Fisheries Act, 1980

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FIFTH SCHEDULE

Provisions referred to in Sections 37, 38 and 39

Sections 37, 38 and 39.

1. Where an application to which this Schedule applies is made, the applicant shall:

(a) deposit and keep deposited, at the place or each of the places appointed by the Minister, for such period (being a period of not less than three weeks) as the Minister shall direct, a copy of the application and of any plan which accompanied it,

(b) publish in such newspapers as the Minister shall direct notice of the making of the application stating the place or places at which the application and any accompanying plan may be inspected pursuant to Article 3 of this Schedule during a period specified in the notice (which period shall be the period so directed) and also stating that notice of representations or objections as regards the proposed authorisation or acquisition order, as the case may be, may be given in writing to the Minister during the said period (which notices are hereby authorised to be so given),

(c) not later than two weeks before the expiration of the period so directed, serve a notice in writing containing the particulars mentioned in and complying with the requirements of Article 2 of this Schedule on the owner, and if the owner is not in occupation thereof, such one or more of the following as are in the circumstances appropriate, namely:

(i) the owner of the fishery, premises or other land proposed to be acquired if such owner can be so ascertained, and, if such owner is not in occupation thereof, the occupier of such fishery, premises or other land,

(ii) the owner of the land comprising the proposed servient tenement if such owner can by reasonable enquiry be ascertained and, if such owner is not in occupation thereof, the occupier of such land,

(iii) the person entitled to enjoy any right proposed to be acquired, if such person can be so ascertained,

(d) in case the application is an application under section 39 of this Act, not later than the expiration of the period so directed, serve a notice in writing of the making of the application on—

(i) the Commission and the Commissioners, and

(ii) any planning authority within whose functional area the servient tenement to which the application relates (or any part thereof) is situate.

2. A notice referred to in Article I of this Schedule shall indicate the situation of the servient tenement or other land to which the application, if granted, would relate and with which the person on whom the notice is served is concerned.

3. Where an application to which this Schedule applies is made, any person may during the period specified in a notice published pursuant to Article I of this Schedule inspect at a place specified in the notice at any reasonable hour any application and any document deposited therewith.

4. A dispute or difference as to the amount of compensation payable under this Act shall not be a ground for objection to the making of an acquisition order.

5. The following shall be entitled to be heard (either in person or through counsel or a solicitor) on the hearing, whether by the Minister or on appeal, of an application to which this Schedule applies, namely:

(a) the applicant,

(b) the owner of the fishery or land proposed to be acquired or, where appropriate, the owner of the proposed servient tenement,

(c) any person entitled to the enjoyment of any right proposed to be acquired,

(d) any person by whom a notice has been duly given in relation to the application pursuant to Article 1 (b) of this Schedule,

(e) in case the application is an application under section 39 of this Act—

(i) the Commission and the Commissioners, and

(ii) the planning authority on which notice relating to the application has been served in pursuance of Article 1 (d) of this Schedule.

6. Where an application is made for an order under section 37 or 39 of this Act the following provisions shall apply:

(a) the Minister may, for the purpose of enabling the ownership of a proposed servient tenement to be ascertained, direct the applicant to give to any person who is the occupier of the land or who, either directly or indirectly, receives rent in respect of the land, a notice in writing requiring him to state in writing the nature of his own interest therein and the name and address of any other person known to him as having an interest therein, whether as owner in fee simple, mortgagee, lessee or otherwise,

(b) if the Minister or the Arbitrator, as the case may be, is satisfied that after diligent inquiry the owner of the fishery proposed to be acquired, or, in case the application is either for an order under the said section 39 or for an order under the said section 37 providing for the acquisition of a way-leave, right of access or other right over, in or under land, the owner of the proposed servient tenement, cannot be found or ascertained, the application or an appeal under the said section 37 or 39 may be heard and determined, notwithstanding the fact that such owner has not been found or ascertained.

7. Every acquisition order shall—

(a) in case the order is an order under section 39 of this Act or an order under section 37 of this Act which provides for the acquisition of a right of access,—

(i) have attached thereto a map showing the route of the right of way or right of access thereby created or acquired and its extent,

(ii) subject to such restrictions and provisions (if any) as may be specified therein, operate to grant to the applicant the right of way or access free from all claims and all other rights of any other person,

(iii) in case the order is made under section 39 of this Act, be expressed and operate to confer, as may be provided for by the order, either or both of the following, namely:

(A) on the members, officers, servants, agents and licensees of the Central Board or the regional board within whose fisheries region the relevant servient tenement is wholly or partly situate, for the purpose of enabling surveys to be made or improvement or other works connected with a fishery to be carried out, a right to pass and repass at all reasonable times with or without vehicles (whether laden or unladen) or other machinery or equipment or animals along such route over the land over which such right of way is exercisable,

(B) on any person a right to pass and repass for the purpose of gaining access to fishing waters and lawfully fishing therein (whether from the banks thereof or otherwise), together with a right to make reasonable use for fishing of any bank or other part of the servient tenement forming part of or immediately adjacent to a fishery,

(b) in case the order is an order under section 37 of this Act—

(i) be expressed and operate to transfer to the Central Board, on and from the date specified therein in that behalf, all the estate, right, title and interest in the relevant fishery of the person from whom it was acquired, free from encumbrances and from all estates and interests therein (except such angling right, if any, as may be reserved by the order) together with such of the following (if any) as the order may specify, namely, any other estate or interest in land or any estate or interest in any way-leave, right of access, or other easement or other right over, in or under land or water, and in case the order so specifies, operate to transfer the bed and soil of the waters comprising the fishery in fee simple free from encumbrances and from all such estates and interests therein,

(ii) describe the fishery thereby acquired, specify the means of access thereto and so acquired (if any) and have attached thereto a map showing the area and situation of such fishery and any such means of access,

(iii) be admissible in any legal proceedings as evidence as to the kind and the area of the relevant fishery as stated therein.

