Pier and Harbour Provisional Order Confirmation Bill, 1941. - Water Supplies Bill, 1941—Second Stage. – Seanad Éireann (3rd Seanad) – Wednesday, 10 Dec 1941

Pier and Harbour Provisional Order Confirmation Bill, 1941. - Water Supplies Bill, 1941—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Parliamentary Secretary to the Minister for Local Government and Public Health (Dr. Ward)

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.

Mr. Baxter

I take it that the House agrees, generally, with the terms of this Bill which, I presume, has been rendered necessary by the experience of the Ministry. With regard to the principle of the Bill, there is no question, but there are one or two points on the sections—they are not fundamental points—to which I should like to make reference. Under Section 15 (2) (b) the Parliamentary Secretary is taking power in regard to compensation. It seems to me that there is something contradictory there. We find the name of a person entered on the prescribed list—by, I presume, the engineer originally engaged on the scheme—as one liable to suffer damage. When we come on to this sub-section, we find that the inclusion of the name of an applicant in the relevant book of reference shall not preclude the sanitary authority from contending that compensation is not, in the circumstances, payable at all. That is an important point. If, in the first instance, the sanitary authority, in the person of an engineer, after taking all reasonable steps, enters an individual's name on the list as one to whom damage may be caused, nothing will get it out of that man's head that damage has been caused. Notwithstanding that, the sanitary authority may come on and argue that the first view was not correct. That seems to be a contradictory line on which to proceed. Perhaps I am not quite clear about it. If so, I should like to be enlightened. From the point of view of the riparian owner, it would be better not to enter the owner's name on the list, in the first instance, unless there is conviction that damage will be done.

Under the same section, the arbitrator determines that compensation is payable and also that it may be paid at different times. If compensation is to be payable over a period of years, where will the owner find himself if he wants to dispose of his holding? That is a consideration which would enter into the mind of any owner. If damage has been done and compensation is payable, it ought to be paid to the owner during whose tenure the damage has been done. Under Section 16, it is being laid down by law that, from the time compensation is determined until it is paid, interest will be paid at the rate of 4 per cent. I think it is unwise to put that in an Act of the Oireachtas. It is not in conformity with the current viewpoint regarding rates of interest. The Government itself is not paying as high as 4 per cent., and it is a thing which we ought not to encourage. I question the wisdom of inserting that in a statute. The obligation will, apparently, remain to pay that rate of interest ad infinitum.

The Parliamentary Secretary pointed out that under Section 17 it will not be permissible to go on to a farm between 6 p.m. and 9 a.m. the following day. I fail to understand why you put that limitation on your activities. If it is essential to take water from any place along a particular route or road, and you decide to do it, I do not understand why you should say that you will not be at liberty to continue between 6 p.m. and 9 a.m. The farmer does not stop work at 6 p.m. on a summer day. That should not be inserted in an Act. Regulations could be made under which the contractors in charge would be bound not to do certain things for certain reasons, but these limitations should not be put in an Act.

With regard to the general question of providing water supplies, it is a very commendable work. So far as it has been carried out, we must all approve of it. It is essential to civilised life. While a great deal has been done in my own county, I think there is room for complaint. There is a town in the county near the constituency of the Parliamentary Secretary where the residents have been endeavouring for a considerable time to get the board of health to do for them what they have been doing for the residents of other towns. I refer to the town of Kingscourt. So far, they have not succeeded. They have appealed recently to the Ministry, and the last I heard, at the board of health, was a complaint that the fault was with the Minister that this town had not been able to get the facilities accorded to a number of other towns. I should like the Parliamentary Secretary to look into that matter, because, when amenities like these are being provided for towns, they should be distributed in a reasonably equitable manner. Whether it is a question of prejudice, or whether there are difficulties which have not been revealed, these people have been denied facilities accorded to people elsewhere. Perhaps the Parliamentary Secretary would now, or on the Committee Stage, give me some information on the matter.

