First Previous (Chapter IV. Regulations as to Fishing Weirs and Fishing Mill Dams.) Next (PART IX. Restrictions as to Times of Fishing for Salmon, Trout, Pollen and Eels, and Ancillary Provisions.)

14 1959

FISHERIES (CONSOLIDATION) ACT, 1959

Chapter V.

Dams and Natural Obstructions.

Construction of fish passages in dams for sustaining water for mill power, navigation, irrigation, etc. in salmon rivers.

115. —(1) In this section, the word “dam” means any dam, weir, dyke or other erection placed in or across a salmon river for sustaining the water of such river for mill power, navigation, irrigation or other purposes.

(2) Every dam constructed on or after the 10th day of August, 1842, in or across any salmon river shall be so built or constructed as to permit and allow, in one or more parts thereof, the free run or migration of all fish at all periods of the year and such provision for the free passage of fish through such dam shall be made at the expense of the person constructing such dam and in such manner as the Minister may approve.

(3) With respect to any dam erected before the 10th day of August, 1842, in or across any salmon river, the Minister, if he thinks it necessary for the benefit of the fisheries thereof, on the application of one or more of the persons interested in the fishery of such river and at the proper costs and charges of the persons interested in such fishery, may cause a survey of the said dam to be made and direct such alterations to be made therein or such additional work to be added thereto as shall in the opinion of the Minister be necessary and desirable for the purpose of affording a free and uninterrupted passage to the fish frequenting such river, without impairing the navigation or lessening or impairing the effective working power of the mill or factory to which such dam belongs.

(4) The board of conservators of a fishery district may from time to time apply any portion of its funds which it thinks fit for the purpose of making passes in or over dams in any river of its fishery district subject to the sanction of the Minister, under subsection (3) of this section, and upon obtaining such sanction the said board may place to the credit of the Minister such sum of money as has been for that purpose approved and sanctioned by him and thereupon it shall be lawful for the Minister to direct and cause such alterations to be made in any dam erected in or across any salmon river for affording a free and uninterrupted passage for fish, pursuant to powers and provisions of subsection (3) of this section.

Fish passes in dams and repair of dams.

116. —(1) Whenever the Minister is satisfied that any dam constructed or placed (whether before, on or after the operative date) in or across any salmon river is so constructed or maintained as not to permit and allow of, in one or more parts thereof, the free run or migration of all fish at all periods of the year, the Minister may cause to be served on the occupier of such dam, a notice requiring such occupier to execute within the time (not being less than one month from the service of such notice) specified in such notice such repairs (including alterations or additions) to such dam as shall appear to the Minister to be necessary or desirable for the purpose of affording a free and uninterrupted passage to the fish frequenting such river.

(2) Where a notice has been served under subsection (1) of this section on the occupier of a dam used in connection with a mill or factory and such occupier, within one month after such service, represents in writing to the Minister that compliance with such notice would adversely affect the operation of such mill or factory, the Minister shall cause a fit and proper person to inquire into and report to him upon such representation and upon the making of the report the following provisions shall apply:—

(a) if the report discloses that the execution of the repairs specified in such notice would involve a reduction of more than five per cent in the working horsepower which was available to such mill or factory up to the date of the service of such notice (as measured when the level of the water at such dam is at the average level of the crest of such dam), the Minister shall withdraw such notice and inform such occupier accordingly.

(b) if the report discloses that the execution of the said repairs would not involve such a reduction, the following provisions shall have effect:—

(i) the Minister shall serve a copy of such report on such occupier,

(ii) such occupier may, within fourteen days after the service of such copy, send to the Minister a statement in writing objecting to the report and specifying the grounds of his objection,

(iii) if an objection is so sent to the Minister, 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, agree or disagree with the report,

(II) if the person investigating the matter agrees with the report, the Minister shall serve on such occupier a statement informing him accordingly, and such notice shall have effect as if, for the period specified therein for compliance therewith, there were substituted a period of one month, commencing on the day on which such statement was served,

(III) if the person investigating the matter disagrees with the report, the Minister shall withdraw such notice,

(IV) 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 person agrees with the report, be paid to the Minister by such occupier a sum equal to the said fee and such sum shall be recoverable by the Minister as a simple contract debt in a court of competent jurisdiction, and when so 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,

(iv) if an objection is not so sent to the Minister, such notice shall have effect as if, for the period specified therein for compliance therewith, there were substituted a period of six weeks commencing on the date on which a copy of the report was served on such occupier.

(3) Whenever the Minister is satisfied that any dam constructed or placed (whether before, on or after the operative date) in any river is so constructed or is so maintained that water which would otherwise be available for the free passage and migration of fish over or past such dam leaks or escapes through or past such dam (otherwise than by being used for the purpose for which it is sustained by such dam) and is thereby not available for such free passage and migration, the Minister may cause to be served on the occupier of such dam a notice requiring such occupier to execute within the time (not being less than one month from the service of such notice) specified in such notice such repairs (including renewals and reconstruction) to such dam as shall appear to the Minister to be requisite and shall be specified in such notice.

