No. 396/1939:

CEMENT ACTS, 1933 AND 1938 (TRANSPORT WORKS) (RAILWAY SIDINGS) ORDER, 1939.

CEMENT ACTS, 1933 AND 1938 (TRANSPORT WORKS) (RAILWAY SIDINGS) ORDER, 1939.

ARRANGEMENT OF ARTICLES.

Article.

1. Short Title.

2. Definitions.

3. Application of Interpretation Act, 1937.

4. Power to make railway sidings.

5. Period for completion of railway sidings.

6. Gauge.

7. Motive power.

8. User of railway sidings.

9. Opening of railway sidings.

10. Compulsory acquisition of lands.

11. Compensation for land compulsorily acquired by the Company.

12. Application of Railways Clauses Consolidation Act, 1845, and the Railways Clauses Act, 1863.

13. Non-interference with traffic along roads.

14. Indemnity of the County Council by the Company.

15. Agreements between the Company and the Railway Company

16. Arbitration.

17. Protection of telegraph and telephone lines.

18. Protection of Electricity Supply Board.

19. Protection of State property.

20. Expenses of the Minister.

21. Saving for General Acts relating to railways.

WHEREAS it is enacted by Section 28 of the Cement Act, 1933 (No. 17 of 1933) as amended by Section 8 of the Cement (Amendment) Act, 1938 (No. 11 of 1938) that after the completion of a public inquiry under Section 27 of the said Cement Act, 1933 , into an application for a transport works order the Minister for Industry and Commerce shall consider such application and the report of the officer who made such inquiry, and, if after such consideration, and after consultation with the Minister for Local Government and Public Health, the Minister for Industry and Commerce is of opinion that the application should be granted, the Minister for Industry and Commerce shall make an order authorising the applicant to construct, maintain and operate the transport works specified in such order in such manner, subject to such restrictions and provisions and on such terms and conditions as the Minister for Industry and Commerce thinks proper and specifies in such order.

AND WHEREAS it is enacted by sub-section (1) of Section 9 of the Cement (Amendment) Act, 1938 , that the following provisions shall have effect in relation to a transport works order granted to the holder of a cement manufacture license, that is to say :

(a) such order shall contain such provisions as the Minister for Industry and Commerce thinks necessary or expedient for the purpose of such order ;

(b) without prejudice to the generality of paragraph (a) of the said sub-section ;

(i) such order may contain provisions authorising such holder to acquire compulsorily any land the acquisition of which is, in the opinion of the said Minister, necessary for giving effect to such order,

(ii) such order may grant to such holder any rights in or over land or water, or in or over any public road the grant of which is, in the opinion of the said Minister necessary for giving effect to such order,

(iii) such order shall, in respect of any land so acquired or any right over land or water so granted, provide for the payment of compensation by such holder to the several persons having estates or interests in such land or water, and shall provide that any question of disputed compensation shall be determined under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919,

(iv) such order may incorporate all or any of the provisions of the Lands Clauses Acts, with such modifications and adaptations as the Minister thinks proper,

(v) such order shall specify the manner in which the transport works to which such order relates are to be constructed,

(vi) such order may contain provisions as to the manner in which such transport works are to be operated and maintained,

(vii) such order shall contain provisions limiting the use of such transport works to purposes relating to the business authorised by such cement manufacture licence and to such other purposes (if any) as may be specified in such order,

(viii) such order shall contain all such provisions as the said Minister thinks proper for the protection of the public generally and any persons affected by such order,

(ix) such order may provide that where such holder acts in contravention (whether by commission or omission) of any specified provision of such order, such holder shall be guilty of an offence under such order and shall be liable on summary conviction thereof to such fine (not exceeding one hundred pounds) as may be specified in such order in respect of such offence and, in the case of a continuing offence, such further fine (not exceeding twenty pounds) as may be specified in such order in respect of such offence for each day during which such offence is continued after conviction thereof,

(x) such order may incorporate any provisions (including penal provisions) contained in any enactment relating to railways, with such adaptations and modifications as the said Minister thinks proper,

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

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

AND WHEREAS Cement, Limited, being the holder of a cement manufacture licence, applied under Section 24 of the Cement Act, 1933 , as amended by Section 5 of the Cement (Amendment) Act, 1938 , for a transport works order authorising them to construct, maintain and operate, for the purposes of the business authorised by such licence, the following transport works, namely, the railway sidings shown on the plan accompanying such application ;

AND WHEREAS a public inquiry into such application was duly held in pursuance of Section 27 of the Cement Act, 1933 ;

AND WHEREAS the Minister for Industry and Commerce, having considered such application and the report of the officers who made such public inquiry and after consultation with the Minister for Local Government and Public Health, is of opinion that such application should be granted ;

NOW, THEREFORE, I, SEAN MacENTEE, the Minister for Industry and Commerce, in exercise of the powers conferred on me by the Cement Acts, 1933 and 1938, and of every and any other power me in this behalf enabling, hereby order as follows, that is to say :—

