No. 22/1938:

CEMENT ACT, 1933 (TRANSPORT WORKS) (RAILWAY) ORDER, 1938.

CEMENT ACT, 1933 (TRANSPORT WORKS) (RAILWAY) ORDER, 1938.

ARRANGEMENT OF ARTICLES.

Article.

1. Short title.

2. Definitions.

3. Application of Interpretation Act, 1937.

4. Power to make railway.

5. Period for completion of railway.

6. Gauge.

7. Motive power.

8. User of Railway.

9. Opening of railway.

10. Compulsory acquisition of lands.

11. Compensation for land compulsorily acquired by the Company.

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

13. Diversion of Cemetery Lane.

14. Construction of the railway on roads.

15. Regulation of working of the railway across roads.

16. Gates at level crossings.

17. Repair by company of roads across which railway is laid.

18. Power of Company to break up roads.

19. Restoration of roads opened or broken up by the Company.

20. Non-interference with traffic along roads.

21. Restrictions on rights of the Company as regards roads.

22. Maintenance of the railway on roads.

23. Indemnity of the County Council by the Company.

24. Agreements between the Company and the County Council.

25. Right of County Council, etc., to open roads.

26. Junction between railway and Great Northern Railway.

27. Agreements between the Company and the Railway Company.

28. Arbitration.

29. Protection of telegraph and telephone lines.

30. Protection of Electricity Supply Board.

31. Protection of State property.

32. Expenses of the Minister.

33. Saving for general Acts relating to railways.

1938. No. 22.

CEMENT ACT, 1933 (TRANSPORT WORKS) (RAILWAY) ORDER, 1938.

THE CEMENT ACT, 1933 (TRANSPORT WORKS) (RAILWAY) ORDER, 1938, MADE BY THE MINISTER FOR INDUSTRY AND COMMERCE ON THE 7TH DAY OF JANUARY, 1938, PURSUANT TO SECTION 28 of THE CEMENT ACT, 1933 .

WHEREAS it is enacted by section 28 of the Cement Act, 1933 (No. 17 of 1933), that after the completion of a public inquiry under section 27 of the said Act into an application for a transport works order the Minister for Industry and Commerce shall consider such application and the report of the officer who made such enquiry, and, if after such consideration, the said Minister is of opinion that the application should be granted, the said Minister shall make an order authorising the applicant to construct, maintain, and operate the transport works specified in such order and such order shall have effect accordingly ;

AND WHEREAS it is enacted by section 29 of the said Act that the following provisions shall have effect in relation to every transport works order granted to the holder of a cement manufacture licence, that is to say :—

(a) such order shall contain such provisions as the Minister for Industry and Commerce thinks necessary or expedient for carrying such order into effect ;

(b) without prejudice to the generality of the foregoing paragraph, such order may contain provisions for the compulsory acquisition of any land the acquisition of which is necessary for giving effect to such order, and shall contain provisions for the grant by the said Minister of any rights the grant of which is necessary for giving effect to such order ;

(c) such order shall contain provisions in relation to the payment of compensation in respect of any land so acquired or of any right so granted ;

(d) such order shall provide that any question of disputed compensation shall be determined by an official arbitrator under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919 ;

(e) such order shall specify the manner in which the transport works to which such order relates are to be constructed, maintained, and operated ;

(f ) such order shall contain provisions limiting the use of such transport works to purposes relating to the business authorised by such licence and to such other purposes, in addition to the purposes aforesaid, as may be specified in such order ;

(g) such order shall contain all such provisions as the Minister thinks proper for the protection of the public ;

(h) such order shall contain such other provisions, in addition to the foregoing provisions, as the said Minister considers necessary and proper ;

AND WHEREAS Cement, Limited, being the holder of a cement manufacture licence, applied under section 24 of the said Act for a transport works order authorising them to construct, maintain and operate, for the purposes of the business authorised by such licence, the following transport works, namely, the railway shown on the plan accompanying such application ;

AND WHEREAS a public inquiry into such application was duly held in pursuance of section 27 of the said Act ;

AND WHEREAS the said Minister, having considered such application and the report of the officers who made such public inquiry, is of opinion that such application should be granted;

NOW, THEREFORE, the Minister for Industry and Commerce, in exercise of the powers conferred on him by sections 28 and 29 of the Cement Act, 1933 (No. 17 of 1933), and of every and any other power him in this behalf enabling, hereby orders as follows, that is to say :—

1.—This Order may be cited as the Cement Act 1933 (Transport Works) (Railway) Order, 1938.