There is another matter on which I should like to get enlightenment. Whatever policy may have been pursued in other counties, in my county all the new water supply schemes which have been carried through or are in progress are being paid for by the ratepayers of the county generally. That was not an unwise decision. It was a rather sensible thing to do, because if it had been decided that only those who would benefit would pay, or that only these and the people in the immediate vicinity, who get no benefit, would be obliged to share the burden, it would have been quite impossible to have gone on with a number of the schemes. While farming ratepayers bear their share of the cost of providing water supplies for the residents of small towns, when a group of farmers themselves decide that they want similar accommodation, they have, according to my information, to pay for the installation of a pump or other equipment. That is after paying for the facilities for the townsmen. That ought to be looked into immediately. In my opinion it is not an equitable arrangement.

If the law is such that it permits the sanitary authority, the board of health or the county council to supply water to a number of small towns all over the county, and to spread the burden of the repayment of the capital cost involved over all the ratepayers, there seems no justification for the system which ordains that if a number of rural ratepayers want such amenities as these, they must pay for them themselves, and the burden will not be equally distributed all over the ratepayers. Water, as we know, is essential to life, but is especially essential to life on the land. Anybody who has had to go through some of the trials we have experienced for the last few years to provide water for stock will appreciate the terrible waste of time that has been caused by scarcity of water which could be supplied through effort and organisation in our rural districts. I think we should not only aim at providing water for the small towns, but that we should provide similar facilities for people in rural districts. If the law is that rural ratepayers have to bear their share of the cost where the people in the towns receive benefits, whereas on the other hand when they want any of these facilities themselves they have to bear the whole burden of the cost, I think it is a matter that should be reconsidered. That is a point on which I should like some elucidation from the Parliamentary Secretary. Generally, I think there is not much to quarrel with in the principle of the Bill.

Mr. Goulding

No Bill whatever dealing with any matter of public interest could possibly cover all the cases that might arise. I have one peculiar case in mind. A certain town has a water supply that does not cost the people of the town anything. A benevolent person in the neighbourhood who operated a scheme for his own purposes found there was sufficient water to supply the people of the town also. Except during a very dry summer, this supply is ample, but occasionally when very dry weather comes along there are complaints from people residing in portions of the town that happen to be on a somewhat higher level than the rest of it that the water supply is not sufficient. The local public health authorities have been considering this matter, but the difficulty is that the really available sources of supply have been tapped by the private individual to whom I have referred. If the local authority move now to provide an alternative water supply it can only be taken, I think, from the particular neighbourhood where the existing water supply has its source. A difficulty will then arise. If the local authority endeavours to tap the source of the existing private supply, it will deprive this individual of water entirely, and while the waterworks are in course of preparation, probably may cause his supply to cease altogether.

As I said a moment ago, it is impossible to cover all these cases in any Bill, but in this particular case if the private individual in question were to decide that he needed all the water for his own use, and if he were to say to the people of the town: "Well I am sorry, but I can no longer supply you with the water you have been using," the people of the town would find themselves in a very awkward position. On the other hand, if the board of health decide to have an alternative water supply provided, it would entail an enormous expense on the district. The present water supply costs nothing, except to maintain the pipe system through the town, and the people would seriously object to an alternative supply being provided that would entail a water rate in future. The people living on the lower levels are satisfied because they say they have enough water, and they are in the majority. The people living on the higher levels, however, say: "It is all very well for you, but we have no water during certain seasons, and we want an alternative supply." These people are calling on the local sanitary authority to give them a supply. What I want to get at is: Can the sanitary authority approach this individual who has been supplying water to the people, and say: "You are not giving us enough water for this town; therefore, we intend to provide an alternative supply from this source?" This person may then say: "Very well, I shall cut it off and you can supply your own water." Can he do that? Has he power absolutely to cut off the present supply pending the provision of a supply by the sanitary authority, or, on the other hand, can the local sanitary authority compel this person to maintain the supply?

