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13 1946

FORESTRY ACT, 1946

Chapter III.

Compulsory Acquisition of Land.

Particulars of interests in land.

22. —(1) Where the Minister considers it desirable to acquire any land for the purposes of this Act, he may serve on any person, who appears to him to have any interest in that land, a notice requiring that person to furnish to the Minister within a specified time (not being less than twenty days from such service)—

(a) a return in writing stating whether he has or has not any interest in that land, and

(b) if he has any such interest, an abstract (with copies of all abstracted documents) of his title to that interest.

(2) Where a person, upon whom a notice has been served under this section, complies with the notice, the Minister shall pay him all costs necessarily and properly incurred by him in relation to such compliance.

(3) If any person upon whom a notice has been served under this section fails, or neglects to comply with such notice, such person shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

(4) Where—

(a) a person is convicted of an offence under subsection (3) of this section by reason of his failure or neglect to do the things specified in a notice served on him under this section within the time specified in the notice, and

(b) the said things remain, after the date of such conviction, undone by him,

such person shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding five pounds for each day, after the date of such first-mentioned conviction, on which the said things remain undone by him and such offence shall be a continuing offence and accordingly fresh proceedings in respect thereof may be taken from time to time.

Authorisation to the Minister to acquire land compulsorily.

23. —(1) (a) If the Minister desires to acquire any land for the purposes of this Act but is unable to acquire the land by agreement expeditiously, he may apply to the Lay Commissioners for an order under this section authorising him to acquire the land compulsorily in accordance with this Chapter.

(b) A certificate under the official seal of the Minister certifying that he has been unable to acquire any specified land by agreement expeditiously shall, for the purposes of this subsection, be conclusive evidence of the fact so certified.

(2) The Minister shall, immediately upon making an application for an acquisition order in respect of any land, do the following things:—

(a) publish the prescribed notice of the application in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land is situate, and

(b) serve a copy of such notice on the occupier (if any) of the land and on the person who appears to the Minister to be the owner of the land, if it is reasonably practicable to ascertain that person.

(3) Where an application for an acquisition order in respect of any land has been made, the Lay Commissioners shall hear the application, after publishing the prescribed notice of the hearing in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land is situate, and may, subject to the subsequent provisions of this section,—

(a) make the order, or

(b) make the order with the exclusion therefrom of any specified part of the said land, or

(c) refuse the application.

(4) No acquisition order shall be made in respect of any land—

(a) which, in the opinion of the Lay Commissioners, is required for the amenity or convenience of a dwelling-house, or

(b) which is the property of a local authority, or

(c) which has been acquired by any corporation or company for the purposes of a railway, dock, canal, water or other public undertaking, or

(d) which is the site of a national monument, within the meaning of the National Monuments Act, 1930 (No. 2 of 1930), and is owned by the Commissioners.

(5) An acquisition order in respect of any land may provide for the continuance of an existing easement in or over the land or for the creation, in lieu of an existing easement, of any new easement in or over the land.

(6) Where an acquisition order in respect of any land has been made by the Lay Commissioners, the occupier or the owner of the land may, within two months after the making of the order, appeal to the Appeal Tribunal against the order, and the Appeal Tribunal may, on such appeal,—

(a) revoke the order, or

(b) confirm the order as so made, or

(c) vary the order by excluding part of the land.

(7) Where—

(a) an acquisition order has been made by the Lay Commissioners in respect of any land which is subject to an easement, and

(b) the order does not provide for the continuance of that easement or for the creation, in lieu thereof, of a new easement,

the person entitled to that easement may, within two months after the making of the order, appeal to the Appeal Tribunal against the order in so far as it does not contain the said provision, and the Appeal Tribunal may, on such appeal,—

(i) confirm the order as so made, or

(ii) vary the order by including the said provision therein.

(8) Where an application for an acquisition order in respect of any land is refused, the Minister may, within two months after such refusal, appeal to the Appeal Tribunal against such refusal, and the Appeal Tribunal may, on such appeal,—

(a) affirm the refusal, or

(b) make the order either as respects the whole of the land or any specified part thereof and, in case such land is subject to an easement, provide, if they think fit, for the continuance of such easement or for the creation, in lieu thereof, of a new easement.

