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14 1959

FISHERIES (CONSOLIDATION) ACT, 1959

Chapter II.

Transfer to the Minister of Transferable Fisheries.

Transition period in respect of transferable fisheries.

186. —(1) The Minister may by order appoint a day to be the appointed day in respect of any fishery district for the purposes of this Part, and in this Part the expression “the appointed day” means in relation to a fishery district the day so appointed to be the appointed day in respect of such district.

(2) Where an order has been made, under subsection (1) of this section, appointing a day to be the appointed day in respect of a fishery district, then for the purposes of this Part, the transition period for each transferable fishery situate in such district shall be the period commencing on the appointed day in respect of such district and ending on the day immediately preceding the tenth anniversary of the appointed day or, if an order in relation to such fishery has been made under subsection (3) or subsection (4) or subsection (5) of this section, the day appointed by such last-mentioned order as the day on which the transition period in respect of such fishery is to end, and the expression “the transition period” when used in this Part in relation to any transferable fishery shall be construed and have effect accordingly.

(3) Where at any time after the completion of the survey record of a transferable fishery but not earlier than thirty-six months after the commencement of the transition period in respect of such fishery, the owner of such fishery makes to the Minister, not less than six months before the last day of the next ensuing annual close season for angling for salmon and trout in the river or the portion thereof in which such fishery is situate or the last day of the next ensuing annual close season for salmon and trout in such river or portion thereof, whichever of the said days is the earlier, an application for an order under this subsection, the following provisions shall have effect:—

(a) the Minister shall, subject to the provisions of this subsection, make in relation to such fishery an order appointing such day (being earlier than the day immediately preceding the tenth anniversary of the appointed day in respect of the fishery district in which such fishery is situate, but not being earlier than three months after the making of such application) as the Minister thinks proper as the day on which the transition period in respect of such fishery shall end,

(b) the Minister may refuse to make such order if such owner is in his opinion in default in any matter under this Part,

(c) where such fishery is in the occupation of any person under a lease and such lease will not expire before the tenth anniversary of the date of the commencement of such transition period or has still not less than two years unexpired at the date of the application, the Minister shall not make such order unless such person consents to the making thereof.

(4) At any time after the completion of the survey record of a transferable fishery, but not earlier than thirty-six months after the commencement of the transition period in respect of such fishery, the Minister if he thinks fit may, not less than six months before the last day of the next ensuing annual close season for angling for salmon and trout in the river or portion thereof in which such fishery is situate or the last day of the next ensuing annual close season for salmon and trout in such river or portion, whichever of the said days is the earlier, make in relation to such fishery an order appointing such day (being earlier than the day immediately preceding the tenth anniversary of the appointed day in respect of the fishery district in which such fishery is situate, but not being earlier than three months after the making of such order) as the Minister thinks proper as the day on which the transition period in respect of such fishery shall end.

(5) At any time after the commencement of the transition period in respect of a transferable fishery, the Minister may make in relation to such fishery an order appointing such day (being later than the day immediately preceding the tenth anniversary of the appointed day in respect of the fishery district in which such fishery is situate) as he thinks proper as the day on which the transition period in respect of such fishery shall end.

(6) Every order made under this section shall be published in the Iris Oifigiúil as soon as may be after it is made.

(7) A copy of every order made under subsection (1) of this section in relation to any fishery district shall be served on the owner of every transferable fishery situate in such district.

(8) A copy of every order made in relation to a transferable fishery under subsection (3), subsection (4) or subsection (5) of this section shall be served on the owner of such fishery.

Right of access to transferable fisheries.

187. —(1) At any time after the appointed day in respect of a fishery district, any authorised person shall have a right of free access at all times to any transferable fishery situate in such district for the purpose of examining any structures connected therewith or of viewing the operation of such fishery or the disposal of fish.

(2) If any person obstructs any authorised person in the exercise of the powers conferred on such authorised person by this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

(3) In this section the expression “authorised person” means a person authorised by the Minister to exercise the powers conferred on an authorised person by this section.

Survey records of transferable fisheries.

