Number 20 of 1990

SHANNON NAVIGATION ACT, 1990

ARRANGEMENT OF SECTIONS

SCHEDULE

Number 20 of 1990

SHANNON NAVIGATION ACT, 1990

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1. —(1) In this Act—

“boat” includes any barge, vessel or other water-craft;

“the Commissioners” means the Commissioners of Public Works in Ireland and references to the Commissioners include references to their servants and agents;

“land” includes any land covered by water;

“the Minister” means the Minister for Finance;

“the navigation channel” means the parts of the Shannon navigation referred to in paragraph (a) of the definition of “the Shannon navigation” in this subsection, the canals and locks referred to in paragraph (b) of that definition and the parts accessible to boats of the harbours referred to in that paragraph;

“the Shannon Act” means the Act of the British Parliament 2 & 3 Vict., c. 61, as amended or extended;

“the Shannon navigation” means—

(a) the river Shannon, the lakes from or through which it flows, and such of the rivers which flow into it or into those lakes as are or have been improved or made navigable by the Commissioners or by other persons under powers conferred by statute, within the limits standing fixed and determined for the time being under section 39 of the Shannon Act, and

(b) the canals, locks, harbours, wharfs, landing places, piers, quays, weirs and other works and land constructed by or vested in the Commissioners, whether before or after the passing of this Act, for the purpose of the use or improvement of any of those rivers or lakes, within the limits aforesaid, or the navigation thereof or any other purpose authorised by the Shannon Act;

“the vesting day” means the day appointed under section 9 to be vesting day.

(2) A reference in this Act to a section is to a section of this Act, unless it is indicated that reference to some other enactment is intended.

(3) A reference in this Act to a subsection or paragraph is to a subsection or paragraph of the provision in which it occurs, unless it is indicated that a reference to some other provision is intended.

(4) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.

2. —The Commissioners shall have all such powers as are necessary for the performance of their functions under the Shannon Act and shall, without prejudice to the generality of the foregoing and to their powers under that Act, have power to undertake the care, conservation, management, control, maintenance, restoration, repair, improvement, extension and development of the Shannon navigation and to—

(a) draw any water necessary for the purposes of the navigation channel from any natural source whatsoever,

(b) dredge, widen, deepen, alter the course of or otherwise repair or improve the navigation channel or improve the supply of water for, or dispose of surplus water from, the navigation channel and for that purpose construct, alter, repair, improve, dredge, widen or deepen any stream, river, drain or channel carrying any water to or from the navigation channel and replace or repair any pipe carrying any such water or construct, repair or improve any pumping station required for such water,

(c) remove any structure or other thing that is obstructing or is likely to obstruct the navigation channel or so alter it as to eliminate the obstruction or the likelihood of obstruction,

(d) prohibit the building of bridges, weirs or other structures on, in or over, or culverts, pipes or drains under, the navigation channel without the consent of the Commissioners,

(e) construct, alter, underpin, repair or improve any lock, quay, harbour, dry dock, weir, fish pass, slipway, navigation aid, pumping station, hydroelectric station and ancillary works, building, towpath, bridge, aqueduct, embankment, culvert, pipe or drain or road (other than a public road within the meaning of the Local Government (Roads and Motorways) Act, 1974) on, over, beside or under the navigation channel,

(f) acquire, by agreement, or compulsorily in accordance with the Schedule to this Act, any land required for the purposes of the Shannon navigation and any right, easement, title or interest of any kind in, over or in respect of such land,

(g) without prejudice to the right of any person to use water of or abstract water from the navigation channel, alter the water levels of the navigation channel,

(h) close to navigation any part of the navigation channel not required for navigation or close temporarily any part thereof and open or reopen and declare navigable any part of the navigation channel previously closed to navigation,

(i) with the agreement of any person entitled to any payment in respect of an acquisition under paragraph (f) or any payment under section 4 (3) (a), carry out remedial or other works in relation to the Shannon navigation or any property of the person in lieu of the whole or part of the payment.

