Amendment No. 1, in the name of the Minister, proposes to include a new section in the Bill. As amendments Nos. 294 and 295 are related to it, they may be discussed together.
Mr. Cregan took the Chair.
Water Services Bill 2003 [Seanad]: Committee Stage.
NEW SECTION.
I move amendment No. 1:
In page 9, before section 1, but in Part 1, to insert the following new section:
1.—"(1) This Act may be cited as the Water Services Act 2006.
(2) The Environmental Protection Agency Acts 1992 and 2003, section 104 and this subsection may be cited together as the Environmental Protection Agency Acts 1992 to 2006, and shall be read together as one.
(3) The Housing Finance Agency Acts 1981 to 1992, section 105 and this subsection may be cited together as the Housing Finance Agency Acts 1981 to 2006, and shall be read together as one.
(4) The Local Government (Water Pollution) Acts 1977 and 1990, sections 106 and 107 and this subsection may be cited together as the Local Government (Water Pollution) Acts 1977 to 2006, and shall be read together as one.
(5) Section 108 and this subsection shall be construed as one with the Fisheries Acts 1959 to 2006 and shall be included in the collective citation, the Fisheries Acts 1959 to 2006.
(6) Section 110 and this subsection shall be construed as one with the Planning and Development Acts 2000 to 2006 and shall be included in the collective citation, the Planning and Development Acts 2000 to 2006.
(7) The Local Government Acts 1925 to 2004, section 111 and this subsection may be cited together as the Local Government Acts 1925 to 2006, and shall be read together as one.”.
I am grateful to Deputy Gilmore for agreeing to proceed with the Committee Stage debate. I accept that this legislation is complex. I will listen to the comments of all members of the committee, including Opposition members. I will be as flexible as I can when considering Opposition amendments. I will accept many of the amendments which have been tabled in the names of Opposition Deputies. If I do not accept such amendments, I will outline my reasons for not doing so.
Amendment No. 1 is a technical amendment which proposes the substitution of the existing section 1 with a new section 1 which will provide for a revised Short Title and new collective citations and construction. The revised citations in the proposed subsections (6) and (7) arise from amendments Nos. 294 and 295 which amend the Planning and Development Act 2000 and the Local Government Act 2001.
Paragraph (a) of amendment No. 294 which proposes to amend section 10(2)(b) of the 2000 Act will require planning authorities to have regard to relevant water services strategic plans when preparing development plans for their local areas. The authorities will have to include objectives in their plans, providing, inter alia, for the provision or facilitation of the provision of infrastructure, including water supplies and wastewater services, with regard to the water services strategic plan in the area, made in accordance with section 36 of this legislation. This is a prudent provision because in the past development definitely ran ahead of water treatment and delivery capacity.
Section 10(2)(b) of the 2000 Act, as amended, will ensure there is full synchronisation between the water services strategic plan for an area made under section 37 of this legislation and the development plan for the area under Part II of the Planning and Development Act 2000. Members will understand the logic of that provision. It is wrong for development to take place in advance of services being made available.
I can tell the committee an amusing but true story told about Greystones. When the town started to grow rapidly many years ago, houses in part of a certain housing estate did not get any water supplies until 2 a.m. because they were up so high. The people living in the estate used to have to get up at that time to do basic household work. They used to have to store water in the bath. The secretary of the estate's residents' association called her house "High and Dry" because that is what it was for a long time. It was a disgraceful example of development outstripping resources.
The technical amendments being made to section 180 of the Planning and Development Act 2000 will synchronise the provisions of that section with the revised definitions of water services infrastructure in the Bill. The ongoing application of section 180 will not be affected by this provision.
The purpose of amendment No. 295, a technical amendment, is to update Schedule 12 to the Local Government Act 2001 which lists various enactments under which functions are conferred on local authorities.
Members will accept that these logical and well structured amendments will ensure the new legislative arrangements for water services will be in synchronisation with planning and development.
A number of enactments are being repealed by these amendments. I would like to ask a general question about amendment No. 296.
We are dealing with amendments Nos. 1, 294 and 295.
We are not dealing with amendment No. 296.
To be helpful, I will summarise the position. Amendment No. 1 proposes to delete the existing section 1 of the Bill and replace it with a new section. Amendments Nos. 294 and 295 provide for the substantial changes being made in this group of amendments.
What are the changes, if any, being made in amendment No. 295 to the Local Government Act 2001 which sets out the functions of local authorities and the responsibilities which rest with the Minister? The long Schedule to the 2001 Act sets out those responsibilities.
Correct.
Will the Minister identify the changes being made?
This amendment updates Schedule 12 to the 2001 Act. That Schedule which is quite long, as the Deputy said, lists the various enactments under which functions are conferred on local authorities. It makes a technical change to ensure the Schedule will refer to this enactment.
Are there any new functions for local authorities?
There are. This legislation, significantly, upgrades the functions and powers of the local authorities with regard to water services. The Bill clarifies the roles of local authorities.
There is a long list of enactments here. The Water Services Act 2006 is——
Inserted.
It is highlighted in the list. Is that the only change made?
It is an updating of the Schedule. In addition to referring to this, any enactments which came since 2001 are also added. These are enactments that are already in force and that confer functions.
I see.
Amendment agreed to.
Section 1 agreed to.
SECTION 2.
Amendment No. 3 is an alternate to amendment No. 2 and both may be discussed together.
I move amendment No. 2:
In page 9, subsection (1), lines 23 and 24, to delete "and abstract shall be construed accordingly,".
I thank Deputy O'Dowd for this and many other helpful improvements he suggested in the drafting of the Bill. In this instance, the Parliamentary Counsel advised us that a more appropriate course of action is to delete the reference entirely as the Interpretation Act 2005 provides, in a generic way, for a similar interpretation of different constructions of the same word. I ask the Deputy to withdraw his amendment in favour of amendment No. 2, which achieves his objective.
I so do.
Amendment agreed to.
Amendment No. 3 not moved.
Amendments Nos. 4 and 5 are related and may be discussed together.
I move amendment No. 4:
In page 9, subsection (1), to delete lines 25 and 26.
These are drafting amendments. It is proposed to delete the reference to three Acts that are no longer referred to throughout the text of the Bill.
Amendment agreed to.
I move amendment No. 5:
In page 9, subsection (1), to delete line 29.
Amendment agreed to.
I move amendment No. 6:
In page 10, subsection (1), lines 11 and 12, to delete "established under section 19 of the Act of 1992".
This is a also a technical drafting amendment as to the definition of the agency. As the Environmental Protection Agency is a long-established statutory body there is no necessity to cite, in the definition of "agency", the exact statutory provision that established it.
Amendment agreed to.
Amendments Nos. 7 and 8 are related and may be discussed together.
I move amendment No. 7:
In page 10, subsection (1), line 13, after "horticulture," to insert "apiculture,".
Again, I thank Deputy O'Dowd for his suggestion which I am happy to accept. However, the Parliamentary Counsel is of the view, from a very finely tuned technical perspective, that bee keeping fits better between horticulture and fruit growing than dairy farming and livestock breeding.
The Minister is not happy to accept my amendment and insists on inserting his own. He will not even concede that to us. He takes the same approach to the register of electors.
That is not the so. Can I seek the Deputy's indulgence and ask him to withdraw his amendment, as I accept the wisdom of his proposal?
I would like the Minister to accept one of my amendments but he will not do so. I will not press my amendment to a vote.
It is early days yet.
The Minister is like a bee to honey.
Deputy O'Dowd will be surprised. I will accept some of his amendments.
That will be much more helpful.
Someone with more knowledge of horticulture than I advised the change.
Members must excuse my ignorance, but what is apiculture?
It is bee-keeping.
We must watch out for wasps.
I must be very careful what I say on this subject. I come from County Wicklow.
Amendment agreed to.
Amendment No. 8 not moved.
Amendments Nos. 9 and 10 are related and may be discussed together.
I move amendment No. 9:
In page 10, subsection (1), between lines 19 and 20, to insert the following:
" "aquaculture" has the same meaning as it has in the Fisheries (Amendment) Act 1997,".
I am happy to include a definition of aquaculture in the Bill, which is what Deputy O'Dowd sought. However, the Parliamentary Counsel advises that the correct legislation cross-reference is the Fisheries (Amendment) Act 1997, rather than the 1977 Act.
Amendment agreed to.
Amendment No. 10 not moved.
Amendments Nos. 11 and 12 are related and may be discussed together.
I move amendment No. 11:
In page 10, subsection (1), to delete lines 37 to 46 and substitute the following:
"distribution system" means a pipe and its related fittings, that is used, or to be used as the case may be, to convey
water into or through one or more premises (including any related internal or external taps), other than—
(a) a service connection,
(b) where it is owned by, vested in or controlled by—
(i) a water services authority
(ii) an authorised provider of water services, or
(iii) a person providing water services jointly with or on behalf of a water services authority or an authorised
provider of water services,
and in the case of water used in manufacturing, including food or drinks production,
includes the point where water is used in the undertaking;".
Once again, the Parliamentary Counsel has come up with a slightly different definition, but the principle of Deputy O'Dowd's amendment is quite correct. I thank him for his suggested improvement in the definition of a distribution system, which greatly improves its clarity. The proposed revised text was referred to the Parliamentary Counsel's office for consideration and it has, in turn, suggested some changes in addition to those proposed by the Deputy. These have been incorporated in the text of the Government's amendment, which accepts the Deputy's amendment and adds words from the Parliamentary Counsel. I ask the Deputy to claim a moral victory and withdraw his amendment in favour of the wider amendment.
I will claim a victory when I am sitting in the Minister's seat.
Amendment agreed to.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 10, subsection (1), line 47, to delete "of a" and substitute "within a range of".
The drafting amendment to the definition of domestic waste was referred to the Parliamentary Counsel's office for consideration and it advised that the existing wording is more satisfactory. I ask Deputy O'Dowd not to press this amendment and thank him for his contribution.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 11, subsection (1), line 14, after "premises" to insert the following:
"or to any waste water treatment system on a premises where the waste water is generated".
The purpose of this amendment is to ensure that the duty of care on the owner or occupier of a premises, in section 70(2), to properly maintain the waste water infrastructure of the premises applies to all on-site type private treatment systems, whether they are located inside or outside the boundary of a premises. As currently worded, definitions of the key terms used in section 70(2) and set out in section 2 of the Bill, may place a constraint on the application of the duty of care provisions of section 70 and effectively confine its scope to relevant treatment plants located outside the curtilage of the premises only. The technical amendment to the definition of "drain" will ensure that a drain can be construed as including a drainage pipe leading to a treatment system which is located within the boundary of the premises, such as a septic tank, and will ensure that the duty of care, under section 70, applies to all private treatment systems serving a premises. These will normally be located within the boundary of a premises, that is, within the site on which the premises are located.
We have all had experience of small developments that have been problematic in the past. This will make the duty of responsibility much more clear.
Amendment agreed to.
Amendments Nos. 15, 18, 41 and 42 are related and amendment No. 19 is an alternate to amendment No. 18. These amendments may be discussed together.
I move amendment No. 15:
In page 11, subsection (1), to delete lines 21 to 23.
This group of amendments deletes definitions and other technical provisions now covered by the provisions of the Interpretation Act 2005. I thank Deputy O'Dowd for his suggested improvement in the definition of Minister on page 11 of the Bill. However, as this definition is to be deleted the amendment is not relevant. I ask the Deputy not to press amendment No. 19 as what he is seeking is encompassed in the changes already outlined.
Amendment agreed to.
Amendments Nos. 34 and 35 are related to amendment No. 16 and these amendments will be discussed together.
I move amendment No. 16:
In page 11, subsection (1), to delete lines 24 and 25 and substitute the following:
" "groundwater" means all water below the land surface;".
In the interests of clarity and improved access, the definition of groundwater has now been expressed in direct generic terms rather than cross referenced to other definitions under the EU water framework directive. Related definitions to stormwater and surface water expressed in simplified generic terms are also inserted to facilitate a better understanding of the application of the terms of the Bill.
Amendment No. 35 also provides a definition of technical requirements to clarify the use of the terms in sections 55(5), 61(6) and 92(6). It is a technical definition to ensure clarity in relation to minimum pipe capacity requirements. While the estimated throughput of wastewater may indicate that a certain capacity of pipe will suffice in a given instance because pipes are made to standard sizes, it may be necessary to specify a larger capacity pipe than is strictly necessary if the estimates of such volume of throughput falls between two standard pipe sizes. In other words, where a pipe is smaller or larger than the proposed volume one now has the right to opt for the larger pipe, which I believe is appropriate.
Amendment No. 16 deals with the definition of "groundwater".
Yes. I also spoke to amendment No. 35 which deals with technical requirements. Amendments Nos. 16, 34 and 35 are being discussed together.
Amendment No. 16 removes the definition of "groundwater" as prescribed under the EU water framework directive and substitutes the following, "groundwater means all water below the land surface." By way of clarification, is water in a pipe below the land surface, in a culvert or reservoir below the land surface being redefined as groundwater?
The technical staff felt the generic term "groundwater" was better understood. The definition of "groundwater" is expressed in more generic terms than that referred to by the Deputy. I can come back to this issue on Report Stage if the Deputy so wishes.
It is the kind of issue which could arise in relation to a pipe in the basement of a house.
The Deputy makes a fair point.
The amendment states that groundwater means all water below the land surface.
The Deputy makes a fair point in relation to a culvert.
Perhaps the Minister will have a look at this for Report Stage.
Yes. The general purpose of the amendment is the use of more common placed language than that currently used in the Bill.
Amendment agreed to.
I move amendment No. 17:
In page 11, subsection (1), to delete lines 29 to 33 and substitute the following:
" "land" includes any structure and any land covered with water (whether inland or coastal), any substratum of land and, in relation to the acquisition of land, any pipe running through, under or over land, or any interest or right in or over land (including an interest or right granted by or held from the person acquiring the land);".
The existing definition of "land" is updated by a replacement of the description of a pipe as running across land with a reference to any pipe running through, over or under land. This is a technical amendment to provide additional clarification to avoid delay through legal arguments over what exactly is meant by the term "across land". The revised phraseology also synchronises with that in the proposed replacement section 97 which provides for the power to run pipes through land. Again, we are trying to use common language in the Bill.
Amendment agreed to.
I move amendment No. 18:
In page 11, subsection (1), to delete lines 36 to 39.
Amendment agreed to.
Amendment No. 19 not moved.
Deputy Haughey took the Chair.
I move amendment No. 20:
In page 11, subsection (1), after line 50, to insert the following:
" "parametric values" has the same meaning as it has in Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption;
"pipe" includes—
(a) any sewer, water main, service connection, drain, channel, culvert, drainage pipe, and
(b) any system of such pipes, accessories and related fittings, including meters,
that is used, designed or intended to be used to collect, store, distribute or measure water, waste water, domestic waste water or trade effluent;".
The definition of "parametric values" is included arising from the inclusion in the Bill of various provisions relating to the enforcement of drinking water standards, including provisions facilitating the transposition of the drinking water directive. The term is taken from the EU drinking water directive and includes such aspects of drinking water quality as taste, colour, odour and turbidity, which I am told is the level of fine particles visible and so on. The amendment also provides a definition of pipe to bring clarity to the use of the term throughout the Bill and to avoid future legal argument. It covers all pipes such as sewers, water mains, service connections, drains, culverts, as referred to by Deputy Gilmore, and related accessories and fittings used to collect, store, distribute or measure water or effluent discharges.
Amendment agreed to.
Amendments Nos. 21, 72, 74 to 79, inclusive, and 119 are related and will be discussed together.
I move amendment No. 21:
In page 12, subsection (1), line 11, after "accordingly" to insert the following:
", but references to prescribed persons and cognate expressions shall refer only to householders involved in group water schemes and similar arrangements, and shall not refer to those engaged in commercial activity".
This amendment deals with one of the Labour Party's major concerns with this Bill, namely, that this Bill may be the Trojan horse for the privatisation of water sources. Throughout the Bill — I drew attention to this on Second Stage — there are a number of references to circumstances in which the Minister or a local authority can transfer to a "prescribed person" any of the functions provided for in the Bill. As it stands, "prescribed person" could include a commercial water company. I draw attention in particular to section 27 which states:
(1) Subject to subsection (2), where the Minister is satisfied that—
(a) any function conferred on a water services authority by this Act could be effectively performed in lieu or in addition by the Minister, or other prescribed person,
(b) any function conferred on the Minister could be performed in lieu or in addition by a water services authority or other prescribed person,
the Minister may prescribe that the Minister, a water services authority or other person prescribed may perform the function with effect from a prescribed date.
It is clear from this that the Minister would have the power under this Bill to prescribe any other person to do anything that the Minister or water services authority has the power to do under this legislation. This would enable the Minister to prescribe that a particular water service be delivered by, for example, a private company.
Section 28 again emphasises that particular problem. It states:
(1) The Minister may, following consultation with any Minister of the Government who in the opinion of the Minister is concerned,
by regulations—
(a) assign to a water services authority or such other person as may be prescribed, additional functions in relation to
water services, or.....
The Minister is again being given the power to assign to persons other than himself or herself or a water services authority the additional powers envisaged by this legislation. Sections 6, 7, 24 and 25 all refer to the Minister, water services authority or any other person prescribed as having duties and responsibilities under this Bill. The question that arises, therefore, is what is meant by "prescribed person"? I know that in the course of press exchanges on this the Minister and his spokespersons suggested that those references in the Bill are intended to apply to bodies like group water schemes and so on. I do not have any difficulty with that. My concern is that they might be applied more widely to include a commercial company. My principal concern is that the legislation as drafted would allow either this Minister or a future Minister to privatise water services without further reference to the Dáil. All a Minister would have to do would be to prescribe a commercial company and transfer to it the provision of water services. I propose to amend the reference to "prescribed persons" and cognate expressions to ensure that they refer only to householders involved in group water schemes and similar arrangements and shall not refer to those engaged in commercial activity. If we are to prevent the Bill being used in future to privatise water services, this amendment must be made. I ask the Minister to accept it.
I share Deputy Gilmore's concerns. If we look at examples where water services have been privatised, not least in Britain, we see that absolute disaster has followed. There is no doubt that the current wording of the Bill would enable the current or a future Minister for the Environment, Heritage and Local Government to make the changes Deputy Gilmore described. The simple way to deal with the problem is to amend the reference to "prescribed persons" which would mean the least that would have to happen would be that the Minister would have to refer the matter to the Dáil and afford Members an opportunity to debate any proposal. I hope no such proposals will ever come before the Dáil and that we would never develop the intention to privatise a commodity as essential as clean, fresh, drinking water. I hope the Minister accepts this amendment. I intend to bring an amendment on the matter forward on Report Stage.
I agree with the views expressed. The key issue is that water in becoming increasingly scarce and expensive nationally and internationally. We must be very careful not to hand water services to companies that would exploit the situation financially rather than provide a service. In the public interest, water supply services should be retained in group water schemes or local authorities. It is a key issue on which we must insist on the protection of the public into the future. We should not allow an amendment to be made to the Bill that could allow privatisation without express legislative proposals from the Minister.
