Telecommunications Services (Ducting and Cables) Act 2018

1. Definitions

1. (1) In this Act—

“Department” means Department of Communications, Climate Action and Environment;

“deposited map” has the meaning given to it by section 8 ;

“ducting and cables” means any ducting and cables for the housing of any wires, cables (including fibre-optic cables), laser optical fibres, electronic data or impulse transmission communication or reception systems, all other conducting media or any other materials connected with or facilitating the performance by the Minister of any of his or her functions for telecommunications purposes and includes—

(a) part of any such ducting and cables, or

(b) any apparatus, equipment or other thing (or part thereof) which is ancillary to such ducting and cables or any of them whether moveable or permanent or which assists in the inspection, placement, maintenance, repair, replacement, rendering unusable or servicing of such ducting and cables or any of them,

and references to “ducting” and “cables” shall be construed accordingly;

“emergency” means any event or circumstance or combination of events or circumstances that is occurring, has occurred or may occur which adversely affects or may adversely affect the safety or operational integrity of the ducting and cables;

“GNI” means Gas Networks Ireland being a designated activity company (within the meaning of the Companies Act 2014) incorporated in the State (registered number 555744) and having its registered office at Gasworks Road, Cork;

“legal interest” has the meaning given to it by section 11(4) of the Land and Conveyancing Law Reform Act 2009;

“Mayo-Galway pipeline” means the transmission pipeline beginning at Bellanaboy Bridge Gas Terminal, County Mayo and terminating at Ballymoneen Above Ground Installation, County Galway;

“Minister” means the Minister for Communications, Climate Action and Environment;

“owner” means the owner of any estate, right or interest in or over land that consists of any part of the route;

“relevant deed” means any deed of easement in respect of land that consists of any part of the route and that relates to ducting and cables or to ducting and cables and the Mayo-Galway pipeline, as the case may be, made between an owner (or any of his or her predecessors in title) and GNI (or any of its predecessors in title) before the vesting day;

“route” means the continuous strip of land which is more particularly delineated on the deposited map and coloured red thereon;

“transmission pipeline” has the meaning given to it by section 2 of the Gas (Interim) (Regulation) Act 2002;

“vesting day” means the day appointed by order under section 3 (1) to be the vesting day.

2. Vesting of ownership of ducting and cables in Minister

2. All the right, title or interest of any person to or in the ducting and cables laid on, over or beneath the surface of land that consists of any part of the route shall, on the coming into operation of this section, stand vested in the Minister.

3. Vesting of certain legal interests in Minister

3. (1) The Minister may by order appoint a day (in this Act referred to as the “vesting day”) for the purposes of this section.

(2) Subject to subsection (4), on the vesting day the legal interests referred to in Schedule 1 that, immediately before the vesting day, were vested in GNI (or any of its predecessors in title) pursuant to the relevant deeds shall, subject to the obligations in Schedule 3, without any transfer, conveyance or assignment, stand vested in the Minister for the purposes of the performance by the Minister of any of his or her functions for telecommunications purposes.

(3) Save as provided for by subsection (2) and subject to subsection (4), on the vesting day the legal interests referred to in Schedule 2 shall, subject to the obligations in Schedule 3, without any transfer, conveyance or assignment, stand vested in the Minister for the purposes of the performance by the Minister of any of his or her functions for telecommunications purposes.

(4) Subsection (2) is without prejudice to any other legal interests vested in GNI (or any of its predecessors in title) pursuant to the relevant deeds before the vesting day and which are not vested in the Minister under subsection (2).

(5) Without prejudice to the operation of the relevant deeds before the vesting day, insofar as those deeds provide for certain covenants specified therein that are binding on GNI (or any of its predecessors in title), GNI, on and after the vesting day, shall not be bound by those covenants in so far as they relate to the legal interests vested in the Minister under subsection (2).

4. Compensation for diminution in value of land

4. (1) A person who was an owner immediately before the vesting day may apply to the Minister for compensation in respect of any diminution in the value of land consequent on the vesting in the Minister of any legal interest under section 3 and the owner shall, subject to the provisions of this section, be entitled to be paid such compensation together with interest by virtue of subsection (3).

(2) Subject to subsection (4), the amount of compensation payable under subsection (1) shall, having regard to the valuation applied by GNI (or any of its predecessors in title) for the purposes of the relevant deeds, be determined by reference to the difference between the antecedent and subsequent values of the land concerned consequent on the vesting in the Minister of any legal interest under section 3, where—

(a) the antecedent value of the land is the amount which the land if sold in the open market by a willing seller immediately before the vesting day might have been expected to realise, and

(b) the subsequent value of the land is the amount which the land if sold in the open market by a willing seller immediately after the vesting day might be expected to realise.