188. —(1) At any time after the commencement of the transition period in respect of a transferable fishery, the Minister may, in accordance with this section, cause a survey to be made of such fishery, and a record to be prepared of the following matters in relation to such fishery:—

(a) the situation thereof;

(b) the condition thereof;

(c) all weirs or other structures existing thereon;

(d) all lands and premises lawfully used in connection therewith;

(e) all means of access thereto;

(f) all means and methods of operating it;

(g) all fishing gear used in connection therewith.

(2) The following provisions shall have effect in relation to the survey and record of a transferable fishery:—

(a) the Minister shall appoint a fit and proper person (in this subsection referred to as the engineer) to make a survey of such fishery, and such survey may, in case such fishery is a mill-dam fishery, include a survey of the whole dam and any adjoining structures, so far as may be necessary for determining the condition of the dam, and the measurement of the flow of water in any river, lake or watercourse connected with such dam;

(b) upon completion of such survey the engineer shall prepare and sign a report of such survey in the form of plans (including sections where necessary) and descriptive schedules and submit such report to the Minister;

(c) the Minister shall cause a copy of such report to be served on the owner and on the occupier of such fishery;

(d) such owner or occupier may, within forty-eight days after the service of such copy, send to the Minister a statement in writing objecting to such report and specifying the grounds of his objection;

(e) if no objection is sent to the Minister within the said forty-eight days or if any such objection is so sent but is subsequently withdrawn, the Minister shall cause an instrument to be prepared in the terms of such report and shall cause such instrument to be sealed with his official seal and such instrument shall, for the purposes of this Part, be the survey record of such fishery;

(f) if an objection is sent to the Minister within the said forty-eight days and such objection is not subsequently withdrawn, the following provisions shall have effect:—

(i) the Minister may, with the consent of the person making the objection, amend such report, and in that case, the Minister shall cause an instrument to be prepared in the terms of such report, as so amended, and shall cause such instrument to be sealed with his official seal and such instrument shall, for the purposes of this Part, be the survey record of such fishery;

(ii) if the Minister does not, with the consent of the person making the objection, amend such report, then—

(I) the Minister shall refer the matter to the President of the Institute of Civil Engineers in Ireland or some person appointed by the said President, who may, after investigating the matter, either as he thinks fit, confirm or amend such report, and thereupon the Minister shall cause an instrument to be prepared in the terms of such report with such amendments (if any) thereon as may have been made thereon under this clause and cause such instrument to be sealed with his official seal, and such instrument shall, for the purposes of this Part, be the survey record of such fishery, and

(II) there shall be paid to the person investigating the matter such fee as the Minister, with the consent of the Minister for Finance, may fix, and there shall, in case such report is wholly or mainly confirmed, be paid to the Minister by the person making the objection a sum equal to the said fee, and such sum shall be recoverable by the Minister as a simple contract debt in any court of competent jurisdiction and when paid to, or recovered by, the Minister shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

(3) Where, during the transition period in respect of any transferable fishery, any alteration is made, with the consent of the Minister, in the situation, construction or condition of such fishery, after the making of the survey record of such fishery, the Minister shall cause particulars of such alteration to be entered in such survey record and such survey record shall have effect subject to such alteration as so entered.

(4) For the purposes of this Act the survey record of any transferable fishery shall be conclusive evidence in any proceedings of the situation, construction and condition of such fishery.

(5) For the purpose of making a survey of a transferable fishery under this section, the person (in this subsection referred to as the engineer) appointed by the Minister under this section to make such survey and any persons acting under the directions of the engineer may do all or any of the following things:—

(a) enter on such fishery and any land which it may be necessary to survey or which it may be necessary to pass through for the purposes of such survey;

(b) cut or cause to be cut any bushes or other vegetation and remove or cause to be removed any other obstructions (except permanent buildings) which may interfere with such survey;

(c) erect or construct or make any permanent or temporary marks which may be required to enable such survey to be checked or compared with the site at a later date;

(d) require any person (being the owner or occupier of such fishery or an employee of such owner or occupier) to supply any information which the engineer or the persons so acting under his directions may reasonably require for the purposes of such survey;

(e) do any other act or thing which may be necessary for or incidental to the doing of anything which the engineer or the said persons so acting under his directions are authorised by the foregoing provisions of this subsection to do.