3. —(1) The Commissioners may make bye-laws for the care, conservation, management, control and maintenance and the regulation of the use of the Shannon navigation and in relation to the restoration, repair, improvement, extension and development thereof and, without prejudice to the generality of the foregoing, in relation to any one or more of the following matters:

(a) the regulation of the conditions (including conditions as to safety) under which boats may be used in the navigation channel,

(b) the closing to navigation either temporarily or permanently of any part of the navigation channel,

(c) the opening or reopening to navigation of any part of the navigation channel not open to navigation,

(d) the alteration of water levels of the navigation channel,

(e) the regulation of bathing in the navigation channel,

(f) the prohibition of the building of bridges, weirs or other structures on, in or over, or culverts, pipes or drains under, the navigation channel without the consent of the Commissioners,

(g) the prohibition of the use, save under and in accordance with a licence in that behalf granted by the Commissioners and containing such (if any) conditions as they consider necessary or expedient, of the Shannon navigation or any part of it,

(h) without prejudice to the rights of any person to use water of or abstract water from the navigation channel, the regulation or prohibition of the use of water of, or the abstraction of water from, the navigation channel,

(i) subject to subsection (4), the regulation of fishing in the navigation channel,

(j) the prevention of damage to the Shannon navigation or the obstruction of the navigation channel,

(k) the removal from or the prohibition of the passage through or use in the navigation channel of, or the use of any of the facilities or installations of the Shannon navigation by, any boat or thing which is or may become a danger to life, health, navigation or fish stocks or would otherwise interfere with the proper use of the Shannon navigation or in relation to which a fee, toll or charge due and payable under the bye-laws has not been paid or arrangements for its payment, acceptable to the Commissioners, have not been made,

(l) the fixing, altering, charging and recovery of fees, tolls and charges in respect of—

(i) the use by boats of the navigation channel or the facilities or installations of the Shannon navigation, whether for the purposes of their passage through the navigation or for the purposes of their being anchored, moored, tied up or laid up or for any other purpose, or

(ii) the use of water of or the abstraction of water from the navigation channel,

and the prohibition of the use referred to in subparagraph (i) or the use or abstraction referred to in subparagraph (ii) without payment of any fee, toll or charge payable under this paragraph in respect thereof or the making of arrangements, acceptable to the Commissioners, for its payment,

(m) the establishment and maintenance by the Commissioners of a register in which entries containing specified information will be required to be made annually or at other specified times, on application in that behalf by their owners, in respect of boats or specified classes of boats using the Shannon navigation, the payment of fees by the owners of the boats concerned in respect of the entries and the prohibition of the use of the Shannon navigation by boats required to be, but not, registered in the register.

(2) Bye-laws under this section may contain such incidental, subsidiary and ancillary provisions as the Commissioners consider necessary or expedient for the purposes of the bye-laws.

(3) The Commissioners may, by bye-laws under this section, exercise from time to time as occasion requires the powers conferred on them by section 39 of the Shannon Act to fix and determine the limits of the river Shannon, and the rivers flowing into it that are improved under the Shannon Act, within which the other powers conferred on the Commissioners by the Shannon Act may be exercised.

(4) Bye-laws under this section shall not be made in relation to any matter in respect of which regulations or bye-laws may be made under the Fisheries Acts, 1959 to 1983.

(5) A person who contravenes a bye-law under this section shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 (together with, in the case of a continuing contravention, a fine not exceeding £100 for every day on which the contravention is continued and not exceeding in total an amount which, when added to any other fine under this paragraph in relation to the contravention concerned, equals £1,000) or to imprisonment for any term not exceeding 6 months or to both,

(b) on conviction on indictment, to a fine not exceeding £5,000 (together with, in the case of a continuing contravention, a fine not exceeding £500 for every day on which the contravention is continued) or to imprisonment for any term not exceeding 2 years or to both.

(6) Where an offence to which subsection (5) relates is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person being a director, manager or secretary of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first-mentioned offence.

(7) (a) The Commissioners may bring proceedings for a summary offence under this section.

(b) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence to which subsection (5) or (6) relates may be instituted within 12 months from the date of the offence.

4. —(1) (a) The Commissioners may, for the purposes of their functions under this Act—

(i) enter on any land and carry out on the land work in relation to the Shannon navigation or property vested in them for the purpose of the navigation,

(ii) enter on any land and occupy it or otherwise make use of it for the purpose of carrying out work on other land in relation to the Shannon navigation or the property aforesaid,

(iii) enter on any land for the purpose of gaining access to, inspecting or surveying the Shannon navigation, the said property or land specified in paragraph (a) or (b),

and do on any such land all such other things as are, in their opinion, ancillary or reasonably necessary for the purposes aforesaid.

