I am here today to honour a commitment given by me in the House during my first few weeks in office as Minister of State with responsibilities in the Office of Public Works. That commitment was, of course, the introduction at an early stage of new legislation aimed at combating the flooding problems which have persisted throughout the country and which were the subject of many debates in both Houses of the Oireachtas earlier in the year.
It gives me great pleasure, therefore. in the light of the various statements made and commitments given, to be in a position to give the necessary legislative backing to our proposals for the physical relief of the hardship caused by the very heavy rainfall in the past few years.
It is comparatively rare for legislation to be initiated from the Office of Public Works which is essentially an agency for the delivery of Government policy. Senator Daly will recall that, in 1990 as Minister he introduced the Shannon Navigation Act which extended the scope and capacity of the Office of Public Works to include valuable and vital work in the Ballinamore-Ballyconnell area.
As Minister of State with responsibility for the Office of Public Works I can say that this Bill is a cause célebre. I am conscious that it did not prove possible to meet the undertaking which I gave in good faith to Senator Quinn to publish the Bill before the end of April. I regret that and I assure the House that it did not happen through any lack of commitment on my part or that of any of the officials who have been involved in transforming the heads of the Bill that was approved by Government in March into the Parliamentary Bill which is now before the House.
Although the Bill is relatively short and, I hope, uncontroversial, the House will appreciate on reading it that a considerable amount of administrative, legal and technical research had to be done in the course of drafting. The speed with which such important and substantial legislation was drafted is remarkable and I express my appreciation to all concerned, in particular to the staff of the parliamentary draftsman's office, for their efforts.
The commitment I made to Senator Quinn and to the House was to have the Bill through the House by the end of May. I now ask for the co-operation of all sides of the House to ensure that that target is not just achieved but is surpassed.
The Bill before us seeks to amend and extend the powers to execute works of drainage and flood relief conferred on the Commissioners of Public Works by the Arterial Drainage Act, 1945. It is the second such Bill to be introduced this year, the first having been introduced by Senator Daly in February. The House will recall that the Government's opposition to that Bill was based primarily on the fact that it did not entirely address the issues involved and that the Government intended to introduce its own Bill as soon as possible. Nevertheless it would be less than prudent if I did not again acknowledge and express appreciation of Senator Daly's efforts and intent to expedite the introduction of the statutory measures necessary to widen the scope of the existing drainage legislation. It is also only right to acknowledge that the heads of the Bill approved by the Government, which form the basis of the Bill before the House, were substantially the same as those prepared by the former Minister of State, Deputy Dempsey. That work was also of considerable benefit in expediting the introduction of this legislation.
Before discussing the provisions of the new Bill in depth I will reflect briefly on the current legislative position and the circumstances which brought about the necessity for change. Although much has been said in our earlier debates on flooding problems throughout the country, a brief summation of the national drainage programme as it stands might be useful at this juncture.
The main statutory provision for the execution of drainage in the State is the Arterial Drainage Act, 1945. This Act provides that when the Commissioners of Public Works "are of opinion that the execution of arterial drainage works is expedient in respect of any catchment area for the purpose of preventing or substantially reducing the periodic flooding of lands in that area or of improving by drainage lands in the said area, it shall be lawful for the Commissioners to prepare a scheme for the execution of such works." This provision has always been interpreted as conferring power on the commissioners to prepare and undertake drainage schemes only in cases where a flooding problem encompasses the entire catchment area of a river, usually involving an area of several thousand hectares.
The 1945 Act endeavoured to consolidate previous drainage legislation dating back for more than a century. Under these various earlier enactments drainage works were carried out on a piecemeal basis often without regard to conditions elsewhere in river catchments or the effect of such works on conditions in other areas. With its passing the Act gave effect to the recommendations of the Browne Commission of 1938 to 1940, among which was the establishment of a central drainage authority based in the Office of Public Works which would thenceforth be responsible for the execution and maintenance of arterial drainage on a catchment basis.
I have alluded on a number of occasions in the past to the extent of the progress made under the national drainage programme established following the passing of the 1945 Act. More than 40 drainage and embankment schemes have been undertaken, involving works to some 7,300 miles of channels and embankments and conferring benefit on more than 650,000 acres of land previously damaged through flooding or waterlogging.
