S.I. No. 596/2006 - Railway (Kildare Route Project) Order 2006

STATUTORY INSTRUMENTS

S.I. No. 596 of 2006

Railway (Kildare Route Project) Order 2006

ARRANGEMENT OF ARTICLES

SCHEDULE 1 The Railway and Railway Works authorised by this Order.

SCHEDULE 2 Land which may be acquired

SCHEDULE 3 Roads to be closed permanently.

SCHEDULE 4 Roads to be closed temporarily.

SCHEDULE 5 Roads to be altered.

SCHEDULE 6 New roads to be constructed

SCHEDULE 7 Land over which rights including rights of way and other rights and easements are to be acquired

SCHEDULE 8 Part 1. Public rights to be extinguished

Part 2. Private rights to be extinguished

SCHEDULE 9 Public and Private Rights of way to be temporarily interrupted

SCHEDULE 10 Land of which temporary possession is to be taken

SCHEDULE 11 Conditions attached to the Order

SCHEDULE 12 Agreements reached with the Railway Undertaking

I, Martin Cullen, Minister for Transport, in exercise of the powers conferred on me by section 43 of the Transport (Railway Infrastructure) Act 2001 (No. 55 of 2001) (as adapted by the Public Enterprise (Alteration of Name of Department and Title of Minister) Order 2002 ( S.I. No. 305 of 2002 )) having considered an application by Córas Iompair Éireann for a railway order to authorise railway works affecting the Dublin-Cork railway line between Inchicore Depot, Dublin, and Cherryville Junction, County Kildare, the draft order, the plans of the proposed railway works and the book of reference to those plans, and the Environmental Impact Statement that accompanied the said application, the Report of the Public Inquiry duly held and the recommendations contained therein, the submissions duly made to me under section 40 of the said Act and not withdrawn, and being of opinion that the said application should be granted, and being also of the opinion that the rights in over or under public roads specified in this Order with the consent of the Minister for the Environment, Heritage and Local Government are necessary for giving effect to this Order hereby order as follows:-

PART 1 PRELIMINARY

Citation

Interpretations

“Act of 1961” means the Road Traffic Act 1961 (No. 24 of 1961);

“Act of 1993” means the Roads Act 1993 (No. 14 of 1993;

“Act of 1994” means the Road Traffic Act 1994 (No. 7 of 1994);

“Act of 2000” means the Planning and Development Act 2000 (No. 30 of 2000);

“Act of 2005” means the Railway Safety Act 2005 (No. 31 of 2005);

“apparatus” includes any sub-station, inspection chamber, junction box, booster station, pipe, sewer, drain, duct, tunnel, conduit, wire, cable, fibre, insulator, and such other thing as may be used by a utility for or in connection with the provision of a service to the public.

“construct” includes build, make, put together, erect, create, form, and assemble, and cognate works shall be construed accordingly.

“Deposited Plan” means the copy of the plan deposited together with this Order pursuant to section 46 of the Principal Act;

“execute” includes construct, maintain and improve;

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

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

“maintain” includes inspect, repair, adjust, alter, remove, reconstruct, renew and replace;

“mechanical power” includes electrical and any other motive power;

“Minister” means the Minister for Transport;

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

“Principal Act” means the Transport (Railway Infrastructure) Act 2001 (No.55 of 2001) as amended by the Railway Safety Act 2005 (No. 31 of 2005);

“public road” has the meaning assigned to it by the Act of 1993 and includes any road which becomes a public road during the currency of this Order;

“railway” means a railway or part of a railway for which railway works are authorised by this Order;

“Railway Undertaking” means Córas Iompair Éireann, or where the context so requires or admits, a person with whom Córas Iompair Éireann has made an arrangement under section 43 (6) of the Principal Act;

“Railway Order” means an order made under section 43 of the Principal Act;

“reconstruct” means wholly or partly rebuild, re-erect, re-create, reform, reassemble, repair, restore, replace or alter;

“road” has the interpretation 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 the land required for any purpose connected with this Order;

“Undertaker” means any person or body with power and authority in relation to apparatus to relocate or cause it to be relocated as provided for in Article 16;

“works” includes railway works as defined in the Principal Act and the doing, making laying down, placing, erection, maintenance, operation and use of anything deemed necessary or desirable for or in connection with the construction, operation, maintenance efficiency, safety and security of a railway and authorised expressly or by necessary implication by this Order.

Incorporation of enactments

PART 2 WORKS AND RELATED PROVISIONS

Construction of Railway and Railway Works

• (2) Construction of the works authorised by this Order shall be completed at the end of the period of 7 years from the date this Order comes into force or within such further period as the Minister may allow on the application of the Railway Undertaking.

• (3) Paragraph 2 of this Article does not apply to any works required for the operation or maintenance of the railway works authorised by this Order.

• (4) The railway may be operated by mechanical or other power.