I appreciate fully the point being made by the Deputies. I have spoken in the strongest terms to my Department as I would not wish the Bill to become a Trojan horse for the passing of ownership responsibility for the water resource out of local Government. I am, therefore, moving a separate amendment No. 119 which will provide that, notwithstanding the contracting out of particular services under DBO arrangements to a third party, including the ongoing managing of the service, the contracting water services authority on whose behalf the service is being provided will retain responsibility under the Bill for ensuring it complies with all requirements. The ownership responsibility will continue to lie with local authorities.
There is a separate section in the legislation that provides additional support for that position. Section 36(1) provides that nothing in the Bill shall entitle a water services authority to discontinue providing water services which it provided prior to its enactment save as may be provided for in a relevant water services strategic plan approved by the Minister. I share the Deputies' concerns but I am advised strongly that amendment No. 119 in conjunction with section 36(10) provides the best way to achieve what they suggest. I assure the Deputies that my concern and the concerns of the party I represent in Government are exactly the same as theirs. I have spoken at international organisations of the dangers of the water resource falling into the control of private hands. We are not in conflict on the objective.
Deputies may also wonder if the DBO process could become a Trojan horse through which ownership of the water resource would ultimately pass to private operators. They should not worry because in the DBO process, ownership of the resource, and responsibility for the resource rather, always lies with the local authority. The DBO process implies that after 20 years, the physical infrastructure which is its subject becomes the local authority's property. I hope those assurances meet the Deputies' requirement.
Unfortunately, those assurances do not satisfy me. The Minister referred to two provisions that he said would prevent the legislation being used to privatise water. He referred to section 36(10) which provides that "nothing in this Act shall entitle a water services authority to discontinue providing water services which it provided prior to its enactment, save as may be provided for in a related water services strategic plan approved by the Minister". The critical issue is that a water services authority is prevented from discontinuing provision except where the service is being provided in a relevant water services strategic plan approved by the Minister when such a strategic plan could provide for the transfer of the water service to a private company. In such circumstances, section 36 would not have the effect of preventing the privatisation of a water supply.
The Minister referred also to amendment No. 119, which would not prevent a water service from being privatised either. Its effect might arguably be to make matters worse by allowing a water service to be privatised while leaving the responsibility for the enforcement of standards provided for in the Bill with the public authority. Amendment No. 119 provides that, notwithstanding an agreement, an authority would continue to be responsible for the compliance of the service with the requirements of the Bill. The public authority would be responsible for complying with the terms of the Act while the service itself could be transferred to a private body, giving us the worst of both worlds. In any event, amendment No. 119 is proposed to be made to a section of the Bill that deals with the joint provision of water resources, the intention of which is to cover circumstances where two local authorities seek to provide water services on a joint basis. As that is the governing provision of the section, it does not cover privatisation.
The only way to deal with this is to be clear in the legislation. I accept the Minister's personal bona fides and acknowledge that he does not wish to go down in the history of the State as the Minister who introduced the legislation that allowed some privateer in the future to privatise water services. We must make it clear and explicit that references to "prescribed persons" in the Bill do not anticipate the inclusion of commercial companies. The distinction must be drawn. In many rural areas, water services are provided through group water schemes which are to be commended and congratulated for the work they have done over the years. I welcome the continued support for them in the Bill and feel that we should make it absolutely clear that it is such arrangements that are envisaged in the reference to "prescribed persons" and not private water companies.
Private water companies are already beginning to appear on the horizon. Some of the companies becoming involved in the bundled group water schemes that are being upgraded are the very international water companies that are up to their eyes in the privatisation of water and in making water a commodity in many countries.
I agree with Deputy Gilmore. We need a new amendment on Report Stage that will clarify this matter. In the medium to long term the supply of good quality water will become a much more expensive process. The demand in the future will significantly exceed supply. Water will become a commercial commodity unless we retain absolute and total control of it. The only way forward is for the Minister to give a commitment to discuss the question of absolute and total clarity on this issue on Report Stage.
I am grateful for the way the Deputies have dealt with this matter. I would violently oppose what has happened elsewhere, where water has become a commodity and its supply is driven by greed and private profit. Amendment No. 119 makes it clear that the responsibility lies with the local authority.
Deputy Gilmore's amendment No. 71 to section 27(1) proposes the insertion of the words, "and provided that the Minister is satisfied that democratic accountability for the function concerned will be ensured,". I intend to accept that amendment.
We are all ad idem as to our abhorrence of the idea that ownership of water and responsibility for its supply could pass from the water authorities. The question is how best to express that abhorrence. Amendment No. 119, taken in conjunction with Deputy Gilmore’s amendment, achieves that but I am quite prepared to look, on Report Stage, at ways to consolidate it further.
I think along similar lines. The concern is the creeping privatisation of a public utility. Within his own backyard of County Wicklow, the Ministerhas had the experience of waste management services being privatised and of enormous criticism being made of the process of that privatisation. The local authority did not allow for competition and the Competition Authority pointed out very bluntly that a single private company had taken over waste collection in north Wicklow, resulting in prices going up. The public has a right to expect that the basic utilities will be under public control. The Minister has experience in Wicklow of prices going up once a private operator came on the scene. The State walked away from providing a public utility that everyone needed and the public suffered.
We need to be very cautious. The purpose of my amendment is to say we do not want to go down the road of privatisation. We have not seen compelling evidence for the need to do so. We have two strong experiences in Ireland. The first is of local authorities providing water for the past 100 years or so and doing it well, all things considered. The second is of group water schemes, which are a good example of co-operation and voluntary action at a local level delivering water on a decent basis to communities.
Why is the Minister allowing for a very different manner of water provision from heretofore?
I am not convinced of the Minister's bona fides in this regard but I remain to be convinced if he will accept an amendment. I do not wish to be offensive to the Minister because his body language indicates that he may be prepared to accept amendments to the Bill.
Amendment No. 119 states that a local authority would "continue to be responsible for the compliance of those services with the requirements of this Act". That merely gives local authorities responsibility for the quality of water and might even remove responsibility for water quality from the private companies which would supply it and collect the money for it.
Deputy Gilmore's amendment No. 71 proposes to insert the words, "and provided that the Minister is satisfied that democratic accountability for the function concerned will be ensured,". I have not had an opportunity to study that amendment. Could Dáil Éireann ensure democratic accountability? This amendment does not appear to be sufficiently strong to deal with this issue. When we look at developments in Aer Lingus and in waste management services we see the Government's propensity to support privatisation. Opposition concerns on this issue are very sincere and arise from the track record of the Government. We are dealing with an essential product. The Opposition is not playing politics and I hope the Minister will accept that our concerns are genuine.
I accept that there is a genuine concern. I am as concerned as Opposition Deputies. Deputy Cuffe mentioned privatisation in County Wicklow. He will see that my track record of voting against it is strong.
As a member of a local authority.
There was competition in my own local authority area. Unfortunately, the users voted with their feet and favoured the large company which was providing waste management services. The local authority subsequently withdrew from the provision of the service because it was uneconomic, given that it had lost its customers. We know what happened subsequently.
Deputy Morgan expressed concern as to whether amendment No. 71 is sufficiently strong. I mention this amendment by way of reference to the fact that I am prepared to listen to any amendment to the section. I will press amendment No. 119 but if we can agree additional wording that would achieve our common objective I would be happy to accept it on Report Stage.
I am anxious to ensure the country's water supply does not become a privately owned commercial commodity, as is happening in many countries. Water is the new oil. Clean, good quality water is now a scarce resource in many parts of the world and access to water is becoming an increasingly agitated issue. Water was privatised in the United Kingdom under Conservative Governments and that country is now experiencing difficulties as a result. I do not want to see something similar happening here. Therefore, I want to ensure this legislation cannot be used in the future to privatise water services.
This is not a remote concern because there are two areas where there is already a degree of creeping privatisation of our water services. One is the case of the bundling of group water schemes. I understand and accept why group water schemes are being bundled for the purpose of upgrading the quality of the service they provide. However, in some cases when the design-build-operate formula is applied to bundled schemes the companies doing the DBO arrangements are also involved in the ownership of privatised water elsewhere in Europe. The second case has been brought to my attention by SIPTU, which represents many local authority staff members who work on water treatment plants. In a number of these cases, the new treatment plants in local authorities are being done under the DBO formula where a company designs, builds and operates the plant for 20 years. In effect, that is privatisation of key elements of the water service. Privatisation is creeping in.
I am happy to park this concern until Report Stage. For the reasons I have given I do not believe the Minister's amendment No. 119 or this section alone deals with it. If we were to deal with it, strengthening the section 36 provision might deal with my concern. I am happy to leave the matter until Report Stage. I will table this and other amendments that relate to it on Report Stage. Therefore, I do not propose to divide the committee on the issue. I am happy to withdraw the amendment until Report Stage, but it is an issue that is of major concern to the Labour Party. A great deal of privatisation has taken place in the lifetime of this Government and whatever arguments can be made for privatising telecommunications, airlines, hotel groups or whatever, water is something that must not be privatised. There must be public access to and control and ownership of it. I will reserve my thunder until Report Stage. I hope the Minister will table amendments on Report Stage that will satisfy my concerns on this matter.
I make the point again that the DBO process is not creeping privatisation; rather it is a guarantee of water quality. I can instance many problems, even in my constituency, with some of the smaller schemes, which have become problematic for local authorities. Bundling and having a DBO process can deal with that. Major additional funding has been allocated for group water schemes and I am committed to the provision of them. I have cited them at a United Nations conference as a marvellous example of something we do very well here that has democratic control. I have mentioned that in other countries, where multinational operators have been suggested by the UN to come in and provide water resources. That is a bad way forward.
I will press amendment No. 119. I accept Deputy Gilmore's point. I will re-examine section 36 to see if it can be strengthened further. I will accept the Deputy's amendment No. 71. Those are signs of my bona fides on this issue. If we work together on it between now and Report Stage, we will end up in a strong position.
My concern is that amendment No. 119 is weak. To be responsible for compliance is little more than the job of a regulator. The regulator allowed Bord Gáis to increase its prices by more than one third in recent weeks. Those increased bills will arrive by post. That increase shows there is no control by Government of prices in this area. I am concerned that amendment No. 119 does not go far enough.
Water resources are different from other areas of activity from which the State has pulled back. It is not as if an operator will offer to sell water at one tenth of the price of what the local authority is doing. Airlines are different. An operator can enter the market and sell fares for 99c and poor old Aer Lingus is stuck with selling an equivalent fare for €119. That should not apply to water services.
The Minister referred to guarantees of quality perhaps through the design, build an operate process. The employment of local authority engineers in permanent, pensionable posts on a decent salary should provide a guaranteed supply of decent quality water through the tap. We are paying a considerable amount of money for that and we should ensure we get quality. We do not need to farm out contracts to somebody else for 20 years to have that guarantee. The service has been provided, in the main, very well in the past 100 to 150 years. I may have difficulties with the addition of fluoride and other substances but on the basis of delivering fresh water to the vast bulk of people certainly in urban areas on this island, local authorities have done well and long may that continue to be the case. If a local authority can do that competently, it should be allowed to continue to do it. I am concerned that this Bill will simply allow for creeping privatisation. We should say "no" to that unless brilliant reasons can be shown for privatisation.
I do not believe there are any good reasons to privatise water resources. If the Deputy considers amendment No. 119 is insufficient, I will be willing to accept an additional amendment from him on Report Stage to further strengthen the provision. I already indicated that a good effort was made in this direction in Deputy Gilmore's amendment No. 71 which contains a reference to democratic control. If members have any further suggestions, I will take them on board on Report Stage.
The Minister should accept amendment No. 72 because at least it would go some way towards dealing with the issue we are discussing.
Is that Deputy Cuffe's amendment No. 72?
Yes.
As I mentioned, the reference to "other prescribed person" in terms of other functions in the legislation may refer to the EPA. If I accept that amendment, members may have a problem with that aspect. The better way forward would to accept amendment No. 119 and consider adding to it for Report Stage.
The Minister will have to do more than add to amendment No. 119.
I said that already. We may have to strengthen a number of sections. I do not believe a single reference may achieve the purpose across legislation. I am adamant, as is the Deputy, that the required protection should be in place. We are ad idem on that point.
That is right.
Deputy Cuffe made the point that amendment No. 119 could be construed in different ways and Deputy Morgan made the same point. If we want to further strengthen amendment No. 119 to guard against some obscure and perverse application of it, I will be happy to do this. I will accept the other amendment that contains a reference to democratic accountability. I am open to any other suggestion in any other section and I am prepared to work with the Opposition on that on Report Stage. That is the best way forward. If we pool all our resources, we will get something that will satisfy us all.
Is the amendment being withdrawn?
It is, pending consideration of the matter on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 12, subsection (1), to delete line 13 and substitute the following:
"(a) a Minister of the Government;”.
This amendment amends the definition of "public authority" to substitute the definition "a Minister of the Government" for "the Minister or any Minister of the Government", as it is not necessary to separately identify the Minister for the Environment, Heritage and Local Government from other Ministers in this context. It is a technical change.
Amendment agreed to.
Amendment No. 24 is an alternative to amendment No. 23. They may be discussed together.
I move amendment No. 23:
In page 12, subsection (1), to delete lines 16 to 22 and substitute the following:
"(d) a harbour authority within the meaning of the Harbours Acts 1946 to 2005;
(e) a harbour company under the Harbours Acts 1996 to 2005;
(f) the Health Service Executive;”.
This amendment is necessary to update the two references to the Harbours Act to include the 2005 Act in the citations in paragraphs (d) and (e) and to replace the reference in the paragraph (f) to previous health service structures with a reference to the new structures that were set up in the context of the establishment of the Health Service Executive under the Health Act 2004. The references to the previous health boards will be replaced by a reference to the Health Service Executive.
Amendment No. 24 proposes a revision of paragraph (e) which is included in amendment No. 23 and, therefore, is no longer necessary. I thank the Deputy for tabling the amendment but I ask him to withdraw it. Amendment No. 23 effectively encompasses what the Deputy seeks to achieve in amendment No. 24.
I am happy to withdraw amendment No. 24 in favour of amendment No. 23.
Amendment agreed to.
Amendment No. 24 not moved.
Amendments Nos. 27 and 63 are related to amendment No. 25; amendment No. 26 is an alternative to amendment No. 25; amendment No. 28 is an alternative to amendment No. 27, and amendment No. 64 is alternative to amendment No. 63. Therefore, amendments Nos. 25 to 28, inclusive, and amendments Nos. 63 and 64 may be discussed together.
I move amendment No. 25:
In page 12, subsection (1), line 24, to delete "1963 to 2001".
Amendments Nos. 25, 27 and 63 are drafting amendments to update the collective citation of the Companies Acts. The Interpretation Act 2005 provides that the words "Companies Acts", without designating any period of years, make a sufficient collective citation for the companies legislative code. In view of this, amendments Nos. 26, 28 and 64 are effectively obsolete. Amendments Nos. 25, 27 and 63 incorporate the arrangements introduced in the Interpretation Act 2005.
Amendment agreed to.
Amendment No. 26 not moved.
I move amendment No. 27:
In page 12, subsection (1), line 26, to delete "1963 to 2001,".
Amendment agreed to.
Amendment No. 28 not moved.
I move amendment No. 29:
In page 12, subsection (1), line 33, to delete "paragraph (e)” and substitute “paragraph (g)”.
This is a drafting amendment to correct a typographical error.
Amendment agreed to.
I move amendment No. 30:
In page 12, subsection (1), to delete lines 38 to 43, and in page 13, to delete lines 1 and 2 and substitute the following:
" "service connection" means a water supply pipe or drainage pipe, together with any accessories and related fittings, extending from a waterworks or waste water works to the outer edge of the boundary to the curtilage of a premises, and used, or to be used as the case may be, for the purpose of connecting one or more premises with a waterworks or waste water works, and, where used or to be used for connecting more than one such premises it shall extend to the outer edge of the boundary to the curtilage of the premises which is furthermost from the said waterworks or waste water works;".
The definition of "service connection" is updated to clarify that such a pipe extends only to the outer edge of the boundary of the premises and does not extend in through the boundary, at which stage it would be regarded as either a drain or a distribution system, depending on whether it is carrying water or wastewater. The purpose of this essentially technical amendment is to avoid legal argument on this point at a later stage in the event of a dispute over responsibility for the maintenance of particular stretches of the pipe network.
This is a matter I encounter frequently in the course of my constituency work, that is, responsibility for particular parts of the pipe. Typically in my constituency — this varies from area to area — the householder's responsibility extends beyond the boundary of the household's ground to where it connects with the main pipe under the road. This gives rise to all types of problems. I can offer examples. In one case, a neighbour was parking a heavy lorry on a stretch of footpath. It appears that the pressure from the heavy vehicle caused some damage to the sewerage pipe. The blockage occurred in the pipe and there was a build up of sewage through the manhole into the householder's garden. When they tried to deal with it, they discovered that the problem was out on the road. However, the local authority will not take responsibility because it takes the view that it is the householder's responsibility, even though it is outside the property owned by the householder. The householder has to obtain a road opening licence and a number of other items to fix the problem.
There is a second even more complicated example. This occurs when a number of houses are using the same pipe. Again, the blockage occurs outside a particular house and the householder must take responsibility for it. They have no way of recovering a share of the costs from the other householders using the same pipe.
This is an important definition in terms of who is responsible for what. Where is the outer edge of the boundary to the curtilage of a premises? Is the boundary wall of a house in a typical housing estate the front wall at the edge of one's front garden or is it where the two pipes connect?
I am familiar with the problem. There are some extraordinary and bizarre water connections in Bray, for example. The householder has responsibility to the ferrule, that is, the connection point, but the ferrule could actually be 100 metres down the road, particularly in some of the older parts of the town. Oddly enough, I am aware of the case involving the sewerage pipe mentioned by the Deputy; it is in an estate in the southern end of the Deputy's constituency and not 1 million miles from Bray.
They must have got to the Minister also.
Our constituencies adjoin each other. The Deputy's concern is the location of the boundary. My notes state it does not extend in or through the boundary. From the Deputy's constituent's point of view, that would be a significant improvement. In the case mentioned by the Deputy, the lorry was not parked within the constituent's boundary but outside it. I understand the Deputy's point. This technical amendment does not change the existing situation; it is intended to clarify it to prevent endless legal argument. The Deputy's concern is whether this improves the lot of the person who suffers as a result of a lorry being parked outside his or her home. It does not change it.
The amendment refers to "the outer edge of the boundary to the curtilage of a premises". That is the front wall. It cannot possibly be halfway out on the public road or 100 yards down the road, as occurred in the case mentioned by the Minister.
I agree with Deputy Gilmore. I am not sure whether the amendment contains a change but we should try to achieve change. At present, as I understand the situation, there is a gap beyond the front boundary wall of the house or the front wall of the garden, whereby if damage is done to the service, the onus is on the householder to repair the damage. That sometimes must be done on a public footpath, which does not make sense. I support the proposition that everything outside the front boundary wall should be the responsibility of the local authority.
I first encountered this problem a number of years ago. In that case there was a water leak on the road in front of the house. It was not affecting the water supply to the householder's house but, as a good citizen, he thought it desirable to notify the council that it was losing a great deal of water. He notified it and was duly served with a notice ordering him to repair it.
It should be pointed out that the stopcock for a water supply is the property of and to be maintained by the local authority, whereas two inches down from it the pipe is the householder's responsibility. That does not make sense.