(3) (a) Subject to paragraph (b), where compensation is payable under subsection (1), there shall be paid interest on the amount of the compensation so payable at such rate as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine from time to time for the purpose of this section, from the vesting day until the payment of such compensation.

(b) There shall be no interest paid on compensation where—

(i) the Minister makes an unconditional offer in writing of any sum as compensation to the owner concerned,

(ii) such offer is not accepted by the owner to whom it is made, and

(iii) the sum awarded as compensation by the official arbitrator does not exceed the sum so offered.

(4) Any amounts paid to an owner (or to any of his or her predecessors in title) in consideration of the granting by the owner to GNI (or to any of its predecessors in title) of access to any part of the route, and of any ancillary rights relating thereto, in respect of ducting and cables, shall be taken into account in assessing any amount of compensation payable under subsection (1).

(5) (a) Subject to paragraph (b), a claim for compensation under subsection (1) shall be made not later than 3 years from the vesting day.

(b) The High Court may, where it considers that the interests of justice so require, extend the period within which a claim for compensation under subsection (1) may be brought upon application being made to it in that behalf.

(6) Subject to subsection (5), compensation under this section may be paid to the personal representatives of a person entitled to it.

(7) A claim for compensation under subsection (1) shall, in default of agreement, be determined by arbitration under and in accordance with the Acquisition of Land (Assessment of Compensation) Act 1919 and sections 69 to 83 of the Lands Clauses Consolidation Act 1845, in all respects as if the claim arose in relation to compulsory acquisition of land (but subject to the proviso that the arbitrator shall have jurisdiction to make a nil award) and for the purposes of those Acts the Minister shall be deemed to be the promoter of the undertaking.

(8) In this section “official arbitrator” means an official arbitrator under the Acquisition of Land (Assessment of Compensation) Act 1919.

5. Compensation for loss, etc., and regulations

5. (1) In this section “functions to which this section applies” means all or any of the functions conferred on the Minister by this Act.

(2) The Minister shall, in accordance with a scheme or schemes of compensation made for the purposes of this section—

(a) make good any loss or damage caused to an owner as a consequence of the performance by the Minister of the functions to which this section applies, or reimburse the owner the reasonable costs and expenses of such making good, and

(b) as appropriate, pay to an owner reasonable compensation for any loss, damage, disturbance or injury, caused to the owner as a consequence of the performance by the Minister of the functions to which this section applies, together with interest payable on the amount of such compensation at such rate as the Minister, with the consent of the Minister for Public Expenditure and Reform, may determine from time to time for the purposes of this section, from the date on which the claim is made to the date of payment thereof.

(3) The Minister shall, with the consent of the Minister for Public Expenditure and Reform, make a scheme or schemes of compensation providing for the payment of compensation referred to in subsection (2) including but not limited to provision for the following:

(a) the matters or classes of matters in respect of which the scheme shall apply;

(b) the form and manner in which a claim for compensation may be made;

(c) the provision by the claimant of evidence and other information in support of his or her claim and the verification of such evidence and information.

(4) The Minister may amend or revoke and replace by a subsequent scheme or schemes a scheme or schemes of compensation made under subsection (3).

(5) The Minister shall lay before each House of the Oireachtas a scheme of compensation made under subsection (3), including an amendment to a scheme made under subsection (4), as soon as practicable after it has been made.

(6) The Minister shall—

(a) publish on the Department’s website and in such other manner as the Minister considers appropriate, and

(b) make available on request copies of,

the scheme or schemes of compensation made under subsection (3) or any amendment to such a scheme or schemes of compensation made under subsection (4).

(7) (a) Any dispute or claim arising out of or in connection with a claim for compensation under this section shall be referred, by notice in writing from either party, to the decision of a single arbitrator as may be nominated by agreement between the parties to the arbitration, or failing such agreement, not later than 21 days after a notice in writing given by one of the parties to the arbitration, by the President for the time being of the Law Society of Ireland.

(b) Every reference to arbitration made pursuant to paragraph (a) shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act 2010.

(8) The provisions of the Arbitration Act 2010 applicable to arbitrations referred to in section 29 of that Act shall apply to an arbitration referred to in subsection (7).