(6) If any person interferes with a person appointed by the Minister to make a survey under this section or any persons acting under the directions of such last-mentioned person in exercise of the powers conferred on him or them by this section, such first-mentioned person shall be guilty of an offence under this section.

(7) If any person (being the owner or occupier of a transferable fishery or an employee of such owner or occupier) refuses to give to any person appointed by the Minister to make a survey under this section or any persons acting under the direction of such last-mentioned person, any information which he or they may lawfully demand under this section, the following provisions shall have effect:—

(a) if such first-mentioned person is the owner or occupier of such fishery, such person shall be guilty of an offence under this section,

(b) if such first-mentioned person is an employee of the occupier of such fishery, such person and such occupier shall each be guilty of an offence under this section.

(8) Every person guilty of an offence under this section shall be liable on summary conviction thereof to a fine not exceeding fifty pounds.

(9) There shall be paid to any person (not being an officer of the Minister) who is appointed either to make a survey under this section or to act under the direction of the person making any such survey such remuneration and such allowances for expenses as the Minister may with the consent of the Minister for Finance determine.

Obligation of occupiers of transferable fisheries to furnish accounts to the Minister.

189. —(1) At any time after the commencement of the transition period in respect of a transferable fishery the Minister may serve on the occupier of such fishery a notice requiring such occupier to do the following things:—

(a) to keep in such form as may be specified in such notice and furnish to the Minister at such times and for such periods falling within the said transition period as may be specified in such notice an account of—

(i) the costs of operating such fishery (including wages, insurance and marketing costs),

(ii) all moneys received from the sale of fish taken in such fishery,

(iii) all moneys received from the letting of fishing rights to anglers and other persons,

(iv) such other particulars (if any) relevant to the matters mentioned in the preceding paragraphs of this subsection, as the Minister may from time to time direct;

(b) furnish to the Minister such explanations of any matter contained in any such account as the Minister may from time to time require.

(2) Where a notice has been served under this section on the occupier of a transferable fishery and such occupier fails or neglects to comply with the requirements of such notice such occupier shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty-five pounds.

Acquisition of portions of rivers or lakes contiguous to certain weir (fresh water) fisheries.

190. —(1) Where the bed and soil of any portion of a river or lake contiguous to a transferable fishery, which is a weir (freshwater) fishery, is not in the same ownership as such fishery, the Minister may, if it appears necessary for the maintenance or operation of such fishery, by order made during the transition period but not later than three months before the expiration of the transition period declare that so much of such bed and soil, not exceeding fifty yards above or below or both above and below such fishery, as the Minister shall specify in such order shall be deemed for the purpose of this Part to be part of such fishery, and upon the making of such order such part of the bed and soil of such river or lake and all right of fishing in such part shall be deemed to form part of such fishery.

(2) Where the Minister makes an order under this section he shall cause a copy of such order to be served on the owner of the bed and soil of the river or lake to which such order relates.

Reservation of angling rights in transferable fisheries.

191. —(1) The owner of the exclusive angling rights in a transferable fishery may, at any time not less than three months before the expiration of the transition period in respect of such fishery, apply to the Minister to make in respect of such fishery an order (in this Part referred to as an angling rights (reservation) order) reserving to him the exclusive angling rights in such fishery and in that case the Minister may make such order and such order shall operate and have effect to reserve such angling rights to such owner.

(2) Where the Minister makes an angling rights (reservation) order, he shall publish notice of the making of such order in the Iris Oifigiúil.

Vesting orders.

192. —(1) Not less than two months before the end of the transition period in respect of a transferable fishery the Minister shall, unless he has already made in respect of such fishery an order under subsection (2) of this section, make an order (in this Part referred to as an ordinary vesting order) vesting as on and from the day next following the expiration of such transition period such fishery in the Minister.

(2) (a) The Minister may, with the consent of the owner of a transferable fishery to which this subsection applies, and whether an appointed day has or has not been fixed in relation to the fishery district in which such fishery is situate, make an order (in this Part referred to as a special vesting order) vesting as on and from a day specified in such order such fishery in the Minister.

(b) This subsection applies to every transferable fishery in respect of which the person who was the owner thereof on the 1st day of January, 1933, or the successor in title of such person did not, in each fishery year between the said 1st day of January, 1933, and the 31st day of December, 1938, use such fishery.