(9) Where—

(a) an application for an acquisition order in relation to any land (in this subsection referred to as the required land) has been made, and

(b) the order has been made by the Lay Commissioners with the exclusion therefrom of any particular part of the required land,

the Minister may, within two months after the making of the order, appeal to the Appeal Tribunal against such exclusion, and the Appeal Tribunal may, on such appeal,—

(i) confirm the order as so made, or

(ii) confirm the order and delete therefrom the said exclusion and, if they so think fit, provide instead for the exclusion therefrom of any particular part of the required land.

(10) Where—

(a) an acquisition order in respect of any land has been made by the Lay Commissioners, and

(b) the order provides for the continuance of an existing easement in or over the land or for the creation, in lieu of an existing easement, of a new easement in or over the land,

the Minister may, within two months after the making of the acquisition order, appeal to the Appeal Tribunal against such provision, and the Appeal Tribunal may, on such appeal,—

(i) confirm the order, or

(ii) vary the order by deleting therefrom the said provision.

(11) The Minister and any person interested (whether as occupier or owner or as being entitled to an easement) in any land which is the subject of an application or an appeal under this section shall be entitled to be heard on the hearing of the application or appeal.

(12) If the Lay Commissioners or the Appeal Tribunal (as the case may be) are satisfied that after diligent inquiry the owner of the land to which an application or appeal under this section relates cannot be found or ascertained, the application or appeal may be heard and determined, notwithstanding the fact that such owner has not been found or ascertained.

(13) (a) An acquisition order made by the Lay Commissioners shall not come into force save as is provided by paragraphs (b) or (c) of this subsection.

(b) Where an acquisition order is made by the Lay Commissioners and no appeal in respect of it is taken under subsection (6), (7), (9) or (10) of this section, it shall come into force immediately upon the expiration of two months after it is made.

(c) Where an acquisition order made by the Lay Commissioners is confirmed or varied by the Appeal Tribunal under subsection (6), (7), (9) or (10) of this section, it shall come into force on the date on which it is so confirmed or varied.

(d) Where an acquisition order is made by the Appeal Tribunal under subsection (8) of this section, it shall come into force on the date on which it is made.

(14) Every acquisition order shall remain in force for the period of two years commencing on the date on which it came into force and no longer.

(15) Every acquisition order shall have attached thereto a map or plan showing the land in respect of which the acquisition order is made.

(16) Where an acquisition order in respect of any land comes into force, the Land Commission shall as soon as may be thereafter—

(a) publish, in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land is situate, a notice (which shall specify the place at which the acquisition order may be inspected and the times for inspection) of the making of the order, and

(b) serve a copy of such notice on every person who appears to the Land Commission to have any interest in the land.

Assessment of value of interests in land the subject of an acquisition order.

24. —(1) Where an acquisition order in respect of any land is in force, the Minister may apply to the Lay Commissioners to assess the value of any particular interest in the land.

(2) Where an application under this section has been duly made to the Lay Commissioners to assess the value of any particular interest in any land, the Lay Commissioners, after affording any person claiming to be entitled to such interest an opportunity of being heard, shall by order assess the value of such interest.

(3) The Minister or any person claiming to be entitled to an interest in land the subject of an order under subsection (2) of this section may, within two months after the date of the order, appeal to the Appeal Tribunal against the order.

Provisional apportionment of certain annual sums and assessment of value of part thereof.

25. —(1) Where any land (in this subsection referred to as the acquirable land), in respect of which an acquisition order is in force, is subject in conjunction with other land to an annual sum, the Lay Commissioners shall, on the application of the Minister and after affording the persons by and to whom the said annual sum is payable an opportunity of being heard, by order—

(a) apportion the said annual sum in such manner as they consider proper between the acquirable land and such other land, and

(b) assess the value of so much of the said annual sum as is apportioned to the acquirable land.

