The purpose of this Bill is to confer on sanitary authorities the right to take the water they require for the purpose of supplying their district with water. The powers conferred by this Bill are alternative to and not in substitution for the powers conferred by the Public Health Acts. Under their existing powers, sanitary authorities may purchase either within or without their district any lands covered with water, or any water or right to take or convey water. But it is also provided in Section 286 of the Public Health (Ireland) Act, 1878, that nothing in that Act shall be construed to authorise any sanitary authority to affect injuriously any river or stream or the feeders thereof, or the supply, quality or fall of water without the consent of riparian owners. Thus the right of a riparian owner to the natural flow of water, free from the interference of man other than the acts of other riparians exercising their own rights over the water, remains, and it is settled law that a riparian owner is entitled to resist an encroachment on the channel of his running stream without proving either actual or probable damage.
If the taking of water by a sanitary authority causes damage, compensation must be paid. At the same time, when a sanitary authority has completed a water supply scheme, it must be secure in its right to take the water required. Where the supply is obtained from flowing water, a sanitary authority could only be completely protected against injunction by obtaining the consent or acquiring the rights of every riparian owner throughout the entire course of the stream from the intake to the sea, irrespective of damage. That would be a complicated proceeding in many cases. The alternative in the Bill is simpler.
The Bill defines the expression "damage" as the reduction caused by taking a supply of water in the value of any estate, interest or right in or in respect of land, or the damage caused to any trade, business or profession by the taking of a supply of water. Whenever a sanitary authority desire to exercise their powers under this Bill to take a supply of water, they must make a proposal. In that proposal they must state the sources of water, that is to say, the lake, river, stream, well or spring from which, and the place at which they propose to take their supply. They must also state whether they propose to take all or only part of the water and, if only a part, the maximum rate. They must also state the minimum summer level or flow of the water, and give particulars of any embankment, or dredging, deepening or other similar works which would affect the source of supply.
The rate at which water will be taken may not be the same at all periods of the year. Where the summer flow is very restricted, it would be necessary to store water in a reservoir and no water may be taken at all. Different rates may be stated for different parts of the year, but the maximum quantity to be taken during a continuous period not exceeding one year must be stated.
The particulars thus to be included in the statement of the proposal will enable a riparian owner to estimate the effect of taking water under the scheme.
Having so made a proposal the sanitary authority must then take all reasonable steps to ascertain the persons to whom damage may be caused, enter their names in a book of reference, and give to every such person notice of the proposal. The notice will contain a statement of the proposal, and will inform the person concerned that he may object to the proposal. Public notice of the proposal will also be given in the Press stating that any person aggrieved by the proposal may object; and the proposal and the book of reference will be deposited for inspection. A period of not less than one month is allowed for objections. A proposal will be deemed to be an agreed proposal unless an objection is duly made to it and is not withdrawn.
If an objection is duly made, the sanitary authority may apply to the Minister for Local Government and Public Health for a provisional order declaring that the proposal may come into force, and on such application the Minister may make a provisional order in accordance with the application, or he may alter the proposal by inserting conditions as regards the taking of water, or the ancillary work, or reduce the maximum rate, or he may refuse the application. The existing provisions of the Public Health Acts with regard to provisional orders and local inquiries will apply.
If a provisional order is made, a person who duly objected to the proposal may present a petition to the Circuit Court praying that the provisional order shall not become law without further inquiry and the court may confirm the order with or without amendment, or may disallow the order. Where a petition is not presented the Minister may confirm the order without further inquiry. A petition must be presented within five weeks.
It will be observed that the effect of an agreed proposal or the confirmation of a provisional order is not to bring the proposal into force nor to authorise the sanitary authority to take water in accordance with the proposal. The local authority, by virtue of an agreed proposal or a provisional order duly confirmed, can declare that the proposal will come into force on a stated day.
This interval is provided so that the sanitary authority can carry out the constructional work involved in the scheme in the knowledge that no question as to water rights can arise. When the constructional work is complete they will give further notice that the scheme will come into force, not earlier than one week after the date of the notice and that persons, whose names are not included in the book of reference who claim that damage has been or will be caused may claim compensation within two years. Notice of the coming into force of the scheme will be given to persons whose names are in the book of reference, and they will have one year within which to claim compensation.
Any question of compensation for damage which cannot be settled by agreement may be settled by arbitration in accordance with the Acquisition of Land (Assessment of Compensation) Act, 1919, and the Acquisition of Land (Reference Committee) Act, 1925. These Acts constitute a reference Committee consisting of the Chief Justice, the President of the High Court and the Chairman of the Surveyors' Institution (Irish Branch). That committee appoints qualified persons to form a panel of arbitrators, and from that panel an arbitrator is selected in accordance with the rules of the reference committee. The decision of the arbitrator upon any question of fact is final and binding on the parties, but on a point of law a case may be stated for the opinion of the High Court. This code for arbitration is also applied to compensation under the Regional and Town Planning Act, 1934, the Public Assistance Act, 1939, and the Unemployment (Relief Works) Act, 1940. Interest at 4 per cent. will be payable on the compensation awarded as from the date on which the taking of a supply begins, unless an offer of compensation, equal to or greater than the amount awarded by the arbitrator, had been made by the sanitary authority and not accepted.
This summarises the provisions of the Bill with regard to taking water. Other provisions of the Bill to which attention might be drawn are contained in Sections 17, 19 and 20. As a preliminary to making a proposal, a sanitary authority must ascertain whether an adequate supply of water is available, and having carried out a scheme they must maintain the works. To enable them to do so, Section 17 authorises them to enter on land, for that purpose between the hours of 9 a.m. and 6 p.m. If urgent repairs are required to be carried out in order to prevent loss of water or serious injury to persons or property, they may enter at any time.
Section 19 affords to sanitary authorities a measure of protection against injunction with respect to existing schemes. As I explained earlier, it would be difficult for a sanitary authority in every case to acquire all the rights and obtain all the consents that would be necessary in order to be fully protected against all possible actions by riparian owners to restrain them from taking water. If any damage has been done, the person concerned can claim damages, but he cannot stop the sanitary authority from continuing to supply their district.
Provision with respect to navigation authorities is made in Section 20. Navigation rights have been conferred by statute, and those rights are preserved in this Bill so that a sanitary authority cannot exercise the powers under the Bill so as to make navigation impossible or unduly difficult. If a question arises between a sanitary authority and a navigation authority as to the effect of a proposal, Section 20 directs the navigation authority to state their reasons why they think the proposal will affect navigation. The sanitary authority must consider the objection and negotiate with the navigation authority for the withdrawal of the interference notice. In these conditions it is reasonable to expect that differences can be adjusted without reference to the courts.