(3) An order made under this section in relation to any transferable fishery shall state therein the nature and the area and situation of such fishery and shall have attached thereto a map showing the area and situation of such fishery.

(4) An order made under this section in relation to a transferable fishery shall operate to transfer to the Minister, as on and from the date specified therein in that behalf, such fishery in fee simple free from incumbrances and from all estates and interests therein, except, in case an angling rights (reservation) order has been made in relation to such fishery, the angling rights reserved thereby, and such first mentioned order shall be conclusive evidence as to the nature and the area of such fishery as stated therein.

(5) Whenever the Minister makes an order under this section in relation to any fishery, he shall cause notice of the making of such order to be published in the Iris Oifigiúil and shall serve on the owner of such fishery a copy of such notice.

Registration of title of the Minister to vested fisheries.

193. —Where any transferable fishery has become vested in the Minister under this Chapter of this Part, the Minister shall, as soon as may be after such vesting, send to the registering authority under the Local Registration of Title (Ireland) Act, 1891, the vesting order made in relation to such fishery and on receipt thereof the said registering authority shall cause the title of the Minister to the ownership of such fishery in fee simple to be registered under the last-mentioned Act.

Compensation in respect of transferable fisheries.

194. —(1) Compensation shall be paid by the Minister for every transferable fishery vested in the Minister under this Chapter of this Part to the several persons entitled thereto or having estates or interests therein, and such compensation shall, in default of agreement, be fixed by an official arbitrator under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919.

(2) The following provisions shall have effect in relation to the fixing of the compensation under this section in respect of a transferable fishery vested in the Minister by the operation of an ordinary vesting order:—

(a) the arbitrator shall have regard primarily to—

(i) in case such fishery was used during the transition period, the profits of such fishery during the transition period,

(ii) in case such fishery was not used during the transition period, the sum which in the opinion of the arbitrator would have been the profits of such fishery if such fishery had been used during the transition period;

(b) such arbitrator shall also take into account (in addition to evidence submitted by other persons) any evidence submitted by the owner or occupier of the fishery of—

(i) the profits of such fishery before the commencement of the transition period, or

(ii) exceptional weather or other conditions affecting the average catch during the transition period, or

(iii) the extent to which the owner or occupier has been permitted peaceful occupation during the transition period, or

(iv) any circumstances antecedent to the transition period which may have affected the earning power of the fishery during the transition period;

(c) such arbitrator may take into account any depreciation of such fishery during the transition period or of the structures or buildings used in connection therewith and described in the survey record of such fishery in so far as the same may be due to causes other than fair wear and tear.

(3) In assessing the compensation in respect of a transferable fishery vested in the Minister by the operation of a special vesting order, the value of such fishery shall be calculated as at the date on which it was last used.

(4) Where—

(a) a transferable fishery which has become vested in the Minister under this Chapter consisted of the exclusive right of catching salmon in the whole of the tidal waters of any river, and

(b) the proprietor of such fishery had at the vesting date the exclusive right of catching salmon in the whole of such river including all tributary rivers and lakes upon its course, and

(c) such proprietor was lawfully entitled by virtue of the proviso to section 3 of the Salmon Fishery (Ireland) Act, 1863, to place any bag nets within three miles from the mouth of such river,

the right so to place such bag nets shall be deemed for the purposes of this section to form part of such fishery and shall be taken into account in determining compensation in respect of such fishery under this section.

(5) Sections 69 to 74 and 76 to 80 of the Lands Clauses Consolidation Act, 1845, shall apply to any compensation payable by the Minister under this section, and for the purposes of such application the Minister shall be deemed to be the promoter of the undertaking.

(6) No claim for compensation under this section in respect of a transferable fishery shall be considered unless made within twenty-four months after the date on which such fishery was vested in the Minister.

Compensation to employees on transferable fisheries.

