Dáil Éireann díospóireacht -
Wednesday, 29 Oct 1941

Vol. 85 No. 1

Water Supplies Bill, 1941—Second Stage.

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

I move that the Bill be now read a Second Time. Under the Public Health Acts a sanitary authority may acquire any land covered with water, or a right to take and convey water for the purpose of a public water supply. If they cannot acquire either the land or the rights by agreement they may petition the Minister for compulsory powers. If the petition is acceded to in whole or in part, the rights acquired by the sanitary authority are those described in the Provisional Order of the Minister, as confirmed. No rights can be conferred by the order that are not sought in the petition.

Where the source of a public water supply is a river or stream there may be several riparian interests affected. The rights of a lower riparian owner might be held to be injuriously affected if the supply of water in a stream is altered by the extraction of water for public purposes, even though there is no appreciable reduction in the flow of water. To obtain the consent or rights of every riparian owner below the intake would be a formidable task and quite unnecessary. Yet the sanitary authority may not be secure in its rights to take water from such a source unless the consent of every riparian owner throughout the entire flow from the intake is obtained, or failing such consent, unless riparian rights are acquired. The acquisition even under the authority of a provisional order, duly confirmed, of rights at the source of supply which did not include all riparian rights would not afford to the sanitary authority the full protection that is required.

There is, therefore, some doubt whether the powers conferred by the Public Health Acts should continue to be relied upon in so far as the acquisition of water rights is concerned. It is in the public interest that a sanitary authority, when it has provided a public water supply, should not be open to any possibility of injunction at a future date and it is hoped to achieve that object in this Bill.

I will briefly outline the procedure to be followed. The first step is for the sanitary authority to make a proposal setting out the source of water, the place at which the supply is to be taken, the maximum flow of water and the maximum rate at which water is to be taken. The notice of the proposal will be given in the public Press, and the proposal and a book of reference setting out the names of persons to whom damage may be caused will be deposited for inspection locally. The persons whose names are in the book of reference will receive notice of the proposal, and of the time within which an objection to the proposal must be lodged, a month being the minimum time. Any person, not included in the book of reference, who is aggrieved by the proposal may object to the local authority within the time specified in the public notice, a month's notice being the minimum. An objection to a proposal must relate to a matter other than the amount of compensation; but a question whether an objection to a proposal is a valid objection shall be submitted to and decided by the Minister.

If no objection is received the proposal will be an agreed proposal. If a valid objection is duly made the sanitary authority may apply to the Minister for a provisional order declaring that the proposal may come into force. On such application the Minister may refuse the application, make a provisional order in accordance with the application, or alter the proposal, but in altering the proposal he cannot increase any maximum rate for the taking of water.

A local inquiry may be held into an application for a provisional order. If a provisional order is made, a copy of the order will be given to every person who made a valid objection, and such person may, within five weeks, present a petition to the Circuit Court praying that the provisional order shall not become law without further inquiry. If no petition is presented to the Circuit Court, the Minister may confirm the provisional order, or amend it. If a petition is presented to the Circuit Court, the provisional order may be confirmed or disallowed. Whenever a proposal has been agreed, or a provisional order has been confirmed, notice will be given of the date on which the proposal will come into force, and on that day the proposal will come into force. It will then be lawful for the sanitary authority to take a supply from the source to which the proposal relates; and their rights will be absolute.

The damage caused to any person by the taking of a supply of water under a proposal is defined in the Bill to mean the reduction in the value of any estate, interest or right in land, or the damage caused to any trade, business or profession. Any person to whom damage is caused will receive compensation, but no other person. Compensation will be determined in the usual way. The amount may be either settled by agreement or in default of agreement by arbitration. If a person applies for compensation, and either no compensation is awarded by the arbitrator or the amount awarded does not exceed the amount which may have been offered originally by the sanitary authority, the applicant will bear his own costs, and pay the costs of the sanitary authority. Interest on compensation will be payable at 4 per cent. per annum from the date when the scheme came into force to the date on which the compensation is determined.

The position of existing schemes is safeguarded by the provisions of Section 18 of the Bill. No court may grant or issue an injunction or order restraining the sanitary authority from continuing to take a supply from an existing source, but if there has been wrongful interference by the sanitary authority with any person's rights the person concerned may seek damages. The expression "source of water" is defined to mean any lake, river, stream, well, or spring. It is not intended that a sanitary authority should be empowered to take water so as to affect navigation rights. The existing powers of sanitary authorities derived from the Public Health Acts do not authorise them to interfere with any river or canal so as to injuriously affect navigation thereon. An amendment to the Bill may be necessary to safeguard navigation rights where a sanitary authority proceeds under the provisions of the Bill. The position will be further considered before Committee Stage.