2.—In this Order—

the expression " the Company " means Cement, Limited;

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

the expression " the townland " means the townland of Newtownstalaban in the county of Louth;

the expression " the County Surveyor " means the county surveyor for the time being of the county of Louth;

the expression " the County Council " means the county council of the county of Louth;

the expression " the Railway Company " means the Great Northern Railway Company (Ireland) ;

the expression " the railway " means the railway or siding authorised by this Order;

the word " road " means any carriage-way being a public highway, and where the railway crosses any footpath shall include such footpath save where the context otherwise requires;

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

the expression " the Cement Factory " includes the site of the cement factory being or intended to be erected by the Company in the townland of Newtownstalaban;

the expression " the Wharf " includes the site of the wharf erected or intended to be erected by the Company on the North side of the River Boyne;

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

the expressions " the deposited plans " and "the book of reference" mean respectively the plan and additional plans and the book of reference deposited with the county registrar of the county of Louth.

3.— The Interpretation Act, 1937 (No. 38 of 1937), applies to this Order.

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

A Railway 2.55 miles in total length being a branch railway or siding commencing at a junction with the existing railway line of the Railway Company between Drogheda and Dundalk at a point 650 feet North of Newfoundwell Viaduct running as a single line in a Northerly direction and thence proceeding in an easterly direction, crossing Newfoundwell Road and Newtown Road and thence in a southerly direction, crossing Cemetery Lane and there entering the Company's Factory site, where it runs in a westerly direction dividing up into three lines, of which the first is a single line terminating at the Factory site, and the second is a tripled line for a greater part of the length terminating also at the Factory site, whence the third line extends in a south-westerly direction, crossing Baltray Road, and terminates on the reclaimed foreshore at a point 500 feet south-west of the crossing of Baltray Road. A branch of this latter line is taken from a point 150 ft. south-west of the crossing of Baltray Road, and proceeds in an easterly direction, and terminates on the Company's wharf.

The entire line will be situate within the Parish of Tullyallen in the County of Louth.

5.—The Company shall complete and finish, ready for use, the railway, and the proper equipment for working the same within five years from the date of this Order or such further period not exceeding two years as the Minister may allow, and on the expiration of the said period of five years or such further period as may be allowed, the powers by this Order granted to the Company for executing the same or otherwise in relation thereto shall cease except as to so much thereof as shall then be completed.

6.—The gauge of the railway shall be five feet three inches.

7.—Subject to the provisions of this Order, the Company may work the railway by mechanical power or animal power.

8.—(1) The railway may be used for all purposes relating to the business authorised by the cement manufacture licence held by the Company and for no other purposes.

(2) The Railway shall be used for merchandise traffic only.

9.—No part of the railway shall be opened for traffic until the railway has been inspected and certified to be fit for traffic by an Inspector duly appointed by the Minister under the Regulation of Railways Act, 1871.

10.— (1) For the purposes of the Works authorised by this Order and subject to the provisions hereof the Company may compulsorily acquire any land shown on the deposited plans and described in the book of reference the acquisition of which may be necessary for giving effect to this Order.

(2) At any time after the making of this Order, and before conveyance or ascertainment of price or compensation, the Company may enter on and take possession of any land which the Company is authorised by this Order to acquire compulsorily.

(3) The Company shall, before exercising in relation to any land the power conferred on it by the immediately preceding paragraph, serve on the occupier of such land, at least fourteen days before such exercise, notice of its intention to enter on and take possession of such land.

(4) The following provisions shall apply in respect of a notice under the immediately preceding paragraph, that is to say :—

(a) such notice shall be accompanied by a plan showing fully and clearly the land to which it relates;

(b) such notice may be served on the occupier of such land by sending it by registered letter addressed to the occupier at his usual or last known address.

11.—(1) The Company shall pay compensation for or in respect of any land acquired compulsorily by the Company to the several persons entitled to or having estates or interests in such land.

(2) Any question of disputed compensation in respect of any land acquired compulsorily by the Company shall, in default of agreement, be determined by an official arbitrator under and in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, and in the application of that Act the expression " Public Authority " shall include the Company.

(3) Sections 69 to 83 of the Lands Clauses Consolidation Act, 1845, shall apply to any compensation payable by the Company under this Article and to the conveyance to the Company of property, corporeal or incorporeal, compulsorily acquired by it under this Order, and for the purposes of such application the Company shall be deemed to be the promoter of the undertaking.