There are apparently three elements. There is the mains which is owned by the local authority; the service connection, the part between the mains and the premises; and the distribution network, the part inside the premises. The distribution network is not in question because it is located in one's property. The issue we are discussing, therefore, concerns the service connection.
This section is attempting to clarify what is meant by service connection. We will come to deal with this issue later when we reach section 43, to which amendments have been tabled. It is probably the better place to discuss the points raised by the Deputies. I am assured there is no significant change as a result of this amendment; it is simply a clarification.
I will park the issue for the moment and leave it until we come to amendment No. 43 or, if necessary, return to it on Report Stage. In principle, however — this is where I agree with Deputy Cregan — the portion of the pipe under the public roadway should be the responsibility of the public authority. The householder should only be responsible for the portion inside his or her property.
That would be a significant change for a variety of reasons. It is odd that we are talking about private water connections and systems. Parts of Greystones, for example, had a private water system. The old Burnaby estate had one that was subsequently subsumed into the distribution network of Dublin Corporation which provides water for part of the town. Many issues are raised. In the Bray-Dún Laoghaire area different networks have been put in place during the years. The amendment does not change the current situation but defines what "service connection" means.
We will come back to the issue at a later stage.
I will let the amendment stand but we can the debate matter again later.
Amendment agreed to.
I move amendment No. 31:
In page 13, subsection (1), to delete lines 10 to 12 and substitute the following:
"but does not include a drain or service connection;".
This is a technical drafting amendment to the definition of "sewer". It does not change the substance of the definition of "sewer" as defined in section 2.
Amendment agreed to.
I understand the Minister is prepared to accept amendments Nos. 32 and 33 which may be discussed together.
I move amendment No. 32:
In page 13, subsection (1), line 13, after "lake," to insert "pool,".
These amendments clarify the definition and I am happy to accept them.
Amendment agreed to.
I move amendment No. 33:
In page 13, subsection (1), line 13, after "river," to insert "pond,".
Amendment agreed to.
I move amendment No. 34:
In page 13, subsection (1), between lines 14 and 15, to insert the following:
" "storm water" means run-off rainwater that enters any pipe;".
Amendment agreed to.
I move amendment No. 35:
In page 13, subsection (1), between lines 19 and 20, to insert the following:
" "surface water" means all rainwater or other water that is not in a pipe, but is on the surface of the land;
"technical requirements", in relation to a pipe and its fittings, means the appropriate capacity for the anticipated level of usage of the pipe, taking account of the standard sizes in which pipes and fittings are generally manufactured;".
Amendment agreed to.
I move amendment No. 36:
In page 13, subsection (1), line 31, to delete ", to prescribed standards".
This amendment proposes to remove the reference to prescribed standards from the definition of treatment systems. It will remove a technical impediment to the application to septic tanks of the duty of care required in section 70(2) concerning the avoidance of risk to human health or the environment from specified wastewater infrastructure, including treatment systems. It was intended that the definition of treatment systems in section 2 would include septic tanks for the purpose of the application of the duty of care provision in section 70(2). However, where grants of planning permission generally require septic tanks to be installed in accordance with standard recommendation SR6 of 1991, as drawn up by the National Standards Authority of Ireland, there is no specifically prescribed standard for the level of treatment application to wastewater from a septic tank, other than general requirements under the Water Pollution Acts for the prevention of water pollution. Defining a treatment system in terms of something which treats wastewater to a prescribed standard would, therefore, technically place septic tanks beyond the scope of the definition of treatment systems and render the duty of care inapplicable. Clearly, that would not be in the public interest. Therefore, the amendment seeks to ensure the duty of care resides on septic tanks as it does on other systems.
Amendment agreed to.
Amendments Nos. 37 and 40 are related and may be discussed together.
I move amendment No. 37:
In page 13, subsection (1), to delete lines 36 to 42 and substitute the following:
" "waste water works" means sewers and their accessories, and all other associated physical elements used for collection, storage or treatment of waste water, and any related land, which are owned by, vested in, controlled or used by any person providing or intending to provide water services;".
These two amendments provide for the amendment of the definitions of "waste water works" and "water works". The current wording of the definitions is by reference to relevant infrastructure in the ownership of specified operators only, namely, water service authorities, authorised providers of water services and contractors operating jointly with such authorities or on their own behalf. This could lead to legal difficulties in the enforcement of the provisions of the Bill relating to such works where a dispute arises over the validity of a water services licence or an operating contract, or where an operator is simply not licensed and, therefore, not an authorised provider of water services as such. Accordingly, the amended wording will define the expressions in a more generic manner, to relate to relevant infrastructure owned by, vested in or controlled by any person providing water services, regardless of his or her legal status as a water service provider. The revised wording of the definition as provided in the amendments will remove any doubt on this aspect and will ensure a ground for evading enforcement measures will be removed.
I have heard the Minister's explanation and his desire for legal clarity, but I am curious as to the direction in which the amendment is going. The original definitions all refer to wastewater works and water mains vested in or controlled by a water services authority, an authorised provider, or a person providing water services jointly with or on behalf of a water services authority or authorised provider. The initial definition seemed to have anticipated that wastewater and water services would primarily come through the water services authority, essentially as part of the public system. The new definition is widening this to indicate that it includes any person.
That is right.
Coming back to our argument about privatisation, if ownership of these services — the Minister accepted this in the course of the debate, although it has yet to be reflected in the text of the Bill — is going to be in public hands, why is he widening the definition to include any person? That could include a commercial company or a private individual. I am curious as to why this is being done if the Minister agrees that we need to make it clear in the Bill that ownership of these services will remain in public hands.
The Deputy is right but we also need to make it clear that somebody operating without a licence should not be able to perversely claim protection, thus avoiding responsibility for his or her actions. That is what the amendment is aimed at. It is a belt and braces approach, but one can see why it is necessary.
Although this is not in my briefing notes, I can envisage a situation where, for example, a temporary wastewater treatment system has been provided in an estate but has not yet been taken over.
Yes.
That would not be in the ownership of a local authority. I am familiar with particular cases involving two estates in north Wicklow which have been connected to pack plants for 20 or 25 years. They will shortly be relieved, but we have one operator who is prepared to continue the treatment, while the other has only done so every time the gun has been put to his head. It is important, therefore, to ensure one has a position that will not perversely prevent one taking action in such cases. The amendment is intended to avoid unforeseen circumstances.
Amendment agreed to.
I move amendment No. 38:
In page 13, subsection (1), line 47, to delete "and for the avoidance of doubt," and substitute "but".
This drafting amendment was brought forward on the advice of the Office of the Attorney General by which my Department has been advised that the expression being deleted by the amendment — that is, "and for the avoidance of doubt," — is no longer used by the Office of the Parliamentary Counsel in accordance with modern drafting methods. We are, therefore, deleting words no longer used in drafting.
Amendment agreed to.
I move amendment No. 39:
In page 13, subsection (1), to delete lines 50 and 51, and in page 14 to delete lines 1 to 11 and substitute the following:
" "water services" means all services, including the provision of water intended for human consumption, which provide storage, treatment or distribution of surface water, groundwater or water supplied by a water services authority, or waste water collection, storage, treatment or disposal, but does not include—
(a) provision by a person of pipes and related accessories for the distribution of water, or collection of waste water, to facilitate the subsequent connection by a provider of water services of another person to a water supply or waste water collection service, and
(b) such other exemptions as the Minister may prescribe, for the purposes of the application of licensing provisions under Part 6;”.
The amendment provides for the revision of the definition of water services to update it to provide further clarification of the type of activity to which the terms of the Bill relate. Storage, treatment and distribution of water supplied by a water services authority are also included to ensure group water schemes connected to public supplies are regarded as water services providers for the purpose of licensing under Part 6. Under the present wording of the definition, it is possible a group scheme could claim it is not distributing surface water, for example, but rather water supplied by a water services authority and thus evade licensing control. It is a measure to ensure licensing control cannot be side-stepped.
Amendment agreed to.
I move amendment No. 40:
In page 14, subsection (1), to delete lines 19 to 25 and substitute the following:
" "waterworks" means water sources, water mains and their accessories, and all other associated physical elements used for the abstraction, treatment, storage or distribution of water, and any related land, which are owned by, vested in,controlled or used by any person providing or intending to provide water services;".
Amendment agreed to.
I move amendment No. 41:
In page 14, lines 28 to 40, to delete subsections (2) and (3).
Amendment agreed to.
I move amendment No. 42:
In page 14, lines 44 and 45, to delete subsection (5).
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Will the Minister indicate when the commencement orders might be made following the enactment of the Bill?
We have not determined an exact date. I am told it will be fairly quickly. I will get something more specific for the Deputy. I am anxious that the Bill comes into force without any undue delay because it is long overdue. I will try to get some clarification for the Deputy.
Question put and agreed to.
NEW SECTION.
Amendment No. 296 is related to amendment No. 43 and both may be discussed together.
I move amendment No. 43:
In page 15, before section 4, to insert the following new section:
4.—(1) The Acts specified in Schedule 1 are repealed to the extent specified in column 3 of that Schedule opposite the mention of the Act concerned.
(2) Article 9 of the Urban Waste Water Treatment Regulations 2001 (S.I. No. 254 of 2001) is revoked.".
Amendment No. 43 provides for the substitution of a new section for section 4 which provides for the repeal of enactments and revocation of regulations. It is a drafting amendment to replace the existing expression Acts in subsection (2) with enactments. Reference to article 9 of the Urban Waste Water Treatment Regulations 2001 is also moved up to section 4 from Part 2 of Schedule 1. Being the only regulations to be revoked under the Bill, this is considered to be more appropriate.
Amendment No. 296, which is related, involves the replacement of the Schedule of repealed enactments with a new Schedule. The changes are the repeal of the Local Government (Sanitary Services) Act 1962, the repeal of other additional sections of the Public Health (Ireland) Act of 1878, the Local Government (Water Pollution) (Amendment) Act 1990 and section 8 of the Local Government (Financial Provisions) (No. 2) Act 1983. It is highly technical.
Amendment agreed to.
Section 4 deleted.
NEW SECTION.
I move amendment No. 44:
In page 15, before section 5, to insert the following new section:
5.—The purpose for which this Act is enacted includes giving effect to so much
of the following as relates to water services:
(a) Directive 2004/22/EC of the European Parliament and of the Council of 31 March 2004 on measuring instruments;
(b) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment;
(c) Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy;
(d) Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption;
(e) Commission Directive 98/15/EC of 27 February 1998 amending Council Directive 91/271/EEC with respect to certain requirements established in Annex 1 thereof;
(f) Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources;
(g) Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment;
(h) Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil when sewage sludge is used in agriculture;
(i) Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances;
(j) Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community.”.
Section 5 is a standard provision to establish clearly for the record which EU directives relating to the provision of water supplies for treatment of wastewater discharges may be transposed, wholly or partially, by the Water Services Bill when enacted or regulation made under it. The section as drafted lists ten directives which may be transposed by the Bill or regulation made under it. The amendment removes the reference to the now spent drinking water directive, that is, Directive 80/778/EEC, and inserts reference to two additional directives in section 5, that is, the nitrates directive and the directive on measuring instruments, that is, Directive 22 of 2004.
The nitrates directive is included to enable regulations recently made under the European Communities Act 1972 to be repealed and restated by regulation under this Bill. The need for this arises from the fact that regulations made under the 1972 Act may not provide for indictable offences in order that any breaches of regulations may only be prosecuted summarily. However, regulations made under the Bill may provide for indictable offences. Clearly, if there is a serious case with somebody wantonly and criminally destroying a watercourse, one must be able to deal with them on indictment as well as by way of a summary process.
Is 22 of 2004 the nitrates directive?
No. Directive 22 of 2004 deals with measuring instruments. The nitrates directive is 676 of 1991.
That is being given full effect in Irish law.
Yes. What is happening is that the nitrates directive is being included to enable regulations made under the European Communities Act 1972 to be replaced and restated by regulations made under this Bill. I refer to a case where somebody is criminally responsible for the destruction of a watercourse or the water system. For example, if somebody decided to dump material from a fuel laundering system into a water reservoir, clearly he or she would be responsible for a very serious criminal offence. Under the arrangements in the European Communities Act 1972 — the instrument being used to give effect to the directive — one could only take a summary offence against a person in such a case. In those circumstances, one could not apply the full extent of the law on somebody who behaved in such a criminal manner. This will allow for not only summary offences but will also allow one to take the necessary proceedings in serious cases where indictable offences have been committed. Under regulations made under the European Communities Act, one can only deal with summary offences and not with indictable ones. There is a serious weakness.
As I understand it, the Minister has made an agreement with the European Commission in regard to a revised version or application of the nitrates directive.
Correct.
How does the Minister square that with this?
That is precisely what this does. One of the issues that——
Does this not give legal effect in Irish law to the nitrates directive in its original form?
No. If we were to do our part of the bargain in the nitrates directive and we were to do so simply under regulations made under the European Communities Act 1972, the regulations which we would make under that Act could only deal with summary offences and not with a situation which is indictable. That is clearly unsatisfactory domestically and from the point of view of the European Union. The European Union obviously wants to provide for a situation where one is in a position to deal with any criminal activity. The regulations which will be made under this Bill will allow one to continue to deal with summary offences in a summary manner but it will also give one the option to deal with indictable offences.
Is the Minister providing in the Bill for the revised arrangement in regard to the nitrates directive, which he has made with the European Commission? If the directive is being included, lock, stock and barrel, will the revised arrangement be included in the Bill?
The revised arrangements, which I believe the Deputy has in mind, are the recently announced derogation arrangements.
Yes.
Those arrangements were made at European level and do not affect this. They are the derogations which deal with spreading, levels and so on. That is its side of the issue, so it is dealing with that under the EU arrangement.
We must deal with offences which arise. The only way we can deal with offences, particularly those which are not summary ones, is by creating an opportunity, which is being done in this legislation, to deal with the more serious indictable offences.
Amendment agreed to.
Amendment No. 45 in the name of Deputy O'Dowd has been ruled out of order.
Amendment No. 45 not moved.
Section 5 deleted.
NEW SECTION.
Amendment No. 46 is in the name of Deputy Gilmore. Amendments Nos. 98 and 297 to 299, inclusive, are related. We will discuss amendments Nos. 46, 98 and 297 to 299, inclusive, together.
I move amendment No. 46:
In page 15, before section 6, to insert the following new section:
6.—In addition to the matters specified in section 5, the purpose for which this Act is enacted includes giving effect to the fundamental right of the individual to access to sufficient, safe, acceptable and accessible water for personal and domestic use, having due regard to international legal standards.”.
The purpose of my amendments is to provide in legislation for a legal right to water. The Bill makes much provision for the way in which water is to be supplied, but there is no legal right to the provision of water to people and there should be such a legal right. Water is a basic necessity of life. People should have a right to it. The provision I propose is to give effect to the fundamental right of the individual to access to sufficient, safe, acceptable and accessible water for personal and domestic use, having due regard to international legal standards. The Bill would be deficient if it did not underpin a legal right to water to individuals and to households.
My amendments update the Long Title of the Bill to provide for the inclusion of references to additional enactments which will be affected by amendments arising from the Bill and to set the overall operational context of the Bill, as the Deputy has described. The additional amendments referred to are the Local Government Act 2001 and the Environmental Protection Agency Act 1992.
I will deal with amendment No. 98; I was trying to deal with the entire group. The proposal in amendment No. 98 to provide for the right of everybody to have access to water would place an extraordinary burden on the water service providers. For example, if I decided to build a house on an small offshore island and I acquired the necessary planning permission, would the service providers be responsible for providing a pipe under the water to my house? Such an untrammelled right could cause practical difficulties. It would give a licence to unreasonable demands being made on the services involving pumping and piping water to remote and inaccessible places. For example, if an eccentric billionaire buys John Lennon's island in Clew Bay and decides to build a palatial premises there, is it reasonable to expect that the local authority must provide a connection to the Westport water supply and install several thousand metres of piping from the waterworks in Westport. While I am sure that is not what Deputy Gilmore has in mind, that would be the effect of an untrammelled right. It would be dangerous to insert that untrammelled right in the Bill. If a person wanted to build, not just on top of a mountain but elsewhere, it could put an onerous responsibility, not only in individual cases where a homeowner might build a one-off house but in demands which would be made by speculators or developers — I do not necessarily mean to refer to such persons negatively. Overall, the bestowal of an unencumbered right to water without any regard to the factors such as costs and technical difficulties would cause difficulties.
I am sure the spirit of the move proposed by Deputy Gilmore is not directed at the extreme case. In fact, it relates to his early debate on which I agree with him, that is, the ownership of the water resource. However, this provision would be unwise.
There is another problem that would also arise, where people get planning permission for holiday homes in remote areas. It is not reasonable that the taxpayer should have to provide a service in those circumstances. If somebody wants to build a house, particularly a holiday home, or if an eccentric billionaire wants to live on an offshore island, it would not be wise to put the requirement as an untrammelled right on to the local authority or local water service provider. If Deputy Gilmore thinks it through, there are dangers in giving any unencumbered right.
The Minister chooses the most extreme and unlikely circumstances to rubbish the amendment.
That is not what I am doing.
Those circumstances are capable of being controlled anyway by the planning process. If a person wants to build a house on an island which does not have a water supply, clearly the planning authority can refuse him or her planning permission partly on the grounds that it does not have a water supply. There is a means of controlling that or the planning authority, in granting permission, can make it conditional that the person extracts his or her water from the ground in the same way as they make conditions in the case of sewage or other matters. Where somebody is granted planning permission, it does not follow automatically that there is a requirement on the local authority to provide piped water.
The issues I seek to address here are, first, in respect of the general right of access to water. The Minister referred to addressing a UN conference on this issue. This issue of a person's right of access to water is occupying international debate at present. In all of the international consideration of this issue of water supply by various bodies, one of the recommendations made repeatedly is that there should be a legal right to a water supply.
This country has plenty of water and has too much of it at times, but there is no right to water in our law. As a consequence, one then ends up in practical situations, for example, if the quality of water supplied through a public system to households is deficient, if the pressure of water supplied through a public system to households is insufficient, or if one wakes up on a Saturday morning with no supply of water until lunchtime, where one has no legal right of redress against the public authority. If the water supplied by the public authority is polluted, one has no legal right of redress. If one lives in a pristine area of rural Ireland and the water supply, however provided, is polluted, either by direct point source pollution where somebody lets something into the system or by the more insidious form of pollution through, for example, excessive use of nitrates on land, one has no legal right. Other people may have legal rights. In fact, arguably, this country's polluters of water have more legal rights to protect themselves than the consumers of water, who have no legal rights at all.
The purpose of the amendment is that a right of access to good quality water be enshrined in our law. It does not necessarily follow from the amendment that where somebody decides to build a house half way up a mountain and a local authority is daft enough to provide planning permission, the local authority must run a pipe up to the house the following month. That is not what the amendment is about. The amendment is about the normal circumstances where the right to water is compromised.
As we move forward, as the Minister will be aware, we are encountering difficulty in protecting our water systems, both the groundwater and the water supplied through the public supply system, and in ensuring that the water is clean and potable. It is an issue. It is increasingly an issue right around the world and it is increasingly an issue here as the country becomes more developed due to more industrial activity, etc.
This is an important matter. We are passing what will be the centrepiece of legislation relating to water and it should provide a legal entitlement for individuals and households to have a right to a water supply. If there is some way of expressing that other than in the way it has been done in my amendment, I would be happy to take it on board. The Bill will be seriously defective if we do not provide people with such a right.