(4) Where a notice served under subsection (1) of this section has been withdrawn under subsection (2) of this section such notice shall be deemed not to have been served.

(5) Where a notice has been served under either subsection (1) or subsection (3) of this section on the occupier of a dam, and such occupier has not complied with the requirements of such notice, the following provisions shall have effect, that is to say:—

(a) such occupier shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than fifty pounds and not more than one hundred pounds,

(b) the Minister may (whether proceedings have or have not been taken against such occupier under paragraph (a) of this subsection) enter on such dam and any land adjoining such dam and execute on such dam the repairs specified in such notice.

(6) Where the Minister executes under this section any repairs to a dam he shall be entitled to recover as a simple contract debt in any court of competent jurisdiction from the occupier of such dam the expenses incurred by the Minister in the execution of such repairs.

(7) The Minister shall not be liable for any consequential damages to any property or person arising out of the execution by him of any repairs to a dam under this section.

(8) Whenever the Minister is entitled under this section to serve a notice requiring repairs to a dam to be executed, the Minister may, before serving such notice, cause such dam to be inspected and examined, and any officer of the Minister or any other person appointed by the Minister to make such inspection and examination shall be entitled to enter for that purpose at all reasonable times on such dam and any land adjoining thereto.

(9) The powers conferred on the Minister by this section shall be in addition to and not in substitution for the powers of the Minister under section 115.

Alteration of abandoned and disused dams.

117. —(1) Whenever the Minister is satisfied that any dam constructed or placed in any river has been abandoned or disused for not less than five years or has not during that period effectively been used for the purpose for which it was constructed and directly or indirectly obstructs or contributes to the obstruction of the free passage and migration of fish or affords facilities for the unlawful destruction of fish, the Minister may cause to be served on any person who appears to him to be the owner or the occupier of such dam a notice requiring such person to execute within the time (not being less than one month from the service of such notice) specified in such notice such alterations (including additions and complete or partial removal) of such dam as shall appear to the Minister to be requisite for securing the free passage and migration of fish or removing the facilities for the unlawful destruction of fish (as the case may be) and shall be specified in such notice.

(2) Where a notice has been served under subsection (1) of this section and the alterations specified in such notice are not executed within the time specified in that behalf in such notice, the Minister may enter on the dam to which such notice relates and any land adjoining such dam and execute the said alterations of such dam.

(3) Where the Minister executes under this section any alterations of a dam and is satisfied that such alterations became necessary by reason of the wilful neglect of the owner or the occupier of such dam, the Minister may recover as a simple contract debt in any court of competent jurisdiction from such owner or occupier the expenses incurred by the Minister in the execution of such alterations.

(4) Whenever the Minister is entitled under this section to serve a notice requiring alterations of a dam to be executed, the Minister may, before serving such notice, cause such dam to be inspected and examined, and any officer of the Minister or other person appointed by the Minister to make such inspection and examination shall be entitled for that purpose to enter at all reasonable times on such dam and any land adjoining thereto.

(5) The Minister shall not be liable for any charges for the maintenance of any dam required by him to be altered or altered by him under this section, or for any consequential damages to any property or person arising out of such alteration or the carrying out thereof.

(6) Whenever the Minister proposes, in relation to any abandoned or disused dam which was constructed or placed in a river for or in connection with the sustaining of water for navigation, to serve a notice or execute any alterations under this section, he shall consult with the Minister for Industry and Commerce before serving such notice or executing such alterations.

Alteration or removal of natural obstructions in rivers to allow free migration of fish.

118. —(1) If in any river, reefs or ledges of rocks, shoals or other natural obstructions prevent or impede the free passage and migration of fish, and hinder the approach of fish to the upper parts of the said river or any lakes communicating therewith and depositing their spawn therein, the Minister, if he so thinks fit, may, upon the application of any person who is interested in the fishery of such river or lake and who deposits or secures a sum of money sufficient for the purpose, construct, authorise or contract with any person interested in the fisheries in the said river to construct such works and make such alterations in the bed of such river as shall effectually secure a free and uninterrupted passage at all seasons of the year for fish.

(2) The plans, sections, specifications and contracts for all works or alterations authorised under this section shall be subject to the previous sanction of the Minister.

(3) For the purpose of executing any work under this section and ascertaining all compensation for damage and other matters in relation thereto, the Minister and his officers and servants shall have the powers and authorities vested in the Commissioners of Public Works in Ireland under and by virtue of the statutes in that behalf made and provided.