Discharge of Water

• (a) the Railway Undertaking shall not discharge any water into, or interfere with, any surface watercourse, sewer or drain except with the consent of the sanitary authority to which it belongs, which consent shall not be unreasonably withheld or delayed, and in accordance with such terms and conditions as such sanitary authority may reasonably impose;

• (b) the Railway Undertaking shall take such steps as may be reasonably practicable to ensure that any water discharged into any such public surface watercourse, sewer or drain under the powers conferred on the Railway Undertaking by this Article is free from soil or polluting or deleterious material;

(c ) should any dispute occur in relation to any of the provisions of this Article between the Railway Undertaking and the sanitary authority such dispute shall be referred to arbitration in accordance with the provisions of Article 17 of this order.

Deviation.

• (2) In constructing and maintaining any of the railway works authorised by this Order, the Railway Undertaking may deviate vertically from the levels shown on the deposited plans to any extent not exceeding 1 metre upwards or downwards.

Closure of roads (permanent and temporary).

• (a) the Railway Undertaking shall give to the road authority not less than 21 days' prior notice in writing of its requirement to close permanently each such public road;

• (b) the Railway Undertaking shall give to the road authority not less than 21 days' prior notice in writing of its requirement to close temporarily each such public road and such notice shall -

• (i) specify the road which is required to be closed temporarily,

• (ii) state the period for which, in the reasonable opinion of the Railway Undertaking, it is necessary to close temporarily such road,

• (iii) give particulars of any alternative route or routes if any which the Railway Undertaking believes will be available while such road is closed temporarily,

• (iv) contain a brief description of the works which the Railway Undertaking proposes to carry out while such road is closed temporarily, and

• (v) state whether the order closing the road is required to be subject to conditions as to whether any and if so what traffic or persons may be allowed use the road and at what times and on what if any conditions.

• (2) A request made to a road authority under this Article shall not be unreasonably refused or delayed.

Power to alter public roads.

• (a) alter the width of the carriageway of the road by altering the width of any road footway, cycle track, verge or other land within the boundary of the road;

• (b) alter or interfere with the level of any kerb, footway, cycle track, verge or other land within the boundary of the road;

• (c) realign the road where necessary;

and in connection therewith, the Railway Undertaking may take such steps and do all things necessary or incidental thereto.

• (2) Before exercising any power under paragraph (1), the Railway Undertaking shall obtain the consent of the relevant road authority which consent shall not be unreasonably withheld or delayed.

Construction of new roads.

• (2) Each new road constructed under this Article shall when completed, unless otherwise agreed between the Railway Undertaking and the road authority, be maintained by and at the expense of the Railway Undertaking for a period of 12 months from the date of its completion and at the expiration of that period shall be maintained by and at the expense of the road authority in whose functional area such new road is situated.

• (3) Any dispute arising from, relating to or in connection with the provisions of this Article or any new road specified in Schedule 6 or any works to be constructed, which are under construction, or which have been constructed in connection with such new road, or any works, steps or things necessary or incidental thereto including but not limited to the withholding of consent by a road authority or any delay in giving consent, shall be referred to arbitration in accordance with Article 17.

Tree lopping.

• (2) Where a tree, shrub or hedge lies on land not owned by the Railway Undertaking and for the purpose of works authorised by this railway order, needs to be lopped or cut, the Railway Undertaking shall serve on the owner or occupier of the land or, in the case of a public road, on the road authority charged with the maintenance of such road, on which such tree, shrub or hedge is standing, notice in writing of its intention so to lop or cut, and, after the expiration of 28 days from the date of such service the Railway Undertaking may lop or cut any tree, shrub or hedge if the owner or occupier has not already done so.

• (3) Where an occupier or owner of land cuts or lops any tree, shrub or hedge under this Article, the reasonable expense (if any) incurred by him or her in so doing shall be paid to him or her on demand by the Railway Undertaking, and the amount of such expenses shall be recoverable from the Railway Undertaking, in default of agreement, as a simple contract debt in any court of competent jurisdiction.

PART 3 ACQUISITION AND POSSESSION OF LAND AND RIGHTS

Power to acquire land

• (2) Sections 4 and 8 of the Railways Act 1851 do not apply in relation to the acquisition of any land under this Article.

Power to temporarily possess and occupy land

• (2) In particular, but without prejudice to the generality of paragraph (1), the Railway Undertaking may enter upon and take up and retain temporary possession and occupation of such land or any part of such land

• (a) for the provision of works sites and access for inspection or construction purposes, or

• (b) for or in connection with the railway works authorised by this Order or any works to alter a public road or construct a new road as authorised by this Order or any works necessary, incidental or ancillary thereto,

and for those purposes may construct thereon, demolish or remove therefrom any structures cut and, if necessary, remove anything found or growing on such land or any part thereof and generally carry out any works, take any steps and do all things to, on, in, beneath, over and with such land as may be required to adapt them for or to facilitate the execution of those works.

• (3) Before giving up possession of the land or any part of the land of which temporary possession and occupation may have been taken up under this Article, the Railway Undertaking shall remove all temporary works and structures constructed by it on that land and, subject to any contrary provision of this Order or any agreement to the contrary with the owners and occupiers of that land, shall restore that land to its former state as far as possible and as far as may be reasonably required to the reasonable satisfaction of the owners and occupiers.

• (4) The Railway Undertaking shall not be required to acquire any land of which temporary possession and occupation may have been taken up under this Article.

