FISHERIES ACT, 1939

83.—(1) Whenever the Minister grants a lease of a fishery under this Part of this Act he may, if he so thinks fit, cause to be inserted in such lease a covenant by the Minister to the following effect, namely, that, if the amount paid by the lessee as fishery rate in respect of such fishery for any fishery year falling within the term granted by such lease exceeds the appointed amount, the Minister will pay to the lessee a sum equal to the excess.

• (2) In this sub-section the expression “the appointed amount” means, in relation to a fishery which is the subject of a lease under this Part of this Act, the sum of the following:—

• (a) the amount (hereinafter referred to as the standard amount) payable by the occupier as fishery rate or by the Minister in lieu of fishery rate in respect of such fishery for the fishery year current at the date on which such lease is granted or, if the fishery rate for that fishery year for the fishery district in which such fishery is situate has not been made before the said date, the immediately preceding fishery year, and

• (b) one-twentieth of the standard amount.

• (3) Where—

• (a) a judgment of a competent court has been obtained by a board of conservators against the lessee of a fishery, the subject of a lease under this Part of this Act, for any fishery rate due in respect of such fishery, and

• (b) the Minister is satisfied that such lessee has no goods which could be taken in execution under any process of such court,

the following provisions shall have effect, that is to say:—

• (i) the Minister may, if he so thinks fit, pay to such board of conservators a sum not exceeding the amount of such fishery rate and any costs and expenses incurred by such board of conservators in relation to the obtaining and attempted enforcement of such judgment,

• (ii) any sum so paid shall be a debt due by such lessee to the Minister and may be recovered as a simple contract debt in a court of competent jurisdiction.

Non-user of Vested Fisheries.

84 Non-user of vested fisheries.

84.—(1) The Minister may, subject to the consent of the Minister for Finance, from time to time refrain from using any vested fishery which is not for the time being the subject of a lease under this Chapter of this Part of this Act.

• (2) Where the Minister proposes to refrain from using any vested fishery he shall give notice to the board of conservators within whose fishery district such fishery is situate of his intention to refrain from using such fishery and thereupon such fishery shall, unless and until the Minister makes a lease of such fishery or operates such fishery, be an unused fishery for the purposes of this Part of this Act.

85 Provisions in relation to unused fisheries.

85.—The following provisions shall have effect in relation to any unused fishery, that is to say:—

• (a) in case such fishery is a weir (tidal waters) fishery or a weir (fresh water) fishery—

• (i) the Minister may demolish the weir forming part of such fishery, and thereafter shall not be liable for any effects due to changes in the flow or level of the water to whomsoever caused, save only that any obstruction to the migration of fish which may be caused by the demolition of such weir shall be remedied by him,

• (ii) if the weir is not demolished the Minister shall remain liable for its maintenance in such condition that it shall not obstruct the migration of fish or cause any damage or loss of water beyond what was normal while it was being used for the purposes of the fishery;

• (b) in case such fishery is a mill-dam fishery—

• (i) the Minister may demolish or remove any structures incidental to the use of the fishery, but in doing so he shall leave the mill-dam in such a condition that the water supply to the mill shall not be prejudiced and the cost of the maintenance of the mill-dam shall not be increased,

• (ii) if the structures incidental to the use of the fishery are not demolished the Minister shall remain liable for their maintenance in such condition that they shall not obstruct the migration of fish or cause any damage or loss of water beyond what was normal while they were being used for the purposes of the fishery;

• (c) in case such fishery is a fixed engine (tidal waters) fishery, the Minister shall remove all stakes or other structures which may constitute a danger to navigation or to the use of lawful nets under common law rights.

86 Re-erection or re-equipment of unused fisheries.

86.—(1) Where a vested fishery which is a weir (tidal waters) fishery or a weir (fresh water) fishery or a mill-dam fishery has become an unused fishery and the Minister has demolished the structure by means of which such fishery was carried on, the Minister may within five years after the date on which such fishery became an unused fishery but not later re-erect it on the same site for fishing in the same place and with the same dimensions and, in the case of a weir (tidal waters) fishery or a weir (fresh water) fishery, the same provision for a free gap (if any) as is shown in the record survey of the fishery.