1. This Order may be cited as the Cement Acts, 1933 and 1938 (Transport Works) (Railway Sidings) Order, 1939.

2. In this Order—

the expression " the Company " means Cement Limited ;

the expression " the Minister " means the Minister for Industry and Commerce ;

the expression " the townland " means the townland of New-townstalaban in the County of Louth ;

the expression " the County Surveyor " means the County Surveyor for the time being of the County of Louth ;

the expression " the County Council " means the County Council of the County of Louth ;

the expression " the Railway Company " means the Great Northern Railway Company (Ireland) ;

the expression " the railway sidings " means the railway sidings authorised by this Order to be constructed, maintained and operated ;

the expression " the railway " means the railway constructed in accordance with the Cement Act, 1933 (Transport Works) (Railway) Order, 1938 (Statutory Rules and Orders No. 22 of 1938) ;

the expression " mechanical power " means electrical and any other motive power not being animal power ;

the expressions, " the deposited plans " and " the book of reference " mean respectively the plan and additional plans and the book of reference deposited at the office of the County Registrar of the County of Louth and at the registered office of the Company.

3. The Interpretation Act, 1937 (No. 38 of 1937), applies to this Order.

4. Subject to the provisions of this Order, the Company may within the townland lay down, make and maintain, in the lines and according to the levels shown on the deposited plans, the railway sidings hereinafter described with all proper junctions, rails, plates, works and conveniences connected therewith and may use such of the lands as are delineated on the said plans and described in the book of reference as may be required for those purposes (that is to say) :—

Railway sidings approximately .75 miles in total length consisting of a branch line, running in an easterly direction and commencing at a point on the railway about 1,265 feet west of the Newfoundwell road, which branch line divides up into four lines, each running parallel to the railway, and all of which terminate to the west of the Newfoundwell Road.

The railway sidings will be situate within the Parish of Tullyallen in the County of Louth.

5. The Company shall complete and finish, ready for use, the railway sidings and the proper equipment for working the same, within one year from the date of this Order or such further period not exceeding five years as the Minister may allow, and on the expiration of the said period of one year or such further period as may be allowed, the powers by this Order granted to the Company for executing the same or otherwise in relation thereto shall cease except as to so much thereof as shall then be completed.

6. The gauge of the railway sidings shall be five feet three inches.

7. Subject to the provisions of this Order, the Company may work the railway sidings by mechanical power or animal power.

8.—(1) The railway sidings may be used for all purposes relating to the business authorised by the cement manufacture licence held by the Company and for no other purposes.

(2) The railway sidings shall be used for merchandise traffic only.

9. No part of the railway sidings shall be opened for traffic until the railway sidings have been inspected and certified to be fit for traffic by an Inspector duly appointed by the Minister under the Regulation of Railways Act, 1871.

10.—(1) For the purposes of the works authorised by this Order and subject to the provisions hereof the Company may compulsorily acquire any land shown on the deposited plans and described in the book of reference, the acquisition of which may be necessary for giving effect to this Order.

(2) At any time after the making of this Order, and before conveyance or ascertainment of price or compensation the Company may enter on and take possession of any land which the Company is authorised by this Order to acquire compulsorily.

(3) The Company shall, before exercising in relation to any land the power conferred on it by the immediately preceding paragraph, serve on the occupier of such land, at least fourteen days before such exercise, notice of its intention to enter on and take possession of such land.

(4) The following provisions shall apply in respect of a notice under the immediately preceding paragraph, that is to say :—

(a) such notice shall be accompanied by a plan showing fully and clearly the land to which it relates ;

(b) such notice may be served on the occupier of such land by sending it by registered letter addressed to the occupier at his usual or last known address.

11.—(1) The Company shall pay compensation for or in respect of any land acquired compulsorily by the Company to the several persons entitled to or having estates or interests in such land.

(2) Any question of disputed compensation in respect of any land acquired compulsorily by the Company shall, in default of agreement, be determined by an official arbitrator under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, and in the application of that Act the expression " Public Authority " shall include the Company.

(3) Section 69 to 83 of the Lands Clauses Consolidation Act, 1845, shall apply to any compensation payable by the Company under this Article and to the conveyance to the Company of property, corporeal or incorporeal, compulsorily acquired by it under this Order, and for the purpose of such application the Company shall be deemed to be the promoter of the undertaking.

12.—(1) Section 7 to 24 and Sections 68 to 75 of the Railways Clauses Consolidation Act, 1845, shall (except where inconsistent with any other Article of this Order) apply in respect of the railway sidings subject to the following modifications, that is to say :—

(a) references to the Company shall be construed as references to Cement, Limited ;

(b) references to the special Act shall be construed as references to this Order ;

(c) in Section 7—

(i) references to the plans or books of reference mentioned in the special Act shall be construed as references to the deposited plans or the deposited book of reference,

(ii) the reference to two justices shall be construed as a reference to the Minister ;

(d) the references in Sections 7, 8, 9 and 10 to clerks of the peace or postmasters shall be construed as references to the County Registrar for the County of Louth ;

(e) references in Sections 8 and 9 to the original plan and section as shall have been approved of by Parliament and to the original plan and section shall be construed as references to the deposited plans ;