Mr. Cosgrave

Nobody will deny the right of a local authority to get water where it is required. In the case of the taking of water which affects another person's property, convenience, health, or anything of that sort it is at least expected that the local authority will pay for it. We approach all questions of public health on that basis. On looking through this Bill one is left to wonder whether persons who have property or conveniences such as these are not now to be regarded as public enemies. A man is offered a certain compensation by a local authority. If he does not accept that offer he may be penalised. He will have to pay his own expenses and the expenses of the local authority at the arbitration, if the compensation awarded does not exceed the amount originally offered. I disagree with that provision. At the most a person gets 10 per cent. over and above the value of whatever he gives to the local authority when the local authority acquire it compulsorily. That is the most he gets. He is entitled to put his own value upon it. The arbitrator is there to see that there is fair play. The local authority go before the arbitrator and say: "We have offered this man so much." If the arbitrator decides that he is not to get any more, then he is penalised by having to pay his own costs and the costs of the local authority. Then in Section 18 we are taking away what is a legal right at the present time. The courts, after all, have an independence greater than that which attaches to a Ministry or a local authority. Why not allow the courts to decide that question? It is a question of equity; a question of natural right. There is a legal privilege there of some kind or another which is really a legal right and we take it away.

In another part of the measure it says that one objection that will not be considered will be on the question of compensation. Assuming for the moment that the water is as essential to the man in his business as the site itself or the buildings. The compensation question is the only question at issue—that he will not be compensated for the loss that he sustains. He is not entitled to put that forward. That is the only basis on which he can really make a case. I do not think that is right. I think the Minister ought to consider first of all the riparian owners, and the taking of water at a level which would not leave them what they require. It is not a question of money. They ought to be supplied with water. They ought not to be left high and dry. If the Parliamentary Secretary has experience of some of the people who live in districts that are above the level of the local reservoir he will understand the terrible inconvenience it is to be without water in such a place. If by reason of the local authority coming along and taking the water on such a level that they are left without any, it is a very nice question as to what compensation would pay them for the loss and inconvenience that they sustain.

There is another point. In a case where a person raises an objection on the grounds of compensation he ought not to be put out of the Minister's consideration for that alone. The water is vital to him. He could not do his business without it. He must go elsewhere. Some alternative provision must be made for him.

The third point is in regard to Section 18. The Minister should exercise only a Ministerial responsibility, not a judicial one. Under this section the Minister will assume a judicial character. He ought not, in his own interests. If he consults the Minister for Justice on that point he will advise him that there were very considerable difficulties in the last couple of years when, through some clause in an Act, he was called upon to exercise what amounted to a judicial function. The question was raised in court and the result was not satisfactory. There is no more suitable place than the courts of this country in which to have questions of that sort decided and the Minister should not take over that responsibility of the courts.

Mr. Corish

I infer from what the Parliamentary Secretary said in connection with this Bill that it will short-circuit or make more simple the procedure which it is necessary to put into operation in order to enable a local authority to proceed with a waterworks scheme. I do not share the anxiety of Deputy Cosgrave in regard to the rights of riparian owners in connection with this matter. I think this Bill will prevent vexatious claims which are made from time to time in connection with schemes of this kind and which are often responsible for a good deal of procrastination and prevent local authorities from proceeding with waterworks schemes. I have had a good deal of experience in connection with schemes of this nature and my opinion is that anybody who has a genuine claim has always been justly and liberally dealt with. There are certain vexatious claims by people who want to make easy money when a local authority embarks upon a scheme of this kind. As I have said, they have been responsible for a certain amount of procrastination and have been instrumental in preventing local authorities from proceeding with their schemes. I welcome the Bill. I think it will simplify the procedure and will enable a good many local authorities who have been endeavouring to proceed with schemes of this kind for a long time to get ahead with the work.

Mr. Brennan

I do not know that I would agree with the interpretation put upon this Bill by Deputy Corish. At least, that case has not been advanced by the Parliamentary Secretary in moving the Bill. I do not think that any person desires to hamper local authorities in any way in regard to water supplies or any other necessary aids to public health.

Mr. Corish

A good many have done it.

Mr. Brennan

That may be, but I am afraid this Bill will not get them out of any difficulty whatever. This Bill, according to the mover, is simply going to get over this difficulty, that there is some doubt as to the position of water supplies already in existence. The Parliamentary Secretary has not told the House that there are any difficulties whatever with regard to certain local authorities at the present time in acquiring water or that they are prevented by any reason, outside what is in the Bill, or that this Bill is going to get over the difficulties. As far as riparian owners are concerned, the Parliamentary Secretary, apparently, is of the opinion that they might be able to assert their rights if they knew they had them. Consequently, he wants to prevent anything of that kind happening by giving a right of injunction.