(b) Not less than 14 days before exercising any power under paragraph (a) (other than subparagraph (iii)) the Commissioners shall give to any owner or occupier of the land concerned whose identity and whereabouts can be ascertained by the Commissioners by the taking of reasonable steps a notice in writing stating their intention to enter on the land and the purposes for which the entry is intended to be made and specifying the other powers proposed to be exercised.

(c) A person to whom a notice has been given under this subsection may, not later than 14 days after the giving of the notice, apply, on notice to the Commissioners, to the justice of the District Court having jurisdiction in the District Court district in which the land is situated for an order prohibiting the entry and, upon the hearing of the application, the justice may, if he so thinks proper, either prohibit the entry or specify conditions to be complied with by the person making the entry.

(d) Where a justice of the District Court prohibits under this subsection a proposed entry onto land, it shall not be lawful for any person to enter under paragraph (a) onto the land, and where a justice of the District Court specifies under this subsection conditions to be complied with by a person entering onto land, every person who enters onto the land under paragraph (a) shall comply with the conditions so specified.

(2) (a) Where, in the opinion of the Commissioners—

(i) the exercise of a power conferred on them by subsection (1) is urgently required for the purpose of preventing or minimising injury, loss or damage to persons or property, and

(ii) it is not reasonably possible to comply, in relation to such exercise, with paragraph (b) of that subsection,

the Commissioners may exercise the power without having complied in relation to such exercise, with that paragraph.

(b) Before exercising a power by virtue of this subsection, the Commissioners shall give to any owner or occupier of the land whose identity and whereabouts can be ascertained by the Commissioners by the taking of reasonable steps notice of their intention to enter on the land, of the purposes for which the entry is intended to be made and of the other powers proposed to be exercised.

(c) Where, in the opinion of the Commissioners, it is not reasonably possible to comply with paragraph (b), the Commissioners may exercise the power concerned without having complied therewith and, as soon as may be thereafter, shall give to any owner or occupier of the land concerned whose identity and whereabouts can be ascertained by the Commissioners by the taking of reasonable steps a notice in writing specifying the powers exercised and the purposes of such exercise.

(3) (a) Where a person (other than a person whose land is acquired under section 2 (f)) suffers loss, injury or damage or incurs expenditure in consequence of the exercise by the Commissioners of a power conferred on them by this section or section 2 , the Commissioners shall pay to him compensation in respect of the loss, injury, damage or expenditure and the amount of the compensation shall, in default of agreement, be determined by arbitration under and in accordance with the Lands Clauses Acts and, for the purposes of those Acts, the Commissioners shall be deemed to be the promoter of the undertaking and this Act and the vesting order concerned shall be deemed to be the special Act; and, for the purposes of such determination, those Acts shall apply with any other necessary modifications and are incorporated (except insofar as they are inconsistent with and subject to any amendments or modifications, express or implied, thereof effected by this Act) with this Act.

(b) In assessing the compensation payable to a person under paragraph (a), regard shall be had to any benefit to any property of the person that arises or may reasonably be expected to arise from the exercise of the power concerned or any other power under this section or the said section 2 by the Commissioners and, in particular but without prejudice to the generality of the foregoing, shall, in the case of a claim for compensation in relation to water rights, have regard to the extent of the exercise of the water rights during the period of 20 years immediately before the exercise of the power concerned by the Commissioners and to any alternative water supply provided for the person by the Commissioners.

5. —(1) On the vesting day—

(a) so much of the Ballinamore and Ballyconnell navigation as is situated in the State and the property (including choses-in-action), assets, powers, rights, licences, privileges and liabilities vested in, held, enjoyed or incurred by the navigation trustees in connection therewith or appertaining thereto shall, by virtue of this section but subject where necessary to transfer in the books of any bank, corporation or company, be transferred to the Commissioners,

(b) so much of the land of the said navigation as is situated in the State shall, by virtue of this section, vest in the Commissioners for all the estate, right, title and interest of the navigation trustees, and

(c) the said navigation and the Erne and Lough Oughter navigation shall be deemed, for the purposes of the Shannon Act and this Act, to be part of the Shannon navigation and the River Shannon and that Act and this Act shall apply and have effect accordingly in relation to the Ballinamore and Ballyconnell navigation and the Erne and Lough Oughter navigation with the modifications that—

