Damage To Property (Compensation) Act, 1923

Attachment of re-instatement conditions to decrees in respect of buildings.

10.—(1) If on the hearing of an application to which this section applies, the Judge is of opinion that the applicant is entitled to compensation it shall be lawful for the Judge, subject to and in accordance with the provisions of this section, to attach to his decree one or other of the conditions following, that is to say—

(i) a condition (in this section called a “full re-instatement condition” that the compensation shall be applied either in or towards erecting a new building on the site of the injured building or in or towards repairing the injured building, but so that the new or the repaired building shall be either of the same character as the injured building or of a character suitable to the neighbourhood and not less valuable than the injured building;

(ii) a condition (in this section called a “partial re-instatement condition”) that the compensation shall be applied in or towards the erection on or near the site of the injured building of another building (in this section called a “substituted building”) of a nature named by the applicant and specified in the decree and differing from the nature of the injured building: Provided always that whenever a partial re-instatement condition is attached to a decree, the person by whom such condition is to be performed may, at any time within three months after the date of the decree, submit to the Judge a scheme for the application of the compensation to which the condition is attached in or towards the erection of a building or buildings of a residential character at any specified place in Saorstát Eireann in lieu of the substituted building specified in the decree, and if the Judge is satisfied that the building or buildings specified in such scheme will be suitable to the neighbourhood in which it is proposed to erect the same and that there is a demand in that neighbourhood for buildings of that character the Judge shall amend the partial re-instatement condition attached to his decree by substituting therein the building or buildings specified in such scheme for the substituted building originally specified in the decree.

(2) In every case in which it is lawful for the Judge under this section to attach a full re-instatement condition to his decree, the Judge shall observe the following rules:—

(a) If the injured building was situate in Upper Sackville Street, commonly known as Upper O'Connell Street, in the City of Dublin, or was before the injury ordinarily used for the purpose of any trade or business, the Judge shall attach a full re-instatement condition to his decree;

(b) If, in any case not coming within the foregoing rule, the Judge is of opinion that the injury to the building has not materially prejudiced the economic welfare of the district, and the applicant does not show reasonable cause why a full re-instatement condition should be attached to the decree, the Judge shall not attach a full re-instatement condition to his decree;

(c) In any case not coming within either of the foregoing rules, the Judge may attach a full re-instatement condition to his decree if, in all the circumstances of the case, he thinks it reasonable so to do;

(d) In considering whether it is reasonable to attach a full re-instatement condition to his decree, the Judge shall have regard to the use ordinarily made of the building before the injury, and shall not have regard to any proposal for a different future use of the building if reinstated.

(3) The Judge if he thinks it right to do so may in any case (except a case in which he is by this section required to attach a full re-instatement condition to his decree) attach a partial re-instatement condition of his decree provided he is satisfied that the substituted building named by the applicant would not be unsuited to the neighbourhood and that there would not be an unreasonable discrepancy between the cost of erecting the substituted building and the market value thereof when completed.

(4) In every case in which a full re-instatement condition is attached to the decree the amount of the compensation shall not exceed the amount of the cost of the full re-instatement less the amount, if any, by which in the opinion of the Judge the price of the premises as reinstated would by reason of the re-instatement exceed the price of the premises in the condition in which they were immediately before the injury or destruction, the price in each case being estimated according to normal market conditions as at the date of the award and on the basis of a sale of the fee simple interest in the premises.

(5) The compensation in any case in which no re-instatement condition is attached to the decree shall not exceed the amount by which the market value of the buildings was reduced by the injury.

(6) In every case in which a partial re-instatement condition is attached to the decree the compensation shall be the probable cost of the erection of the substituted building with such further sum (if any) as the Judge shall consider reasonable having regard to the value of the injured building and the other circumstances of the case, but nevertheless so that

(a) in any case in which the injured building was at or about the time of the injury ordinarily maintained as a residence for the applicant or his family, the total amount of the compensation shall not be less than the probable cost of the erection of the substituted building; and

(b) in every other case the total amount of the compensation shall be so measured that the estimated market value of the substituted building together with the further sum aforesaid (if any) shall not exceed the amount by which the market value of the injured building was reduced by the injury.

Where the compensation awarded under this sub-section includes any such further sum as aforesaid beyond the probable cost of the erection of the substituted building the partial re-instatement condition shall attach only to so much of the compensation as represents such probable cost.

(7) A substituted building may consist of one or more attached, detached or semi-detached houses, whether dwelling houses, offices or business premises or such other structure as the Judge may approve.

(8) Where several persons have different interests in any injured building and no re-instatement condition is attached to the decree the Judge shall apportion the compensation amongst such persons in such proportions as he thinks right and may cancel or vary in such manner as he thinks reasonable having regard to the other terms of his decree, any of the covenants and conditions contained in any lease under which the injured building is held.

(9) Where several persons have different interests in any injured building and a full or a partial re-instatement condition is attached to the decree the Judge shall award the compensation to the owner or owners of such one or more of those interests as the Judge thinks right and shall cancel or vary in such manner as he thinks just all or any of the terms of and the covenants and conditions contained in every or any lease under which the buildings are held, and may if he considers it just so to do wholly terminate and cancel any such lease.

(10) This section shall apply to every application for compensation under the Criminal Injuries Acts in respect of the injury of any building by an injury to which this Part of this Act applies.

(11) Where an application is partly for such compensation as is mentioned in the foregoing sub section and partly for compensation in respect of other matters this section shall apply to the application in so far as it relates to such compensation as is mentioned in the foregoing sub-section.

(12) On the hearing of any application to which this section applies the Judge may, if he think it reasonable so to do, allow any local authority to appear and be heard by solicitor with or without counsel and to examine and cross-examine witnesses and tender evidence, and it shall be lawful for any local authority so to appear and to provide for the cost of so doing, and of producing witnesses and other evidence.

(13) In this section—

the word “building” includes a house, shop, factory, or any other permanent structure;

the expression “market value” means the price which the property might be expected to fetch if sold by a willing seller at the price prevailing in a free market for such property at the time of the award:

the word “injury” includes destruction as well as damage;

the expression “injured building” includes destroyed building as well as a damaged building;

the word “re-instatement” includes the replacement of fixed machinery and plant: Provided that the Judge may in any particular case of full re-instatement release the applicant from the obligation to replace such machinery or plant upon such terms as he may think reasonable in the circumstances.

(14) In any case in which any land, garden, or curtilage was commonly enjoyed with any building so that such building would not ordinarily have a market value apart from such land, garden or curtilage, the Judge in estimating the market value of the building shall give such consideration to that state of facts as he thinks reasonable.

(15) Where a full re-instatement condition is attached to a decree under this section, and such condition requires the erection of a new building, and the site of the injured building is not situated in a city, town or urban district, then and in any such case the condition may provide for the erection of the new building near to, instead of on, the site of the injured building.