Without wishing to prejudice what Deputy Gilmore said, I am aware of cases in my constituency where permission was granted, against the advice of the local authority and on foot of section 4 applications or whatever, to build houses. The problem is that the septic tanks attached to such houses polluted the drinking water supply. To supply the water these houses require, it would be necessary to run a pipe to a safe and secure supply approximately one mile away. There are instances where permission may have been granted, against the advice of local authorities, and where water supplies have been compromised. In such cases, the solutions should not lead to the imposition of a burden on taxpayers. I agree with the principle behind the amendment but we must be careful and ensure that the public good is protected, particularly in the context of identifying who should provide water supplies and the cost of such provision.
Deputy Gilmore raised a number of good points. On the issue of whether there is, for example, a balance between one's right to a clean water supply and the right of other people to use their land, the drinking water directive sets out that balance. In addition, an offence is being created in the legislation in respect of people who contaminate water supplies, regardless of whether they are public or private. Section 57 states "A person who causes or permits water in any waterworks or service connection to become polluted is guilty of an offence." We will discuss that matter later.
There is a public good provision in the Long Title to the Bill. This arises in the context of amendment No. 297, which provides for the inclusion of a reference to the common good in the summary expression of the objectives of the Bill. This refers to protecting the common good and balancing it. Such common good provisions are standard to ensure that the provisions of the Bill will be applied in the interests of everybody affected by it. I do not wish to be garrulous or engage in disputatious debate, but if, as the Deputy stated, a council is daft enough to grant planning permission to somebody in an obscure area and give them an untrammelled right — that is not the intention of the Bill or the Deputy's amendment — real difficulties would be created. If the person in question was rich enough to obtain planning permission to build in an obscure place, major problems could result.
The reference to the common good in the Long Title to the Bill is intended to provide a clear statement of the overriding purpose of the legislation, when enacted. It will provide a crucial reference point on occasions when a balance needs to be struck between individual and community rights before the courts. The expression of a general common good is quite common in Irish law. Amendment No. 299 contains a reference to additional enactments.
It would be unwise to include in the Bill an untrammelled right. Amendments Nos. 297 to 299, inclusive, deal in some way with the common good, which is what the Deputy is trying to protect.
I will withdraw the amendment and approach the matter in a different way on Report Stage.
I will consider the matter in the interim. The Deputy will accept that there are some practical points at stake——
I do.
——but I will examine the matter further. To achieve something good, which is what Deputy Gilmore wishes to do, we could leave ourselves open to widescale abuse. One of the difficulties is that one will always find someone who is litigious and rich enough and who has access to a smart lawyer who could drive a coach and four through the best and most benign provisions.
Amendment, by leave, withdrawn.
SECTION 6.
Amendments Nos. 49, 56, 66, 70, 104, 111, 133, 152, 161, 167, 172, 179, 183, 189, 191, 193, 195, 197, 202, 205, 213, 214, 229, 235, 244, 245, 247, 252 and 256 are cognate on amendment No. 47 and the entire group will be discussed together.
I move amendment No. 47:
In page 16, subsection (2), to delete line 25 and substitute "commits an offence".
The fact that the Chairman was able to read out that long list of amendments in one breath is a clear indication that he has led a pure and unstained life.
I was going to make a comment to the Minister in respect of the previous amendment. I am intrigued by the notion of an eccentric building a holiday home on an offshore island. They are not all necessarily eccentrics. However, we will leave that discussion to a later date.
One of the islands could have its water supplied by helicopter.
I had in mind the recent sale of an island located closer to the mainland than that about which the Chairman is thinking. As I understand it, there is a water source on the island in question. There is nothing eccentric about building a home on an island where there is a ready supply of water.
I am glad the Minister clarified that matter.
We must be careful regarding the analogies we use.
The amendments in this group are technical and drafting in nature and are designed to replace in the Bill each usage of the phrase "guilty of an offence" with the words "commits an offence" to reflect current drafting practice. The phrase "guilty of an offence" is no longer used because the courts must determine whether individuals are guilty. The legislation will now state that a person who does or fails to do certain things will commit an offence.
As well as inserting the term "commits an offence", amendment No. 205 also removes a superfluous comma from the text.
Amendment agreed to.
Section 6, as amended, agreed to.
SECTION 7.
I move amendment No. 48:
In page 17, subsection (2)(a), line 30, to delete “specific” and substitute “specified”.
Amendment agreed to.
I move amendment No. 49:
In page 17, subsection (2), to delete line 35 and substitute "commits an offence".
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
Amendments Nos. 50, 80 to 83, inclusive, 95, 96, 171, 180, 181, 187, 291 and 292 are related and will be discussed together.
I move amendment No. 50:
In page 17, lines 36 to 46 and in page 18, lines 1 to 9, to delete subsections (1) to (3) and substitute the following:
8.—(1) A person who commits an offence under section 19(4) or 56(20) is liable on summary conviction to a fine not exceeding €100.
(2) A person who commits an offence under section 7(2), 30(7)(b), 30(10), 42 (9)(a), 43(18), 45, 49(6), 56(4), 56(15), 56(18), 62(8), 72(6), 74(4)(b), 80(6) or 103(12) is liable on summary conviction to a fine not exceeding €5,000.
(3) A person who commits an offence under section 6(2), 33(3), 53(1), 55(1)(a), 55(11), 61(1)(a), 61(2), 61(12), 63(12)(a), 74(1), or 74(3) is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.
(4) A person who commits an offence under section 12(1), 22(7), 31(14), 31(19), 32(4), 54(6), 57, 58(4), 59(2), 60(2), 63(11), 63(17), 69(7), 70(10) or 79(5) is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000,000, or imprisonment for a term not exceeding 5 years, or both.”.
I apologise to the committee in advance because we are entering into a very complex area of the Bill.
Section 8 is being redrafted to provide for revised penalties, and reflect the inclusion of some additional offence provision in the Bill. I will outline the background to this and then deal with the new offence provisions.
The underlying purpose of amendment No. 50 is to categorise the penalty provisions in the Bill in line with current drafting practice. It is being inserted on the advice of the Attorney General's office. The objective of the proposed categorisation is to create a regime of penalties which, while dissuasive, are proportionate to the individual offences to which they relate. The proposed penalties are in line with norms across the environmental legislative code. Similar penalties were inserted into the Environmental Protection Agency Act 1992 and the Waste Management Act 1996 by the Protection of the Environment Act 2003.
On amendment No. 80, provision for daily fines is being removed on the advice of the Attorney General because such fines are no longer considered necessary. It is apparent, from analysis of the application of such provisions in the water area, that they are never used in practice. Accordingly, it is intended to dispense with them and replace them with higher penalties in the first instance. In addition, a new provision is being inserted to replace the existing section 28 — assignment of additional functions — which provides for general authority to seek enforcement by High Court injunction against any person who is in breach of the Act and causing a risk to human health or the environment. The combination of higher penalties and recourse to court injunction is regarded by the Attorney General as a preferable penalty regime. This will ensure equally effective enforcement against recalcitrant offenders who continue to commit serious offences, despite conviction by the courts. We have plenty of examples of this.
I refer to amendments Nos. 81 to 83, inclusive. I have been advised by the Attorney General's office against the retention of the existing section 28 which provides for the assignment of additional functions by regulations. Removal of this provision provides a convenient vehicle for the insertion of the new injunctive relief provision in section 28 without upsetting the section numbering sequence of the Bill. However, as a consequence, amendments Nos. 81 to 83, inclusive, no longer have relevance and I request that they be withdrawn.
In amendments Nos. 291 and 292 similar updating provisions are being inserted in the Water Pollution Acts 1977 and 1990 and the water pollution-related provisions of the Fisheries (Consolidation) Act 1959 by amending sections 107 and 108. These will bring penalty provisions in the water pollution and water services areas fully into line with the broader environmental code.
I refer to the new offence provisions, in respect of which new penalty provisions are inserted in section 8. Amendment 95 proposes to insert an additional provision into section 30(7), designating it an offence not to comply with a compliance notice issued by the Minister against a water services authority which is not in compliance with prescribed performance standards or carrying out its duties in a satisfactory manner. This will address aspects of Deputy Gilmore's contribution on the previous section.
Failure on the part of a group water scheme to comply with the requirements of a supervising water services authority is designated an offence under the licensing provisions in Part 6. It is appropriate that a similar failure of a water services authority to comply with a requirement of its supervising authority, the Minister, should be similarly designated as an offence. For example, the local authority was clearly deficient in its performance in dealing with my constituents in Enniskerry, County Wicklow, and, as Deputy Gilmore stated, a sanction should be in place to address this. If a group water scheme was deemed to be committing an offence by a failure in one regard, it is only reasonable that the supervisory authority, the local authority, would be equally answerable to the Minister for its failures.
Amendment No. 96 inserts a new subsection (10) in section 30 to designate as an offence a failure by any person from whom the Minister seeks information or data under section 30 (4)(k) to provide such information.
Amendment No. 187 provides for the insertion of additional subsections in section 56 relating to the conservation of water. The group of new subsections has two main elements. The first consists of subsections (14) and (15) and enables the Minister to make regulations to facilitate recycling of stormwater or rainwater run-off, what is known as "grey water" and provide for offences. "Grey water" is the term given to domestic wastewater other than sewage which, having received minimal treatment to screen out pollutants such as hair or food particles, could be made available for reuse in applications not involving human consumption such as flushing of toilets, washing out farm buildings, land irrigation and so on.
The remainder of the amendment provides for the insertion of subsections (16) to (25), inclusive, to make provision for the introduction of hosepipe bans and other restrictions designed to conserve water supplies during times of drought such as restrictions on the use of water for swimming pools, car washes, etc. It also provides for the application of a fixed payment notice or on-the-spot fines system, as the system is commonly known, for breaches of such restrictions to facilitate enforcement.
As amendments Nos. 171, 180 and 181 have a direct bearing on water conservation and the new provisions in section 56, I will address them. The proposal made in amendment No. 171 places too heavy a burden of responsibility on owners or prospective owners of premises in the provision of water saving devices. It is difficult to envisage a person purchasing a unit in a new housing development being held legally responsible for ensuring water saving devices are installed during construction. If such devices were not installed, for example, would a water services authority be expected to prosecute every new house owner in the development for the omissions of the builder? That is not our aim. Adequate powers will be available through this amendment and forthcoming amendments to the building regulations relating to water demand reduction devices to address the concerns raised by the Deputy in his amendment.
With regard to amendment No. 180, I refer the Deputy to section 36 which obliges water services authorities to make water services strategic plans for their functional areas, addressing among other matters, water conservation measures in place or planned. The section also enables the Minister to make regulations prescribing the manner in which any matter is to be set out in a strategic plan, while section 37, in turn, provides for the power of the Minister to direct that a plan is revised in such manner as is specified where treatment of any particular aspect of water services provision is not dealt with adequately in a plan.
The objectives of amendment No. 181 are also generally met by amendment No. 187 which enables regulations to be made in relation to rainwater harvesting. My Department is funding a pilot rainwater harvesting study with a view to developing further initiatives. When the results of the study are known, I will be in a position to develop further appropriate responses, using the powers under the Bill and having recourse to additional building regulations, as required. It is necessary to place additional obligations on the Minister in this regard other than the overriding obligation under section 30(1) requiring him or her to oversee efficiency of water services delivery generally.
I refer to amendment No. 187, through which the Minister will give himself the power to make regulations which will prescribe the duties of owners and occupiers of premises in the conservation of water or wastewater on the premises. He further provides that a water services authority may issue orders in respect of its functional area to cover activities such as watering a garden, spraying crops, washing cars and trailers, filling a swimming pool in which children play or artificial ponds. I acknowledge the logic behind this measure during a water shortage to conserve water but it involves amending the law. The position up to now has been that if in the middle of summer there is a water shortage, an advertisement is placed on radio or television encouraging people for the public good to spare water by not watering their garden, or by showering together, etc. However, this provision brings us to a new level. Local authorities will issue a direction stating people cannot wash their cars, water their gardens or fill their toddlers' paddling pools and that if they do, they will be guilty of an offence, may be fined a sum up to €5,000 or get three months in jail. This provision is an intrusion into the privacy of people's homes and a fundamental change in the law. An inspector from a local authority may now appear in people's front gardens to see if they have their hosepipes on. A garda will be able to do the same because the function is also being assigned to gardaí. Householders could find themselves before the courts and being fined or sent to prison for doing something that they regard as done in private. It is my experience that when there is a water shortage, most people respond in a civic-minded manner to the encouragement to spare water. Occasionally we come across the could-not-care-less attitude, but generally people come on board as a result of the exertion of peer pressure. If some insist on watering the lawn in the middle of a dry spell, the first ones to bring it to their attention will be their neighbours.
There may well be a case for this legal provision and providing that a local authority may direct what people can do in the privacy of their homes, but we need to slow down and take stock of what exactly the Minister is asking the Legislature to do. This is a situation where people will be brought to court for doing something in the privacy of their own homes, although perhaps they should not be doing it. I do not wish to defend those who waste water, but this provision brings the law into the back garden on a hot summer's day.
The Deputy is correct. I am smiling inwardly at the idea of making it mandatory for people to shower together. That would be popular legislation, particularly if they had to do so in the back garden. However, that is another day's work.
I see the Deputy's point. The on-the-spot fine has a maximum of €125 and would only arise where people refuse to accede to the request to cease or desist. The Deputy is right that there is a civic spirit and that we will always find that 99% of people will abide by the regulations, particularly when water is in short supply. In such a situation they will not wash cars or fill swimming pools, etc. I baulk at the idea of somebody being fined €125 for filling a child's paddling pool.
It is prudent to make provision to deal with a person who refuses to abide by the regulations and fills the pool, washes the car and does what he or she likes, as if to say, "To hell with it." Unfortunately, there are some, a small minority, who behave like this. Even when they are advised, cautioned or requested by their next door neighbours to heed the restrictions, they may just tell them what they should do with themselves. There are persons who are thick enough to behave like this.
The on-the-spot fine system does not represent a major breach of civil liberties. It is necessary to give water authorities, particularly in such circumstances, the power to discourage people who behave in a reprehensible way.
How will this measure be enforced?
It will be enforced by authorised officers of the local authority or gardaí.
Gardaí will be involved in enforcing it. Let me talk about a hypothetical case. Will a garda now be permitted to walk into people's back gardens to see if they are watering the garden when a drought or dry season order is in place? The section states an authorised person——
In circumstances where a drought order is in place and somebody refuses to co-operate with the authorised officer of the local authority, the authorised officer can request a garda to intervene and, in such circumstances, an on-the-spot fine may be issued.
It is stated that the person concerned could be arrested.
Yes, in a more serious case.
Take these situations as examples. It is a hot day and a person may or may not have the hosepipe turned on in the garden when a local authority officer arrives and informs him or her that a dry season order is in force precluding the use of the hosepipe, the filling of pools or the washing of cars. If a person is in his or her front garden washing his or her car and somebody comes along and tells him or her that an order is in force, it would be natural for him or her to tell the officer in question to get lost. However, suddenly a garda will now appear at the gate to arrest him or her. Can gardaí enter one's premises in such circumstances?
Let us not take it from the sublime to the ridiculous. The arrest provision is made to provide for situations where people refuse to co-operate, for example, by giving a false name. It is not envisaged that a garda will come and arrest a person filling a paddling pool. At worst, an on-the-spot fine would be appropriate. If we introduce, for the first time, provisions which allow penalties to be applied to those who breach water conservation orders, for example, in a period of drought, we must deal with the variety of circumstances that may arise. We could have a situation where somebody using a pressure hose to hose down lorries in a large yard is using thousands of gallons of water and is told by the authorised officer to stop in the public interest. The person concerned might tell the officer politely to get off the premises. The authorised officer would then ask a garda to enforce the order. The gentle person in question might not agree with the garda, refuse to co-operate, and give his name or give a false name. In such circumstances the garda must have the right to act for the public good, which is reasonable. Currently, there is no provision for the imposition of on-the-spot fines. Therefore, if people behave in an unreasonable way, it is not unreasonable that we include a spectrum of circumstances in which the public authorities can operate in the public interest.
I have no difficulty with the Minister's objective, as I fully support water conservation. There should be some means of dealing with people who do not observe their civic duty to conserve water when required. However, we must deal with what the Minister is including in the law which transgresses the concept of the privacy of one's home in a way never done before.
I recall the debate on Committee Stage of a road traffic Bill when the issue of how far a garda could go was debated; for example, could a garda walk into a person's driveway and breathalyse him or her or oblige him or her to open the car door. All of these issues touch on people's right to privacy in their own homes, which has been defended, and touch upon issues of constitutional rights. This means somebody can be arrested for watering his garden, spraying crops, filling the kiddies' splash pool. The Minister is correct, that the Bill also includes the person washing a large number of lorries. However, I am more concerned about what the Minister is opening up in terms of the access to the lámh láidir of the law into the privacy of people's homes, admittedly, for a very desirable purpose, the conservation of water. It is what happens when the officer from the local authority arrives at the front gate or rings the door bell and half an hour later, when the thing spins in a particular way, the garda is there with the handcuffs.
I see the point the Deputy makes. The arrest provision only arises in the case of somebody who refuses to give the garda his or her name and this is not uncommon. The authorised person shall not, other than with the consent of the occupier, enter into a private dwelling under the section unless he or she has obtained a warrant from a District Court. It does not give a person a novel right to enter people's premises. I refer to subsection 22(3). I am intrigued by the prospect that if somebody is washing a car out in the front, he or she can be approached but if washing the car in the privacy of the back garden and using water in the privacy of the back garden, he or she should not be admonished. I do not think this is the Deputy's intention but that is the effect. If someone does something illegal in a surreptitious manner, they will not be prosecuted or even given a small fine, whereas if they do the same thing out in public, they will be given a small fine. I do not think that is an equitable arrangement or even a logical one.
The provisions in the Bill are prudent. The Bill does not give anybody the right to simply walk into a house and this is clear from subsection 22(3). The arrest arises only in those extreme cases and I cannot imagine a situation where a garda will arrest somebody for filling a paddling pool. However, I can imagine a situation where a garda is met by some thug who is using thousands of gallons of water and simply tells the garda in an impolite way to take himself off the premises, will not co-operate with the garda, will not desist in the operations that he or she is involved in, and refuses to give the garda his name for the service of a summons. In those circumstances it is right that the garda should have the right to arrest a person. Obviously, any application of any rule or power that is given to enforcement authorities must be operated proportionately but I do not think we are legislating for a disproportionate application of fines or for garda powers that are disproportionate. We are making prudent provision to fill a gap and where there is no capacity other than appealing to people's better nature, not to abuse water. Sadly, the reality is that this happens. We all know of cases where a civic-minded neighbour might say to somebody that there is a ban on using water in a certain way but they can be told very impolitely what to do with themselves.
We must create some situation where a sanction can exist and the sanction of a fine of a specified amount of €125 for somebody who is an abuser of water and who refuses to be advised not to abuse water is reasonable.
Is it a summary of the Minister's point that if the gardaí are going to arrest somebody, it will only be on foot of a District Court order?
No. It would be for refusal to give a name or if somebody refuses to desist in the action when they are asked by an authorised officer from the council.