195. —(1) Whenever a transferable fishery becomes vested in the Minister under this Chapter, every person who proves to the satisfaction of the Minister or the arbitrator appointed to fix compensation in respect of such fishery all the following matters:—

(a) that, during the whole or substantially the whole of each of the three open fishing seasons (in this subsection referred to as the appointed seasons) next before the date on which such fishery became so vested, he was constantly and regularly employed by the occupier of such fishery in or about the operation or protection of such fishery at a fixed weekly wage or at a wage calculated by reference to the value of the catch, and

(b) that the remuneration received by him in respect of such employment formed the whole or a substantial part of his livelihood while he was so employed, and

(c) that his said employment related exclusively to the operation or protection of such fishery, and

(d) that his said employment has been terminated as the result of the vesting of such fishery, and

(e) that equivalent alternative occupation is not open to him during the open fishing season,

shall be entitled to be paid by the Minister, in respect of his loss of employment during the open fishing season, compensation of an amount calculated as follows:—

(i) for each of the appointed seasons, a sum (in this section referred to as the appointed sum) equal to four times the average weekly amount received by such person in respect of such employment during the third of the appointed seasons, and

(ii) for each open fishing season (if any) previous to the appointed seasons during which all the following conditions were complied with in respect of such person:—

(I) that during the whole or substantially the whole of such season, he was constantly and regularly employed by such occupier in or about the operation or protection of such fishery at a fixed weekly wage or at a wage calculated by reference to the value of the catch, and

(II) that the remuneration received by him in respect of such employment formed the whole or a substantial part of his livelihood while he was so employed, and

(III) that his said employment related exclusively to the operation or protection of such fishery,

a sum equal to the appointed sum,

but subject to the overriding limitation that the amount of such compensation shall not in any case exceed thirteen times the appointed sum.

(2) Whenever a transferable fishery becomes vested in the Minister under this Chapter, every person who proves to the satisfaction of the Minister or the arbitrator appointed to fix compensation in respect of such fishery all the following matters:—

(a) that, during the whole of the period (in this subsection referred to as the appointed period) of five years ending on the day next preceding the date on which such fishery became so vested, he was employed on a whole-time or substantially whole-time basis by the occupier of such fishery in a managerial or supervising capacity in connection with the operation of such fishery, and was so employed at a fixed monthly salary, with or without additional remuneration calculated by reference to the value of the catch, and

(b) that his said employment has been terminated as the result of the vesting of such fishery, and

(c) that equivalent alternative occupation is not open to him,

shall be entitled to be paid by the Minister, in respect of his loss of employment, compensation of an amount equivalent to whichever is the less of the following:—

(i) a sum equivalent to the total amount (in this subsection referred to as his annual salary) paid to such person by way of fixed monthly salary during the fifth year of the appointed period, together with one-fifth of the amount (in this subsection referred to as his additional remuneration for the appointed period) paid to him as such additional remuneration (if any) during the appointed period;

(ii) an amount calculated as follows, namely, for each year of the appointed period and each previous year (if any) during the whole of which he was similarly so employed, a sum equal to one-twelfth of his annual salary, together with one-sixtieth of his additional remuneration (if any) for the appointed period.

Apportionment of valuations of transferable fisheries.

196. —(1) Where a transferable fishery forms part of a fishery or right of fishery which is valued as a whole under the Valuation Acts and an appointed day has been fixed in respect of the fishery district in which such transferable fishery is situate, the Minister shall as soon as conveniently may be furnish the appropriate rating authority with particulars of such transferable fishery, and request that separate valuations be made (either by apportionment or revaluation) in respect of such transferable fishery and the residue of the fishery or right of fishery so valued as a whole, and such valuations shall have effect as on and from the date on which such transferable fishery is vested in the Minister.

(2) Where any transferable fishery forms portion of a connected body of fishing rights or is appurtenant or adjacent to a demesne or private grounds or a private residence and is owned by the person who owns such connected body of fishing rights or such demesne, private grounds or private residence, and an appointed day has been fixed in respect of the fishery district in which such transferable fishery is situate, such person may apply to the appropriate rating authority for such district to have the remaining fishing rights, demesne, private grounds or residence revalued, but such revaluation shall not take effect until the date on which such transferable fishery is vested in the Minister.

Provisions in relation to orders.

197. —The validity or effect of any order made by the Minister under this Chapter shall not be affected by any non-compliance with any provision contained in the said Chapter relating to the service of a copy of such order on a particular person or to the publication of such order or notice of the making thereof in the Iris Oifigiúil.