Some will argue progress was not what it might have been or what was envisaged when the programme was set up. I contend it demonstrates conclusively the commitment of successive Governments and the Commissioners of Public Works to the resolution of the problems which have persisted. Arterial drainage requires a lengthy preparatory process involving the collection of hydrometric data over many years to establish the flow regimes of rivers. It requires detailed engineering and valuation surveys of lands and watercourses — again over many years — and the design and formal exhibition of schemes so that those affected may comment on the proposals.
In recent years we have become much more conscious of our environment so that many modifications to both design and work practices have evolved. Care must be taken to minimise or avoid damage to wildlife, fisheries and landscapes, among other things.
Not least it requires a huge investment and commitment of resources. In the last 50 years a total of £640 million in current terms has been spent on the construction and maintenance of the works undertaken to date. In the 1980s substantial EU grants were made available for the work. It is essential, therefore. that drainage schemes satisfy accepted economic criteria as must all projects involving large scale public investment.
The increased awareness of our environment in recent years as well as changing emphasis on land use, the diminishing returns on the high capital investment required for arterial drainage and current EU policy, which is aimed at reducing production in many areas, has greatly reduced the prospect of formulating economically or environmentally acceptable catchment schemes. In the processing of future schemes regard must he had to all these factors. Various options for drainage or flood relief schemes will have to be considered and subjected to detailed analysis.
The apparent restrictions inherent in existing drainage practice leads me to the provisions in this Bill which propose to amend the Arterial Drainage Act, 1945, to provide the powers necessary to enable the Commissioners of Public Works to undertake drainage schemes for the relief of localised flooding from rivers and other watercourses in addition to their existing powers to undertake arterial drainage schemes in entire river catchments.
It will, however, be a requirement that any scheme to relieve localised flooding must have regard to the possible effects of the proposed works throughout the entire river basin. Thus such schemes will not be inconsistent with the strong recommendations in the report of the Browne Drainage Commission of 1938-1940 that "all future arterial drainage operations should be conducted on the basis of comprehensive schemes embracing entire catchments and not otherwise".
Flooding in localised areas and particularly in urban centres has, of course, always been a problem. Incidences of such flooding are widespread and not confined to any single area. There are also many rural areas where flooding is known to be particularly acute. The Commissioners of Public Works have been unable to undertake schemes to overcome the difficulties in these areas because existing legislation limits them to the catchment approach.
Catchment drainage schemes, by their nature, involve doing work in large areas where, because of the present situation in agriculture, the benefit is often marginal and is, therefore, outweighed by the costs. To that extent, unfortunately, it is our experience that the overall scheme becomes uneconomic despite the fact that the benefits that would result from the scheme works in urban and other local problem areas may far exceed the cost of doing localised work. That catchment schemes typically cost tens of millions of pounds while a scheme targeted at a specific problem area could be done for a fraction of that cost and would be more effective in that specific area, is also relevant.
Flooding, particularly when it affects residential areas, can cause severe hardship and disruption. Residents in areas which are subject to regular flooding live in continual fear of damage to their property and, in extreme cases, being cut off from their neighbours, supplies and services at times of heavy rainfall. They live in fear of the threat to life and loss of business or livelihood. Residents in such areas in some cases cannot even insure against the losses arising from flooding because of its frequency. This flooding, however, is not a new phenomenon and the Office of Public Works has faced pressure for many years to undertake drainage schemes in river catchments to relieve flooding in urban areas. The existence of a priority list of arterial drainage schemes, combined with the fact that works were in progress in higher priority schemes, served to offer hope to those lower down the list. Because of the difficulty in designing economically viable catchment schemes due to the current EU policy of discouraging the production of some agricultural products many areas are now left without hope.
While catchment schemes may become viable again in the future, the time has come to make the necessary changes to the legislative provisions to enable localised flood relief schemes to be undertaken.
There is, of course, an existing supplementary legislative provision, the Local Authorities (Works) Act, 1949. which provides a basis for the execution of localised works in certain circumstances. It does not, however, impose any requirements to have regard to the effect of works undertaken elsewhere in the catchment. While it might have been satisfactory in 1949, it is not now considered to be a satisfactory legislative basis on which to undertake the type of flood relief schemes I consider will be required in the future. In many cases river catchments cross administrative boundaries, a fact which lends weight to the argument for a central drainage authority as currently exists in the Office of Public Works.