(2) The Minister or the person by or to whom an annual sum the subject of an order under subsection (1) of this section is payable may, within two months after the date of the order, appeal to the Appeal Tribunal against the order and the Appeal Tribunal may, on such appeal,—

(a) confirm the order, or

(b) vary it in such manner as the Appeal Tribunal thinks fit.

(3) An order under subsection (1) of this section apportioning part of an annual sum to land which is the subject of an acquisition order shall come into force if, but only if, a vesting order is made in respect of that land, but if that vesting order is made the order under this section shall come into force on the day immediately preceding the vesting date.

(4) Where an order under subsection (1) of this section in relation to an annual sum payable out of land (in this subsection referred to as the acquirable land) in respect of which an acquisition order is made, and other land (in this subsection referred to as the non-acquirable land) has come into force, then, as on and from the date on which the order comes into force,—

(a) the non-acquirable land shall be, by virtue of this subsection, released from so much of the said annual sum as is apportioned to the acquirable land,

(b) the person entitled to the said annual sum immediately before the vesting date and his successors in title shall, in respect of the non-acquirable land, have the same rights and remedies for the recovery of the part of the said annual sum apportioned to the non-acquirable land as previously to the vesting date he had for the recovery of the whole of the said annual sum,

(c) in case such annual sum was a rent payable under a lease,—

(i) the lessee shall, as to all rent accruing under the lease, in respect of any period commencing on or after the vesting date, be liable only to the portion thereof apportioned to the non-acquirable land,

(ii) all the covenants, conditions and agreements of the lease, except as to the amount of the rent to be paid, shall remain in force with regard to the non-acquirable land in the same way as if the non-acquirable land only had been comprised in the lease.

Vesting orders.

26. —(1) Where an acquisition order in respect of any land is in force, the Minister may, if in his absolute discretion he so thinks fit, make, subject to subsection (2) of this section, an order under this section vesting the land in him on a specified date not earlier than one month after the making thereof.

(2) The Minister shall not make a vesting order in respect of any land which is subject in conjunction with any other land to any annual sum unless an order has been made under section 25 of this Act in relation to such lands.

(3) A vesting order shall—

(a) have attached thereto a map or plan showing the land to which the order relates;

(b) if the relevant acquisition order provides for the continuance of an existing easement or for the creation, in lieu of an existing easement, of a new easement, contain a similar provision.

(4) Where a vesting order is made in respect of any land, the following provisions shall have effect:—

(a) the vesting order shall operate to vest the said land in the Minister, as on and from the vesting date, for an estate in fee simple in possession subject—

(i) in case the said land is subject to a State annuity, to that State annuity,

(ii) to any easement, for the continuance or creation whereof provision is made in the vesting order in pursuance of subsection (3) of this section,

but save as aforesaid free from all public rights (if any) and from the claims of all persons who are interested in the said land, whether in respect of incumbrances or interests therein or otherwise howsoever;

(b) in respect of each interest subsisting in the said land immediately before the vesting date—

(i) the order shall operate, as on and from the vesting date, to transfer and attach to the compensation, payable in respect of that interest, all estates, trusts and incumbrances subsisting in respect of that interest immediately before the vesting date,

(ii) the said compensation shall, as respects any rights or claims, existing immediately before the vesting date, to or against that interest, represent that interest for all purposes,

(iii) if that interest was, immediately before the vesting date, settled land, within the meaning of the Settled Land Acts, 1882 to 1890, the said compensation shall be capital money for the purposes of those Acts.

(5) Where the Minister makes a vesting order in respect of any land, he shall as soon as may be thereafter—

(a) publish, in the Iris Oifigiúil and in one or more newspapers circulating in the locality in which the land is situate, a notice (which shall specify the place at which the vesting order may be inspected and the times for inspection) of the making of the order,

(b) serve a copy of such notice on all persons who appear to him to have had, immediately before the vesting date, any interest in the land.

(6) Where any public right is terminated by a vesting order the Minister may, if he thinks it necessary, arrange for a right to be exercisable by the public in lieu of the terminated public right.