(4) No work or alteration under this section in the bed of any river shall be made in such a manner as to injure the effective power of any mill or factory or in any way to impede or interrupt the drainage of lands adjoining such river.

(5) Reasonable compensation shall be made by the parties on whose application any works are authorised under this section for any damage or injury done or to be done or suffered consequently or otherwise in the execution of such works.

(6) The board of conservators of a fishery district may from time to time apply any portion of its funds which it thinks fit for the purpose of removing or making passes in or over natural obstructions in any river in its fishery district, subject to the sanction of the Minister, under the preceding subsections of this section, and upon obtaining the sanction of the Minister the said board may place to the credit of the Minister such sum of money as has been for that purpose approved and sanctioned by him and thereupon it shall be lawful for the Minister to construct such works and make such alterations in the bed of any river as shall effectually secure a free and uninterrupted passage for fish, pursuant to the powers and provisions of the preceding subsections of this section.

Offences in relation to fish passes made under section 62 or 63 of the Fisheries (Ireland) Act, 1842, or section 115 or 118.

119. —(1) In this section “fish pass” means a fish pass made under section 62 or 63 of the Fisheries (Ireland) Act, 1842 or section 115 or 118.

(2) If any person—

(a) takes, kills or destroys any fish in a fish pass, or

(b) hangs, fixes, uses or sets in a fish pass any fishing engine, or

(c) places any obstruction, uses any contrivance or does any act whereby fish may be scared, deterred or in any way prevented from freely passing up and down through a fish pass at all periods of the year, or

(d) fails to preserve a fish pass free from every obstruction,

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, and, if the offence is that of placing any obstruction or contrivance in a fish pass, the Court shall order the removal thereof at the expense of the offender.

(3) Where—

(a) it is alleged in a complaint and proved that an offence under this section was committed in such circumstances as to afford reasonable grounds for believing that the offence was committed—

(i) by some person in the employment or under the control of the owner or occupier of a mill or factory, or

(ii) with the knowledge or connivance of such owner or occupier or of the person in charge of such mill or factory, or

(iii) through the default of reasonable precaution on the part of such owner or occupier to prevent such offence, and

(b) it is alleged in the complaint and proved that the offence was committed, but that the person who committed the offence is unknown or cannot be found, and

(c) the owner or occupier of the mill or factory is charged with such offence,

such owner or occupier shall be deemed to be guilty of such offence and shall be punishable accordingly.

Penalty for using fishing engine within hundred yards of certain dams.

120. —(1) If any person uses any fishing engine (except rod and line) for taking fish within two hundred yards above or below any dam used for supplying water to mills or factories or for navigation, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than two pounds and not more than ten pounds.

(2) Where a person is convicted of an offence under this section, the fishing engine in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(3) Subsection (1) of this section shall not apply in respect of the use of any fishing engine in any place within two hundred yards of any such dam as is mentioned in the said subsection where the right to use such fishing engine was exercised in that place by any person lawfully possessed of a several fishery therein for twenty years next before the 14th day of August, 1850.

Penalty for using fishing engine at or within fifty yards of a mill dam to which there is no fish pass.

121. —(1) Notwithstanding anything contained in section 120 it shall not be lawful for any person, though possessed of a several fishery in respect of which a right to use a fishing engine at any place within two hundred yards of a mill dam was exercised for twenty years next before the 14th day of August, 1850, to use any fishing engine (except rod and line) at or within fifty yards above or below such mill dam unless—

(a) there is attached to such mill dam a fish pass of such form and dimensions as may be approved of by the Minister, and

(b) such fish pass has constantly running through it such flow of water as will enable salmon to pass up and down it.

(2) If any person contravenes subsection (1) of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than five pounds and not more than twenty pounds.

Provisions in relation to wheel sluices, etc., of mills, etc., deriving water from salmon rivers.

122. —(1) In this section—

the word “mill” includes any factory, machine, building or other work by or for which water is taken or used for any purpose, but does not include any work for the generation, by means of hydraulic power, of electricity, for distribution and supply to the public;

the expression “wheel sluices”, in relation to a mill, means the sluices which admit water to the wheels of such mill.

(2) The following provisions shall apply in relation to every mill which derives its supply of water from a salmon river—

(a) in case there is a fish pass in the dam belonging to the mill, the wheel sluices and the waste gates or over-falls shall be kept shut,—

(i) for twenty-four consecutive hours in each week between the hour of 6 o'clock p.m. on Saturday and the hour of 6 o'clock a.m. on the next following Monday, and

(ii) during any other period when the mill is not being worked;

(b) in case there is no fish pass in the dam belonging to the mill and the waste gate on the upstream side of the wheel sluices is erected in a channel suitable for the passage of fish, the wheel sluices shall be kept shut and the said waste gate kept open—

(i) for twenty-four consecutive hours in each week between the hour of 6 o'clock p.m. on Saturday and the hour of 6 o'clock a.m. on the next following Monday, and

(ii) during any other period when the mill is not being worked;

(c) if the provisions of paragraph (a) or paragraph (b) of this subsection are not complied with, the occupier of the mill shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine of not less than three pounds and not more than ten pounds.

