I move: "That the Bill be now read a Second Time." I am pleased to present this Bill in the House today. Members will recall that the issue of localised flooding came to public prominence earlier this year when the country was in the midst of a major flooding crisis. On a nightly basis we saw and heard on our television screens and in the other media organs, tragic scenes and stories of people whose homes were flooded, or cut off from their neighbours, farmers who were struggling to look after their livestock and small businesses in jeopardy as a result of the floods. It was abundantly clear in the light of that crisis that a sensible programme of drainage and flood relief works was essential.
During the course of a special debate on the matter in this House earlier in the year the then Minister, Deputy Phil Hogan, gave a commitment to pursue with the Government the early introduction of legislation along the lines of proposals which had been prepared by the Commissioners of Public Works some time previously to permit the commissioners to undertake such a programme of works to prevent or alleviate problems of localised flooding. The Taoiseach and the Minister for Finance were approached about the matter and despite the many pressures of Government business they were both very sympathetic to the plight of the flooding victims and the Government, on their recommendation, agreed to pursue a range of actions including the early processing of the legislation.
I am happy, therefore, just a few months later, to be in a position to bring the Bill, which has already been debated and passed by the Seanad, before this House. Although it is relatively short and I hope uncontroversial, the House will appreciate on reading it that there was a considerable amount of administrative, legal and technical research 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, as did my predecessor before me, in particular to the parliamentary draftsman's office for their efforts.
The Bill 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 introduced this year, the first having been introduced in the Seanad by Senator Daly in February last. The Government's opposition to Senator Daly's Bill at the time was based primarily on the facts that it did not address entirely the issues involved and that the Government intended to introduce a Bill as soon as possible. As promised at the time, the Government's Bill was also introduced in the Seanad first and I am fully aware that it was due in no small measure to the united approach of Members on both sides of that House that the Bill passed all Stages with speed and efficiency.
Like my predecessor, the Minister, Deputy Jim Higgins, during the Second Stage of the Bill in the Seanad recently, I, too, would like to acknowledge that the heads of the Bill approved by this Government, and which form the basis of the Bill now before this House, were substantially the same as those prepared by the former Minister of State, Deputy Noel Dempsey. This proved to be of no little benefit in expediting the introduction of this amending legislation.
Before going on to discuss the provisions of the new Bill in depth I take this opportunity to reflect briefly on the current legislative position and the circumstances which brought about the necessity for change. Much has already been said in earlier debates, particularly this year, in both Houses of the Oireachtas on the flooding problems and I expect much more to be said here during the current debate. I will comment more specifically on some of the problems during my response. In the meantime, a brief summation of the national drainage programme as it stands would, be of benefit at this stage.
The main statutory provision for the execution of drainage works in the State at present 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 periodical 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 of a river usually involving an area of several thousand hectares.
The 1945 Act gave effect to the recommendations of the Browne Commission of 1938-40, 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. Its enactment some 50 years ago was an attempt to update and consolidate existing drainage legislation which consisted of many statutes 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 indeed the effects of such works on conditions in other areas. This was no longer considered to be an effective or adequate means of dealing with Ireland's drainage problems.
The extent of the progress made under the national drainage programme established following the passing of the 1945 Act is worthy of note. So far, 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.
I am aware of the arguments that have been put forward that progress was not what it might have been or indeed envisaged when the programme was set up. However, I have no doubt that 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, as we have known it to date, would not be undertaken without a thorough study of conditions throughout a river basin including tributaries, large and small. It 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 often again over many years and the design and formal exhibition of schemes so that those affected may comment on the proposals.
In recent years too 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 the landscape among other things. Comprehensive fishery rehabilitation programmes are undertaken. Spoil is buried and the land rehabilitated rather than heaped on river banks as had been the practice, and areas of scientific interest are, where possible, excluded from schemes at the planning stage.
With the passing of EU Directive 85/337 for the assessment of the effects of certain projects on the environment, it has become obligatory on the Commissioners of Public Works to carry out detailed environmental impact assessments of drainage schemes and to publish the reports as part of the scheme exhibition documents. Article 16 of the European Communities (Environmental Impact Assessment) Regulations, 1989, made by the Minister for the Environment, incorporated the provisions of the EU Directive into national legislation by amending the relevant sections, i.e. sections 4 and 5, of the Arterial Drainage Act, 1945.
Not least, arterial drainage 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 investment. In this connection in the 1970s detailed cost benefit analysis was introduced and has been applied to all schemes considered since.
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 be had to all these factors. Various options for drainage or flood relief schemes will have to be considered and must be subjected to detailed analysis.