• (2) Where a vested fishery which is a fixed engine (tidal waters) fishery has become an unused fishery, the Minister may at any time re-erect or re-equip it in accordance with the certificate issued in respect thereof under the provisions of the Salmon Fishery (Ireland) Act, 1863.

Chapter VI. Supplementary Provisions.

87 Right of access to vested fisheries.

87.—(1) Any authorised person shall at all times have a right of free access to any vested fishery and shall be entitled, subject to the provisions of this Act, with boats or vehicles to enter on any watercourse or land for the purpose of operating the fishery, and may remove (subject in the case of the foreshore to the consent of the Minister for Industry and Commerce) any obstruction, natural or otherwise, to his passage.

• (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.

• (4) Where the normal access to a transferable fishery vested in the Minister was before such vesting through any enclosed premises, yard, garden or land surrounding or adjacent to a dwelling house, the right of free access conferred by sub-section (1) of this section shall not be exercisable by way of such premises, yard, garden or land, save where the same are separated from, and were before such vesting used solely in connection with, such fishery.

• (5) An offence under this section may be prosecuted by the Minister.

88 Exercise of angling rights.

88.—(1) Where a transferable fishery in any water flowing through land surrounding or adjacent to a dwelling house has become vested in the Minister and the angling rights in such water have not been reserved under an angling rights (reservation) order, any person lawfully entitled to fish with rod and line on such water and his paid servants or attendants shall be entitled to pass along the banks of such water for the purpose of such fishing or of going to or returning from such fishing, but for no other purpose.

• (2) This section shall not entitle any person to enter any enclosed yard or garden or any buildings.

89 Liability of Minister for damage by flooding.

89.—No claim shall lie against the Minister for flooding of lands or other consequential damage due to the continued existence of any structure (including a weir and a mill-dam which on the date of vesting formed part of or existed in a fishery vested in the Minister under Chapter II of this Part of this Act) unless the Minister shall have increased the height of such structure or shall have closed the openings or gaps therein to an extent to which they could not have been legally closed on the said date.

90 Provisions in relation to mill-dam fisheries.

90.—(1) The following provisions shall have effect in relation to any mill-dam fishery vested in the Minister under Chapter II of this Part of this Act, and to the fishing mill-dam, by means of part of which such fishery is carried on, that is to say:—

• (a) so long as the Minister makes no alteration, other than repairs to casual defects in those parts of the structure of such dam essential to the carrying on of such fishery, he shall not be liable for any part of the cost of maintaining the mill-dam;

• (b) any authorised person shall have a right of free access to such fishery and such right shall extend if necessary to the mill, power-house, or other premises adjacent to or connected with such mill-dam, but if the owner or occupier of such mill, power-house or premises shall offer to the Minister facilities for other reasonable means of access, the Minister shall accept such facilities in lieu of such first mentioned right of access, and shall carry out such works as may be necessary to render the same effective;

• (c) the Minister may cause to be erected such walls, fences or other structures as he may think necessary for the protection of such fishery against trespass in such situation as he may require, but where any such walls, fences or other structures may interfere with the access of the owner or occupier to such mill-dam, the Minister shall provide such owner or occupier with the necessary means of getting through or over them;

• (d) if the mill, power-house or premises which such mill-dam is intended to serve becomes vacant, or if the water impounded by such mill-dam, ceases to be used for power purposes, either partly or wholly, the Minister shall none the less continue to be entitled to use such fishery, and the provisions of section 31 (which relates to alteration of abandoned and disused dams) of this Act shall apply.

• (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.

• (4) An offence under this section may be prosecuted by the Minister.