(7) Where any land has become vested in the Minister by means of a vesting order, the Minister shall send to the registering authority under the Act of 1891 the vesting order and, on receipt thereof, the said registering authority shall cause the Minister to be registered under the Act of 1891 as owner in fee-simple of the land in accordance with the terms of the vesting order.

(8) No stamp duty shall be payable on any vesting order nor shall any fees be payable in respect of any proceedings in the Land Registry under subsection (7) of this section.

Retrospective apportionment of State annuities in certain cases.

27. —Where a vesting order is made in respect of any land (in this section referred to as the acquired land) which, immediately before the vesting date, was subject, in conjunction with other land, to a State annuity,—

(a) the Minister shall give notice of the vesting order to the authority to whom the State annuity was payable,

(b) the said authority shall, as soon as may be after the receipt of the notice, do one of the following things:—

(i) apportion, with effect as on and from the day immediately preceding the vesting date, the State annuity in such manner as the said authority consider proper between the acquired land and such other land,

(ii) declare the whole of the State annuity to be exclusively charged, with effect as on and from the day immediately preceding the vesting date, on either the acquired land or such other land.

Taking possession of land acquired by the Minister.

28. —(1) Where the Minister makes a vesting order in respect of any land, the Minister may enter on and take possession of the land on, or at any time after, the vesting date.

(2) If any person obstructs or interferes with the entry on or taking of possession of any land under this section, that person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

Order for possession of land vested in the Minister.

29. —(1) Where the Minister is under section 28 of this Act entitled to enter on and take possession of any land and any person neglects or refuses to give up possession thereof or obstructs or interferes with such entry on or taking possession of the land, the Judicial Commissioner may, on the application of the Minister, issue an order to the county registrar, within whose county or county borough the land is situate, to deliver possession of the land to any person named in the order, and upon receipt of the order the county registrar shall deliver possession of the land accordingly and the Minister shall be entitled to recover from the person in default all costs and expenses incurred by him in connection with the issuing and execution of the order.

(2) An order issued under this section shall be deemed to be an execution order within the meaning of the Enforcement of Court Orders Act, 1926 (No. 18 of 1926).

(3) Where possession of any land has been delivered by a county registrar under this section, any person who, without the consent of the Minister, enters on and takes possession of the land or any part thereof shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds and to a further fine not exceeding ten pounds for every day during which he remains in possession.

(4) In the application of subsections (1) and (3) of this section in relation to a county or county borough for which there is for the time being an under-sheriff, the said subsections shall have effect as if the word “under-sheriff” were substituted for the expression “county registrar” where the latter expression occurs in the said subsections.

(5) In the application of subsections (1) and (3) of this section to a county or county borough in which there is for the time being a sheriff, appointed under section 12 of the Court Officers Act, 1945 (No. 25 of 1945), in whom the functions of the county registrar for such county or county borough in relation to the execution of execution orders are for the time being vested, the said subsections shall have effect as if the word “sheriff” were substituted for the expression “county registrar” where the latter expression occurs in the said subsections.

Compensation.

30. —(1) Where a vesting order is made in respect of any land, the Minister shall be liable to pay compensation in respect of every interest (other than an easement continued by the vesting order or an easement in lieu whereof a new easement has been created by the vesting order) subsisting therein immediately before the vesting date.

(2) In the subsequent sections contained in this Chapter, the word “compensation” means compensation under this section in respect of an interest in land.

Assessment of compensation in respect of interests.

31. —(1) Subject to the provisions of this section, the amount of compensation payable in respect of any interest in vested land shall,—

(a) in case such interest was, immediately before the vesting date, subject to any mortgage or mortgages, be fixed, in default of agreement between the Minister, the mortgagor and all the mortgagees, by the Lay Commissioners on the application of the Minister, the mortgagor or any mortgagee, or

(b) in any other case, be fixed, in default of agreement, by the Lay Commissioners on the application of the Minister or the person claiming the compensation.

(2) Where compensation has been fixed by the Lay Commissioners, the Minister or any person (including a mortgagee) interested therein may, within one month after the compensation has been so fixed, appeal to the Appeal Tribunal against the award of the Lay Commissioners.

