Transport (Railway Infrastructure) Act 2001

PART 1 Preliminary and General

1 Short title.

1.—This Act may be cited as the Transport (Railway Infrastructure) Act, 2001.

2 Interpretation.

2.—(1) In this Act—

“Act of 1961” means Road Traffic Act, 1961;

“Act of 1963” means Transport Act, 1963;

“Act of 1993” means Roads Act, 1993;

“Act of 1994” means Road Traffic Act, 1994;

“Act of 1996” means Transport (Dublin Light Rail) Act, 1996;

“Act of 2000” means Planning and Development Act, 2000;

“Agency” means Railway Procurement Agency established under section 9;

“applicant” in Part 3, means the Agency, CIÉ, or any other person applying for a railway order;

“authorised person” means a person authorised as an authorised person under section 36;

“CIÉ” means Córas Iompair Éireann;

“driving” in relation to a light rail vehicle includes managing and controlling the vehicle, and “driver” and other cognate words shall be construed accordingly;

“environmental impact statement” shall be construed in accordance with section 37(2)(d);

“establishment day” means the day appointed by the Minister under section 8 to be the establishment day for the purposes of Part 2;

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

“land” has the meaning assigned to it by the Act of 2000;

“light rail vehicle” means a vehicle with flanged wheels designed to run on a light railway;

“light railway” means a railway designated as a light railway in a railway order issued under section 43;

“local authority” has the meaning assigned to it by the Act of 1993;

“metro” means a railway designated as a metro in a railway order issued under section 43;

“Minister” means Minister for Public Enterprise;

“planning authority” has the meaning assigned to it by the Act of 2000;

“public place” has the meaning assigned to it by the Act of 1961;

“public road” has the meaning assigned to it by the Act of 1993;

“railway” means a railway (whether above, on or under the ground) whose operation is authorised by a railway order;

“railway infrastructure” means any land, buildings, structures, equipment, systems, vehicles, services or other thing used in connection with, or necessary or incidental to, the movement of passengers or freight by railway;

“railway order” means an order under section 43;

“railway undertaking” means any person who has been granted a railway order or another person with whom that person has made arrangements under section 43(6);

“railway works” means any works required for the purposes of a railway or any part of a railway, including works ancillary to the purposes aforesaid such as parking by buses or by persons using vehicles who intend to complete their journey by railway, and relocation of utilities, and in this definition “works” includes any act or operation of construction, excavation, tunnelling, demolition, extension, alteration, reinstatement, reconstruction, making good, repair or renewal;

“rights” in relation to a railway order includes rights which exist or which are proposed to be created in the order;

“road” has the meaning assigned to it by the Act of 1993;

“road authority” has the meaning assigned to it by the Act of 1993;

“substratum of land” means any subsoil or anything beneath the surface of land required—

(i) for the purposes of a tunnel or tunnelling or anything connected therewith, or

(ii) for any other purpose connected with a railway order;

“superannuation benefits” means pensions, gratuities and other allowances payable on resignation, retirement or death.

(2) In this Act—

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

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended,

(c) a reference to an enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act,

(d) a reference to a statutory instrument shall be construed as a reference to that instrument as amended, adapted or extended by any subsequent statutory instrument.

3 Repeals.

3.—The following are repealed—

(a) sections 2 to 11 of the Act of 1963, and

(b) the Act of 1996.

4 Continuation of orders made under Act of 1963 and Act of 1996.

4.—(1) Any order made under the Act of 1963 or the Act of 1996 which is in force immediately before the repeal of those Acts shall continue in force as if made under this Act and subsections (6) to (11) of section 43 shall apply to such orders and references in those orders made under the Act of 1996 to the Board shall be construed as references to the Agency.

(2) For the avoidance of any doubt, any orders made under the Act of 1996 include the power to operate the railway in question.

(3) Notwithstanding the repeal of sections 2 to 11 of the Act of 1963, where an application for a railway works order has been made and not determined immediately before the repeal of those sections, then those sections continue to apply to the application until its determination.

5 Laying of orders and regulations before Houses of Oireachtas.

5.—Every order (other than an order under section 8) or regulation made by the Minister 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 or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

6 Offences by bodies corporate.

6.—Where an offence under this Act has been 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 or default on the part of a person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

7 Expenses.

7.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be authorised by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

PART 2 Railway Procurement Agency

8 Establishment day.

8.—The Minister shall by order appoint a day to be the establishment day for the purposes of this Part.