One wonders why the Bill is introduced at all unless there is really a necessity for it. The Parliamentary Secretary has not told us that there is a necessity for it. The only apparent necessity that exists is covered in Section 18, and if, as Deputy Cosgrave has pointed out, we are trying to override the courts by bringing in such a section and preventing the courts from having jurisdiction over matters that are already dealt with as far as local authorities are concerned, then we are doing a definite wrong. I do not think we have any right to do that and I do not think we ought to assume that we have that right. If a local authority can take away completely a water supply from a man's farm or other business which he may be carrying on without adequate compensation, I think that is something we should not stand over. Apparently, no local authority can take water from a stream or another water supply so as to injuriously affect navigation thereon. The Parliamentary Secretary told us that. There we have certain rights that may not be infringed. We cannot touch upon those. If we interfere with navigation rights, even though it may be an old disused canal, we cannot go in there, but if it happens to be a man's sole water supply for his farm, apparently we can go and take the whole thing from him, and we have to be subject to some person appointed as an arbitrator. We have not the right to go into court. As Deputy Cosgrave pointed out, we are coming to the stage in this country when some person appointed on behalf of the Minister will have the right to say to people all over the country: "You must do this and your compensation will be so and so; if not, we will take it off you." That is not a very happy position in which to find ourselves. The right to go to court should be there. Unless local authorities have been prevented in the past from taking water which they should have been allowed to take or that it was necessary for them to take, we ought to be very careful of the type of Bill we bring in, giving a local authority the right to override all the rights of the owners in and around places where water is required.

As I have said already, I appreciate any effort that is made which would be helpful towards the acquisition of water for various towns. I have been connected with local authorities for a great number of years and I do not think we have ever come up against a difficulty which the Bill will get us over. I do not think it is going to do anything in that direction. We have never been refused rights to take water. I do not know of any local authority that has been refused. Perhaps the Parliamentary Secretary has in mind some local authorities that have been refused. If that is so, it will be found that there was very good reason for it. If a farm of land is going to be rendered practically useless because the water would be completely taken off it, then I think the owner must have rights beyond the rights of an arbitrator's award. I do not think that is good enough. I wonder if in Section 3 the Minister is meeting exactly what might be the best interests of a local authority in putting down in the Bill that a local authority must state in the proposal the minimum amount of water at such a place and the maximum rate at which it is proposed to be taken. I wonder what would be the position of a local authority if the maximum rate of water to be taken from a particular source increased as a result of increased users. Where would the local authority find itself then? Would they then be liable to an injunction to restrain them from taking further water? We might in fact be putting a halter or spancel on the local authority by putting something of that nature in this Bill.

Dr. Ward

The main criticism, in so far as there has been criticism of the Bill, has centred around Section 18. It is stated that when this Bill is passed a person cannot seek an injunction against the local authority or secure an injunction in the court, but I think that, on full examination, most Deputies will agree that that is a desirable position. The right of the community as a whole, or the community in the urban area, that is depending on the water supply must be held to be of more importance than the questionable right of the person perhaps miles away from the source.

Deputy Brennan probably knows that in recent times those very far removed from the source of the water supply have taken it into their heads that something might be made out of seeking an injunction in the courts, and a form of litigation might become popular which might not have much real substance in it but which might create considerable embarrassment for local authorities. So long as the principle is established and maintained in legislation that full compensation will be awarded to anybody who is, in fact, damaged——

Mr. Brennan

I like the word "full".

Dr. Ward

The person seeking the compensation will not be satisfied that it is as full as it ought to be, but the arbitrator will be a person of independent judgment and, in so far as he can estimate the degree of damage, he will give full compensation. Deputy Cosgrave made a point against ruling out as a basis of valid objection the question of compensation. I should like to look into that further. It seems to me that 90 per cent. of the claims for compensation would go to court if Deputy Cosgrave's point were met. The arbitration method of settling compensation is more simple and less expensive and, I think, more desirable. However, I shall look into the point further. Deputy Brennan drew a picture of the possibility of farmers or riparian owners along the source of supply being completely deprived of water supply. I think that is highly improbable. Where that is possible, the local authority would endeavour to procure an alternative supply and the matter would be taken into consideration by the arbitrator.

Mr. Corish

Deputy Brennan raised a point as to a declaration by the local authority as to the maximum amount of water they should take.

Dr. Ward

The proposal will set out a minimum and a maximum rate which will be determined as a result of gauging. If, at a future time, it is found that the water supply provided for is not sufficient to meet the requirements of the local authority, the local authority would have to come along with an amending scheme. They could not continue to take a larger quantity than set out in the original proposal and leave the riparian owners high and dry.

Mr. Brennan

As regards Section 14, sub-section (2) the claim for compensation shall not be made until the expiration of three months from the date on which the proposal comes into force. You may be creating a lot of difficulties because the effect may not be known until the water supply is in operation. The withdrawal of water from certain sources of supply could not be estimated until the scheme was operated.

Dr. Ward

An application may not be made after the expiration of three months from the date that the proposal comes into effect.

Mr. Brennan

Does that mean three months after the scheme is operating?

Dr. Ward

Yes.

Question put and declared carried.

Committee Stage ordered for Wednesday, 12th November.