91 Restrictions on Minister's powers.

91.—Nothing in this Act shall operate to authorise the Minister—

• (a) to construct or erect on tidal lands (within the meaning of the Foreshore Act, 1933 (No. 12 of 1933)), any work or structure, other than a fixed engine for the capture of salmon, trout or eels legally existing, or for which a certificate existed, in the year in which this Act is passed, without the consent of the Minister for Industry and Commerce or otherwise than in accordance with the terms and conditions of such consent;

• (b) to erect any buildings or structures which may interfere with the amenities of the residence or pleasure grounds of a person who was the owner or occupier of a fishery vested in the Minister under Chapter II of this Part of this Act or operate such fishery in such a way as to interfere with such amenities.

92 Fishing licences in vested fisheries operated by the Minister.

92.—Where any vested fishery is being operated by the Minister under this Part of this Act all licences for fishing engines used in such fishery shall be taken out in the name of the Minister.

93 Voting by Minister at elections of conservators.

93.—(1) The Minister as a licence holder shall have power to vote at elections of conservators by a proxy appointed under his hand and the voting power of such proxy shall be calculated separately in respect of each fishing licence held by the Minister.

• (2) Any instrument appointing a proxy under this section shall not require a stamp.

94 Nomination of ex-officio conservators by the Minister.

94.—(1) Where on the date on which the fishery rate for any fishery year is struck by a board of conservators any vested fishery situate in the fishery district of such board is valued at not less than fifty pounds, the Minister may nominate one person as his representative to be, until the next fishery rate is struck by such board, an ex-officio member in respect of such fishery of such board.

• (2) Where—

• (a) two or more vested fisheries in the same fishery district were vested in the Minister on the same date, and

• (b) such fisheries were immediately before being so vested in the ownership or occupation of the same person,

then such fisheries shall for the purposes of sub-section (1) of this section be deemed to be one fishery the value of which is the aggregate value of all such fisheries.

• (3) Where any vested fishery is for the time being leased or is for the time being an unused fishery, the value of such fishery shall for the purposes of sub-sections (1) and (2) of this section be deemed to be nil.

• (4) Where the Minister is entitled under sub-section (1) of this section to nominate ex-officio members of two or more boards of conservators he may nominate the same person to be an ex-officio member of each of such boards.

• (5) Where the Minister is entitled under sub-section (1) of this section to nominate two or more ex-officio members of a board of conservators, he may nominate, one person only, and in that case such one person shall have and may exercise at meetings of such board a number of votes equal to the number of ex-officio members of such board which the Minister is for the time being entitled to nominate.

• (6) A person nominated by the Minister under this section to be an ex-officio member of a board of conservators shall have and may exercise as such member all the rights which are conferred by section 6 of the Fisheries (Ireland) Act, 1848, and this Act on a person who is an ex-officio member of a board of conservators.

95 Payments by Minister in lieu of fishery rate.

95.—(1) No fishery rate shall be payable by the Minister in respect of any vested fishery.

• (2) Subject to the provisions of this section the Minister may, if he so thinks fit, in respect of each vested fishery, as on and from the payment day next following the date of vesting, pay in any fishery year to the board of conservators for the fishery district in which such fishery is situate in lieu of fishery rate a half-yearly sum calculated as a moiety of the fishery rate for the current fishery year on the poor law valuation existing at the date when the fishery rate is made.

• (3) Where a vested fishery is for the time being an unused fishery no payment in lieu of fishery rate shall be made by the Minister in respect of such fishery after the commencement of the fishery year next after the date on which the Minister gives notice to the board of conservators within whose fishery district such fishery is situate of his intention to refrain from using such fishery.

• (4) Where a vested fishery which has ceased to be worked by the Minister is subsequently worked by the Minister, payment in lieu of fishery rate may be made on and from the payment day next following the date on which such fishery is subsequently worked.

• (5) Where a vested fishery is leased by the Minister under this Part of this Act, no payment in lieu of fishery rate shall be made by the Minister in respect of such fishery for any period during which any person is under an obligation to pay fishery rate in respect of such fishery.