There were many Opposition references on Second Stage to the failure to protect water and this was right and prudent. Some sanctions are needed. It was the Opposition contributions during the Second Stage debate that pointed out the deficiencies in the legislation. I do not regard this as a sledgehammer to crack a nut but it is putting a spectrum of devices in place from an on-the-spot fine which can be issued where a person simply desists from a reasonable request, right up to dealing with serious cases such as where somebody is using substantial amounts of water and is ignoring the request to cease doing so and then refuses to give his or her name to a member of the Garda Síochána. I do not think it is a breach of civil liberties to create devices in law to prevent those people who are unreasonable from abusing the position.
Is the Garda involvement only at the request of the authorised officer?
Yes.
Therefore, it is only when the local authority official goes to the Garda and complains that a person will not conform and asks the Garda Síochána to attend. The Minister has referred to the District Court. Does the authorised officer go to the District Court or does he go to the Garda Síochána?
The Bill states an authorised officer shall not, other than with the consent of the occupier, enter the premises under the section, unless he or she has obtained a District Court warrant. This is clearly a significant protection. The garda could also hand out an on-the-spot fine.
In the context of arresting somebody.
Only a garda has that power.
Is that once a complaint has been made by the authorised officer?
I presume a complaint could be made in the first instance by a neighbour who sees water being wasted and contacts the county council. A council authorised officer will ask the person to desist. If the person refuses to desist, then a garda can be called to assist the authorised officer. The authorised officer does not have any powers to stop a person on the spot. The authorised officer calls the Garda and a garda can then warn the person that they will be issued with a summons. If in those circumstances the person refuses to give his or her name to the member of the Garda Síochána, it is not unreasonable that——
I am just teasing out the issue.
There is a sequence.
It is only when they refuse to give their name that they may be arrested. It is purely in the situation where they will not identify themselves.
This is normal.
I am just thinking it through. I am putting myself in that situation.
Deputy Gilmore makes a very valid point. Sometimes small, silly incidents can escalate out of all rationality. The relevant section of the Bill refers to a person who when requested to furnish his or her name or address to an authorised person or a member of the Garda Síochána under section 19 fails to do so and when so requested, furnishes a name and address which is false and misleading, and thereby commits an offence. Where a member of the Garda Síochána is of the opinion that an offence under section 20 has been committed, then the member may arrest the person without warrant. It is a sequence.
It is not arbitrary.
I am concerned that Deputy Gilmore has dealt with the issue of entering premises and the warrant from the District Court.
I must confess I did not know the present law was in place. What is the history of the issuing of fines for the amount which is already on the Statute Book?
That was the point. The point has been made from the Opposition benches during the course of Second Stage that there was no such provision and it is a prudent point to put such a provision in law.
The new law being proposed by the Minister says that a person can now be fined, arrested or ultimately imprisoned if he or she is watering the garden, filling a pool for a child or washing the car, or if he or she is a farmer spraying crops. Such offences are committed on the basis that the local authority has made an order that water must be spared. How do I know the local authority has made such an order? Suppose I am away on holidays and come back on a hot Saturday and decide to water my garden, how do I know? Am I supposed to look up the local authority website, listen to the wireless and read the public notices in the newspapers every day to ascertain if such an order has been made?
No. However, if approached by an authorised officer the officer will inform the Deputy that an order has been made.
That is not provided for and it should be. At a minimum a warning provision should be included. Reference is made to an authorised officer or a member of the Garda Síochána who has grounds for believing that a person is committing or has committed an offence. A nosey neighbour might telephone the Garda to advise that Mr. Roche is watering his garden again.
Or was watering his garden.
The Garda might have reason to believe that is true.
On the issue of notice, reference is made to causing an advertisement to be placed in a newspaper circulating in the area, according notification for the proposed order to be broadcast on a radio or television channel available in the area or by any other means the Minister may direct. Apropos the hypothetical Mr. Roche watering his garden and his nosey neighbour, the ultimate issue of arresting the said Mr. Roche would not arise unless Mr. Roche behaved in a very unreasonable manner.
Many will behave in that way. A person might be having a bad day with the sun getting to him when an authorised officer arrives and informs him he is committing an offence. The person might tell the officer to have a good run for himself. The officer might go to the Garda station and return with a garda. The person might repeat his comments with emphasis and remind the garda of the many offences being committed in the neighbourhood on which the garda might more usefully exercise his energies than on someone watering his garden. This could lead to a spiral resulting in the person being in trouble. While I appreciate the intent, I wonder whether the provision is necessary. At a minimum there should be a provision requiring the officer to give a warning before matters spin out of control.
Far from entering into completely new Armageddon-type legislation, these provisions are already contained in the Litter Acts.
We are beginning to repeat the argument.
It would make no sense to have a prohibition on the abuse of water without a way to enforce the prohibition.
I want to record my opposition to this group of amendments for the reasons I have stated.
Amendment agreed to.
I move amendment No. 51:
In page 18, subsection (5), line 15, to delete "found".
This technical drafting amendment deletes the superfluous word "found" from the phrase "a person found guilty of an offence".
Amendment agreed to
Section 8, as amended, agreed to.
SECTION 9.
Amendments Nos. 52, 53, 65, 134, 151, 158, 203, 207, 216, 217, 224, 228, 258, 281 and 283 are related and may be discussed together.
I move amendment No. 52:
In page 18, subsection (3)(b), line 43, to delete “six” and substitute “6”.
I accept all the amendments.
Amendment agreed to.
I move amendment No. 53:
In page 18, subsection (3)(c), line 45, to delete “six” and substitute “6”.
Amendment agreed to.
Amendments Nos. 54 and 55 are alternatives and may be discussed together.
I move amendment No. 54:
In page 18, subsection (3), line 50, to delete "five" and substitute "5".
I propose to deal with amendment No. 55 separately from the main group of amendments changing numbers from word to numeral form, as it contains an additional proposal to change the latest date for taking a prosecution from five to three years from the date on which the offence concerned was committed. Advice obtained from the Office of the Attorney General on this issue indicates that five years is a standard provision, for example, as it applies in the waste management code. Accordingly, I do not propose to accept amendment No. 55 and would ask the Deputy to agree to amendment No. 54 instead, which simply changes the existing format of the number five from word to numeral.
Amendment agreed to.
Amendment No. 55 not moved.
Section 9, as amended, agreed to.
Sections 10 and 11 agreed to.
SECTION 12.
I move amendment No. 56:
In page 20, subsection (1), to delete line 8 and substitute "commits an offence.".
Amendment agreed to.
Section 12, as amended, agreed to.
Sections 13 to 16, inclusive, agreed to.
SECTION 17.
I move amendment No. 57:
In page 21, subsection (3), line 22, to delete "a scheme" and substitute "regulations".
I ask the Deputy to withdraw this amendment as I do not consider it is necessary. Section 17(1) of this section already provides for a scheme to be made by regulations. The relationship of section 17(3) to section 17(1) is, therefore, already adequately defined.
Amendment, by leave, withdrawn.
I move amendment No. 58:
In page 21, between lines 23 and 24, to insert the following subsection:
"(4) A scheme under this section may include provision whereby a householder can apply for assistance in respect of a house to build sewers within the curtilage of such house in order to separate foul water from storm water prior to the waste water entering the service connection.".
While I understand the intention of the Deputy on the provision of such assistance to householders, I do not consider that inclusion of specific reference to it in section 17 is appropriate or necessary. There is nothing in the current wording of section 17 that would prevent such a scheme from being made should it be required. On the other hand, if we are specifically to include one example, why not put in a long list of examples? My concern would be that an inference could be drawn that by including one particular example, others which are not specifically provided for should be excluded. If we cite one or two examples we could exclude many other matters we have not yet considered. On balance, therefore, I do not consider that the proposed amendment enhances the section and I ask the Deputy to withdraw it.
Amendment, by leave, withdrawn.
Section 17 agreed to.
SECTION 18.
Amendments Nos. 59 and 60 are alternatives and may be discussed together.
I move amendment No. 59:
In page 22, lines 1 to 8, to delete subsection (4).
This amendment provides for the deletion of section 18(4). I have been advised by the Office of the Attorney General that a provision such as that contained in section 18(4), which allows a Minister to modify a parent Act by regulations to deal with any difficulty arising within a specified period of commencement of an Act in bringing any provision of it into operation or on the operation of any of its provisions is no longer desirable, and should be deleted from the Bill. Deputies will be aware that we discussed this privately in another context. We considered the use of a regulation to change something that is in a major Act that was discussed in the context of the electoral register. That is why the amendment has been proposed. Amendment No. 60 is no longer required in view of the deletion of section 18(4) by amendment No. 59. If the amendment is accepted, amendment No. 60 can be withdrawn.
Amendment agreed to.
Amendment No. 60 not moved.
Amendments Nos. 61 and 290 are related and may be discussed together.
I move amendment No. 61:
In page 22, lines 16 to 30, to delete subsection (6) and substitute the following:
"(6) The power of the Minister to make regulations under this Act includes the power to make provision in such regulations to give effect to—
(a) a provision of the treaties of the European Communities, or
(b) an act adopted by an institution of those Communities.”.
This amendment proposes to insert a new section 18(6) in the Bill, to provide specifically for the power under the Bill to make regulations, including the power to give effect to treaties of the European Communities or an act adopted by an institution of the European Communities. In the absence of such a provision, any treaty or act of the European Communities relating to water services would require new legislation in each case to enable it to be transposed.
Amendment No. 290, which relates to section 106, provides for the amendment of the Local Government (Water Pollution) Act 1977. There are three elements in the amendment. First, it provides for the amendment of section 4(1) of the 1977 Act to clarify that the discharge licensing requirements of the Act apply to discharges from septic tanks to soil or to percolation areas. The septic tanks in question are tanks that serve commercial premises which require licences under the 1977 Act. Second, the amendment corrects a syntax error at the end of the new section 6(2)(h) of the 1977 Act, which is proposed to be inserted by section 106 of this Bill, which deals with “procedural matters in relation to appeals” to An Bord Pleanála under the 1977 Act. Third, the amendment inserts a new section 30(3) in the 1977 Act, to enable any regulations made under the 1977 Act to provide for the transposition of EU directives on the management, protection and improvement of water or aquatic ecosystems, or related matters, into Irish law.
Amendment agreed to.
Section 18, as amended, agreed to.
SECTION 19.
I move amendment No. 62:
In page 23, subsection (1)(f), line 8, after “paragraph” to insert the following:
"and, in the case of electronic mail, provided also that the individual has consented to receive legal notices by email, that the matter is one of urgency, and that there is a facility to confirm that the recipient has received and read the mail and that this facility has been operated".
This amendment relates to the serving of legal notices by e-mail, which is fine in theory but there are difficulties in practice. We should bear in mind that a failure to respond to a notice served under this legislation could ultimately result in someone being jailed for an offence. If we permit the serving of such notices by e-mail, we will introduce a legal requirement on every person in the State to read all their e-mails to satisfy themselves that no legal notice is included in them. This would be an unworkable obligation in the light of the endemic problem of spam. I admit that the Bill also requires such notices to be served by conventional means, but the provision I am highlighting could be the thin end of the wedge. It sets a very bad precedent. I ask the Minister to accept this amendment.
It is clear that the drafter of the Deputy's argument has a problem with the high volume of e-mails, including spam, just as I do. Nobody other than a Minister is required to read every solitary e-mail, unfortunately. Section 19(1)(f) of the Bill provides that notices under this legislation must be served by means of one of the more traditional methods, as well as by e-mail. People will not suffer because they have not read their e-mail. They will not have any problems unless they ignore notices served by traditional methods by as well by e-mail. In effect, the serving of notices by e-mail will be an additional method, rather than an alternative method, of serving notices. I do not think it will be the thin end of the wedge.
The purpose of serving notices by e-mail is to facilitate the speedy transmission of data without fear of invalidating the notices, in the interests of the convenience or either or both parties. Such a means of serving notices should also facilitate the reproduction of additional copies of the notices, particularly if the notices include details such as drawings of the lay-out of pipes, for example. I do not think Deputy Gilmore should pursue this amendment. This section will allow for notices to be sent by e-mail in addition to being sent by other means. I can see real value in allowing e-mail to be used, particularly when one wants to send a great deal of material to companies to illustrate what they are doing incorrectly. It is prudent to provide for such an approach.
Amendment, by leave, withdrawn.
I move amendment No. 63:
In page 23, subsection (3), line 14, to delete "1963 to 2001".
Amendment agreed to.
Amendment No. 64, in the name of Deputy Gilmore, cannot be moved on the basis of the decision taken by the committee on amendment No. 63.
Amendment No. 64 not moved.
The Minister has indicated his intention to accept amendment No. 65 in the name of Deputy O'Dowd. As the Deputy is not present, I ask Deputy Gilmore to move it.
I move amendment No. 65:
In page 23, subsection (4), line 18, to delete "three" and substitute "3".
Amendment agreed to.
I move amendment No. 66:
In page 23, subsection (4), line 20, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
As amendments Nos. 67, 135, 150, 266, 267 and 274 are related, they may be discussed together.
I move amendment No. 67:
In page 23, between lines 20 and 21, to insert the following subsection:
"(5) Without prejudice to section 20 and for the purpose of a notice under section 43(13), 92(2) or 97(1)—
(a) where the name of the person concerned cannot be ascertained by reasonable inquiry, the notice may be addressed (however expressed) to—
(i) the person who owns or has control over the land or pipe referred to in the notice, or
(ii) the person who is responsible for the maintenance, repair or renewal of the land or pipe referred to in the notice,
(b) where the address of any person to whom a notice under section 43(13), 92(2) or 97(1) is directed cannot be ascertained by reasonable inquiry, then service of the notice may be effected by—
(i) publication of the notice in Iris Oifigiúil,
(ii) affixing a copy of the notice in a conspicuous position at or near the location at which the work referred to in the notice is to be carried out, and
(iii) publication of the notice in a newspaper circulating in the area in which the land or pipe referred to in the notice is located.".
The purpose of the related ministerial amendments to these sections is, first, to provide for the insertion of a new section 19(5) which will provide for additional methods by which a notice or another document that is required to be served or given under the Bill may be served or given.
Second, the amendments clarify that for the purposes of laying pipes under the proposed new section 42(12), the water services authority will have the powers and duties specified in section 41 in respect of the laying of pipes, as well as those specified in Part 7 in respect of the acquisition of land. They also provide that the water services authority will be liable to pay compensation as if the power were exercised under these sections.
Third, the proposed amendments will allow a water services authority, on receipt of a request from the owner of a premises, to enter the land of a third party under the proposed new section 42(12) on behalf of the owner, to enable a new connection to a waterworks or wastewater works to be made by the owner. The new provisions will enable the authority to install or arrange for the installation of the necessary pipes and accessories.
Fourth, the amendments make it clear that responsibility for the subsequent maintenance and renewal of pipes installed under the proposed sections 42(11) and 42(12) will rest with the beneficiaries of that work.
Fifth, the amendments also provide that if the person who is responsible for the maintenance or renewal of a connection cannot be identified under section 43(4), such responsibility will rest with the owner or owners of any premises using the connection, in direct proportion to the usage of the connection to supply water to, or drain waste water from, the premises.
Sixth, these amendments clarify that if a person wishes to install a connection under section 43(8), or the person responsible for the maintenance or renewal of such a connection wishes or has been directed by a water services authority to undertake work on a connection running through, across or under a public road, the person in question may do so subject to the consent of the relevant public road authority.
Seventh, the amendments outline the procedures whereby the water services authority will notify the person who owns or controls a connection of its intention to take the connection in charge under section 43. If the identity of such a person cannot be established, the authority will be able to serve a notice on those responsible for the maintenance of the connection.
Eighth, the proposed amendments also provide for notices issued under section 92 to be appealed, in accordance with the procedures set out in section 92(8), as if they had been issued under section 92(2). They provide for the payment of costs incurred in relation to the provision of the connection and the payment of compensation in respect of any reduction in the value of the interest in the connection.
Ninth, the amendments make the necessary changes to the relevant provisions of section 92 to ensure they facilitate the connection of premises to water services which are provided by a water service authority or an authorised provider of water services, such as a group water scheme, through a service connection or a proposed connection which is controlled or owned by another person.
Tenth, the amendments insert a new section 97 in the Bill to enable water service authorities to obtain consents to lay cables, water pipelines and ancillary fixtures over private land.
Difficulties frequently arise in this complex area. The amendments represent an attempt to bring some clarity to areas which can sometimes produce extraordinarily complex and difficult legal situations.
Amendment agreed to.
Section 19, as amended, agreed to.
Sections 20 and 21 agreed to.
SECTION 22.
I move amendment No. 68:
In page 23, subsection (2)(b), line 43, to delete “threat” and substitute “risk”.
This is a drafting amendment which provides for the replacement of the word "threat" with the word "risk" in section 22(2)(b). The purpose of the amendment is to ensure consistency with the rest of the Bill.
Amendment agreed to.
I move amendment No. 69:
In page 24, subsection (5)(e), line 24, to delete “a period,” and substitute the following:
"such period of time as may be specified by the authorised person, which period—
(i) shall be no greater than reasonably necessary, and
(ii) may be extended from time to time by an authorised person where necessary for the purposes of subparagraph (i),".
The amendment provides for an amendment to section 22(5)(e). Section 22(2) empowers an authorised person to enter and inspect a premises for the purposes of the Bill at all reasonable times or at any time where the person considers that a risk to human health or the environment may arise from a water service activity at the premises, and bring back-up assistance, including a member of the Garda Síochána or equipment. The power also extends to the stopping and boarding of any vehicle where the authorised person has reasonable grounds for believing that it may be a risk to human health or the environment or that an offence under the Bill is about to be committed. The powers include the power to require the driver to take the vehicle to a place designated by the authorised person where it may be detained for such period as may be considered necessary.
Subsection (5)(e) provides that whenever an authorised person enters premises or boards any vehicle under section 22, he or she may require that the premises or vehicle or any part thereof shall be left undisturbed for a period. The amendment provides for the deletion of reference to “a period” and its substitution with the words:
"such period of time as may be specified by the authorised person, which period—
(i) shall be no greater than reasonably necessary, and
(ii) may be extended from time to time by an authorised person where necessary for the purposes of subparagraph (i),".
These words provide an elaboration on the meaning of the word "period". The amendment will ensure that the authorised person is required to comply with a time constraint when requiring a premises or vehicle to be left undisturbed and cannot arbitrarily detain it indefinitely. As such, it provides protection against arbitrary abuse.
Amendment agreed to.
I move amendment No. 70:
In page 25, subsection (7), to delete line 29 and substitute "commits an offence.".
Amendment agreed to.
Section 22, as amended, agreed to
Sections 23 to 26, inclusive, agreed to.
SECTION 27.
I move amendment No. 71:
In page 28, subsection (1), line 34, after “subsection (2),” to insert the following:
"and provided that the Minister is satisfied that democratic accountability for the function concerned will be ensured,".
During our earlier discussion the Minister indicated his intention to accept the amendment, for which I thank him.
I am happy to agree to the amendment, as it strengthens our shared objective to ensure public water supplies are not privatised. As I indicated on Report Stage in the Seanad, I am prepared to listen to arguments to further strengthen this provision.
Amendment agreed to.
Amendment No. 72 not moved.
Amendments Nos. 73, 154, 155 and 278 are related and may be discussed together.
