherwise make use of it for the purpose of carrying out the works aforesaid,

(iii) enter on any land for the purpose of carrying out any maintenance or improvement of the railway concerned,

(iv) enter on any land and attach to any wall, house or other building any bracket, cable or wire or other fixture required for the construction, operation or maintenance of the railway concerned,

(v) enter on any land and underpin or otherwise strengthen any house or other building affected or likely to be affected by the works or the railway aforesaid,

and do on any such land all such other things as are, in its opinion, ancillary to, or reasonably necessary for, the purposes aforesaid.

(b) Before exercising any power under paragraph (a), the railway undertaking shall either—

(i) obtain the consent of any owner or occupier of the land concerned, or

(ii) give to any owner or occupier of the land concerned not less than 14 days notice in writing stating its intention to enter on the land, the purposes for which the entry is intended to be made and that he or she may apply in accordance with paragraph (c) to the District Court for an order prohibiting entry.

(c) A person to whom a notice has been given under this subsection may, not later than 14 days after the giving of the notice, apply, on notice to the railway undertaking, to the judge of the District Court having jurisdiction in the district court district in which the land is situated for an order prohibiting the entry and, upon the hearing of the application, the judge may, if he or she so thinks proper, either prohibit the entry or specify conditions to be complied with by the person making the entry.

(d) Where a judge of the District Court prohibits under this subsection a proposed entry onto land, it shall not be lawful for any person to enter onto the land under paragraph (a), and where a judge of the District Court specifies under this subsection conditions to be complied with by a person entering onto land, every person who enters onto the land under paragraph (a) shall comply with the conditions so specified.

(2) (a) Where, in the opinion of the railway undertaking—

(i)  the exercise of a power conferred on it by subsection (1) is urgently required for the purpose of preventing or minimising injury, loss or damage to persons or property, and

(ii)  it is not reasonably possible to comply, in relation to such exercise, with paragraph (b) of that subsection,

the railway undertaking may exercise the power without having complied in relation to such exercise, with that paragraph.

(b) Before exercising a power by virtue of this subsection, the railway undertaking shall give to any owner or occupier of the land notice of its intention to enter on the land, and of the purposes for which the entry is intended to be made.

(c) Where, in the opinion of the railway undertaking, it is not reasonably possible to comply with paragraph (b), the railway undertaking may exercise the power concerned without having complied therewith and, as soon as may be thereafter, shall give to any owner or occupier of the land concerned a notice in writing specifying the powers exercised and the purposes of such exercise.

(3) (a) Where an owner or occupier of land (other than a person whose land is acquired under section 45 ) suffers loss, injury or damage or incurs expenditure in consequence of the exercise by the railway undertaking of a power conferred on it by this section, the railway undertaking shall pay to him or her compensation in respect of the loss, injury, damage or expenditure and the amount of the compensation shall, in default of agreement, be determined by arbitration under and in accordance with the Lands Clauses Acts (other than sections 38 to 67 of the Lands Clauses Consolidation Act, 1845) and, for the purposes of those Acts, the railway undertaking shall be deemed to be the promoter of the undertaking and this Part and the railway order concerned shall be deemed to be the special Act; and, for the purposes of such determination, those Acts shall apply with any other necessary modifications and are incorporated (except insofar as they are inconsistent with and subject to any amendments or modifications, express or implied, thereof effected by this Act) with this Part.

(b) In assessing the compensation payable to a person under paragraph (a), regard shall be had to any benefit to any property of the person that arises or may reasonably be expected to arise from the exercise of the power concerned.

Lopping of trees.

49. —(1) The Agency, CIÉ, or a railway undertaking may lop, remove or cut any tree, shrub or hedge which obstructs or interferes with—

(a) surveys or inspections under section 36 ,

(b) railway works authorised by a railway order,

(c) the maintenance, operation or improvement of railway works or cables or other railway apparatus,

(d) the operation of a railway,

(e) the laying and erection of electric wires, or

(f) the safe passage of the railway vehicles including the safety of any passengers on board such vehicles on a railway line.