8. (1) Where a decision is made by the Minister under section 37 of this Act or an order is made under section 37 , 38 or 39 of this Act, the decision or order shall come into force—

(a) in case no appeal in respect thereof is taken under this Act, upon the expiration of the period during which such an appeal may be taken,

(b) in case such an appeal is taken and the appeal is withdrawn, on the expiration of the period mentioned in subparagraph (a) of this paragraph or on the day next following the day on which the appeal is withdrawn, whichever is the later.

(2) Where an order to which this Schedule applies is made by the Minister and is confirmed or varied by the Arbitrator on an appeal under this Act, or where a refusal by the Minister is so affirmed or any other decision is made by the Arbitrator on an appeal under this Act, then unless the Arbitrator otherwise directs, the decision on the appeal shall come into force on the day immediately following the day on which it is made, and, in case the Arbitrator gives a direction under this subparagraph, the decision to which the direction relates shall come into force on the day specified in that direction.

9. An order to which this Schedule applies may contain provisions authorising the person in whose favour it is made at any time before ascertainment of the compensation payable under this Act as regards the fishery or other land or a right over, in or under land or water, being acquired under the order to enter and take possession and to use such land or to exercise such right in exercise of the powers conferred by the order, and, in case the order contains such provisions, it shall also contain provisions—

(a) requiring such person, if the person so enters and takes possession of the land or exercises such right, to pay interest on the amount of the compensation so payable at such rate as shall be determined from time to time by the Minister for Finance, from the date on which such power was exercised until payment,

(b) requiring the person in whose favour the order is made, if the person so enters and takes possession of the land or so exercises any right over, in or under land or water, to give to the occupier of the land at least one month's previous notice in writing of the intention so to exercise such right,

(c) authorising such person to serve the notice aforesaid on a person by sending it by prepaid post in an envelope addressed to the person at his usual or last known address and deeming the notice to have been served on the person at the time at which the envelope would be delivered in the ordinary course of post and, when the address of the person cannot be ascertained by reasonable inquiry, authorising the person in whose favour the order is made to serve the notice by affixing it in a conspicuous position on or near the land to which it relates and authorising the addressing of the envelope to the person for whom it is intended, in case his name cannot be ascertained by reasonable inquiry, by addressing it to “the owner” or “the occupier” (as the case may require) without naming him.

10. Where an order under section 37 or 38 of this Act is made, the following provisions shall apply:

(a) the order shall operate, on and from the commencement thereof, to transfer and attach to the relevant amount paid under this Act to a person as compensation all estates, trusts and encumbrances existing in respect of the interest of the person in the fishery or other land or water immediately before the date of the order, and

(b) the said amount shall as respects any rights or claims existing immediately before the date of the order, to or against the said interest, represent that interest for all purposes.

11. (1) Whenever the Minister gives an authorisation under section 37 (1) of this Act, he shall, as soon as may be after the authorisation is given, serve on the owner of the fishery to which the authorisation relates, and on any person (other than such owner) by whom a notice in relation to the authorisation has been duly given pursuant to Article 1 (b) of this Schedule as regards the authorisation, a copy of the authorisation.

(2) Whenever the Minister makes an order under section 37 , 38 or 39 of this Act, he shall, as soon as may be after the order is made, cause notice of the making of such order to be published in the Iris Oifigiúil, which notice shall state the period within which an appeal may be taken under the said section 37, 38 or 39, and shall, as soon as may be, serve on the owner of the fishery to which the order relates a copy of the order.

12. (1) Where a fishery or any land is transferred to the Central Board by virtue of an order under this Act, the registering authority under the Registration of Title Act, 1964 , shall upon production of a copy of the order under the official seal of the Minister register the Central Board in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the fishery or other land and the authority shall, in addition, cause such other alterations (if any) to be made in such register as are appropriate having regard to the terms of the order.

(2) Where land over which a right of way is created by an order under section 39 of this Act is or is deemed to be registered under the Registration of Title Act, 1964 , the registering authority under that Act shall on production of a copy of the order under the official seal of the Minister register the said right of way as a burden affecting the said land.

(3) No fee shall be payable in respect of any proceedings in the Land Registry under this Article.

13. The validity or effect of an order to which this Schedule applies shall not be affected by any non-compliance with any provision contained in this Schedule relating to the service of a copy of such order on a particular person or the publication of notice of the making thereof in the Iris Oifigiúil.

14. In this Schedule—

“the Commission” means the Irish Land Commission;

“acquisition order” means an order made by the Minister under section 37 , 38 or 39 of this Act.