I move amendment No. 73:
In page 28, subsection (1)(b), line 39, after “Minister” to insert the following:
", save for functions associated with or connected with the agreement or imposition of water service charges,".
I regret I cannot accept the amendments. While I recognise the concerns about the introduction of domestic water charges which lie behind the submission of the amendments, I reiterate that the prohibition on domestic water charges is enshrined in primary legislation. It would not be good practice to enshrine it in law a second time.
This was done when a difficulty arose with nuclear power.
Correct.
Water service charges are a nuclear issue for many. They should be addressed in the legislation, particularly given that the Minister made an exception in other legislation when a matter of serious public concern arose.
I will give further consideration to the issue. I suggest that the Deputy introduce the amendment on Report Stage. The wisdom of my decision to introduce a double prohibition has been queried several times. At the time, I indicated that my decision to provide for a second prohibition would open the floodgates for similar requests.
I will take up the Minister's suggestion to resubmit the amendment on Report Stage.
I do not wish to create a precedent under which a double exclusion is provided for in primary legislation every time a good cause arises. Such an approach would create difficulties. I am satisfied that the prohibition on the introduction of water service charges is protected in primary legislation and does not have the demonstration effect I tried to achieve elsewhere.
What would be the position if the European Union insisted that Ireland introduce water service charges?
I would regard any such insistence as breaching a fundamental——
It is likely the European Union will insist on the introduction of water service charges.
Former Deputy John Bruton and I fought long and hard in the Convention on the Future of Europe to preserve the determination that issues which are tantamount to taxation are a matter for individual member states, rather than the European Union. That is not to say the European Union will not continue to try to change the position but we will continue to say no.
Does primary responsibility for this matter rest with the member states or the European Union?
It rests with member states, although that view is not universally held in the House because other parties have suggested from time to time that responsibility for some aspect of taxation might be appropriately granted to the European Union. The Deputy's party shares my party's abhorrence of any such proposals. This should remain a domestic issue.
Amendment put and declared lost.
Amendments Nos. 74 to 79, inclusive, not moved.
Section 27, as amended, agreed to.
NEW SECTION.
I move amendment No. 80:
In page 29, before section 28, to insert the following new section:
28.—(1) Where, on application by a water services authority to the High Court, the Court is satisfied that a person has failed to comply with a requirement of or under this Act, and the failure has caused, or is likely to cause, a risk to human health or the environment, it may by order—
(a) direct the person to comply with the requirement, and
(b) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.
(2) An application for an order under this section shall be by motion, and the High Court when considering the matter may make such interim or interlocutory order as it considers appropriate.
(3) An application for an order under this section may be made whether or not there has been a prosecution for an offence under this Act in relation to the activity concerned and shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.".
Amendment agreed to.
With regard to amendment No. 81, I wish to tease out the possibility of the European Union directing that Ireland impose water service charges. In the context of water conservation, global warming and so forth, it is likely that water will become increasingly expensive to process and produce. Notwithstanding the unanimous view of Members that we do not want water service charges, I am not satisfied that the European Union will not take steps to force Ireland to impose them. I understand that a Minister is on record as stating that charges will only come about as a result of a directive. Is that correct? I am not trying to pin that on anybody; I am merely trying to tease out the issue because it is very important.
I understand the Deputy's point. One can never say "never". I cannot say there will never be some obscure adjudication in the European courts but Irish Governments have been consistent on the issue of domestic water charging. We have made a particular policy decision and regard the issue as we regard taxation provisions. We are not prepared to concede that the European Commission has a right to intervene in this area. The Deputy is correct that the Commission has consistently disagreed with us on this matter. We are continuing to argue our case robustly. In 1999 there were negotiations, rather than a court case, on the water framework directive. It was resisted and this was possible because the then Government did not have to sign up to something it did not desire. EU law and the associated legislative process are evolving and we must obviously continue to fight our corner.
While I do not doubt what the Minister is saying, local authorities continue to install water meters for new domestic dwellings. They say they are not obliged to charge but that the houses will all have meters indicates a policy that entertains the possibility. I am not suggesting this will happen but the fact is that the groundwork is being done, which could lead to it.
Water-metering without charge is a very important tool in water conservation. One of the group water schemes uses metering as a conservation measure. The mere installation of meters in a particular county noted for being very canny in the spending of the odd shilling had an incredible impact on combating the waste of water.
Water-metering is also very useful in identifying leaks, particularly in an urban setting, where they comprise a major bugbear. In Dublin, 42% of the water entering the pipes at the reservoir was disappearing before it reached households and commercial premises. Metering helps in this regard.
I am not an engineer but presume that was due to the main network being defective. The pipes might have been Victorian. However, I am referring to the pipes between the meters and the new households and not to agricultural businesses or small enterprises. I acknowledge the need for metering in the latter instances. The groundwork is being prepared for charging. I query the need for metering if no charges are to be imposed.
The local authority is insisting on metering and its members are installing them in their own homes. Charging is on its way and I am trying to ensure it will be prohibited in this Bill, although it might be prohibited in other legislation.
Does the current water framework directive not specify charging for domestic water consumption is not necessary provided the State can show there is cost recovery? Does this exemption from charging for domestic water apply until 2012?
The arrangements in the water framework directive were the arrangements negotiated in 1999.
Do they apply until 2012?
I need to check that.
I am trying to understand our current position. I understood the water framework directive was being renegotiated and that the question of charging for water was back on the agenda.
The Deputy has in mind Article 19 of the directive. It states:
1. Once a year, the Commission shall for information purposes present to the Committee referred to in Article 21 an indicative plan of measures having an impact on water legislation which it intends to propose in the near future, including any emerging from the proposals, control measures and strategies developed under Article 16. The Commission shall make the first such presentation at the latest two years after the date of entry into force of this Directive.
2. The Commission will review this Directive at the latest 19 years after the date of its entry into force and will propose any necessary amendments to it.
I believe Deputy Gilmore is basing his citation of 2012 on paragraph 2. Any amendments to the directive would have to be agreed.
Can the Minister assure the committee there is no proposal on the horizon at EU level that would cause him or a future Minister to introduce charging for water?
That will not be under review until 2012. We have already enshrined a prohibition on water charging in primary legislation.
Is there a current proposal?
Not that I am aware of. The new section 104 of the legislation states:
(1) A water services authority shall not charge for water supplied to or discharged by—
(a) a household, which is used by that household for domestic purposes, or
(b) a person, other than another water services authority, providing water services to a household for domestic purposes.
This contains the double prohibition, which achieves what Deputy O'Dowd is proposing in his amendment. I should have pointed to this rather than simply resisting his amendment.
Amendments Nos. 81 to 83, inclusive, not moved.
Section 28 deleted.
Sitting suspended at 2 p.m. and resumed at 3.30 p.m.
SECTION 29.
I move amendment No. 84:
In page 29, subsection (1), lines 42 to 45, to delete paragraph (a) and substitute the following:
"(a) a failure to exercise any power conferred on the Minister, a water services authority or other prescribed person, by or under this Act or any regulations made under it, or”.
Section 29(1)(a) provides for immunity from proceedings for damages arising from the non-performance of a power or duty under the Act by the Minister, a water services authority or other prescribed person. The amendment to subsection (1)(a) proposes to remove the provision of such immunity in respect of failure to perform a duty. This touches on one of Deputy Gilmore’s points.
Provision for immunity from action for damages as a result of failure to carry out a duty is considered to be anomalous and is in conflict with existing legislation. It could, for example, be interpreted to prevent an action for damages arising out of a substandard water supply because of a failure to carry out duties in respect of management of a treatment plant.
I want to be 100% clear on what this amendment achieves.
It removes what we would call a blanket immunity provision. The Deputy touched on it in his earlier contribution. If, for example, the product of a food processing plant is contaminated by a substandard water supply, the food producer would have no right of action where the blanket immunity is applied. I am removing that blanket immunity. That deals substantially with the Deputy's point about the quality of water supply.
My concern was that one could be poisoned by a water supply and have no recourse if there were complete immunity.
That would be true if the blanket immunity applied.
The Minister says that his amendment restricts this immunity, but I do not see that. Does the terminology change anything in subsection (1)(a)?
It removes the provision of immunity from subsection (1)(a) in respect of failure to perform a duty. The section effectively provides a blanket immunity and this amendment removes that immunity. The section would now read: “[A] failure to exercise any power conferred on the Minister, a water [supply]...”. If the Deputy reads the previous section he will see it.
Yes, "[C]arry out any duty".
It removes the immunity in respect of that obligation. By deleting those words it is clear that these agencies do not have a blanket immunity simply because they have a responsibility to carry out a duty. It goes some way to addressing the point the Deputy raised in a different context.
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30.
Amendments Nos. 85, 87 and 289 are related and will be discussed together.
I move amendment No. 85:
In page 30, lines 22 to 26, to delete subsection (1) and substitute the following:
30.—(1) It shall be the general duty of the Minister to facilitate the provision of safe and efficient—
(a) water services, and
(b) water services infrastructure,
in accordance with relevant requirements of the Directives specified in section 5 in order to contribute to sustainable social and economic development and for that purpose the Minister shall have overall responsibility for the following:”.
I apologise because this is rather complex. These amendments relate to sections 30 and 104, providing for a change in the functions of the Minister and the Environmental Protection Agency, EPA, in the provision of drinking water by water service authorities. The purpose of the amendment is to provide an explicit link between the undertaking by the Minister of his or her functions under the Bill and the overriding obligation on member states to implement the requirements of relevant EU legislation. The additional provision acknowledges the broad EU context within which provisions of the Water Services Act will apply. The link between the Minister's duties and the related EU obligations will in turn extend to the operations of all water service providers through the Minister's supervision of water services authority functions and in turn their supervision of group water schemes.
The amendment arises owing to the need to achieve full transposition of the drinking water directive. It is related to amendment No. 289 which provides for the insertion of a new section 104 in the Bill to provide for an amendment to section 58 of, and the insertion of a new section 58A in, the Environmental Protection Agency Act 1992. This will provide for the supervision by the Environmental Protection Agency of compliance with drinking water regulations and standards by water services authorities.
Amendment No. 87 to section 30 is necessary to clarify that the general provision in section 30(1)(a) which confers on the Minister overall responsibility for the supervision and monitoring of the performance by water services authorities of their functions under the Bill is subject to the new section 58A proposed to be inserted by amendment No. 289 in the 1992 Act. The proposed new section 58A confers functions on the Environmental Protection Agency of enforcing compliance by water services authorities with prescribed drinking water quality standards.
The effect of these amendments will be that, while the Minister will still be responsible for the supervision and monitoring by local authorities of their functions under the Bill, responsibility for enforcement of compliance with prescribed quality standards of water supplied by water services authorities will be a matter for the Environmental Protection Agency. The proposed new section 58A gives the agency the necessary powers to enforce compliance by water services authorities with prescribed drinking water quality standards. It will copperfasten the relationships that will exist and arise under EU law.
Several Deputies raised the issue of the water framework directive and the exemption that Ireland successfully negotiated on the policy of not charging for domestic water. Deputy Gilmore raised the point about 2012 when the water framework directive will transpire. It is not a time-limited derogation. Our exemption will last as long as the water framework directive exists. Ireland would have to agree to lift the exemption in the event of a new directive being negotiated in 2012. There is double protection of our position in section 104.
Some in the business community believe they carry a disproportionate amount of the charges through commercial water rates. Take the scenario of a business taking a High Court case claiming that it is carrying the total water charge — both domestic and commercial. What happens in that case?
Such a case would be made on a false premise. The business community is not bearing all the costs, only the commercial side. These costs are imposed proportionately in the water charging arrangements. The taxpayer carries the rest of the costs.
Water will become a very expensive commodity and will present a difficult political problem in 20 years. I want to protect the individual household as much as possible.
I agree with the Deputy. Primary legislation protects this provision and it will be reinforced in section 104. A replacement directive will be negotiated in 2012. For a Government to surrender its derogation then will mean it will have to change primary legislation and this Bill.
Some politicians, possibly a Progressive Democrats Member, have made statements on it.
Amendment agreed to.
Amendment No. 86 not moved.
I move amendment No. 87:
In page 30, subsection (1), lines 27 and 28, to delete paragraph (a) and substitute the following:
"(i) subject to section 58A (inserted by the Water Services Act 2006) of the Act of 1992, the supervision and monitoring of the performance by water services authorities of their functions under this Act;”.
Amendment agreed to.
Amendments Nos. 88 and 89 not moved.
I move amendment No. 90:
In page 30, subsection (3)(c), line 43, after “2020” to insert “published on 28 November 2002”.
This is a drafting amendment. In section 30(3)(c), reference is made to the national spatial strategy and any revision or replacement of it as a matter to which the Minister must have regard and take full account of when carrying out functions under the Bill. The amendment provides for the insertion of “published on 28 November 2002” after the reference to the National Spatial Strategy 2002 to 2020. This will prevent any confusion arising in the event of a replacement national spatial strategy being put in place in the future. The amendment clearly identifies in a unique way that the current strategy is the one published in November 2002.
Amendment agreed to.
I move amendment No. 91:
In page 31, subsection (3)(f), line 7, to delete “Acts of 1977 and 1990;” and substitute the following:
"Local Government (Water Pollution) Acts 1977 to 2006;”.
This is a technical drafting amendment. There is no definition of "Acts of 1977 and 1990" in the definitions section. The two Acts referred to are the Local Government (Water Pollution) Act 1977 and the Local Government (Water Pollution)(Amendment) Act 1990. The appropriate reference in section 30(3)(f) to the two enactments in question should therefore be to the collective citation of the two Acts.
Amendment agreed to.
I move amendment No. 92:
In page 31, subsection (4)(d), lines 37 and 38, to delete all words from and including “(including” in line 37 down to and including “procurement)” in line 38.
I cannot accept this amendment. Paragraph (d) is intended to enable me to continue to issue codes of practice, for example, as have been issued on best practice on the use of sewage sludge in agriculture. It also enables me to issue guidelines, for example, as have been made in the application of Government policy, and directions as have been issued on adoption of design-build-operate principles.
Amendment, by leave, withdrawn.
Amendments Nos. 93 and 112 to 117, inclusive, are related and will be discussed together.
I move amendment No. 93:
In page 32, subsection (4)(i), to delete lines 8 and 9.
This is a drafting amendment to provide for the deletion of subsection (4)(i) because section 37(1) includes a similar provision. Amendments Nos. 112, 116 and 117 provide for the substitution of new sections, respectively, for sections 36 to 38, inclusive, which provide for the making of water services strategic plans by water services authorities. The proposed new section 36 provides for several significant changes to the section.
Having considered the important contributions on this section on Second Stage, I decided that the making of a water services strategic plan should be a reserved function of the members of the relevant authority.
Members will be aware it is my strong view that when new powers are being given to local government, they should be given to the elected representatives. This is one of those occasions when, effectively, we are reversing the trend of nearly half a century of taking powers away from local authority members, and giving new powers to them. I am sure that will be welcome.
An amendment in my name provides for the restatement of section 37, omitting the provision that the Minister must approve a plan by a water services authority. Section 36(17) will provide that the plan will be approved by the water services authority on the passing of a resolution by the members. Again, this is empowering local authority members. A procedure for the intervention by the manager of the water services authority where he or she is of the opinion that the plan the members propose is not appropriate, is as one will find in other reserved functions. Under the procedure the manager will be required to bring to the attention of members of the authority the possible consequences of their actions. The Minister may require the authority under section 37 to revise or replace the plan in such a manner as he or she specifies.
Deputy O'Dowd will be aware that this will be analogous to powers that exist under planning law, for example, where the local authorities make the changes. The manager must also bring to the attention of members of the authority that he or she is considering and may apply to the Minister for an extension of up to three months.
Provision is also made in section 11 for similar intervention by the manager where it appears to him or her that the authority may not make a plan by the prescribed date. Again, that is analogous to other provisions that exist. An application to the Minister for extension to the proposed deadline for making the plan may be granted or refused. Members will be satisfied that these changes empower the local elected representatives.
Amendment agreed to.
I move amendment No. 94:
In page 33, subsection (4)(k), line 3, to delete “such”.
This is simply a technical drafting amendment in the interest of clarity. It is proposed to delete the word "such" where it first occurs in the original text in paragraph (k). The use of the word in this case is superfluous and the meaning of the paragraph will be unchanged by the deletion.
Amendment agreed to.
I move amendment No. 95:
In page 33, lines 13 to 26, to delete subsection (7) and substitute the following:
"(7)(a) If, during the course of his or her investigations for the purposes of this section, the Minister is satisfied that—
(i) a water services authority, or a person acting on its behalf, is not in compliance with a prescribed performance or quality standard, or its management and operational standards are inadequate, or
(ii) a water services authority, or any prescribed person is not performing any of its functions in relation to water services in a satisfactory manner,
then the Minister may issue a notice (in this section referred to as a "compliance notice") specifying corrective action required to be taken by the water services authority or prescribed person in a specified period. The water services authority or prescribed person shall take the action specified in the compliance notice within the period specified in the compliance notice.
(b) A person who fails to comply with a compliance notice within the specified period, commits an offence.”
Amendment agreed to.
I move amendment No. 96:
In page 33, after line 48, to insert the following subsection:
"(10) A person who fails to comply with a request under subsection (6) commits an offence.”.
Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31.
I move amendment No. 97:
In page 34, subsection (2), lines 10 and 11, to delete "in accordance with prescribed standards," and substitute "in accordance with any prescribed standards."
This is a technical amendment to prevent the possibility of subsection (2) being interpreted to the effect that an authority may not provide or supervise water services unless standards have been prescribed in respect of all aspects of the water services provision. Such an interpretation could be rather perverse and might undermine the power of a water services authority to deliver water services, for example, if regulations under section 32(3)(f) in relation to operational standards had not been made.
The effect of the amendment will be to provide, as originally intended, that where a water services authority provides or supervises water services, it must do so in accordance with whatever standards, if any, have been prescribed at that time as regards those services. Such standards may be specified by the Minister of the day under section 30(4)(d).
Amendment agreed to.
Amendment No. 98 in the name of Deputy Gilmore has already been discussed with amendment No. 46.
I move amendment No. 98:
In page 34, subsection (2), between lines 13 and 14, to insert the following:
"(a) the right of each person within the functional area of the authority to have access to water services,”.
The amendment deals with the right to a water supply. I agreed that I would withdraw the amendments until Report Stage. We shall come back to the right to water issue in a different way because the Minister pointed out that there were practical difficulties with the way I had proposed it.
I am grateful to the Deputy.
Amendment, by leave, withdrawn.
I move amendment No. 99:
In page 34, subsection (2)(i), line 30, to delete “Acts of 1977 and 1990” and substitute the following:
"Local Government (Water Pollution) Acts 1977 to 2006".
This is a technical drafting amendment. There is no definition of "Acts of 1977 and 1990" in the definitions section. The two Acts referred to are the Local Government (Water Pollution) Act 1977 and the Local Government (Water Pollution) (Amendment) Act 1990. This makes the appropriate provision.
Amendment agreed to.
I move amendment No. 100:
In page 34, subsection (2), lines 35 to 37, to delete paragraph (l) and substitute the following:
"(l) such other criteria, standards or procedures as may be prescribed in relation to matters to which paragraphs (a) to (k) apply or as may be directed by the Minister.”.