• (6) For the purposes of this section each of the following dates in each year shall be a payment day—

• (a) the 1st day of April;

• (b) the 1st day of September.

PART VI. Miscellaneous Provisions.

96 Power of Minister to take on lease fisheries for research purposes.

96.—(1) The Minister, with the consent of the Minister for Finance, may, for the purposes of any scheme of research into the life-history and habits of salmon or any freshwater fish and the economic conditions affecting the commercial development of fisheries, take on lease any fishery.

• (2) The Provisions of Chapter V of Part V of this Act relating to the operation of fisheries shall apply in respect of any fishery leased by the Minister under this section.

• (3) Where a fishery which is a transferable fishery, within the meaning of Part V of this Act, has for the time being been leased under this section, the provisions of Part V. of this Act shall, notwithstanding such lease, apply in respect of such fishery.

97 Service of documents.

97.—(1) Where any document is required or permitted by the Fisheries Acts or this Act (including sub-section (2) of this section) to be served on any person such document shall be addressed to such person and shall be served on such person in some one of the following ways, that is to say:—

• (a) by delivering it to such person;

• (b) by leaving it at the address at which such person ordinarily resides;

• (c) by sending it by post in a prepaid registered letter addressed to such person at the address at which he ordinarily resides.

For the purposes of this sub-section a company registered under the Companies Acts, 1908 to 1924, shall be deemed to be ordinarily resident at its registered office, and every body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business within the State.

• (2) Where any document is required or permitted by the Fisheries Acts or this Act to be served on the owner of a fishery and either such owner cannot be found within the State or the name or address of such owner cannot after reasonable inquiry be ascertained, such document shall be deemed to have been duly served on such owner if it is served on the occupier of such fishery.

Legal Proceedings.

98 Form of conviction.

98.—Where a person is convicted by the District Court of an offence against the Fisheries Acts or this Act the conviction shall be in the form for the time being authorised by the District Court Rules.

99 Form of dismissal.

99.—Where any proceedings for an offence under the Fisheries Acts or this Act are dismissed by the District Court, the dismissal shall be in the form for the time being authorised by the District Court Rules.

100 Appeals from the District Court.

100.—(1) Where any proceedings for an offence under the Fisheries Acts or this Act are dismissed, whether on the merits or without prejudice, by the District Court, the prosecutor may appeal against the order of dismissal to the Judge of the Circuit Court within whose Circuit the Courthouse in which such order was made is situate.

• (2) Where by virtue of any enactment (including sub-section (1) of this section) a right of appeal against an order of the District Court in any proceedings under the Fisheries Acts or this Act lies to a Judge of the Circuit Court, such Judge on such appeal may vary, confirm, or reverse such order, and the decision of such Judge on such appeal shall be final and conclusive and not appealable.

101 How offences may be tried.

101.—(1) Notwithstanding anything contained in any other enactment, any offence under the Fisheries Acts or this Act may be heard and determined in a summary way by a Justice of the District Court upon the complaint, verbal or otherwise, of a member of the Gárda Síochána, any officer or employee of a board of conservators, or any other person.

• (2) An offence under the Fisheries Acts or this Act may be brought before and heard and disposed of by a Justice of the District Court irrespective of the place in which the person alleged to have committed such offence resides or in which such offence is alleged to have been committed.

102 Proof of bye-laws, etc.

102.—(1) In any proceedings under the Fisheries Acts or this Act, a document purporting to be a copy of any instrument in writing made or issued under the said Fisheries Acts or this Act shall, if it is certified by an officer of the Minister to be a true copy of such instrument, be prima facie evidence of such instrument, and it shall not be necessary to prove the signature of the person so certifying such document or that he is an officer of the Minister.

• (2) Nothing in this section shall be construed as limiting or affecting the operation of section 4 of the Documentary Evidence Act, 1925 (No. 24 of 1925).

SCHEDULE. Enactments Repealed.