9 Establishment of Agency.

9.—(1) There shall stand established on the establishment day a body to be known as the Railway Procurement Agency, or in the Irish language, an Ghníomhaireacht um Fháil Iarnród, and in this Act referred to as the “Agency”, to perform the functions conferred on it by or under this Act.

(2) The Agency shall be a body corporate with perpetual succession and an official seal and power to sue and be sued in its corporate name and to acquire, hold and dispose of land or any other property or an interest in land or any other property (freehold or leasehold).

(3) Before acquiring or disposing of land or an interest therein the Agency shall obtain an independent valuation of the land or interest therein.

(4) The Agency shall, subject to the provisions of this Act, be independent in the exercise of its functions.

(5) The Agency shall have all such powers as are necessary for or incidental or ancillary to the performance of its functions under this Act.

10 Seal of Agency.

10.—(1) The Agency shall, as soon as may be after its establishment, provide itself with a seal.

(2) The seal of the Agency shall be authenticated by the signature of—

(a) the person appointed to chair the Agency, or

(b)(i) a member of the Agency, or

(ii) a member of the staff of the Agency,

authorised by the Agency to act in that behalf.

(3) Judicial notice shall be taken of the seal of the Agency and every document purporting to be an instrument made by the Agency and to be sealed with the seal of the Agency (purporting to be authenticated in accordance with subsection (2)) shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.

11 Functions of Agency.

11.—(1) The Agency shall have the following functions:

(a) to secure the provision of, or to provide, such light railway and metro railway infrastructure as may be determined from time to time by the Minister;

(b) to monitor and publish regular reports on the safety of light railway and metro infrastructure;

(c) to enter into agreements with other persons in order to secure the provision of such railway infrastructure whether by means of a concession, joint venture, public private partnership or any other means; and

(d) to acquire and facilitate the development of land adjacent to any railway works subject to an application for a railway order under this Act where such acquisition and development contributes to the economic viability of the said railway works.

(2) The Minister may, with the consent of the Minister for Finance, by order confer on the Agency such additional functions in relation to public transport by rail or road as, from time to time, he or she considers appropriate.

(3) The Agency may exploit commercial opportunities arising from its functions.

(4) The exploitation of such commercial opportunities may be carried out by a railway undertaking on behalf of the Agency.

(5) The Agency may receive income (including any amount, right, interest, benefit or profit) arising from, or make payments (or otherwise provide consideration) in respect of functions referred to in subsections (1) and (3) or such additional functions assigned to it under subsection (2).

(6) Where the Agency enters into an agreement with a person and in connection with the agreement another person makes a financial loan to, or provides any other form of finance for, a party to the agreement, the Agency shall be deemed to have the power to enter into an arrangement with that other person.

(7) The Agency may only act as the operator of a railway where authorised by the Minister by order.

(8) The Minister may, by order, amend or revoke an order under this section (including an order under this subsection).

12 Subsidiaries, investments, joint ventures, etc.

12.—(1) Such functions of the Agency as it may determine may be performed by a subsidiary and, accordingly, the Agency may, with the consent of the Minister and the Minister for Finance, for the purpose of such performance, acquire or form and establish one or more subsidiaries.

(2) The Agency or a subsidiary may, either by itself or with another person, with the consent of the Minister and the Minister for Finance, promote and take part in the formation or establishment of a company (within the meaning of the Companies Acts, 1963 to 2001), enter into joint ventures or partnerships for the purpose of fulfilling any of its functions.

(3) The Agency may, with the consent of the Minister and the Minister for Finance, acquire, hold and dispose of shares or other interests in a company and become a member of a company.

(4) The memorandum and articles of association of a subsidiary shall be in such form consistent with this Act as may be determined by the Agency with the consent of the Minister and the Minister for Finance.

(5) The Minister may give a direction in writing to the Agency on any matter relating to a subsidiary and the Agency shall comply or, as may be appropriate, secure compliance with the direction.

(6) A direction under this section in relation to the disposal of any assets or surpluses of a subsidiary shall not be given without the consent of the Minister for Finance.

(7) In this section “subsidiary” means a subsidiary (within the meaning of section 155 of the Companies Act, 1963) of the Agency.

13 Charges for services.

13.—(1) The Agency may make such charges as it considers appropriate in consideration of the performance of its functions, the provision by it of services and the carrying on by it of activities and shall record receipts from such charges as income.

(2) The Agency may recover, as a simple contract debt in any court of competent jurisdiction, from the person by whom it is payable any amount due and owing to it under the above.