In such cases as these, the people would much prefer if some arrangement could be made by which the existing supply would be maintained in some way and supplemented, because they fear that if an alternative supply has to be provided, it will be a very expensive scheme, and will entail very very heavy costs on the people of the district. This is a rather peculiar case. Probably there is not another like it all over the country, but it presents a problem to the people of this particular district, and I should like to hear the Minister's views on it.

Mr. Hawkins

I am obliged to travel over some of the ground already covered by Senator Baxter. In Section 16 it is provided that where a sanitary authority makes an offer of any amount as compensation to any person under the Bill, and the amount which the arbitrator determines to be payable as such compensation does not exceed the amount so offered, no interest shall be payable on compensation in respect of any period after the date of the offer. To my mind that is not just, because if a person is offered compensation for damage done to his property in the provision of a water supply, such person naturally feels that the amount of compensation is not sufficient. If the matter then goes to arbitration, and the arbitrator is of opinion that the amount offered by the local authority is sufficient, the fact that he knows that such a person will not receive interest on the money will probably influence him to make some little increase on the offer in order to ensure that the applicant will receive interest on the outstanding amount. I think it an injustice that no interest should be payable in that case and that is one clause that I feel should be eliminated from the Bill.

As regards the hours of entering on land, in Section 17, it is provided that any officer or agent of a sanitary authority who is duly authorised may enter on any land at all reasonable times to ascertain whether an adequate supply of water can conveniently be taken from a particular source or to repair or maintain any pipes, etc. Sub-section (3) states that, save for the purpose of carrying out urgent repairs, no person shall enter on any land between the hour of 6 p.m. and the hour of 9 a.m. on the following day. I am rather puzzled to know how that would affect a county like County Galway. Let us assume that the county engineer has to enter on certain lands for the purpose of taking certain levels or carrying out any of the works mentioned in the section. He may have to travel to some remote district in Connemara and may not be able to complete all his work on the day he arrives. If this sub-section is carried, it may well mean that he will have to leave these lands at 6 p.m. and come back again the next day, or perhaps a month later, to carry out the small amount of work which remained to be done at 6 p.m. on the first day—if it is accepted that they are not to enter on the lands for the carrying on of general works, but only for the taking of levels. I think that the officer of a local authority should be entitled to enter the lands at all reasonable times. Section 19 of the Bill says: "Where a sanitary authority is, immediately before the passing of this Act, taking water from a source of water... no court shall grant or issue any injunction or order... to restrain the sanitary authority from continuing to take water from such source of water at the place, by the method or in the quantity at, by, and in which they are so taking water immediately before the passing of this Act". Would that mean that although the sanitary authority was taking water from a particular source, we will say by the method of a two-inch pipe-line, and the engineer recommended them to increase to a three-inch pipe-line, that that could not be done? That, of course, would not be altogether by the same method. It would be more or less a technical point, as the quantity of water taken off could be greater in that case. My point is, could not the court grant an injunction against the local authority carrying out such alteration or changing such methods or quantities? There is another point. We will deal with Section 22. It says: "Any expenses incurred by a sanitary authority under this Act for the purpose of increasing, extending or providing a supply of water under the Public Health Acts, shall be raised and defrayed as part of the expenses incurred by such sanitary authority." In Galway, particularly in the urban areas, I know many cases where residents more or less in suburban areas made application to have water extended to their streets and the local authority levied a charge and demanded that such persons should pay a contribution of from £5 to £10 before water would be conveyed to their places. To my mind, it is not fair. Many of these people are large ratepayers. As a matter of fact I think Senator Baxter mentioned unfair charges where ratepayers were ready to contribute a share to set up and maintain their water supply. It is not fair to ask such people, when extending a water supply, to make a contribution of from £5 to £10. I think it is unjustifiable. Will local authorities in future have power to levy such expenses, seeing that the section says that any expenses shall be raised and defrayed as part of the expenses incurred by the sanitary authority under the Acts?

