S.I. No. 214/1958:

TURF DEVELOPMENT ACT, 1946 (TRANSPORT WORKS (No. 2) ORDER, 1958.

TURF DEVELOPMENT ACT, 1946 (TRANSPORT WORKS (No. 2) ORDER, 1958.

ARRANGEMENT OF ARTICLES.

1. Short title and commencement.

2. Definitions.

3. Deposit of plans, map and book of reference.

4. Power to make railways.

5. Period for completion of railways.

6. Gauge.

7. Motive Power.

8. User of railways.

9. Opening of railways.

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

11. Construction of the railways on roads.

12. Regulation of working of the railways across roads.

13. Gates or chains at level crossings.

14. Repair by Board of roads across which railways are laid.

15. Power of Board to break up roads.

16. Restoration of roads opened or broken up by the Board.

17. Non-interference with traffic along roads.

18. Restrictions on rights of the Board as regards roads.

19. Maintenance of the railways on roads.

20. Indemnity of the County Council by the Board.

21. Agreements between the Board and the County Council.

22. Right of County Council to open roads.

23. Agreements between the Board and any other person.

24. Arbitration.

25. Protection of telegraphic lines.

26. Protection of Electricity Supply Board.

27. Protection of State property.

28. Expenses of the Minister.

29. Saving for General Acts relating to railways.

S.I. No. 214 of 1958.

TURF DEVELOPMENT ACT, 1946 (TRANSPORT WORKS) (No. 2) ORDER, 1958.

WHEREAS BÓRD NA MÓNA has applied under section 39 of the Turf Development Act, 1946 (No. 10 of 1946), for a transport works order authorising it to construct, maintain and operate for the purpose of its business the following transport works, namely, the railways shown on the plans and maps accompanying such application :

AND WHEREAS the Minister for Industry and Commerce, having considered such application and having consulted with the Minister for Local Government, is of opinion that such application should be granted :

NOW, THEREFORE, I, SEÁN F. LEMASS, Minister for Industry and Commerce, in exercise of the powers conferred on me by section 43 of the Turf Development Act, 1946 (No. 10 of 1946), hereby order as follows :--

1.--(1) This Order may be cited as the Turf Development Act, 1946 (Transport Works) (No. 2) Order, 1958.

(2) This Order shall come into operation on the 27th day of October, 1958.

2. In this Order--

the expression " the Board " means Bórd na Móna ;

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

the expression " the townlands " means the Townlands of Lumcloon, Coolreagh or Cloghanhill, Gallen and Rin in the Barony of Garrycastle and County of Offaly ;

the expression " the works " means the works authorised by this Order ;

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

the word " road " means any public road and includes any bridge, pipe, arch, gully, footway, pavement, fence, railing or wall (where such fence, railing or wall was erected by or is liable to be maintained by the County Council) forming part thereof ;

the expression " the railways " means the railways authorised by this Order ;

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

the expressions " the deposited plans ", " the deposited map " and " the deposited book of reference " mean, respectively, the copies of the plans, map and the book of reference deposited with the County Registrar for the County of Offaly.

3. The Board shall deposit with the County Registrar for the County of Offaly as soon as possible after the making of this Order true copies of the plans, map and the book of reference to such plans and map which accompanied the application for this Order.

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

(1) A railway of 0·008 miles, approximately, in total length commencing at a junction with the existing railway of the Board at a point just north of the Tullamore/Cloghan road 130 yards east of Lumcloon Bridge in the townland of Lumcloon and County of Offaly, running in a southerly direction to cross the said road and terminating at a junction with the existing railway of the Board just south of the said Tullamore/Cloghan road in the said townland.

(2) A railway of 0·009 miles, approximately, in total length commencing at a junction with the existing railway of the Board at a point just west of the Ferbane/Lumcloon road about 900 yards north of Lumcloon Cross-roads and in the townland of Coolreagh or Cloghanhill and County of Offaly, running in an easterly direction to cross the said road and terminating at a junction with the existing railway of the Board at a point just east of the said Ferbane/Lumcloon road in the townland of Gallen and County of Offaly.

(3) A railway of 0·006 miles, approximately, in total length commencing at a junction with the existing railway of the Board at a point just east of the Lumcloon/Kilcormac road about 1,370 yards south of Millbrook Bridge and in the townland of Lumcloon and County of Offaly, running in a westerly direction to cross the above road and terminating at a junction with the existing railway of the Board at a point just west of the said Lumcloon/Kilcormac road in the said townland.

(4) A railway of 0·011 miles, approximately, in total length commencing at a junction with the existing railway of the Board at a point just south of the Tullamore/Cloghan road 13/8 miles east of Lumcloon Bridge and in the townland of Rin and County of Offaly, running in a northerly direction to cross under the said road by an existing bridge and terminating at a junction with the existing railway of the Board just north of the said Tullamore/Cloghan road in the said townland.

5. The Board shall complete and finish, ready for use, the railways and the proper equipment for working the same within one year from the commencement of this Order, or such further period not exceeding one year 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 Board 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 railways shall be three feet.