14 Gifts.

14.—(1) The Agency may accept gifts of money, land, or other property, on such trusts, terms or conditions, if any, as may be specified by the donor.

(2) The Agency shall not accept a gift if the trusts, terms, or conditions attached to it would be inconsistent with or prejudice the operational independence and effective performance of the functions of the Agency.

(3) The Agency shall include details of any gift that exceeds, in its opinion, such amount as may be directed by the Minister, with the consent of the Minister for Finance, in the report under section 18 for the year in which the gift is accepted.

15 Borrowings by Agency.

15.—(1) The Agency or a subsidiary of the Agency may, from time to time, borrow money for the purpose of carrying out its functions but shall not do so without the consent of the Minister and the Minister for Finance.

(2) The Agency shall exercise the powers conferred on it by this section so that the amount or amounts of principal which the Agency, inclusive of any borrowings by subsidiaries of the Agency, may at any time be liable to repay on foot of any liability or liabilities incurred under this section does not, or do not in their aggregate, exceed €600,000,000 (£472,538,400).

(3) For the purposes of this section, moneys borrowed in a currency other than the currency of the State shall be deemed to be the equivalent in the currency of the State of the actual moneys borrowed, such equivalent being calculated according to the rate of exchange for that currency and the currency of the State at the time such moneys were borrowed.

16 Guarantee by Minister for Finance of borrowing by Agency.

16.—(1) Without prejudice to section 6 of the Borrowing Powers of Certain Bodies Act, 1996, the Minister for Finance, after consultation with the Minister, may guarantee, in such form and manner and on such terms and conditions as he or she thinks fit, the due repayment of any moneys (including money in a currency other than the currency of the State) (or the payment of interest on such moneys) borrowed by the Agency.

(2) The Minister for Finance shall, as soon as may be after the expiration of every financial year, lay before each House of the Oireachtas a statement setting out with respect to each guarantee under this section given during that year or given at any time before, and in force at, the commencement of that year—

(a) particulars of the guarantee,

(b) in case any payment has been made by him or her under the guarantee before the end of that year, the amount of the payment and the amount (if any) repaid to him or her on foot of the payment, and

(c) the amount of moneys covered by the guarantee which was outstanding at the end of that year.

(3) Moneys paid by the Minister for Finance under a guarantee under this section shall be repaid to him or her (with interest thereupon at such rate or rates as he or she appoints) by the Agency within such period from the date of the advance of the moneys out of the Central Fund as may be specified by that Minister after consultation with the Agency.

(4) Where the whole or any part of moneys required by subsection (3) to be repaid to the Minister for Finance has not been paid in accordance with that subsection, the amount so remaining outstanding shall be repaid, at such times as the Minister for Finance shall determine, to the Central Fund out of moneys provided by the Oireachtas.

(5) Notwithstanding the provisions of moneys under subsection (4) to repay the amount to the Central Fund, the Agency shall remain liable to the Minister for Finance in respect of that amount, and that amount (with interest thereon at such rate or rates as the Minister for Finance appoints) shall be repaid to him or her by the Agency at such times and in such instalments as he or she appoints.

(6) Moneys paid by the Agency under subsection (3) or (5) shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance thinks fit.

17 Advances by Minister to Agency.

17.—The Minister may, from time to time, with the consent of the Minister for Finance, advance to the Agency out of moneys provided by the Oireachtas, such sums as the Minister may determine for the purposes of expenditure by the Agency in the performance of its functions.

18 Reports and information to Minister.

18.—(1) As soon as may be after the end of the financial year of the Agency in which the establishment day falls and of each subsequent financial year of the Agency, but not later than 6 months thereafter, the Agency shall present a report to the Minister of its activities during that year and the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.

(2) Each report under subsection (1) shall include information in such form and regarding such matters as the Minister may direct.

(3) The Agency shall, whenever so requested by the Minister, furnish to the Minister information in relation to such matters as he or she may specify concerning or relating to the scope of its activities generally, or in respect of any account prepared by the Agency or any report specified in subsection (1) or the policy or activities, other than the day to day activities, of the Agency.

19 Accounts and audits.

19.—(1) The chief executive, under the direction of the Agency, shall cause to be kept on a continuous basis proper books of account of all income and expenditure of the Agency, and of the sources of such income and the subject matter of such expenditure, and of the property, assets and liabilities of the Agency and shall keep and shall account to the Agency for all such special accounts as the Minister or the Agency, with the consent of the Minister, may from time to time direct should be kept.