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Compensation on abolition of licence.
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42.—(1) Whenever an abolition order is made compensation shall be paid in accordance with the provisions of this Part of this Act in respect of the abolition of the licence to which the order relates.
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(2) On the date appointed for that purpose in the abolition order or on the first opportunity thereafter, but not in any case later than the 30th day of April next after the date of the abolition order, the compensation authority shall by order (in this Part of this Act called a compensation order) fix the amount of the compensation payable under this section in consequence of such abolition order and at the sitting for fixing such amount the following parties and no other party may be heard and adduce evidence, that is to say:—
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(a) any person claiming to be entitled to receive the compensation or portion thereof, and
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(b) any holder of a licence in respect of premises in the licensing area, and
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(c) the Attorney-General of Saorstát Eireann.
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(3) The compensation payable under this section shall be—
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(a) the loss of value, ascertained as hereinafter mentioned, in respect of the occupation interest by reason of the abolition of the licence, together with
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(b) if in the opinion of the compensation authority there has been a loss of value in respect of the interest of the immediate lessor by reason of the abolition of the licence, such loss of value ascertained as hereinafter mentioned, together with
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(c) in any case such additional sum as the compensation authority shall consider reasonable in view of the fact that the parties receiving the compensation have to bear their own costs of all proceedings in relation to the compensation and, in the case of the holder of the licence, of the reference order and the abolition order.
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(4) For the purpose of the foregoing sub-section the loss of value shall be the difference between the following values, that is to say:—
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(a) the value in the opinion of the compensation authority after consultation with the assessor, of the occupation interest or of the interest of the immediate lessor (as the case may be) in the open market on the day before the date of the reference order if sold, in the case of the occupation interest, with the licence attached thereto and all trade fixtures in the licensed premises on the said day and with clear possession to the purchaser, or, in the case of the interest of the immediate lessor, on the basis that the licence is subsisting and with the benefit of the rights (if any) of the immediate lessor in respect of the licence, and
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(b) the value in the opinion of the compensation authority after consultation with the assessor, of the said interest in the open market on the said day if sold, in the case of the occupation interest, without the said licence and without the said fixtures but with clear possession to the purchaser, or, in the case of the interest of the immediate lessor, on the basis that the licence is not subsisting.
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(5) When fixing the amount of the compensation the compensation authority shall also by the same order determine whether any and, if any, how much of the compensation is payable in respect of the interest of the immediate lessor.
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(6) If the compensation authority determines that any part of the compensation is payable in respect of the interest of the immediate lessor, the residue of the compensation shall be deemed to be payable in respect of the occupation interest, and, if the compensation authority determines that no part of the compensation is payable in respect of the interest of the immediate lessor, the whole of the compensation shall be deemed to be payable in respect of the occupation interest.
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(7) Sub-sections (3), (4), (5), and (6) of this section shall not apply where the occupation interest is subject to a covenant, agreement, or condition that the owner thereof shall sell only intoxicating liquor purchased from or through the immediate lessor (whether such covenant, agreement, or condition extends to all intoxicating liquors or only to one or more particular class or classes of intoxicating liquor), and in lieu of the said sub-sections the following provisions shall apply, that is to say:—
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(a) the compensation payable under this section shall be the loss of value, ascertained as hereinafter mentioned, in respect of the interest of the immediate lessor by reason of the abolition of the licence, together with such additional sum as the compensation authority shall consider reasonable in view of the fact that the parties receiving the compensation (including the holder of the licence) have to bear their own costs of all proceedings in relation to the compensation and, in the case of the holder of the licence, of the reference order and the abolition order;
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(b) the said loss of value shall be the difference between the following values, that is to say:—
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(i) the value in the opinion of the compensation authority, after consultation with the assessor, of the interest of the immediate lessor in the open market on the day before the date of the reference order if sold with all trade fixtures belonging to the immediate lessor and in the licensed premises on the said day and on the basis that the occupation interest had been determined, and that the licence was attached to the interest of the immediate lessor, and that clear possession of the licensed premises would be given to the purchaser, and
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(ii) the value in the opinion of the compensation authority, after consultation with the assessor, of the interest of the immediate lessor in the open market on the day before the date of the reference order if sold without the said fixtures and on the basis that the occupation interest had been determined, that no licence was attached to the licensed premises, and that clear possession would be given to the purchaser;
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(c) when fixing the amount of the compensation the compensation authority shall also by the same order determine how much of the compensation is to be paid in respect of the occupation interest and in making such determination shall have regard to the nature of the occupation interest, the conduct of the owner thereof, the length of time during which he and his predecessors had been owners of the said interest, and the circumstances in which he acquired the said interest and shall also have regard to the fact that the owner of the occupation interest has to bear his own costs of the reference order, the abolition order, and the proceedings in relation to the compensation;
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(d) every covenant, condition, and agreement (whenever made) whereby the owner of the occupation interest would be bound to pay to or hold in trust for the immediate lessor the portion or any part of the portion of the compensation determined to be payable in respect of the occupation interest shall be void and of no effect; and
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(e) so much of the compensation as is not determined by the compensation authority to be payable in respect of the occupation interest shall be deemed to be payable in respect of the interest of the immediate lessor.
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(8) Whenever a compensation order is made, the registrar to the compensation authority by whom such order was made shall forthwith transmit to the treasurer a copy of such order.
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(9) In this section and in the next following section—
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the expression “the licensed premises” means the premises to which the licence extends together with such other premises (if any) as were on the day before the date of the reference order usually occupied with the first-mentioned premises and without which such first-mentioned premises could not conveniently and would not reasonably be offered for sale,
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the expression “the occupation interest” means the least or lowest estate or tenancy subsisting in the licensed premises on the day before the date of the reference order, and
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the expression “the interest of the immediate lessor” means the estate or tenancy in the licensed premises which was subsisting on the day before the date of the reference order and was on that day next greater than or superior to the occupation interest.
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