(2) Subject to subsection (4), before lopping or cutting any tree, shrub or hedge under this section, the Agency, CIÉ, or railway undertaking shall serve on the owner or occupier of the land or, in the case of a public road, on the road authority charged with the maintenance of such road on which such tree, shrub or hedge is standing, notice in writing of its intention to do so and, after the expiration of 28 days from the date of such service, the Agency, CIÉ, or railway undertaking, may lop or cut any tree, shrub or hedge if the owner or occupier has not already done so.

(3) Where an occupier or owner of land cuts or lops any tree, shrub or hedge under this section, the expense incurred by him or her in so doing shall be paid to him or her on demand by the Agency, CIÉ, or railway undertaking, and the amount of such expenses shall be recoverable from the Agency, CIÉ, or railway undertaking, in default of agreement, as a simple contract debt in any court of competent jurisdiction.

(4) If a railway undertaking, for reasons of safety, needs to fell or lop any tree, shrub or hedge, the conditions in subsections (2) do not apply.

(5) Where a railway undertaking fells or lops any tree, shrub or hedge under subsection (4), it shall give written notice to the owner or occupier of the land concerned informing them of such felling or lopping and the reasons for so doing.

(6) The requirement for a tree felling licence under section 37 of the Forestry Act, 1946 , does not apply to the Agency, CIÉ, or railway undertaking for the purposes of a railway development under this Part.

Breaking up of roads, etc.

50. —(1) Upon the commencement of a railway order, the railway undertaking shall thereupon be authorised for the purpose of carrying out railway works or the operation, maintenance, repair or improvement of a railway or for any purpose incidental to the purposes aforesaid to—

(a) open, break up and, if necessary, alter the level or route of any public road, or

(b) construct a new road.

(2) The railway undertaking shall not open, break up or alter the level or route of any public road or construct a new road without the prior consent in writing (which shall not be unreasonably withheld) of the road authority in whose functional area the road is situate or, in the case of a new road, to be situate.

(3) A consent under subsection (2) may be given by the road authority subject to such conditions, restrictions or requirements as it thinks fit and specifies in the consent and the railway undertaking shall comply with such conditions, restrictions or requirements (if any).

Safety of railways.

51. —No part of a railway shall be opened for—

(a) testing and commissioning, or

(b) passenger or freight traffic,

until the following has been demonstrated to the satisfaction of an inspector duly appointed by the Minister under the Regulation of Railways Act, 1871—

(i) the safety and suitability of the railway, and of the vehicles to be used on such railway, and

(ii) the appropriateness of the systems and procedures that will be used to ensure the safe operation of the railway.

Service of notices.

52. —(1) On request from an applicant or railway undertaking, and if the Minister is satisfied in relation to a notice required to be served under this Part that—

(a) reasonable grounds exist for dispensing with the service of the notice, and

(b) the dispensing with the service of the notice will not cause injury or damage to any person,

he or she may dispense with the service of the notice and every such dispensation shall have effect according to the terms thereof.

(2) Where a notice is required or authorised by or under this Part to be served on a person, it shall be addressed to him or her and shall be served on or given to him or her in any one of the following ways—

(a) where it is addressed to him or her by name, by delivering it to him or her,

(b) by leaving it at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address,

(c) by sending it by post in a prepaid registered letter, or by any other form of recorded delivery service specified by the Minister, addressed to him or her at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address, or

(d) where the address at which he or she ordinarily resides cannot be ascertained by reasonable inquiry and the notice is so required or authorised to be served in respect of any land or premises, by delivering it to some person over 16 years of age resident or employed on such land or premises or by affixing it in a conspicuous position on or near such land or premises.

(3) Where a notice is required by or under this Part to be served on an owner or occupier of any land or premises and the name of the owner or of the occupier, as the case may be, cannot be ascertained by reasonable inquiry, it may be addressed to “the owner” or “the occupier”, as the case may require, without naming him or her.

(4) A person who, at any time during the period of 12 weeks after a notice is affixed under subsection (2) (d), removes, damages or defaces the notice without lawful authority is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 (£1,575.13) or to imprisonment for a term not exceeding 3 months or to both.

(5) For the purposes of this section, a company (within the meaning of the Companies Acts, 1963 to 2001) shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

Obstruction.

53. —A person who obstructs or interferes with or assists a person to obstruct or interfere with any person in the performance of a function conferred on that person under this Part is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €2,000 (£1,575.13) or to imprisonment for a term not exceeding 3 months or to both.