The McGillycuddy of the Reeks

I am not sure whether it is relevant to the Bill, but most of these water supplies are initiated in order to provide water for small towns. On the way from the source of supply to the towns there are very often a considerable number of villages not far from the pipe-line. Does the Minister intend, when proposals are made, that persons who would have reasonable access to the pipe-line should have a chance of having the water brought to their houses as well as to the local towns? I raised a similar question, possibly the Parliamentary Secretary will remember, in the case of the Fire Engines Bill. Large numbers of people have no chance of getting fire assistance but they are paying the fire rate. In the same way I feel it is the absolute minimum possible to put a pump on the side of the road near say, 20 houses, and I should like to have it made clear whether this Bill will give a chance of making provision to have that type of farmer who is outside the town but reasonably near the pipe-line supplied.

Mr. Foran

Is there any provision in the Bill to ensure against the pollution of these sources of supply once they are taken over, or would it be possible to insert an amendment in the Bill to ensure against that? I do not know what is the position as a whole, but I happen to be a member of a public board catering for a large institution in the County of Dublin, and after going to enormous trouble to get a water supply we found pollution occurring every day along its course. I think that this is very important. I do not know what the general experience is, but these cases occur and I wish to know if some steps could be taken to ensure against that kind of thing.

Mrs. Concannon

The point raised by Senator Foran is of very great interest in Galway, and I am very glad that Senator Foran raised it. It would be well for the Minister to look into it, and if possible to amend the Bill, providing that public authorities will take such steps as will ensure that a water supply would not be a danger to public health. I was interested in what Senator Baxter said about the supply of water to the farm house. That is of great interest to women, especially women on the farms, and I hope that something will be done on the lines suggested by Senator The McGillycuddy. While this is not quite pertinent to the Bill, but it is in some way cognate, it might be possible that people should be enabled to put in winchargers. It would help them to have a supply of water in the houses and also to have electric light. It is done extensively in rural areas in America, and there is no reason why a young up-coming nation like Eire should not try and ease woman's burden to that extent.

Parliamentary Secretary to the Minister for Local Government and Public Health (Dr. Ward)

The debate we have had has been more in the nature of a Committee Stage than a Second Reading debate, and some of the points raised would probably require examination between this and the Committee Stage before they can be fully disposed of. Now, dealing with Senator Baxter's point first, in Section 4 of the Bill, it is stated that: "Whenever the sanitary authority have made a proposal they should do the following things". A number of things that the sanitary authority is under obligation to do is there set out, and among those things they shall take all reasonable steps to ascertain the persons (if any) to whom damage may be caused. The names of persons to whom damage may be caused in the opinion of the sanitary authority would be recorded in the book of reference.

Senator Baxter makes a point then, on Section 15 2 (b):—"the fact (if it exists) that the name of the applicant is included in the relevant book of reference shall not preclude the sanitary authority from contending that compensation is, in the circumstances, not payable at all." We have moved on from Section 4. In Section 15 we have reached the stage where arbitration is about to take place, where damage is being claimed and the case is being referred for settlement to the arbitration tribunal. Under the section, the sanitary authority is given what appears to me to be the reasonable right to contend that the person is not injuriously affected at all by the taking of water, notwithstanding the fact that the name has been put in the book of reference as a person who may be adversely affected. The sanitary authority in compiling the names of the persons who may be adversely affected will presumably be generous in their interpretation of the extent, if at all, to which persons may be injuriously affected in order to afford such persons an opportunity, at any rate, of claiming compensation, but I do not think they should be deprived of their right to argue in the arbitration court that in fact, while they have put them in the book of reference, they are not injuriously affected. I think that is reasonable. They give them an opportunity of coming forward by putting the name in the book of reference. If you like, it is prima facie evidence that they are in fact adversely affected but, at the same time, they ought to be permitted to defend themselves before the arbitrator as best they can.