This again is technical. It is to insert the word "paragraphs" before the reference "(a) to (k)” in the text of paragraph (l). This is for consistency and clarity.
Amendment agreed to.
I move amendment No. 101:
In page 35, lines 32 to 35, to delete subsection (9) and substitute the following:
"(9) Where a failure to provide water services in accordance with subsection (7) arises as a result of climatic conditions or other circumstances beyond the reasonable control of a water services authority, then the authority is not liable for failure to so provide those services.”.
This is to correct a typographical error in the original text and to clarify further the meaning of subsection (9).
What does the Minister mean by the authority not being able to provide water services as a result of climatic conditions? Does it mean that if the rain is too heavy the authority will not be able to provide water?
That could actually happen.
I am somewhat concerned about that because I can foresee it becoming a catch-all excuse. It will either be too wet or too dry.
The section specifies circumstances beyond the reasonable control of the water authority, when it is not liable for failure to provide services. The Deputy will recall we discussed the matter earlier, where I removed the protection that local authorities or the Minister had. However, this is not a case where incompetence gives rise to the problem. The situation here is that climatic conditions such as an extreme drought might mean a water source could dry up, or there could be other issues. One can foresee a situation where in extreme circumstances a local authority could not provide water from a particular source. It might have a tanker to hold the water, but it would not be practical in such circumstances not to afford some protection to the local authority.
I have my doubts but shall let it go.
If the Deputy has any problem with it, we could review it, although we cannot return to it on Report Stage.
We can, as we have discussed it on Committee Stage.
That is all right. I am happy enough with that.
I might return to this on Report Stage. There will always be climatic reasons. There is a heavy wind or a dry spell and something goes wrong. The rain is too heavy and the system overflows, or whatever. Perhaps we might look at it again on Report Stage.
We can tease it out further on Report Stage. I see the point the Deputy is making. For example, it is not too far-fetched to envisage the incompetent siting of a water holding area, because of which the climatic conditions contribute to a deterioration. We shall return to it on Report Stage. However, the wording as it is there is to protect, in the case of unforeseen circumstances that are clearly outside the control of the local authority. I believe Deputy Gilmore has in mind not just a severe drought, which cannot be controlled for, but a situation where the water system might be flooded and rendered unusable. Could somebody have a loss as a consequence and could he or she show that it was incompetence on the part of the local authority? We shall tease it out on Report Stage. The intention here is to deal with those situations that might arise if, for example, there is extreme drought. If there is an extreme drought the local authority could not be liable for its response in the circumstances. If the Deputy believes it needs further tightening, we shall look at it on Report Stage.
Amendment agreed to.
I move amendment No. 102:
In page 35, lines 46 to 50, to delete subsection (13) and substitute the following:
"(13) A water services authority shall take the necessary measures to ensure that, whether through its own actions or the actions of other persons in accordance with its directions or other obligations under this Act, water intended for human consumption in its functional area meets such requirements relating to quality as may be specified in regulations made under section 32(2).
This amendment proposes to qualify the obligation imposed on water services authorities under subsection (13) to ensure water intended for human consumption is in accordance with prescribed standards, by providing additionally that the necessary measures to ensure such compliance may involve action by either the authority itself or another person on whom a relevant obligation is imposed under the Bill.
Amendment agreed to.
I move amendment No. 103:
In page 36, subsection (16), to delete lines 9 to 10 and substitute the following:
"(16) The Minister may make regulations to provide for—".
This is another technical drafting amendment to subsection (16) which gives power to the Minister to make regulations relating to issues concerning the provision of water services. Regulations under subsection (16) may be made to set down the general operating standards for the delivery of water services. As currently worded, the application would be restricted to the functions connected with section 31 only, which relates solely to the activities of the water services authorities. Such a restriction in the scope of any regulation under subsection (16) would have the effect of preventing their application to other water service providers such as group water schemes. This would mean that they could not be used to apply a uniform standard for all water service providers. That would clearly not be appropriate.
The amendment provides for the removal of the words "for the purposes of this section" from the existing text, thus extending the scope of the application of any regulations to all water service providers.
Amendment agreed to.
I move amendment No. 104:
In page 36, subsection (19), line 32, to delete "is guilty of an offence" and substitute "commits an offence".
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
As amendments Nos. 105 and 131 are related, they may be discussed together.
I move amendment No. 105:
In page 37, subsection (1)(j), line 17, to delete “, including a legal agreement”.
These are drafting amendments to section 32(1)(j) and section 42(4)(a) to delete references to agreements, including a legal agreement. I am advised by the Office of the Attorney General that the references to “agreement” also include a legal agreement. This latter reference in the subsection is, therefore, unnecessary.
Amendment agreed to.
I move amendment No. 106:
In page 38, subsection (3)(a), line 5, to delete “departure” and substitute “exemption or derogation”.
This amendment inserts an additional provision in paragraph (a) of section 32(3) to enable regulations under the paragraph, including for drinking water quality standards and waste water quality standards, to include exemptions from such standards in specified circumstances and subject to specified conditions. The amendment also substitutes “exemption or derogation” for “departure” in the existing text to ensure consistency with the wording of the provisions of Article 9 of the drinking water directive, the transposition of which it is intended to facilitate.
The amendment arises from discussions between officials from the Department and the European Commission regarding the transposition of EU Directive 98/83 EC on drinking water. This amendment is for the purpose of transposing Article 3.2 of that directive. Article 3.2 enables member states to exempt from its provisions the following water supplies: water intended exclusively for purposes which the relevant competent authority is satisfied will not affect the health of the customer; individual drinking water supplies provided for less than 10 m3 per day or serving fewer than 50 people and which do not include commercial or public activity. This latter category of exemption will be crucial to the introduction of licensing for group schemes under Part 6 of the Bill, as it is not envisaged for practical administrative reasons that every one of the 5,500 group water schemes would be subject to the new licensing processes. A complementary provision in section 79(3) of the Bill enables such smaller schemes to be exempted from licensing and allows alternative less onerous supervisory agreements to be in put in place, such as registration. It is estimated that there are 1,500 schemes that are very small and which would only be subject to licensing.
Amendment agreed to.
Amendments Nos. 107 to 110, inclusive, and 190 are related and may be discussed together.
I move amendment No. 107:
In page 38, subsection (3), lines 23 to 31, to delete paragraph (i) and substitute the following:
"(i) requirements in relation to the monitoring and supervision of water services to establish compliance with prescribed standards, including frequency of monitoring, monitoring standards and monitoring procedures, additional monitoring in specified circumstances, and, appropriate action where monitoring results indicate a failure to meet specified standards, and such action may include the immediate investigation of the cause of the failure, remedial measures to be taken, the provision of public information and advice, such restriction of services as may be necessary for the protection of human health and the environment, and the timescale for undertaking such action;”.
The purpose of this amendment is to update the provisions of section 32(3)(i) to ensure it complies fully with the EU drinking water directive. It arises from informal discussions between officials from my Department and the European Commission to ensure compliance of the Irish legislative code with the directive. As we have had so many difficulties with directives and regulations, I have established an arrangement with the Commissioner in order that my officials can have regular consultations to ensure that all these cases pending against Ireland are dealt with. It is a very helpful arrangement in the context of this Bill. While the existing provisions in section 32(3)(i) comply generally with the spirit of the directive, the proposed amendment will ensure the explicit transposition of specific provisions into national law. The additional provisions are of a technical nature.
Amendment No. 190 updates section 58(2) to ensure full compliance with the EU drinking water directive, regarding the situation where following analysis of samples of water taken by a water services authority, it is found that the water constitutes a potential danger to human health. It arises following the consultations which I already mentioned and ensures the provisions of the Bill comply fully with EU requirements.
Amendment agreed to.
I move amendment No. 108:
In page 39, subsection (3), between lines 13 and 14, to insert the following:
"(v) provision of adequate and up-to-date information on the quality of water intended for human consumption;”.
Amendment agreed to.
I move amendment No. 109:
In page 39, between lines 16 and 17, to insert the following subsection:
"(4) Measures taken to implement regulations under subsection (2) shall not have the effect of allowing, directly or indirectly, any—
(a) deterioration in the existing quality of water intended for human consumption, or
(b) increase in pollution of waters used for the production of water intended for human consumption.”.
Amendment agreed to.
I move amendment No. 110:
In page 39, between lines 18 and 19, to insert the following subsections:
"(5) Measures taken in relation to failure to meet prescribed drinking water quality standards shall—
(a) be prioritised having regard, amongst other matters, to the extent to which the relevant parametric values have been exceeded and to the potential danger to human health arising, and
(b) in any event, be taken as soon as possible.
(6) Regulations under subsection (2) which provide for exemption of specified supplies from prescribed drinking water quality standards shall provide to the effect that—
(a) the population concerned shall be informed of the exemption, and of any action that can be taken to protect human health from adverse effects resulting from any contamination of the water supply, and
(b) where a potential danger to human health arising from the quality of a relevant water supply is apparent, the population concerned shall be given appropriate advice promptly,
and such regulations may provide for such measures as may be necessary to give full effect to those requirements.
(7) Regulations under subsection (2) which provide for a derogation from prescribed drinking water quality standards shall provide to the effect that—
(a) the population affected shall be informed promptly in an appropriate manner of the derogation and the conditions which govern it, and
(b) where necessary, advice is given to particular population groups for which a derogation could present a special risk,
and such regulations may provide for such measures as may be necessary to give full effect to those requirements.
(8) In so far as regulations under subsection (2) limit the obligation placed on any person in relation to the provision of water for human consumption which meets specified quality standards, such regulations shall provide that where there is nevertheless non-compliance or a risk of non-compliance with such standards, then—
(a) either—
(i) appropriate measures shall be taken to ensure compliance or reduce or eliminate the risk of non-compliance, including advising premises owners affected of any possible remedial action they could take, or
(ii) other measures shall be taken, including appropriate additional treatment in order to change the nature or properties of the water prior to its supply so as to reduce or eliminate the risk of the water not complying with the specified quality standards,
and
(b) the consumers concerned shall be duly informed and advised of any possible additional remedial action which they should take,
and such regulations may provide for such measures as may be necessary to give full effect to those requirements.
(9) Regulations under subsection (2) may provide for their application to any person who, although not providing water services is nevertheless supplying water for human consumption as part of a commercial or public activity in circumstances where that water is from that person’s own private supply and has not been supplied to him or her in the first instance—
(a) by a water services authority,
(b) by an authorised provider of water services,
(c) by a person providing water services jointly with or on behalf of a water services authority or an authorised provider of water services, or
(d) in bottles or containers,
and references to "water services" in this section may, where the context permits, include such water supplied for human consumption by such persons.
(10) For the purposes of subsections (6) and (7), and notwithstanding section 19, the population concerned may also be informed by means of—
(a) an advertisement in a newspaper circulating in the area,
(b) an announcement broadcast on a radio or television channel generally available in the area,
(c) an announcement made available on the internet, or
(d) such other manner as the Minister may direct.
(11) In this section "derogation" and "population" have the same meaning as they have in Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption.".
Amendment agreed to.
Section 32, as amended, agreed to.
SECTION 33.
I move amendment No. 111:
In page 39, subsection (3), line 28, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 and 35 agreed to.
NEW SECTION.
I move amendment No. 112:
In page 40, before section 36, to insert the following new section:
36.—(1) In this section and in sections 37 and 38—
"development plan" has the same meaning as in section 2 of the Act of 2000;
"joint plan" shall be construed in accordance with subsection (4)(a);
"manager" has the same meaning as in section 2 of the Act of 2001;
"prescribed date" means the date prescribed by the Minister by regulations under subsection (9), on or before which a water services authority is required to make a water services strategic plan;
"water services strategic plan" includes, where the context admits, a replacement or revised water services strategic plan, a joint plan, or a sub-plan referred to in subsection (4)(b), and any replacement or revision of such joint plan or sub-plan.
(2) Subject to subsection (4) and any regulations made under this section, each water services authority shall, not later than the prescribed date, make a water services strategic plan with regard to the provision of water services in its functional area.
(3) Subject to subsections (13) and (14), the making, replacement or revision of a water services strategic plan is a reserved function of the members of the authority.
(4) For the purposes of subsection (2)—
(a) two or more water services authorities may jointly make a water services strategic plan in relation to all of their combined functional areas, or parts thereof, and
(b) a water services strategic plan may consist of separate sub-plans for the provision of specified water services in all or part of the functional area of the water services authority, or in the case of a joint plan referred to in paragraph (a), the water services authorities concerned,
and the making, review, revision or replacement of such a joint plan or sub-plan shall be subject to the same procedures as if it was a water services strategic plan referred to in subsection (2).
(5) (a) A water services authority, or in the case of a joint plan under subsection (4), the water services authorities concerned, shall review a water services strategic plan made by it or them from time to time as the occasion may require and at least once in every period of 6 years from the date the plan was made by the authority, or such lesser interval as the Minister may direct and, consequent on such a review, make a replacement plan.
(b) A local authority (whether or not acting as a water services authority) shall not, by resolution, under section 139 or 140 of the Act of 2001 or section 179 of the Act of 2000—
(i) give a direction that works not be proceeded with, or
(ii) require any act, matter or thing to be done or effected, where the effect of such direction or requirement would be contrary to, or inconsistent with, any provision (including any objective contained therein) of a water services strategic plan made by the water services authority, or would limit or restrict the proper implementation of such a provision and any resolution purporting to be passed under the said section 139, 140 or 179, as the case may be, which contravenes this paragraph is void.
(6) In drafting or reviewing a water services strategic plan, the water services authority or water services authorities concerned shall have regard to the proper planning and sustainable development of its or their functional area or areas and in particular shall have regard to the provisions of—
(a) relevant development plans, regional or spatial planning guidelines, housing strategies or special amenity area orders, as appropriate, made under the Act of 2000,
(b) a water quality management plan or a programme of measures made under the Local Government (Water Pollution) Acts 1977 and 1990 for the area to be covered by the water services strategic plan, or for any other area that could affect that plan,
(c) a waste management plan under the Waste Management Acts 1996 to 2003 for the area to be covered by the water services strategic plan, or for any other area that could affect that plan,
(d) a river basin management plan or a programme of measures under the EU Water Framework Directive for the area to be covered by the water services strategic plan, or for any other area that could affect that plan,
(e) such other plans, strategies or guidelines as may be prescribed, and
(f) any other matter as may be directed by the Minister.
(7) A water services strategic plan shall contain such objectives as seem to the water services authority or water services authorities concerned to be reasonable and necessary—
(a) to protect human health and the environment,
(b) to facilitate the provision of sufficient water services for domestic and non-domestic requirements in the area to which the plan relates, and
(c) to support proper planning and sustainable development, including sustainable use of water resources,
and shall specify such measures or arrangements to be taken or entered into by the water services authority or water services authorities concerned, with a view to securing the objectives of the plan.
(8) Without prejudice to the generality of subsection (7), a water services strategic plan shall, subject to such regulations as may be made by the Minister for the purposes of this section, include information on or otherwise have regard to-
(a) drinking water quality,
(b) prevention or abatement of risk to human health or the environment,
(c) current and projected need for water services,
(d) arrangements in place or planned for the provision of water services,
(e) shortfalls in the provision of water services,
(f) water conservation measures in place or planned,
(g) monitoring arrangements, including laboratory facilities,
(h) asset management planning,
(i) income and expenditure, and
(j) any incidental or ancillary matters.
(9) (a) The Minister may make regulations prescribing the manner in which any matter is to be set out or addressed in a water services strategic plan, notification or consultation requirements and procedures or associated time limits, prior to and after its making.
(b) Without prejudice to the generality of paragraph (a), regulations under that paragraph may specify different dates for different water services authorities or classes of water services authorities.
(10) (a) To enable further consideration to be given to the making of a water services strategic plan, a water services authority may apply to the Minister for an extension of not more than 3 months after the latest date for the making of a water services strategic plan.
(b) Where an application is made under paragraph (a), the Minister may, based on the reasonable prospect of the authority concerned making a plan by the proposed extended date, grant or refuse the application.
(c) An application under paragraph (a) is a reserved function.
(d) This subsection shall not apply in the case of the making of a revised or replacement plan by the members of a water services authority in accordance with a requirement by the Minister under section 37(c).
(11) Where a water services authority proposes to make a water services strategic plan which, in the opinion of the manager of the water services authority, would not be appropriate for the reasons stated by him or her, then the manager shall—
(a) inform the members of the water services authority accordingly, giving his or her reasons for forming such opinion, and advise the members that, should the authority proceed to make that plan, the Minister may invoke his or her powers under section 37(c) to require the authority to revise the plan in such manner as may be specified by the Minister or to replace the plan by a new plan, and
(b) inform the members of the right of the authority to apply to the Minister for an extension under subsection (10) of the prescribed date.
(12) Where it appears to the manager of a water services authority that it is likely that the members of the authority may fail to make a plan by the prescribed date, the prescribed date as extended or the date specified in a requirement by the Minister
under section 37(c), as the case may be, then the manager shall—
(a) advise the members of the authority that if the authority fails to make a plan by—
(i) the prescribed date,
(ii) the prescribed date as extended, or
(iii) the date specified in a requirement by the Minister under section 37(c),
as the case may be, the members' functions under this section in relation to the making of the plan will be deemed to have been transferred to the manager in accordance with subsection (13), and
(b) where paragraph (a)(i) applies, inform the members of the right of the authority to apply to the Minister for an extension of the prescribed date under subsection (10).
(13) Subject to subsection (12), where a water services authority—
(a) fails to make a water services strategic plan by the latest date for the making of the plan or the date specified by the Minister under paragraph (c) of section 37 in accordance with the requirements of the Minister under that paragraph, as the case may be, or
(b) having applied to the Minister for an extension of the latest date for the making of the water services plan concerned in accordance with subsection (10), and
(i) the application having been refused, a plan is not made by that date, or
(ii) the application having been granted, the authority fails to make a plan by that date, as so extended,
then the functions of the members of the authority under this section shall be deemed to be transferred to the manager of the authority who shall, by order, approve the making of a plan subject to any modifications which he or she considers appropriate and, where section 37(c) applies, in accordance with any requirement specified by the Minister under that section.
(14) Without prejudice to subsection (13), the making of a revised or replacement plan by a water services authority in accordance with a requirement by the Minister under section 37(c) shall-
(a) where the plan was made by the members of the authority in the first instance, be a reserved function of the members of the authority, and
(b) where the plan was not so made, be a function of the manager of the authority.
(15)(a) Notwithstanding any other provision of this Act, where subsection (13)
applies, the manager shall make the plan.
(b) In making the plan, the manager shall, subject to such requirements (if any) of the Minister under section 37(c), include as part of the plan such provisions (if any) as have been agreed by the members of the authority which are consistent with the plan.
(16) Section 140 of the Act of 2001 shall not apply to the exercise by the manager of a water services authority of his or her functions under subsection (13) and any resolution purporting to be passed under the said section 140 in relation to the
performance by the manager of his or her functions under subsection (13) which contravenes this subsection is void.
