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Fish passes in dams and repair of dams.
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30.—(1) Whenever the Minister is satisfied that any dam, constructed or placed (whether before or after the passing of this Act) in or across any river frequented by salmon is so constructed or maintained as not to permit and allow of, in one or more parts thereof, the free run or migration of salmon, trout, and other fish at all periods of the year, the Minister may cause to be served on the occupier of such dam, a notice requiring such occupier to execute within the time (not being less than one month from the service of such notice) specified in such notice such repairs (including alterations or additions) to such dam as shall appear to the Minister to be necessary or desirable for the purpose of affording a free and uninterrupted passage to the fish frequenting such river.
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(2) Where a notice has been served under sub-section (1) of this section on the occupier of a dam used in connection with a mill or factory and such occupier, within one month after such service, represents in writing to the Minister that compliance with such notice would adversely affect the operation of such mill or factory, the Minister shall cause a fit and proper person to enquire into and report to him upon such representation, and upon the making of the report the following provisions shall apply, that is to say:—
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(a) if the report discloses that the execution of the repairs specified in such notice would involve a reduction of more than five per cent. in the working horse power which was available to such mill or factory up to the date of the service of such notice (as measured when the level of the water at such dam is at the average level of the crest of such dam), the Minister shall withdraw such notice and inform such occupier accordingly;
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(b) if the report discloses that the execution of the said repairs would not involve such a reduction, the following provisions shall have effect, that is to say:—
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(i) the Minister shall serve a copy of such report on such occupier,
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(ii) such occupier may, within fourteen days after the service of such copy, send to the Minister a statement in writing objecting to the report and specifying the grounds of his objection,
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(iii) if an objection is so sent to the Minister, then—
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(I) the Minister shall refer the matter to the President of the Institute of Civil Engineers in Ireland or some person appointed by the said President who may, after investigating the matter, either, as he thinks fit, agree or disagree with the report,
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(II) if the person investigating the matter disagrees with the report, the Minister shall withdraw such notice,
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(III) there shall be paid to the person investigating the matter such fee as the Minister, with the consent of the Minister for Finance, may fix, and there shall, in case such person agrees with the report, be paid to the Minister by such occupier a sum equal to the said fee and such sum shall be recoverable by the Minister as a simple contract debt in a court of competent jurisdiction, and when so paid to, or recovered by, the Minister shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.
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(3) Whenever the Minister is satisfied that any dam constructed or placed (whether before or after the passing of this Act) in any river is so constructed or is so maintained that water which would otherwise be available for the free passage and migration of fish over or past such dam leaks or escapes through or past such dam (otherwise than by being used for the purpose for which it is sustained by such dam) and is thereby not available for such free passage and migration, the Minister may cause to be served on the occupier of such dam a notice requiring such occupier to execute within the time (not being less than one month from the service of such notice) specified in such notice such repairs (including renewals and reconstruction) to such dam as shall appear to the Minister to be requisite and shall be specified in such notice.
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(4) Where a notice has been served under either sub-section (1) or sub-section (3) of this section on the occupier of a dam, and such occupier has not complied with the requirements of such notice, the following provisions shall have effect, that is to say:—
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(a) such occupier shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not less than fifty pounds or more than one hundred pounds,
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(b) the Minister may (whether proceedings have or have not been taken against such occupier under paragraph (a) of this sub-section), by himself, his officers or any other person enter on such dam and any land adjoining such dam and execute on such dam the repairs specified in such notice.
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(5) Where the Minister executes under this section any repairs to a dam he shall be entitled to recover as a simple contract debt in any court of competent jurisdiction from the occupier of such dam the expenses incurred by the Minister in the execution of such repairs.
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(6) Whenever the Minister is entitled under this section to recover any expenses, a certificate sealed with the official seal of the Minister and certifying the amount of such expenses shall be prima facie evidence of the amount of such expenses.
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(7) The Minister shall not be liable for any consequential damages to any property or person arising out of the execution by him of any repairs to a dam under this section.
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(8) Whenever the Minister is entitled under this section to serve a notice requiring repairs to a dam to be executed, the Minister may, before serving such notice, cause such dam to be inspected and examined, and any officer of the Minister or any other person appointed by the Minister to make such inspection and examination shall be entitled to enter for that purpose at all reasonable times on such dam and any land adjoining thereto.
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(9) The powers conferred on the Minister by this section shall be in addition to and not in substitution for the powers of the Minister under section 63 of the Fisheries (Ireland) Act, 1842.
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(10) An offence under this section may be prosecuted by the Minister.
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(11) In this and the next following section the word “dam” means any dam, weir, sluice, wall, embankment or other artificial work constructed or placed in or connected with any river for or in connection with the sustaining of water for navigation, irrigation, water supply, water power or any other purpose whatsoever.
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