(i) the functions conferred on the Commissioners by or under the said Acts may be performed in relation to the Ballinamore and Ballyconnell navigation and the Erne and Lough Oughter navigation by them or, if, whenever and in so far as they are delegated to a person under subsection (9), by the person either in or outside the State,

(ii) references in this Act to the navigation channel shall be construed as references to—

(I) the Ballinamore and Ballyconnell navigation other than the wharfs, landing places, piers, quays, weirs and other works and land referred to in the definition of the navigation in subsection (12) and the parts of the harbours referred to in that definition not accessible to boats, and

(II) the Erne and Lough Oughter navigation other than the quay referred to in the definition of the navigation in subsection (12),

and with any other necessary modifications.

(2) Subject to the provisions of this Act, the Commissioners may, on and after the vesting day, enjoy, exercise and enforce all the powers, rights and privileges aforesaid and shall be subject to all the liabilities aforesaid and, accordingly, every debt and other liability in relation to the Ballinamore and Ballyconnell navigation that, immediately before the vesting day, is owing and unpaid or has been incurred and is undischarged by the navigation trustees shall, on the vesting day, become and be the debt or liability of the Commissioners and shall be paid or discharged by and may be recovered from and enforced against the Commissioners accordingly.

(3) For the purpose of providing adequate and safe access for vessels in Upper Lough Erne to the Ballinamore and Ballyconnell navigation and to the Erne and Lough Oughter navigation and for vessels in those navigations to Upper Lough Erne, the Commissioners may carry out such dredging, excavation and other work in Upper Lough Erne and the River Erne as they consider necessary or expedient.

(4) (a) Every contract made by the navigation trustees in relation to the Ballinamore and Ballyconnell navigation that is in force immediately before the vesting day shall continue in force on and after the vesting day as if it had been made by the Commissioners and shall be construed and have effect and be enforceable by or against the Commissioners accordingly.

(b) Every licence given by the navigation trustees in relation to the Ballinamore and Ballyconnell navigation that is in force immediately before the vesting day shall continue in force on and after the vesting day as if it had been given by the Commissioners and shall be construed and have effect and be enforceable by or against the Commissioners accordingly.

(c) Every other document granted or made by the navigation trustees in relation to the Ballinamore and Ballyconnell navigation that is in force immediately before the vesting day shall continue in force on and after the vesting day as if it had been granted or made by the Commissioners and shall be construed and have effect and be enforceable by or against the Commissioners accordingly.

(5) Every chose-in-action transferred by this section may, on or after the vesting day, be sued upon, recovered or enforced by the Commissioners in their own name and it shall not be necessary for the Commissioners to give notice to the persons bound by any such chose-in-action of the transfer effected by this section.

(6) References to the navigation trustees contained, immediately before the vesting day, in any statute or instrument made under statute or in the memorandum or articles of association of any company shall, insofar as they relate to anything transferred by this section, be construed on and after the vesting day as references to the Commissioners.

(7) Section 12 of the Finance Act, 1895, shall not apply to the vesting of any property or rights under this section.

(8) Nothing in this section shall cause the Commissioners to be regarded as a canal undertaker or a canal company for the purposes of this or any other enactment.

(9) (a) The functions or specified functions of the Commissioners under this Act (other than sections 2 (f) and 3 and the Schedule to this Act) in relation to the restoration, repair, improvement, extension and development of the Ballinamore and Ballyconnell navigation or any part thereof may be delegated for a specified period by the Minister by order to such person or persons as may be specified in the order.

(b) The following provision shall have effect in relation to the delegation of a function to a person under paragraph (a):

(i) the function shall be performed by the person in his own name but subject to the general superintendence and control of the Minister;

(ii) the delegation shall operate, while it is in force, to confer the function on and vest it in the person;

(iii) the function shall, notwithstanding the delegation, continue to be vested in the Commissioners but shall be so vested concurrently with the person and so as to be capable of being performed by the Commissioners or the person;

(iv) the delegation shall not remove or derogate from the responsibility of the Minister to Dáil Éireann or as a member of the Government for the performance of the function by the Commissioners.

(c) The Minister may revoke or amend an order under this subsection.