• (5) The Railway Undertaking shall pay to the owners and occupiers of land, of which it takes up temporary possession and occupation by virtue of this Article, such compensation for any loss thereby suffered as if that loss were loss suffered and the amount of the compensation determined in consequence of the exercise by the Railway Undertaking of a power conferred upon it by section 48 of the Principal Act.

Acquisition of easements and other rights over land.

Extinguishment of rights, including rights of way and temporary interference with rights.

• (2) The Railway Undertaking may extinguish all private rights including the rights of way specified in Part 2 of Schedule 8.

• (3) The Railway Undertaking may temporarily interfere with or stop up the rights of way specified in Schedule 9 .

Period within which the Railway Undertaking may compulsorily acquire land and interests in land.

• (2) The power to acquire compulsorily land or rights in relation to land shall, for the purpose of this Article, be deemed to have been exercised where notice to treat has been served in respect of such land or rights before the end of the period mentioned in paragraph (1).

• (3) Notwithstanding paragraph (1), the Railway Undertaking shall be entitled to remain in temporary possession and occupation of land pursuant to Article 12 after the end of the period mentioned in paragraph (1) where possession of such land was taken before the end of such period.

PART 4 MISCELLANEOUS AND GENERAL

Interference with apparatus

• (a) where land is acquired by or for the Railway Undertaking, an Undertaker whose apparatus is under, in, over, along or across the said land or any part thereof may and, upon reasonable request by the Railway Undertaking, shall, without unreasonable delay, do either or both of the following:

• (i) remove the apparatus and place it or other apparatus in substitution for it in such other position or location as may be agreed with the Railway Undertaking,

• (ii) take such further or other steps or make such further or other provision with the agreement of the Railway Undertaking as may secure the apparatus and the works of the Railway Undertaking and the proper functioning of each of them respectively from mutual interference or damage;

• (b) where the apparatus of an Undertaker is under, in, upon, over, along or across a public road, the Undertaker may and upon reasonable request by the Railway Undertaking shall without unreasonable delay do either or both of the following:

• (i) remove the apparatus and place it or other apparatus in substitution for it in such other position or location as may be agreed with the Railway Undertaking,

• (ii) take such further or other steps or make such further or other provision with the agreement of the Railway Undertaking as may secure the apparatus and the works of the Railway Undertaking and the proper functioning of each of them respectively from mutual interference or damage.

• (2)
• (a) Subject to subparagraph (b), the Railway Undertaking shall pay to the Undertaker an amount equal to the cost reasonably incurred by that Undertaker in the discharge of its obligations under paragraph (1).

• (b) Where an Undertaker, in the course of the discharge of its obligations under paragraph (1), provides, in substitution for existing apparatus, improved or superior apparatus whether because of its type, construction, design, layout placement or any other feature, the sum payable by the Railway Undertaking pursuant to subparagraph (a) shall nevertheless not exceed the cost that would have been reasonably incurred by the Undertaker if the substituted apparatus had not been such improved or superior apparatus.

• (3) An Undertaker for the discharge of its obligations under paragraph (1) may permit the Railway Undertaking to carry out or cause to be carried out such portion of those obligations as the Undertaker may agree in accordance with such conditions as may be agreed between the Railway Undertaking and the Undertaker, but an Undertaker shall not be obliged to enter into any such agreement.

Arbitration.

• (a) the Railway Undertaking and the other party shall use their best endeavours to resolve any such dispute on terms acceptable to both parties;

• (b) if, after such period as the Railway Undertaking or the other party considers reasonable, such dispute has not been resolved to the satisfaction of both parties the following provisions shall apply:

• (i) either party may, by 14 days notice in writing to the other party require the subject matter of the dispute to be submitted to a single arbitrator and shall, in such notice, nominate a person to arbitrate upon the subject matter of the dispute;

• (ii) the party receiving such notice may, within the said period of 14 days by a counter notice, either-

• (I) accept the arbitrator nominated by the party serving the original notice, or

• (II) nominate not less than 2 alternative persons to act as such arbitrator,

• (iii) if any one of the persons nominated by the parties is acceptable to both parties of the dispute then the subject matter of the arbitration shall be referred to such arbitrator as soon as may be after such arbitrator has indicated his or her willingness to act as arbitrator;

• (iv) if, after service of such notice and such counter-notice, the parties fail to agree upon an arbitrator or if the person agreed upon by the parties to be the arbitrator has failed to indicate, within 14 days of being so requested, his or her willingness to act then either party may apply to the Chairman for the time being of the Irish Branch of the Chartered Institute of Arbitrators for the appointment of an arbitrator;

• (v) where the arbitrator is so appointed by the Chairman of the Irish Branch of the Chartered Institute of Arbitrators, he or she shall notify the parties in writing of his or her appointment as soon as may be thereafter and shall conduct the arbitration in accordance with the rules of the Irish Branch of the Institute;

• (vi) the Arbitration Acts 1954 to 1998 shall apply to the arbitration and the decision of the arbitrator in relation to the dispute and all matters connected with it shall be binding on the parties to the arbitration.

SCHEDULE 1 Description of the Railway and Railway Works Authorised by this Order