While I am aware there are many other matters which merit consideration — which I am sure will be brought to the fore during the course of the debate — I would like to deal in general terms with the provisions of the Bill whose primary purpose is to extend the powers of the Commissioners of Public Works to undertake drainage works as provided in the Arterial Drainage Act, 1945.
Section 4 of the 1945 Act outlines the circumstances under which a scheme may be prepared in respect of a catchment area and details the matters to be included in the body of the scheme. Section 3 of this Bill proposes to amend this provision by extending it to include any watercourse or any part of a watercourse, thus permitting the preparation and execution of works in respect of more restricted areas, particularly urban and other areas where flooding causes considerable and significant hardship but where it is not possible to design economically viable catchment schemes.
Under section 4 of the Bill it will also be incumbent on the commissioners, in deciding the nature and extent of the works to be done for the relief of localised flooding, to have regard to the effects of any such works on conditions elsewhere. In this connection, it would be necessary to establish that the benefits accruing from the works undertaken in one area will not be greatly outweighed by the adverse effects they might have elsewhere. It might not always be possible to guarantee that changes in the flow characteristics of a river, arising from works, will not result in the worsening of conditions elsewhere along its course. It is, however the intention to ensure that any unavoidable adverse impacts are taken into account before an order confirming a drainage scheme is made. There is of course, provision in the 1945 Act for the payment of compensation for loss or damage suffered by reason of any interference during construction works. It will, therefore, be possible to compensate anyone who suffers damage during works undertaken in pursuit of the wider public interest.
Section 5 of the Bill deals with the publication and exhibition of localised drainage or flood relief schemes. Under the provisions of the 1945 Act the commissioners are obliged to allow local authorities a period of three months within which to submit their observations to them in relation to catchment drainage schemes and for the commissioners to place such schemes on public exhibition for a period of one month. In view of the urgent nature in many cases of schemes for localised relief, and their more local extent, it is considered that periods of one month and 14 days, respectively, should suffice.
In the drafting of the Bill I have also endeavoured to avail of the opportunity to make a small number of largely technical amendments to deal with shortcomings which have been identified in the existing legislation over the years.
I wish to provide a clear legal basis to enable the Commissioners of Public Works in certain circumstances to make agreements with third parties whereby such parties would bear all or part of the cost of executing or maintaining arterial drainage works. This is done in section 6. An example of the type of circumstances I have in mind would be a situation where a private individual, local authority or other body wished to have drainage work carried out by the commissioners and, while the commissioners might consider such works to be worthwhile, they would be unable to undertake them due to lack of funds. The works could nevertheless proceed if a third party was willing to meet the shortfall in the funding. In this connection I am of the view that the cost of any drainage works undertaken and paid for out of public funds should be fully justified by the benefits, whether social or economic or a combination of the two. accruing from their execution. A provision whereby funding could be provided from other sources should help dispel the fears of those who might otherwise be excluded or get a low priority rating.
The provisions of section 7 are necessary to limit the burden of maintenance work for which the commissioners will be responsible. The cost of maintenance will be payable from Exchequer funds. The 1945 Act provides that where the commissioners do work in an existing drainage district as part of a catchment drainage scheme, the district ceases to exist and the commissioners become responsible for maintenance of the river and its tributaries. While this is not unreasonable in the context of catchment drainage schemes, it would involve a substantial burden on the commissioners if it was allowed to apply to schemes for localised flooding.
It is also necessary to cater for the situation which arises from time to time where, due to the development of land subsequent to the confirmation or completion of a drainage scheme, it is considered expedient to undertake drainage works even where such works may have been considered unjustifiable when the original drainage scheme was confirmed or executed. There are many circumstances where works which were once regarded as unjustifiable might be considered necessary on later reappraisal of circumstances. These would include situations where the development of roads, housing or industrial estates result in significant additional quantities of surface water being discharged into rivers and watercourses. This in turn results in flooding which needs to be prevented or alleviated by further drainage works or increased flood protection.
There are also examples of situations where drainage works to prevent or alleviate flooding of undeveloped lands which were considered unjustified in the course of a drainage scheme may become essential where the land has been subsequently developed for housing, industries and so forth. These situations are provided for in section 8.