(d) An order under this subsection may contain such ancillary or subsidiary provisions as the Minister considers necessary or expedient including provisions adapting provisions of this Act.

(e) The Commissioners may, with the consent of the Minister, out of moneys provided by the Oireachtas, make payments of such amounts as they consider appropriate to a person to whom functions are delegated under paragraph (a) in respect of expenditure incurred by the person in the performance of those functions.

(10) The Commissioners shall consult with the Minister for the Marine in relation to any matters which affect or could affect fish, fish life, fish stocks or fishing in the Ballinamore and Ballyconnell navigation or the Erne and Lough Oughter navigation.

(11) Sections 6, 16 to 25, 27 and 29 to 36 of the Act of 1856 are hereby repealed in so far as they relate to the Ballinamore and Ballyconnell navigation or the navigation trustees.

(12) In this section—

“the Act of 1856” means the Drainage (Ireland) Act, 1856;

“the Ballinamore and Ballyconnell navigation” means the navigation connecting the river Shannon at a point near Leitrim in the county of Leitrim and Upper Lough Erne at the mouth of the Woodford River near Belturbet in the county of Cavan and passing through Ballinamore in the county of Leitrim and Ballyconnell in the county of Cavan together with the locks, harbours, wharfs, landing places, piers, quays, weirs and other works and land therein or connected therewith that, immediately before the vesting day, stood vested in the navigation trustees under section 2 of the Act of 1856;

“the Erne and Lough Oughter navigation” means—

(a) the Foalies Cut connecting Upper Lough Erne with the River Erne,

(b) that part of Upper Lough Erne that is situated north west of the Foalies Cut and between the Foalies Cut and the land frontier of the State, and

(c) the River Erne upstream from Upper Lough Erne and the quay on that river at Kilconny, Belturbet in the county of Cavan;

“functions” includes powers and duties and references to the performance of functions include, as respects powers, duties and obligations, references to the exercise of the powers and the carrying out of the duties and obligations;

“the navigation trustees” means the Ballinamore and Ballyconnell Navigation Trustees incorporated under the Act of 1856 and in whom the Ballinamore and Ballyconnell navigation was vested under section 2 of that Act.

6. —(1) The Act shall apply in relation to the Ballinamore and Ballyconnell drainage district as if that district were an existing drainage district and subject to the modification that the appointed day shall be deemed to be the day immediately preceding the vesting day and any other necessary modifications.

(2) In this section—

“the Act” means the Arterial Drainage Act, 1945 ;

“the appointed day” has, subject to subsection (1), the same meaning as in Part III of the Act;

“existing drainage district” has the same meaning as in Part III of the Act;

“the Ballinamore and Ballyconnell drainage district” means the lands in the districts of Ballinamore in the county of Leitrim and Ballyconnell in the county of Cavan—

(a) in relation to which works for their drainage and improvement were carried out by the Commissioners under the Act of the British Parliament 5 & 6 Vict., c. 89, as amended, and

(b) which are the subject of the award made by the Commissioners under that Act on the 6th day of March, 1860.

7. —(1) If in any respect any difficulty arises in bringing any provision of this Act into operation, the Minister may by regulations do anything which appears to him to be necessary or expedient for the purposes of removing that difficulty, for bringing that provision into operation or for securing or facilitating its operation and any such regulations may modify the provisions of this Act or any other enactment so far as may be necessary or expedient for the purposes aforesaid.

(2) No regulations shall be made under this section after the expiration of 5 years from the vesting day.

8. —Every order, other than an order under section 9, and regulation made by the Minister and every bye-law made by the Commissioners under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order, regulation or bye-law is passed by either such House within the next 21 days on which that House has sat after the order, regulation or bye-law is laid before it, the order, regulation or bye-law shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

9. —The Minister shall by order appoint a day to be the vesting day for the purposes of this Act.

10. —(1) All fees and other moneys payable to the Commissioners under this Act shall be collected and taken in such manner as the Minister may from time to time direct and shall be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister.

(2) The Public Offices Fees Act, 1879, shall not apply in respect of fees mentioned in subsection (1).

11. —The expenses incurred by the Commissioners in the administration of this Act shall, to such extent as may be sanctioned by the Minister, be paid out of moneys provided by the Oireachtas.

12. —This Act may be cited as the Shannon Navigation Act, 1990.