(9) The Minister shall, for the purpose of the performance of the functions to which this section applies, make regulations providing for all or any of the following:

(a) other than in the case of emergency, the period of notice to be given to the owner concerned before entering on land;

(b) the form and manner in which notice shall be given under paragraph (a) ;

(c) the information to be included in a notice under paragraph (a), including, but not limited to—

(i) entry points,

(ii) the programme of work,

(iii) the date of commencement of work,

(iv) the supervision of work,

(v) the contact details of the person to whom queries regarding work may be addressed,

(vi) the preparation of a written record of the condition of the land concerned to be agreed with the owner concerned before the commencement of work,

(vii) reinstatement of land to a condition equivalent to that existing before the commencement of work,

(viii) completion of work,

(ix) the precautions to be taken, after consultation with the owner concerned, to prevent livestock straying, and

(x) any other matter which may restrict or otherwise affect the owner’s use or enjoyment of the land concerned;

(d) other than in the case of emergency, consultation with the owner concerned before giving notice under paragraph (a), and the form and manner of such consultation;

(e) the reasonable steps to be taken to—

(i) minimise any restrictions on use or enjoyment of land as a consequence of the performance of the functions to which this section applies,

(ii) minimise any damage to land, and

(iii) make good within a reasonable time any loss or damage caused to land as a consequence of the performance of the functions to which this section applies or reimburse the owner the reasonable costs and expenses of such making good;

(f) such other matters relating to the performance of the functions to which this section applies as the Minister considers appropriate.

(10) Regulations under this section shall—

(a) apply to such class or classes of persons, work or cases as may be specified in the regulations, and

(b) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

6. Performance of functions

6. The functions conferred on the Minister by this Act may be performed by such of his or her servants, officers, agents, contractors or licensees and all other persons as may be appointed or authorised by the Minister to act in that behalf.

7. Application of section 72 of Registration of Title Act 1964

7. Section 72 of the Registration of Title Act 1964 shall apply to the legal interests vested in the Minister under section 3 in the same manner and to the like extent as the said section 72 applies to any other burden which affects registered land without registration.

8. Deposited map

8. (1) The Minister shall deposit in the offices of the Department a map (in this Act referred to as the “deposited map”) bearing thereon the words “Deposited under section 8 of the Telecommunications Services (Ducting and Cables) Act 2018 ” and showing the route.

(2) The deposited map shall be retained in the Department.

(3) The Minister shall make the deposited map available for inspection, free of charge, by any person at all reasonable times at the offices of the Department.

(4) A copy of the deposited map or any particular part of it shall be given to a person who requests it on payment of a fee which shall not exceed the reasonable cost of copying the map or part of it.

(5) (a) Prima facie evidence of the deposited map or any specified part of it may be given in any court or any legal proceedings by the production of a copy of it purporting to be certified to be a copy by an officer of the Minister, authorised by the Minister, in that behalf.

(b) It shall not be necessary to prove the signature of the officer referred to in paragraph (a) or that he or she was in fact such officer or was so authorised for the purposes of this subsection.

9. Notice of vesting day

9. (1) The Minister shall, not later than 28 days before the vesting day—

(a) publish once each week in 2 successive weeks in Iris Oifigiúil and in at least one local newspaper and in a national daily newspaper, published in the State and circulating in the area in which any part of the route is located or, if there is no local newspaper circulating in the area concerned, in at least 2 such national daily newspapers,

(b) subject to subsection (3), give to every person appearing to the Minister, following reasonable enquiry, to be an owner, by prepaid registered letter to the address at which the owner carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address, and

(c) publish on the website of the Department,

a notice stating the information specified in subsection (2).

(2) The notice under subsection (1) shall state—

(a) the vesting day,

(b) that certain legal interests shall vest in the Minister under this Act for the purpose of the performance by the Minister of his or her functions for telecommunications purposes,

(c) that the deposited map is available for inspection as provided for by section 8, and

(d) that any owner claiming compensation under section 4 shall submit his or her claim to the Minister at an address specified in the notice within the period specified in that section.

(3) Where, upon making reasonable enquiries, the name and address of an owner required to be given notice under paragraph (b) of subsection (1) cannot be ascertained, the notice published under paragraph (a) of that subsection shall be deemed to be notice for the purposes of the said paragraph (b).

10. Giving of notices

10. (1) Subject to subsections (2) and (3) and section 9(1) (b), a notice that is required to be given to a person under this Act shall be in writing and addressed to the person concerned by name, and may be so given to the person in one or more than one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and the notice relates to land, by delivering it to a person over the age of 16 years resident or employed at the lands, or by affixing it in a conspicuous position at or near the lands;

(e) by electronic means, in a case in which the person has given notice in writing to the person giving the notice concerned of his or her consent to the notice (or notices of a class to which the notice belongs) being given to him or her in that manner.