(3) Where—

(a) the value of any interest in vested land has been assessed by an assessment order, and

(b) that interest is subsisting immediately before the vesting date,

then, subject to subsection (5) of this section, the compensation payable in respect of the interest shall be an amount equal to the sum assessed by the assessment order.

(4) Where—

(a) the value of any interest (in this subsection referred to as the original interest) in vested land has been assessed by an assessment order, and

(b) the original interest is subsisting immediately before the vesting date, and

(c) any interest (in this subsection referred to as the new interest) has since the date of the assessment order been created out of the original interest,

the compensation payable in respect of the original interest and the new interest shall not when added together exceed the amount assessed by the assessment order.

(5) Compensation shall be assessed separately in respect of each interest in vested land.

(6) Where either—

(a) (i) any interest in vested land was settled land within the meaning of the Settled Land Acts, 1882 to 1890, and

(ii) such interest was immediately before the vesting date subject to any charges which are charges subsisting under a settlement, or

(b) any interest in vested land was immediately before the vesting date subject to any mortgage or mortgages,

the compensation in respect of such interest shall be fixed on the assumption that it was not so subject.

Allocation of compensation in respect of mortgaged interests.

32. —(1) In this section the expression “the mortgage debt” means, in relation to a mortgage on vested land, the total of the sums due immediately before the vesting date on foot of the mortgage for principal moneys and interest.

(2) Where an interest in vested land was, immediately before the vesting date, subject to one mortgage and no more, the following provisions shall have effect in relation to the compensation for such interest:—

(a) in case the compensation is sufficient to discharge the mortgage debt in full, the Minister shall by order allocate to the mortgagee so much of the compensation as is sufficient to discharge the mortgage debt and allocate the surplus (if any) to the mortgagor;

(b) in case the compensation is not sufficient to discharge the mortgage debt in full, the Minister shall by order allocate the compensation to the mortgagee.

(3) Where an interest in vested land was, immediately before the vesting date, subject to two or more mortgages, the following provisions shall have effect in relation to the compensation for such interest:—

(a) in case the compensation is sufficient to discharge all the mortgage debts in full, the Minister shall by order allocate to each mortgagee so much of the compensation as is sufficient to discharge his mortgage debt in full and allocate the surplus (if any) to the mortgagor;

(b) in case the compensation is not sufficient to discharge all the mortgage debts in full,—

(i) if all the mortgagees agree as to how the compensation is to be allocated, the Minister shall by order allocate it in accordance with such agreement,

(ii) if all the mortgagees do not agree as to how the compensation is to be allocated,—

(I) the Minister may apply, in a summary manner, in case the compensation does not exceed one thousand pounds, to the Circuit Court or, in case the compensation exceeds one thousand pounds, to the High Court to allocate the compensation,

(II) if the Minister so applies, the Court shall, after giving all parties interested an opportunity of being heard, allocate in accordance with the respective priorities of the mortgages, the compensation, and the costs of and incidental to the application shall be in the discretion of the Court.

(4) Where any sum (representing compensation or part of compensation for an interest in vested land which was immediately before the vesting date subject to any mortgage) is allocated to a mortgagee under subsection (2) or subsection (3) of this section, the following provisions shall have effect—

(a) as between the mortgagor and the mortgagee the said sum shall be deemed to be applicable—

(i) first, in satisfaction or reduction of so much of the mortgage debt as represents interest, and

(ii) secondly, in satisfaction or reduction of so much of the mortgage debt as represents principal moneys,

(b) as between the mortgagor and the mortgagee—

(i) the said sum shall be deemed to have been paid on the vesting date by the mortgagor to the mortgagee,

(ii) the part of the said sum so deemed to be applicable to the said interest shall be deemed to have been received by the mortgagee on the vesting date on foot of the said interest,

(iii) the part (if any) of the said sum so deemed to be applicable to principal moneys shall be deemed, notwithstanding anything contained in the instrument creating the mortgage, to have been received by the mortgagee on the vesting date on foot of the said principal moneys.