12.—(1) Sections 7 to 24 and sections 68 to 75 of the Railways Clauses Consolidation Act, 1845, shall (except where inconsistent with any other Article of this Order) apply in respect of the railway subject to the following modifications, that is to say :—

(a) references to the company shall be construed as references to Cement, Limited;

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

(c) in section 7—

(i) references to the plans or books of reference mentioned in the special Act shall be construed as references to the deposited plans or the deposited book of reference,

(ii) the reference to two justices shall be construed as a reference to the Minister;

(d) the references in sections 7, 8, 9 and 10 to clerks of the peace or postmasters shall be construed as references to the county registrar for the county of Louth;

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

(f) in section 11—

(i) the reference to the common datum line described in the section approved of by Parliament shall be constructed as a reference to the common datum live described in the deposited plans,

(ii) the reference to the consent of two or more justices of the peace in petty sessions assembled for the purpose and acting for the district in which a street or public highway may be situated shall be construed as a reference to the Minister,

(iii) the second proviso shall not apply;

(g) references in sections 13 and 14 to the said plan or section shall be construed as references to the deposited plans;

(h) the reference in section 15 to the plans so deposited shall be construed as a reference to the deposited plans;

(i) in section 16—

(i) the reference to the said plans shall be construed as a reference to the deposited plans ;

(ii) the reference to the said books of reference shall be construed as a reference to the deposited book of reference ;

(j) any penalty under section 23, 24 or 75 may be recovered by summary proceedings before a Justice of the District Court ;

(k) in sections 69, 70 and 71, references to two justices or to justices shall be construed as references to a person appointed by the Minister.

(2) Beidh feidhm ag Cuid I (ach amháin ailt 6, 13, 14 agus 15) Clauses Act, 1863 shall (except where inconsistent with any other Article of this Order) apply in respect of the railway subject to the following modifications, that is to say :—

(a) references to the company shall, unless inconsistent with the context, be construed as references to Cement, Limited;

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

(c) the references in section 4 to the deposited plans or sections shall be construed as a reference to the deposited plans as defined by this Order;

(d) the second paragraph of section 7 shall not apply.

13.—(1) The Company may divert the lane known as Cemetery Lane at a point 50 feet west of the railway to a point 120 feet east of the railway in a loop on the North side of the present lane as shown on the deposited plans and, subject to the provisions of this Order, may stop up and cause to be discontinued as a lane so much of the existing lane as will be rendered unnecessary by the new portion of the lane so shown on the said plans.

(2) Such stoppage shall not take place until the new lane is completed as shown on the deposited plans and is open for public use,

(3) As from the completion of the new lane as aforesaid all rights of way over so much of the existing lane as may be rendered unnecessary shall be extinguished and the Company may, subject to the provisions of the Railway Clauses Consolidation Act, 1845, with respect to mines lying under or near to the railway, appropriate and use for the purposes of their undertaking the site of the portion of lane stopped up so far as the same is bounded on both sides by the land of the Company.

(4) The Company shall make full compensation to all parties interested in respect of any private rights of way extinguished by virtue of this Article and such compensation shall, in default of agreement, be determined in the manner provided by this Order with reference to compensation for land compulsorily acquired by the Company.

14.—(1) The Company may construct and maintain the railway along across and on the level of any existing road and may alter the level of any footpath in accordance with the deposited plans.

(2) Where the railway is authorised by this Order to be laid along, across or on the level of any road it shall be laid and maintained in such manner that the uppermost surface of the rails shall be on a level with the surface of the road, and the Company shall not in constructing the railway along, across or on the level of any existing road deviate from the levels thereof as shown on the deposited plans without the consent of the County Council.

(3) The form of rail to be laid along or across any road shall be approved by the County Surveyor and if the Company shall be dissatisfied with his decision they may appeal to the Minister whose decision shall be final.

15.—Where the railway is laid across and on the level of any public road the Company or any other company using the railway shall be subject to and shall abide by all such directions with regard to the working of traffic or to the speed of trains over the railway as may be given from time to time by the Minister.

16.—(1) Where the railway crosses Newfoundwell Road, Newtown Road, Cemetery Lane and Baltray Road, on the level, good and sufficient gates shall be erected to the satisfaction of the Minister.

(2) The gates at each of the level crossings shall be kept constantly closed across the railway except during the time when any locomotive or other vehicle, passing along the railway, shall have occasion to cross the road at any such level crossing, and shall be opened before the train passes over the level crossing. Where, for the working of trains, the gates are closed across the roadway at any level crossing they shall be opened for road traffic immediately after the train has passed over the crossing. After sunset or during fog or falling snow which prevents a clear view of the gates along the road at a distance of at least two hundred feet, the gates shall be suitably lighted when closed across the roads.