7. Subject to the provisions of this Order, the Board may work the railways by mechanical power or animal power.

8. The railways may be used for all purposes relating to the business of the Board and of the Electricity Supply Board and for no other purposes.

9. No parts of the railways shall be opened for traffic until the railways 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) Sections 7 to 12, sections 14 to 16, sections 20 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 subject to the following modifications, that is to say :--

(a) references to the Company shall be construed as references to the Board ;

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

(c) in section 7--

(1) the reference to the plans or books of reference mentioned in the Special Acts shall be construed as a reference to the deposited plans and the deposited map or the deposited book of reference ;

(2) the reference to two Justices shall be construed as a reference to the Minister ;

(d) 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 Offaly ;

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

(f) in section 11--

(1) 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 and the deposited map ;

(2) 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 ;

(3) the second proviso shall not apply ;

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

(h) the reference in section 15 to the plans so deposited and the books of reference shall be construed, respectively, as a reference to the deposited plans, the deposited map and the deposited book of reference ;

(i) in section 16--

(1) the reference to the said plans shall be construed as a reference to the deposited plans and the deposited map ;

(2) 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, section 24 or section 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 such Justices shall be construed as references to a person appointed by the Minister.

(2) Part 1 (except sections 6, 13, 14, 15, 16, 17, 18 and 19) of the Railways Clauses Act, 1863, shall apply in respect of the railways, subject to the following modifications, that is to say :--

(a) references to the Company shall be construed as references to the Board ;

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

(c) references to the deposited plans or sections shall be construed as references to the deposited plans, the deposited map and the deposited book of reference.

11.--(1) The Board may construct and maintain the railways along, across, under and on the level of any existing road and may alter the level of any footpath or road in accordance with the deposited plans.

(2) Where the railways authorised by this Order are laid along, across, under or on the level of any road the Board shall not, in constructing the railways along, across, under or on the level of any existing road deviate from the levels thereof as shown on the deposited plans without the consent of the County Council.

(3) The form of rail to be laid along or across or under any road shall be approved by the County Council and if the Board shall be dissatisfied with its decision, it may appeal to the Minister whose decision shall be final.

12. Where the railways are laid across or under the level of any public road the Board or any other person using the railway shall be subject to and shall abide by all such directions with regard to the working of traffic or to the speed of trains over the railways as may be given from time to time by the Minister.

13.--(1) Where the railway crosses the Tullamore/Cloghan road 130 yards east of Lumcloon Bridge, the Ferbane/Lumcloon road 900 yards north of Lumcloon Cross-roads and the Lumcloon/Kilcormac road 1,370 yards south of Millbrook Bridge, on the level, the Board shall--

(a) erect or cause to be erected, to the satisfaction of the Minister, good and sufficient gates or chains,

(b) fix or cause to be fixed a red disc or target to the said gates or chains on each side of the crossing,

(c) construct or cause to be constructed the said gates or chains so that they alternately close completely across the railway and across the road, and

(d) ensure that the said discs or targets show towards the road and towards the railway according to the position of the said gates or chains.

(2) It shall be the duty of the Board to--

(a) cause the gates or chains, referred to in paragraph (1) of this Article, to be kept constantly closed across the railway except during the time when any train or other vehicle passing along the railway shall have occasion to cross the road at such level crossing,

(b) cause the said gates or chains to be opened before the train or other vehicle passes over the level crossing,

(c) cause the said gates or chains to be opened for traffic along the road immediately after the train or other vehicle has passed over the crossing where the said gates or chains have been closed for the working of trains, and

(d) light suitably by red lamps the said gates or chains when closed across the road after sunset or during fog or falling snow which prevents a clear view of the said gates or chains along the road at a distance of at least 200 feet.

(3) Where the Board acts in contravention (whether by commission or omission) of any of the provisions of this Article, the Board shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds and, in the case of a continuing offence, to a further fine not exceeding twenty pounds for each day during which such offence is continued after conviction thereof.

14. The Board shall, at its own expense, at all times under the superintendence and to the reasonable satisfaction of the County Council maintain and keep in good condition and repair so much of any road whereon the railways are laid as lies between the rails of the railways and in case of double lines the portion also of the road between the two lines of rails and in either case so much of the road as extends three feet beyond the rails of and on each side of the railways.

15. The Board, for the purpose of laying down, making, maintaining and renewing the railways or any part or parts thereof, respectively, may from time to time open and break up any road subject to the following regulations :

(a) the Board shall, not later than seven days before commencing to open or break up any road, give to the County Council notice of its intention to do so and such notice shall specify the time at which it is proposed to commence operations and the portion of the road proposed to be opened or broken up ;

(b) the Board shall not open or break up any road, except under the superintendence and to the reasonable satisfaction of the County Council, unless the County Council refuses or neglects to give such superintendence at the time specified in the Board's notice or discontinues to give such superintendence at any time during the progress of the work ;

(c) the Board shall pay all reasonable expenses to which the County Council is put on account of such superintendence.