(c) all rights and remedies possessed by the mortgagee for securing payment of the mortgage debt, except the right against the vested land, shall remain in force in respect of so much (if any) of the mortgage debt as would remain unpaid if the payments, deemed, by virtue of paragraph (b) of this subsection, to have been made to the mortgagee on the vesting date, had in fact been so made.

Fixing and payment of compensation in small cases.

33. —(1) In this section—

the expression “small parcel of land” means land—

(a) the area whereof does not exceed two acres, and

(b) the rateable valuation whereof does not exceed five pounds;

the word “charge” does not include a State annuity.

(2) Where the land in respect of which a vesting order is made—

(a) is a small parcel of land, and

(b) is vested under the Land Purchase Acts in the proprietor thereof, and

(c) is registered under the Act of 1891,

the following provisions shall have effect in relation to the compensation payable in respect of all interests subsisting in such land immediately before the vesting, date, that is to say:—

(i) the person who was, immediately before the vesting date, registered as full owner of such land or, if that person is dead, his personal representative, or the person who was, immediately before the vesting date, the owner of the first or only charge (if any) on such land or, if that person is dead, his personal representative, may, for the purpose of the fixing (including the fixing by agreement) and the payment of such compensation, be treated as being absolutely entitled to such compensation,

(ii) if such compensation is paid to the person who was, immediately before the vesting date, registered as full owner of such land or to his personal representative, the person to whom it is so paid shall hold it as a trustee for the persons (including himself), who, immediately before the vesting date, had any interests in such land, in respect of which compensation is payable, or were mortgagees of any such interests,

(iii) if such compensation is paid to the person who was, immediately before the vesting date, the owner of the first or only charge (if any) on such land or to his personal representative, the person to whom it is so paid shall hold or dispose of it in like manner as if he had, on the vesting date, sold such land in exercise of the powers of sale conferred by law on mortgagees of land.

(3) Where the land in respect of which a vesting order is made—

(a) is a small parcel of land, and

(b) is vested under the Land Purchase Acts in the proprietor thereof, and

(c) is not registered under the Act of 1891,

the following provisions shall have effect in relation to the compensation payable in respect of all interests subsisting in such land immediately before the vesting date, that is to say:—

(i) the person who was immediately before the vesting date, the occupier of such land may, for the purpose of the fixing (including the fixing by agreement) and the payment of such compensation, be treated as being absolutely entitled to such compensation,

(ii) if such compensation is paid to that person, he shall hold it as a trustee for the persons (including himself) who, immediately before the vesting date, had any interests in such land, in respect of which compensation is payable or were mortgagees of any such interests.

(4) Where the land in respect of which a vesting order is made—

(a) is a small parcel of land, and

(b) is vested under the Land Purchase Acts in the Land Commission, but not in the tenant-purchaser or purchaser thereof, and

(c) is subject to a State annuity (other than a tithe rent charge),

the following provisions shall have effect in relation to the compensation payable in respect of all interests (other than that of the Land Commission) in such land, that is to say:—

(i) the person who was, immediately before the vesting date, the occupier of such land may, for the purpose of the fixing (including the fixing by agreement) and the payment of such compensation be treated as being absolutely entitled to such compensation,

(ii) if such compensation is paid to that person, he shall hold it as a trustee for the persons (including himself but excluding the Land Commission) who, immediately before the vesting date, had any interests in such land in respect of which compensation is payable or were mortgagees of any such interests.

(5) Where a vesting order has been made in relation to part (in this subsection referred to as the acquired land) of a rateable hereditament, the Commissioner of Valuation and Boundary Surveyor may, on the application of the Minister, apportion to the acquired land such part of the rateable valuation of the said rateable hereditament as he thinks proper, and the part of the said rateable valuation so apportioned to the acquired land shall, for the purposes of this section but not further or otherwise, be taken to be the rateable valuation of the acquired land.

Limited application of the Lands Clauses Acts.

34. —The Lands Clauses Acts shall not, save as expressly provided by this Part, apply to the acquisition of land under this Chapter.