Sections 9 and 10 are designed to deal with the situations which arise from time to time whereby modifications are made by landowners and others to channels and embankments which are maintainable by the commissioners. Circumstances vary from place to place. In some, the modifications may be allowed stand but there is doubt as to the commissioners' right to continued maintenance of the altered situation. In others, restoration may be necessary and prompt action required to ensure the effective functioning of the particular drainage works, especially where there is a substantial risk of flooding. These by implication involve costs and an adequate mechanism must be provided to enable such costs to be recovered. The existing provisions do not adequately cater for the differing situations which might arise.
The 1945 Act empowers the commissioners to compulsorily acquire any land for the purposes of a drainage scheme. However, it does not set out a detailed procedure to be followed by the commissioners in cases of compulsory acquisition, for example, for publication of acquisition notices and service of notices on affected owners. It is intended to correct this defect by providing that the Land Clauses Consolidation Acts will apply to compulsory purchase under the 1945 Act and otherwise by setting out in detail the procedure to be followed.
While the compulsory purchase powers already contained in the Act are rarely exercised, it is felt nevertheless that the defect in the 1945 Act should be corrected. It is simple enough, with the extended powers of the commissioners, to envisage a situation, such as an urban flood relief scheme, where such powers might now have to be exercised.
The existing provisions relating to determination of the nature and extent of compensation to be paid to persons from whom land or rights have been acquired, or whose land has been severed from other lands, or access thereto. or been otherwise injuriously affected. have been found to be inadequate and it is intended also to provide definitive procedures for the future. These matters are dealt with in sections 11 and 12.
During the debate on Senator Daly's Bill reference was made to the provision in that Bill whereby local authorities would in future be obliged to publish annually their reports on the maintenance by them of drainage districts constituted by Acts prior to 1945. A similar provision is being made in section 13 of the current Bill. Section 14 is simply aimed at updating the long outdated penalties prescribed in 1945 for offences under various provisions of the existing legislation. While it is my understanding that the Minister for Justice is currently preparing proposals for a general updating of fines and penalties, it is proposed to avail of the present opportunity to cater for offences under various headings in the current drainage legislation in order to deter offenders.
The amendments now being introduced will, by definition, have implications for various other provisions of the 1945 Act, many of which are actually being repealed. This matter is dealt with in section 15. One particular aspect of this section requires elucidation. I refer to the requirement of section 37 of the 1945 Act that the cost of arterial drainage maintenance be recouped from county councils.
When the 1945 Act was drawn up it was envisaged that the capital cost of drainage construction works would be borne by the Exchequer but that the subsequent maintenance of completed schemes, though borne by the Exchequer in the first instance, be recovered from the county councils in whose jurisdiction they lay. The councils in turn levied a drainage rate to meet the cost. This remained the position until 1986 when the Government decided, rightly, as both domestic and agricultural rates had long been abolished, that in future such costs would be borne entirely by the Exchequer. No costs have been recovered from county councils since. The new provisions give statutory effect to the decisions already taken.
While the prime aim of this Bill is to provide a mechanism for limited schemes for the purpose of providing relief from localised flooding, it is not the intention that the prospect of undertaking further major schemes at some time in the future should be abandoned. The possibility of seeking EU funding for such schemes on the basis that they might permit acceptable levels of agricultural output and increased income to be achieved in a more environmentally friendly fashion, for example, by reducing fertiliser inputs, is currently being examined by the Commissioners of Public Works. Other similar opportunities may occur in the future.
Schemes for the relief of localised flooding will be undertaken by the engineering services divisions of the Office of Public Works. The division which comprises administrative and professional staff has responsibility for the current arterial drainage construction, maintenance programme and inland waterways. The workload on arterial drainage construction has been reducing due to the reducing number of schemes in progress. On the other hand, the drainage maintenance workload has been increasing as completed schemes have to be maintained.
The inland waterways programme is expanding steadily, especially since the transfer of the Grand and Royal Canals and Barrow Navigation to the Office of Public Works in 1986 and with the reopening of the Shannon-Erne Waterway in 1994. This expansion of engineering services seems likely to continue in coming years, especially with the introduction of these new measures for flood relief. In the meantime, the first step is to secure the passage of the Bill into law and I look forward to the co-operation of all sides of the House in ensuring its speedy enactment.