17.—The Company shall at their own expense at all times under the superintendence and to the reasonable satisfaction of the County Surveyor maintain and keep in good condition and repair so much of any road across which the railway is laid as lies between the rails of the railway and in case of double lines the portion also of the road between the two lines of rails and in either case so much of the road as extends three feet beyond the rails of and on each side of the railway.

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

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

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

(c) the Company shall pay all reasonable expenses to which the county council is put on account of such superintendence.

19.—When the Company have opened or broken up a road or any part thereof the Company shall be under the following obligations, namely :—

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

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

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

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

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

22.—Where the railway is laid on any road the Company shall at all times maintain and keep in good condition and repair and so as not to be a danger or annoyance to ordinary traffic the rails of which the railway for the time being consists and the substructure upon which the same rests.

23.—The Company shall at all times indemnify and keep indemnified the County Council against all actions, proceedings, claims and demands, costs, damages and expenses which may be brought or made against the County Council or which the County Council may sustain or incur by reason of the wrongful acts or defaults of the Company or of any person having a contract with the Company or a sub-contract with a contractor with the Company or of any person employed by the Company for or in the execution of the works authorised by this Order.

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

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

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

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

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

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

26.—Unless otherwise agreed upon between the Company and the Railway Company the junction of the railway with the Railway Company's railway and all incidental works, including signalling, shall be constructed and maintained by the Railway Company at the expense of the Company in such manner in all respects as shall be shown on plans and described in specifications approved of in writing by the chief engineer to the Railway Company or in default of agreement between the said chief engineer and the Company according to plans and specifications to be settled by arbitration in the manner provided by this Order.

27.—The Company shall be at liberty to enter into contracts, agreements, or arrangements with the Railway Company for the construction, working, use and maintenance on behalf of the Company and in accordance with this Order of the railway or any part or parts thereof or for the supply of rolling stock necessary machinery and apparatus for the working and use of same.

28.—In case any dispute or difference shall arise between the County Council or the County Surveyor or any person or the engineer of any person and the Company as to the construction, working or maintenance of the railway or any part thereof or the works connected with or incidental thereto or as to the execution of any works by the County Council or any person which shall affect or interfere with the railway or any part thereof or necessitate the stoppage of the traffic on the railway or any part thereof or as to the state of repair of the railway or any part thereof or as to any other matter or thing in relation to the construction and maintenance or working of the railway or any part thereof or the exercise of the powers conferred on the Company or the County Council or any person or with respect to any other subject or thing regulated by or comprised in this Order the same shall be referred to the decision of an arbitrator to be appointed in writing by the parties, or if they cannot agree upon a single arbitrator, to the decision of two arbitrators, one to be appointed by each party, and in case of disagreement to the decision of an umpire to be appointed by the two arbitrators and the decision of such arbitrator or arbitrators or umpire, as the ease may be, shall be final and binding on both parties.

29. Nothing in this Order contained shall authorise any interference with any telegraph line or telephone line of the Minister for Posts and Telegraphs without the consent previously obtained of the Minister for Posts and Telegraphs or in any way affect or prejudice the rights of the said Minister under the Telegraph Acts, 1863 to 1928.

30.—Nothing in this Order contained shall authorise the Company to interfere with any of the electric wires or works of the Electricity Supply Board, except with the consent of the Minister and subject to such terms and conditions as the Minister after consultation with the said Board thinks proper.

31.—Nothing in this Order contained shall affect any property, real or personal, vested in the State or in any Minister thereof, or be construed to restrict or prejudice the rights of the State or any right, power, privilege, or duty vested by law in any Minister or any officer of the State, and in particular any powers of erecting, constructing, altering or extending any works on any such property as aforesaid shall not be construed to confer on the Company any rights of entry into or any estate or interest in any such property, but this Article shall not operate to prevent the exercise in accordance with this Order by the Company of such powers if and when such right of entry as aforesaid has been duly obtained according to law by the Company.

32.—Any expenses incurred by the Minister in the exercise of his powers and functions under this Order shall, to such extent as may be determined by the Minister for Finance, be paid to the Minister by the Company.

33.—Nothing in this Order contained shall exempt the Company or the undertaking from the provisions of any general Act relating to railways and such provisions shall have effect to the extent to which they are not inconsistent with the provisions of this Order.

Given under the Seal of Office of the Minister

for Industry and Commerce this 7th day

of January, 1938.

JOHN LEYDON,

Secretary,

Department of Industry and Commerce.