I turn now to the provisions of the Arterial Drainage (Amendment) (No. 2) Bill, 1995. The Bill proposes 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 including environmental impacts. Thus such schemes will not be inconsistent with the strong recommendation in the report of the Browne Drainage Commission 1938-40 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, particularly in urban centres, has always been a problem. Incidents of such flooding are widespread and are not confined to any single area of the country. 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 the existing legislation limits them to the catchment approach. Catchment drainage schemes by their nature involve doing work in very 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 often the case that the overall scheme becomes uneconomic even where the benefits that would result from the scheme works in urban or other local problem areas may far exceed the cost of doing works in those areas. The fact that catchment schemes typically cost many millions of pounds while a scheme targeted at a specific problem area could be done for much less 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 entirely from their neighbours, supplies and services at times of heavy rainfall. There is a constant fear of the threat to life and loss of business or livelihood. Residents in such areas, in some cases as we have come to realise, cannot even insure against the losses arising from flooding because of its frequency. This flooding is not a new phenomenon, and the Office of Public Works has faced pressure for many years to undertake drainage schemes in river catchments which would have the effect of relieving flooding in urban areas. The existence of a priority list for the execution of arterial drainage schemes, combined with the fact that works were in progress on higher priority schemes, served to offer hope to those lower down in the list. Because of the difficulty in designing economically viable catchment schemes, because of 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 legislative provision, the Local Authorities (Works) Act, 1949, which does provide a basis for the execution of localised works in certain circumstances. It does not, however, impose any requirement to have regard to the effect of works undertaken elsewhere in the catchment or provide for maintenance of completed works and while it might have been in 1949 it is not now considered to be a satisfactory legislative basis on which to undertake the type of flood relief schemes which it is considered will be required in the future. In many cases too river catchments cross administrative boundaries, a fact which in itself supports the argument for a central drainage authority as currently exists in the Office of Public Works.
While I am sure that many other issues will be brought to the fore during this debate, I would like now to deal in general terms with the provisions in the Bill.
As I have already stated the primary purpose of the Bill 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 as amended by the European Communities (Environmental Impact Assessment) Regulations, 1989, 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 a 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 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, I am sure you will agree, it will 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, an existing 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. It is not intended to amend those provisions of the 1945 Act as they relate to the large catchment schemes or indeed to amend the other provisions in that Act which deal with consultation with other Government Departments. With regard to the latter I refer to the provisions of sections 7 and 10 of the 1945 Act which include, among other matters, that the commissioners take whatever precautions the Minister for the Marine may consider adequate for the protection and avoidance of injury to fisheries during the course of works and in consequence of such works.
In drafting the Bill we have also endeavoured to avail of the opportunity to make a small number of technical amendments to deal with shortcomings which have been identified in the existing legislation over the years.
It is the intention 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 circumstance which might arise 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 in agreement with the views 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.
I am aware that concern has been expressed that section 6 as drafted simply deals with a situation whereby a financial agreement and only such can be entered into and does not adequately cover other situations which might arise such as agreements for the preparation or execution of works. I believe that this concern is not well founded as there are already enabling powers under section 43 of the Principal Act whereby the commissioners may enter into agreements or contracts with others for the execution of works. Section 43 of the 1945 Act, when read in conjunction with the new provisions proposed by section 6 of this Bill, should meet the different requirements which might arise.
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. Consequently, the commissioners will not be responsible for the maintenance of the entire district but will be responsible for the work they carry out.
It is necessary too to cater for the situation which arises from time to time where, because of 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, etc. 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 continue with the 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, or service of notices on affected owners.
It is intended to correct this defect by providing that the Land Acts will apply to compulsory purchase under the 1945 Act and otherwise by setting out in detail the procedure to be followed. The Land Acts, which comprise many statutes enacted over a long period, provide a mechanism for the compulsory acquisition or interference with lands for undertakings of a public nature such as those envisaged by the arterial drainage legislation.
While the compulsory purchase powers already contained in the existing legislation 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 also 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 course of the debate on Senator Daly's Bill, 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, was referred to. 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 I am advised 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. It should be appreciated that the maximum penalties under the existing legislation are as low as £10, plus £1 per day thereafter for anyone found guilty of a particular offence.
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 in 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 so, as both the 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.
As I have already stated, the prime aim of this Bill is to provide a mechanism whereby limited schemes for the purpose of providing relief from localised flooding can be undertaken. 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 division of the Office of Public Works. The division which comprises administrative and professional staff has responsibility for the current arterial drainage construction and 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 particularly since the transfer of the Grand and Royal Canals and Barrow Navigation to the Office of Public Works in 1986 and with the re-opening of the Shannon-Erne waterway in 1994. This expansion of engineering services seems likely to continue in coming years, particularly with the introduction of these new measures for flood relief.
In the meantime, may I again reiterate my thanks and appreciation to all who have so far been engaged in the process of preparing this Bill. I look forward with enthusiasm to the co-operation of this House in ensuring its speedy enactment.
