The Fisheries (Amendment) (Northern Ireland) Order 1991

Construction of fish passes N.I.

13.—(1) In section 54 of the principal Act, in subsection (2), after paragraph (a) there shall be inserted the following paragraphs—

“(aa) the dam is repaired after the date of the coming into operation of Article 13 of the Fisheries (Amendment) (Northern Ireland) Order 1991 in such a way as to change the nature of any surface of the dam or the structure of the crest of the dam, or

(ab) the mill to which the dam belongs is, after that date, brought back into use or its use is changed, or the purpose for which the water retained by the dam is used is changed after that date, or” .

(2) After subsection (2) of that section there shall be inserted the following subsection—

“(2A) Where the Department refuses to grant an exemption for the purposes of subsection (2)—

(a) the Department shall give to the applicant for such exemption a written notification of the reasons for its refusal, and

(b) the applicant may, within 28 days from the day on which such notification is given, appeal to the Appeals Commission.” .

(3) In subsection (5) of that section the words from “and may recover” onwards shall be omitted.

(4) After subsection (5) of that section there shall be inserted the following subsections—

“(5A) Article 55 of the Roads (Northern Ireland) Order 1980 (power to enter land) shall apply in relation to subsection (5) subject to the following modifications—

(a) for the purposes set out in sub-paragraphs (a) to (e) of paragraph (1) of that Article there shall be substituted a reference to the purpose of constructing a fish pass under subsection (5);

(b) any reference to the Department shall be construed as a reference to the Department within the meaning of this Act; and

(c) paragraph (7) shall be omitted.

(5B) Where—

(a) in the exercise of the powers conferred under subsection (5) or (5A), any damage is caused to land or chattels, any person interested in the land or chattels may recover compensation in respect of the damage from the Department; or

(b) in consequence of the exercise of any such powers, any person is disturbed in his enjoyment of land or chattels, he may recover compensation in respect of that disturbance from the Department.

(5C) Subject to subsection (5D), the Department may recover from the person liable under subsection (4)—

(a) any expenses reasonably incurred by the Department in respect of works executed under that subsection; and

(b) any amount awarded against, or reasonably paid by, the Department as compensation under subsection (5B).

(5D) The Department may not recover under paragraph (b) of subsection (5C) any amount (or any part of any amount) awarded or paid in respect of a breach of any duty of care on the part of the Department.

(5E) Any question—

(a) as to whether a person is entitled to recover compensation from the Department under subsection (5B), and as to the amount of such compensation; and

(b) as to whether the Department is entitled to recover any amount (or any part of any amount) under subsection (5C),

shall be heard and determined by the Lands Tribunal.” .