16. When the Board has opened or broken up a road or any part thereof the Board shall be under the following obligations, namely :--

(a) the Board shall, with all convenient speed and within three weeks at the most (unless the County Council otherwise consents in writing) complete the work on account of which it opened or broke up the road and (subject to the laying down, making, maintenance or renewal of the railway) fill in the ground level and make good the surface and, to the satisfaction of the County Council, restore the portion of the road to as good a condition as that in which it was before it was opened or broken up ;

(b) the Board shall in the meantime cause the place where the road is opened or broken up to be fenced and watched and to be properly lighted at night and provide and maintain sufficient and proper means of passage and re-passage for all passenger, vehicular, animal and other public traffic along such road to the satisfaction of the County Council ;

(c) the Board shall bear all reasonable expenses of the repair of those portions of such road so opened or broken up for six months after the same is restored, such expenses to be certified by the County Council whose certificate shall be conclusive.

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

18. Notwithstanding anything contained in this Order, the Board shall not acquire or be deemed to acquire any right in respect of any road or lane whereon the railway may be laid, other than the right of user of such road or lane by the engines, motors, rolling-stock, horses and servants of the Board or of any person working the railway on behalf of the Board and, save by the payment of expenses and execution of works as provided by this Order, the Board shall not be bound or liable to compensate the County Council or any person in respect of the acquisition of such right of user.

19. Where the railways are laid on any road the Board shall at all times maintain and keep in good condition and repair and so as not to be a danger or annoyance to ordinary traffic the rails of which the railways for the time being consist and the sub-structure upon which the same rest.

20. The Board 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 Board or of any person having a contract with the Board or a sub-contract with the contractor of the Board or any person employed by the Board for or in the execution of the Works.

21. The County Council on the one hand and the Board on the other hand may from time to time enter into and carry into effect and from time to time alter, renew or vary contracts, agreements or arrangements with respect to laying down, making, paving, metalling or keeping in repair any road and the railway thereon, or in respect of altering the levels of the whole or any portion of any road on which the Board is authorised to lay down the railways or in respect of any of the work to be performed under the provisions of the next following Article and the proportion to be paid by them or either of them of the expense of laying down, making, paving, metalling, keeping in repair or altering such railway or roads, or the levels thereof.

22. Nothing in this Order shall take away or abridge any power to open or break up any road across which the railway is laid or any other power vested in the County Council or in any person for the purpose of laying down, repairing, altering or removing any sewers, drains, mains or pipes for the supply of water, oil, petrol or gas, or any tubes wires or apparatus for telegraphic, electrical or other purposes ; but in the exercise of such power the County Council and every such person save the Minister for Posts and Telegraphs shall be subject to the following restrictions, that is to say :--

(a) they shall cause as little detriment or inconvenience to the Board as circumstances will permit ;

(b) before they commence any such work whereby the traffic on the railway will be interrupted they shall (except in case of urgency, in which case no notice shall be necessary) give, not later than forty-eight hours before such commencement, to the Board notice of their intention to commence such work specifying the time at which they will commence such work ;

(c) they shall not be liable to pay to the Board any compensation for unavoidable injury done to the railway or for loss of traffic occasioned by the execution of such work or for the reasonable exercise of the power vested in them as aforesaid ;

(d) the County Council or any such person shall not execute such work as far as it immediately affects the railway except under the superintendence of the Board's Engineer unless the Board refuses or neglects to give such superintendence at the time specified in the notice for the commencement of the work, and the County Council and every such person shall execute such work at their own expense and to the reasonable satisfaction of the Board's Engineer.

23. The Board shall be at liberty to enter into contracts, agreements or arrangements with any other person for the construction, working, use and maintenance on behalf of the Board and in accordance with this Order of the railways or any part or parts thereof or for the supply of rolling-stock, necessary machinery and apparatus for the working and use of same but any such contract, agreement or arrangement (other than one with the Electricity Supply Board) for the working of the railways shall be subject to the approval of the Minister.

24. In case any dispute or difference shall arise between the County Council or any person or the engineer of any person and the Board as to the construction, working or maintenance of the railways 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 railways or any part thereof or necessitate the stoppage of the traffic on the railways or any part thereof or as to the state of repair of the railways or any part thereof or as to any other matter or thing in relation to the construction and maintenance or working of the railways or any part thereof or the exercise of the powers conferred on the Board 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 the 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.

25. Nothing in this Order contained shall authorise the any interference with any telegraphic line of the Minister for Posts and Telegraphs as defined by the Telegraph Acts, 1863 to 1953, or other property of the Minister for Posts and Telegraphs or any of the rights of the Minister for Posts and Telegraphs under the said Acts.

26. Nothing in this Order contained shall authorise the Board 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 Electricity Supply Board, thinks proper.

27. 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 Board any right 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 Board of such powers if and when such right of entry as aforesaid has been duly obtained according to law by the Board.

28. 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 Board.

29. Nothing in this Order contained shall exempt the Board 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 20th day of October, 1958.

SEÁN F. LEMASS,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The purpose of this Order is to authorise Bord na Móna to construct and maintain four railway lines connecting the Boora bogs with Ferbane Power Station.