(f) in Section 11—

(i) the reference to the common datum line described in the section approved of by Parliament shall be construed as a reference to the common datum line described in the deposited plans ;

(ii) the reference to the consent of two or more justices of the peace in petty sessions assembled for the purpose and acting for the district in which a street or public highway may be situated shall be construed as a reference to the Minister ;

(iii) the second proviso shall not apply ;

(g) references in Sections I3 and 14 to the said plan or section shall be construed as references to the deposited plans ;

(h) the reference in Section 15 to the plans so deposited shall be construed as it reference to the deposited plans ;

(i) in Section 16—

(i) the reference to the said plans shall be construed as a reference to the deposited plans ;

(ii) the reference to the said books of reference shall be construed as a reference to the deposited book of reference ;

(j) any penalty under Section 23, 24 or 75 may be recovered by summary proceedings before a Justice of the District Court ;

(k) in Sections 69, 70 and 71 references to two Justices or to Justices shall be construed as references to a person appointed by the Minister.

(2) Part I (except Sections 5, 6, 7, 13, 14, 15, 16, 17, 18 and 19) of the Railways Clauses Act, 1863, shall (except where inconsistent with any other Article of this order) apply in respect of the railway sidings subject to the following modifications, that is to say :—

(a) references to the Company shall, unless inconsistent with the context, be construed as references to Cement Limited ;

(b) references to the special Act shall be construed as references to this Order ;

(c) the reference in Section 4 to the deposited plans, or sections shall be construed as a reference to the deposited plans as defined by this Order.

13. During the execution of any works authorised by this Order in connection with the laying down, making, maintaining, repairing or renewing of the railway sidings the Company shall make such arrangements in relation to the execution of such works to the satisfaction of the County Surveyor as may be adequate to prevent the traffic along any road from being unnecessarily interfered with.

14. The Company shall at all times indemnify and keep indemnified the County Council against all actions, proceedings, claims and demands, costs, damages and expenses which may be brought or made against the County Council or which the County Council may sustain or incur by reason of the wrongful acts or defaults of the Company or of any person having a contract with the Company or a sub-contract with a contractor with the Company or of any person employed by the Company for or in the execution of the works authorised by this Order.

15. The Company shall be at liberty to enter into contracts, agreements, or arrangements with the Railway Company for the construction, working, use and maintenance on behalf of the Company and in accordance with this Order of the railway sidings or any part or parts thereof and for the supply of rolling stock necessary machinery and apparatus for the working and use of same.

16. In case any dispute or difference shall arise between the County Council or the County Surveyor or any person or the engineer of any person and the Company as to the construction, working or maintenance of the railway sidings or any part thereof or the works connected with or incidental thereto or as to the execution of any works by the County Council or any person which shall affect or interfere with the railway sidings or any part thereof or necessitate the stoppage of the traffic on the railway sidings or any part thereof or as to the state of repair of the railway sidings or any part thereof or as to any other matter or thing in relation to the construction and maintenance or working of the railway sidings or any part thereof or the exercise of the powers conferred on the Company or the County Council or any person or with respect to any other subject or thing regulated by or comprised in this Order the same shall be referred to the decision of an arbitrator to be appointed in writing by the parties, or if they cannot agree upon a single arbitrator, to the decision of two arbitrators, one to be appointed by each party, and in case of disagreement to the decision of an umpire to be appointed by the two arbitrators, and the decision of such arbitrator or arbitrators or umpire as the case may be shall be final and binding on both parties.

17. Nothing in this Order contained shall authorise any interference with any telegraph line or telephone line of the Minister for Posts and Telegraphs without the consent previously obtained of the Minister for Posts and Telegraphs or in any way affect or prejudice the rights of the said Minister under the Telegraph Acts, 1863 to 1928.

18. Nothing in this Order contained shall authorise the Company to interfere with any of the electric wires or works of the Electricity Supply Board, except with the consent of the Minister and subject to such terms and conditions as the Minister after consultation with the said Board thinks proper.

19. Nothing in this Order contained shall affect any property, real or personal, vested in the State or in any Minister thereof, or be construed to restrict or prejudice the rights of the State or any right, power, privilege, or duty vested by law in any Minister or any officer of the State, and in particular any powers of erecting, constructing, altering or extending any works on any such property as aforesaid shall not be construed to confer on the Company any rights of entry into or any estate or interest in any such property, but this Article shall not operate to prevent the exercise in accordance with this Order by the Company of such powers if and when such rights of entry as aforesaid have been duly obtained according to law by the Company.

20. Any expenses incurred by the Minister in the exercise of his powers and functions under this Order shall, to such extent as may be determined by the Minister for Finance, be paid to the Minister by the Company.

21. Nothing in this Order contained shall exempt the Company or the undertaking from the provisions of any general Act relating to railways and such provisions shall have effect to the extent to which they are not inconsistent with the provisions of this Order.

Given under my Official Seal this 15th day of December, 1939.

SEAN MacENTEE,

Minister for Industry and Commerce.