(3) Where the occupier of a mill is charged with an offence under this section, it shall be a good defence to prove that compliance with paragraph (a) or paragraph (b) (whichever is applicable) of subsection (2) of this section would in any way have injuriously interfered with the machinery or water power of the mill.

Gratings in watercourses diverted from rivers to prevent entry therein of salmon or trout.

123. —(1) The following provisions shall apply in respect of every watercourse, cut, channel or sluice constructed, for the purpose of conveying water from any salmon river, for the supply of towns or the irrigation of land or as moving power for machinery or for any other purpose, other than the supply of water for navigation or for fish ponds:—

(a) there shall be placed at the points of divergence from and return to such river, of such watercourse, cut, channel or sluice and above and below such sluice a grating (the space between the bars whereof shall not exceed two inches in any place) extending across the whole width of such watercourse, cut, channel or sluice and from the bottom of the bed or sill thereof to the level of the highest winter or flood waters,

(b) during the months of March, April and May and such other periods of the year as the brood of salmon or trout shall be descending such river, there shall be placed or stretched over the entire surface of each such grating a wire lattice or network of such dimensions as will effectually prevent the admission of salmon fry or other small fish into such watercourse, cut, channel or sluice,

(c) each such grating, lattice or network shall be secured and fixed in such a manner as to prevent its being removed or opened and shall be kept in constant repair.

(2) If, in respect of any watercourse, cut, channel or sluice to which subsection (1) of this section applies, the provisions of the said subsection are not complied with, the owner, lessee or occupier of any premises to which such watercourse, cut, channel or sluice leads or other person making or using or having the care and maintenance of such watercourse, cut, channel or sluice, shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

(3) If, in respect of any watercourse, cut, channel or sluice to which subsection (1) of this section applies and which was constructed for the purpose of conveying water as a moving power for machinery, it is proved to the satisfaction of the Minister that exemption during any period from the obligations imposed in respect thereof by the said subsection (1) is necessary for the effective working of such machinery, the Minister may grant such exemption.

(4) The Minister may revoke the grant of an exemption made under section 4 of the Salmon Fishery (Ireland) Act, 1869, or under subsection (3) of this section.

Obligations of owners of hydraulic machines supplied from salmon rivers.

124. —(1) Where a turbine or similar hydraulic machine, which may be injurious to salmon in their descent to the sea, is supplied from a salmon river, it shall be the duty of the person owning or using such machine to provide, during the time in which such descent to the sea takes place, a grating or other efficient means to prevent such salmon from passing into such machine.

(2) If any person upon whom a duty is imposed by subsection (1) of this section neglects to perform that duty, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds and to a further fine not exceeding five pounds for each day during which such neglect continues.

Penalty for taking fish, etc. in works or watercourses appurtenant to mills or factories.

125. —(1) If any person, in any season of the year, in any mill pool or mill dam or in any works appurtenant to any mill or factory or in any of the watercourses leading the water to or from any mill or factory, uses any fishing engine (except rod and line being lawfully used) or uses any means whatsoever for the purpose of taking, destroying or obstructing any salmon or other fish, such 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.

(2) When a person is convicted of an offence under this section the fishing engine in respect of which the offence was committed shall, as a statutory consequence of conviction, stand forfeited.

(3) Where—

(a) it is alleged in a complaint and proved that an offence under this section was committed by means of shutting down or closing any sluice gate which is under the exclusive power of the occupier of a mill or factory, and

(b) it is alleged in the complaint and proved that the offence was committed but that the person who committed the offence is unknown or cannot be found, and

(c) the occupier of that mill or factory is charged with such offence,

such occupier shall be deemed to be guilty of such offence and shall be punishable accordingly.

(4) Where—

(a) it is alleged in a complaint and proved that an offence under this section was committed in such circumstances as to afford reasonable grounds for believing that the offence was committed—

(i) by some person in the employment or under the control of the owner or occupier of a mill or factory, or

(ii) with the knowledge or connivance of such owner or occupier or of the person in charge of such mill or factory, or

(iii) through the default of reasonable precaution on the part of such owner or occupier to prevent such offence, and

(b) it is alleged in the complaint and proved that the offence was committed, but that the person who committed the offence is unknown and cannot be found, and

(c) the owner or occupier of the mill or factory is charged with such offence under this section,

such owner or occupier shall be deemed to be guilty of such offence and shall be punishable accordingly.