(17) A water services strategic plan made under this section comes into force—
(a) in the case of a plan other than a joint plan—
(i) upon the passing of a resolution approving the plan by the members of the authority concerned, or
(ii) in a case to which subsection (13) relates, on the date of the order of the manager approving the making of the plan,
or,
(b) in the case of a joint plan—
(i) where resolutions approving the joint plan have been passed by the members of each water services authority, when the last such resolution is passed by the members of a water services authority concerned, or
(ii) where one or more of the water services authorities have failed to approve the making of the joint plan and the functions under this section of all of the water services authorities concerned with the making of the plan are transferred to their respective managers, when the last order approving the making of the plan has been made by the manager concerned.
(18) Nothing in this Act shall entitle a water services authority to discontinue providing water services which it provided before the commencement of this section, save as may be provided in a relevant water services strategic plan made by the authority.
(19)(a) The development plan in relation to the functional area of a local authority shall be deemed to include the objectives for the time being contained in any water services strategic plan in force in relation to that area or any part of that area.
(b) In the event of there being a conflict between an objective deemed to be included in a development plan by virtue of paragraph (a) (the ‘first-mentioned objective’) and an objective otherwise included in the development plan (the ‘second-mentioned objective’), the first-mentioned objective shall override the second-mentioned objective, irrespective of whether or not the development plan is subsequent to the water services strategic plan referred to in that paragraph, and the first-mentioned objective shall be deemed to be an integral part of the development plan.
(20) An application for permission under Part III of the Planning and Development Act 2000 shall not be refused by a planning authority or the Board solely on the ground that the development to which the application relates is not specifically referred to in the water services strategic plan in force in relation to the functional area of the planning authority if the planning authority or the Board, as the case may be, considers the development will facilitate the achievement of the objectives of that water services strategic plan.
(21) In considering a proposed development under section 179 of the Act of 2000 a local authority shall not decide that the development should not be proceeded with solely on the grounds that the said development is not specifically referred to in the
water services strategic plan in force in relation to the functional area of the authority if the authority considers the development will facilitate the achievement of the objectives of that water services strategic plan.".
Will the making of the plan now be a reserved function of the councils?
Yes.
In that case, the purpose of my amendment No. 113, which cannot be moved if this amendment is agreed, is achieved.
I agreed that on Second Stage. It was not among the original proposals that came from the Department, but it was always my intention to agree to it.
I know there is a fallback and if it is not made, the manager will——
It is only when they fail to carry out their function.
Amendment agreed to.
Amendments Nos. 113 to 115, inclusive, not moved.
Section 36 deleted.
NEW SECTION.
I move amendment No. 116:
In page 42, before section 37, to insert the following new section:
37.—The Minister, after consultation with the relevant water services authorities concerned, may—
(a) require 2 or more water services authorities to make a joint water services strategic plan under section 36 in respect of all or a specified part of their functional areas,
(b) require that the making of a water services strategic plan under section 36 by 2 or more water services authorities be co-ordinated in such manner in relation to such matters as the Minister may specify, and
(c) for stated reasons, require a water services authority or, as the case may be, 2 or more water services authorities, to revise (whether by addition or deletion) a water services strategic plan made by the authority or authorities concerned, or to replace the plan by a new water services strategic plan, by such date and in such a manner as the Minister may specify, which shall be not less than 3 months from the date of the issue of the requirement by the Minister,
and the water services authority or authorities concerned shall comply with any such requirement of the Minister.".
Amendment agreed to.
Section 37 deleted.
NEW SECTION.
I move amendment No. 117:
In page 42, before section 38, to insert the following new section:
38.—(1) As soon as may be after a water services strategic plan has come into force, the water services authority concerned, or in the case of a joint plan, such water services authority as has been agreed by the relevant water services authorities, shall—
(a) transmit a copy of it to the Minister and to such persons as may be prescribed, in the prescribed manner, and
(b) publish, in the prescribed manner, notification of the making of the plan.
(2) A water services authority shall take such steps, including carrying out necessary works, as are appropriate and practicable to attain, in relation to its functional area, the objectives and provisions set out in a water services strategic plan in which it is concerned, which has been made by the authority.
(3)(a) A water services authority shall furnish to a person, on request and, if the authority so requires, on payment to it by the person of such reasonable fee as it may charge, a copy of, or extract from, the plan, within a period of 21 days of receipt by the authority of such request, or of payment of such fee as the authority may charge, whichever shall be the later.
(b) A document purporting to be a copy of a plan, or to be an extract from a plan, and to be certified under this subsection by an officer of a water services authority which made the plan as a true copy, shall be prima facie evidence of the plan or extract, as the case may be, and it shall not be necessary to prove the signature of such officer or that he or she was in fact an officer of the water services authority concerned.
(c) Evidence of a plan or of an extract from such plan may be given by production of a copy thereof certified pursuant to this subsection and it shall not be necessary to produce the plan itself.”.
Amendment agreed to.
Section 38 deleted.
Section 39 agreed to.
SECTION 40.
I move amendment No. 118:
In page 43, subsection (3), line 40, to delete "subsections (1) and (2)“ and substitute “subsection (1) or (2)”.
This is a technical drafting amendment to correct a typographical error. It is intended that the powers of direction in subsection (3) may be applied independently.
Amendment agreed to.
I move amendment No. 119:
In page 44, between lines 2 and 3, to insert the following subsections:
"(7) Whenever a water services authority enters into an agreement or arrangement with another water services authority or another person under subsection (1) or (2) or section 32(1)(j) for the provision of water services on its behalf, the first-mentioned water services authority shall, notwithstanding the agreement or arrangement, continue to be responsible for the compliance of those services with the requirements of this Act.
(8) Subsection (7) shall not be construed so as to nullify or otherwise affect the application of any provision in an agreement or arrangement under subsection (1) or (2) or section 32(1)(j) in relation to public or civil liability arising from the provision of water services under that agreement or arrangement.”.
Amendment agreed to.
Section 40, as amended, agreed to.
SECTION 41.
I move amendment No. 120:
In page 44, subsection (1), to delete lines 11 and 12 and substitute the following:
"(b) in the case of a regional road or local road, a local authority as defined in the Act of 2001, other than a local authority referred to in Part 2 of Schedule 6 to that Act.”.
This is a drafting amendment to ensure town councils which were former town commissioners before the enactment of the legislation are not incorrectly regarded as roads authorities under the section. The Chairman will be aware that town commissioners have very limited powers. To ensure confusion does not arise, it is necessary to distinguish between two groups, first, what are now called town councils but which previously had significant powers, and, second, town councils which were previously town commissioners. The amendment seeks to distinguish between the two.
Amendment agreed to.
I move amendment No. 121:
In page 44, subsection (4), lines 31 and 32, to delete all words from and including "Subject" in line 31, down to and including "appropriate," in line 32 and substitute the following:
"Subject to any regulations that the Minister may make under subsection (6),”.
This is a technical drafting amendment. It provides for the deletion of superfluous references in subsection (4) to any regulations made under that subsection, following prior agreement with the Minister for Transport.
Amendment agreed to.
I move amendment No. 122:
In page 45, subsection (5), lines 12 to 16, to delete paragraphs (i) and (j) and substitute the following:
"(i) requirements in relation to the carrying out of additional works,
(j) requirements in relation to the provision of information to the public as to the extent or nature of the works or the period within which they shall be completed, and
(k) any other measures considered necessary by the road authority for the protection of human health or the environment, and to facilitate sustainable development.”.
This amendment provides for the insertion of a new paragraph at section 41(5) enabling regulations under section 41 to include, as part of a consent which may be granted by a road authority to a water services authority or its agent for the purposes of laying pipes for the provision of water services, a condition that information is provided to the public as to the extent and nature of the works or the period in which they will be completed. This will ensure that the water services authorities will be in a position to regulate the extent to which works take place on roads for the purposes of pipe laying.
Amendment agreed to.
I move amendment No. 123:
In page 45, lines 17 to 19, to delete subsection (6) and substitute the following:
"(6) The Minister may, with the consent of the Minister for Transport, make regulations for the purposes of this section.".
This is a drafting amendment to section 41 to rationalise the references to regulations which may be made under the section.
Amendment agreed to.
I move amendment No. 124:
In page 46, between lines 3 and 4, to insert the following subsection:
"(11) For the purposes of this Act, where a person (other than a road authority) claims an interest in or under any road-
(a) it shall be for the person concerned to prove such interest, and
(b) the value of such interest shall be taken to be nil unless it is shown to be otherwise by the person.”.
This amendment provides for the insertion of a new subsection (11) to section 41. Where a person claims an interest in or under any road, it will be a matter for that person to prove his or her interest as so claimed.
Amendment agreed to.
I move amendment No. 125:
In page 46, subsection (13), line 14, to delete "For the avoidance of doubt, a water services authority may" and substitute "A water services authority may".
This is a drafting amendment brought forward on the advice of the Office of the Attorney General. My Department has been advised by that office that the expression being deleted by this amendment, "For the avoidance of doubt," is no longer used by the Office of the Parliamentary Counsel, in accordance with modern drafting practice.
Amendment agreed to.
Section 41, as amended, agreed to.
SECTION 42.
Amendments Nos. 126 to 128, inclusive, and 130 are related, while amendment No. 129 is an alternative to amendment No. 128. They may all be discussed together.
I move amendment No. 126:
In page 46, subsection (1)(b)(i), line 24, to delete “or”.
I cannot accept amendments Nos. 126, 127 and 129. Section 42 enables a water services authority to direct that a premises be connected to its water works where it considers it is not drained satisfactorily and that it is located sufficiently close to a sewer to facilitate such a connection. As the object of the provision is the control of foul water discharges, it would not be appropriate to insert a provision on water conservation such as is suggested in amendment No. 129. Whatever we want to do with foul water, we do not want to conserve it. In any event, water conservation is dealt with comprehensively under section 56 of the Bill.
The related amendments Nos. 128 and 130 are essentially of a technical drafting nature. They are intended to ensure clarity and consistency within the section and to avoid any ambiguity.
Amendment, by leave, withdrawn.
Amendment No. 127 not moved.
I move amendment No. 128:
In page 46, subsection (1)(b)(iii), lines 28 and 29, to delete “a waste water works of the authority,” and substitute “the waste water works,”.
Amendment agreed to.
Amendment No. 129 not moved.
I move amendment No. 130:
In page 46, subsection (2)(b)(ii), lines 41 and 42, to delete “a waterworks of the authority,” and substitute “the waterworks,”.
Amendment agreed to.
I move amendment No. 131:
In page 47, subsection (4)(a), line 9, to delete “, including a legal agreement,”.
Amendment agreed to.
I move amendment No. 132:
In page 47, subsection (5), lines 24 to 27, to delete all words from and including ", and" in line 24 down to and including "law" in line 27.
This section was improved somewhat in the Seanad to allow appeals to the High Court. However, the Labour Party would prefer to delete the provision referred to in the amendment to allow the general law to apply, namely, an appeal to the Circuit Court. There is a creeping tendency in recent Government legislation to curtail necessary rights of appeal which we believe acts as a bad precedent in law making.
The existing provision in subsection (5) provides a fair and balanced approach to appeals under this section. It is understood from the Office of the Attorney General that this is a standard legislative provision concerning appeals to the District Court which restricts the grounds of an appeal to the High Court to points of law, which is common in many areas. The provision recognises the full jurisdiction and competence of the District Court to adjudicate on the rights and wrongs of decisions by water services authorities in regard to connection to the water services. To delete it would lead to a very unwieldy, multi-layered and prolonged appeals procedure, which is not warranted by the nature of the issue, namely, connection. Naturally, where a point of law arises, it is appropriate that such a question would be referred to the higher court for adjudication. There is a logic in the way the Bill is laid out. I ask the Deputy to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 133:
In page 48, subsection (9)(a), lines 1 and 2, to delete “is guilty of an offence.” and substitute “commits an offence.”.
Amendment agreed to.
I move amendment No. 134:
In page 48, subsection (9)(b), line 10, to delete “three” and substitute “3”.
Amendment agreed to.
I move amendment No. 135:
In page 48, lines 40 to 52, to delete subsection (11) and substitute the following:
"(11)(a) Where a notice under this section requires the execution of works which include the installation of a pipe passing through land of which the owner is not the owner of the premises to which the notice relates, the water services authority which served the notice shall itself install or arrange for the installation of, so much of the pipe as lies within that land and may recover the costs involved from the person to whom the notice is addressed.
(b) For the purpose of installing a pipe under this subsection or subsection (12), a water services authority shall have the powers and duties specified in section 41 and, where appropriate, Part 7, and, on exercising any such power, shall be liable to pay such (if any) compensation as if the power had been exercised under those provisions.
(12) Without prejudice to section 92, where works to facilitate drainage of a premises in accordance with a notice under section 92(2), or to connect a premises to a waterworks or waste water works require the installation of a pipe passing through another premises which is not owned by or under the control of the owner of the premises to be drained or connected, a water services authority may, on request of the owner of the premises to be drained or connected, itself install or connect, or arrange for the installation or connection of, so much of the pipe or related accessories as lie within that premises, and may recover the costs involved from the owner of the premises to be drained or connected.
(13) Responsibility for the subsequent maintenance and renewal of any pipe installed under the powers provided in subsection (11) or (12) shall lie in the first instance with the person on whose behalf the work is carried out, and his or her successors in title, but a water services authority may, at its absolute discretion, take any such pipe in charge in accordance with section 43(13).”.
Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.
Amendments Nos. 136 to 138, inclusive, are related and may be discussed together.
I move amendment No. 136:
In page 49, lines 1 and 2, to delete subsection (1) and substitute the following:
"43.—(1) In this section—
"connection" means a drain, a distribution system or a service connection and includes part of such drain, distribution system or service connection;
"public road" and "road authority" have the same meanings respectively as in section 41.”.
Amendment No. 136 provides for the substitution of section 43(1) with a new subsection. It provides the definition of three expressions used — "connection", "public road" and "road authority". Amendments Nos. 137 and 138 are technical drafting amendments arising from the amendments to section 43(2) and (3).
Amendment agreed to.
I move amendment No. 137:
In page 49, subsection (2), line 6, to delete "or part of it".
Amendment agreed to.
I move amendment No. 138:
In page 49, subsection (3), line 8, to delete "or part of a connection".
Amendment agreed to.
Amendment No. 140 is an alternative to amendment No. 139, while amendments Nos. 143 and 144 are related. All four amendments may be discussed together.
I move amendment No. 139:
In page 49, subsection (3), line 10, to delete "order and repair." and substitute the following:
"order and repair, so as to—
(a) prevent a risk to human health or the environment,
(b) facilitate the reasonable conservation of water and the proper and effective management of water services, and
(c) prevent the infiltration or exfiltration of water or waste water.”.
Amendment No. 139 places responsibility for the maintenance and renewal of connection on the person who owns or has control over the connection or, where ownership of a connection cannot be established, such responsibility then transfers under subsection (4) to the users in proportion to their level of connection. The amendment expands the existing wording of subsection (3) to provide a context for the requirement to keep a connection in good order and repair and to provide a clear definition of what is intended by the requirement. It is a welcome clarification.
I cannot accept amendment No. 140 which proposes to allow owners of service collectors to charge users for their upkeep, albeit in direct proportion to the level of usage. This would amount to a charter of water charges on consumers, domestic and non-domestic. I cannot believe that is the intention of the Deputy. Under the section, as correctly worded, where a connection is owned by an individual, he or she may arrange for the relevant water services authority to take it into public charge. There is an unforeseen and entirely negative possibility arising from amendment No. 140.
Amendment No. 143 is a drafting amendment to ensure consistency of wording throughout the section. The amendment will ensure the wording of paragraph (b) of subsection (6) is consistent with that of paragraph (a) by removing the reference to “maintenance and renewal” for the description of the works which may be undertaken in accordance with subsection (6).
On amendment No. 140, the Minister again takes the most ingenuous intention from it.
No, I am not doing that. I merely point out that it could lead to unforeseen consequences. I do not for a moment believe that such would be the Deputy's intention.
The purpose of the amendment is to address the situation where, under current legislation, local authorities require the owners of private drains to address blockage problems and other faults which arise, even where that sometimes involves sections of the drains that are located in roadways or other public areas. This is fine in most cases but it presents major public health issues and personal difficulties if the owner in question is elderly, disabled or incapacitated in some way. When, as in most cases, the private drains are shared by a block of homes, one person, often the last person on the block where the blockage occurs, has to engage a private company, pay up front and then seek recovery of the payment from the other residents who are connected to the drain.
This is almost impossible for most people, particularly if, as is often the case, some of the homes in the block are rented. It is often the case that this problem, which sometimes constitutes a health problem, can be left unaddressed for weeks while whoever is in the unfortunate position that the manhole is located in their garden must discover from the neighbours who is on this combined drain and ask them to share the costs. Meanwhile, the problem gets worse and somebody must act on it.
The intention of this amendment is to enable the householder who has the immediate problem to get the work done and have the legal right to send a share of the bill to the other householders concerned. There may be six houses in a row but the onus is on the person in whose garden the manhole is located because that is where the problem manifests itself. In that case, this person should be able to divide the bill six ways and have a legal right to recover the appropriate portions from the other householders.
I fully sympathise with the Deputy's intention in this amendment. I am aware of this issue because it is something that arises in many urban areas. In older urban residential areas, in particular, there are often long connections, with sometimes as many as ten houses connected to a particular drain which comes into an individual manhole located in one garden. When a blockage occurs, the owner may find that the other householders are nowhere to be found and that he or she must bear the full cost of rectifying the problem.
I accept there is an issue. However, the effective granting of charging rights to any individual is not the way to address it because that would be subject to unforeseen abuse. My amendment No. 141 proposes a new subsection (4) which provides that "where a person cannot be identified for the purposes of subsection (3), responsibility under that subsection shall lie with the owner or owners of any premises using the connection, in direct proportion to the level of use of the connection”. However, subsection (6) states:
If, in the opinion of the water services authority, a connection is so defective, foul or neglected as to present a threat to human health, the environment, the reasonable conservation of water or the proper and effective management of water systems, or, to permit the infiltration or exfiltration of water or waste water, the water services authority may, at its absolute discretion—
(a) direct by notice the person or persons responsible for its maintenance or renewal to carry out such works as it considers necessary, or
(b) carry out in the first instance, or in the event of failure to comply with a notice under paragraph (a), such maintenance and renewal works as it considers necessary, and recover the cost of such works from the person or persons responsible for maintenance or renewal of the connection.
This means, for example, that where an elderly person or a person of limited means is stuck with the bill because of recalcitrant neighbours, the local authority can carry out the work and then levy the bill across the households concerned in proportion to their level of usage of the service.
Is that a new provision?
It is a new provision in law.
Does this mean that a person experiencing problems with a manhole, that is connected to a combined drain, in his or her garden and whose neighbours have refused to share the cost of repair can ask the local authority to undertake those repairs?
Correct.
To clarify the procedure, will the local authority then serve a notice on the other houses? There is a need to act quickly in such cases. It is not the type of problem one can leave for several weeks while the local authority corresponds with one's neighbours.
Subsection (6)(b) provides that the local authority may carry out the work in the first instance where it considers it necessary to do so, as in the circumstances the Deputy identified, after which it will recover its costs from the householders concerned. The local authority has two options under subsection (6); it can either issue a notice to the householders to carry out the work or it can carry out the work itself and then seek recovery of the costs.
That certainly is an improvement.
It is a significant improvement. I am aware of a case in my constituency where eight or ten houses are connected to the same drain. There is a persistent problem in that the tenants of one of these properties are putting nappies and other unsuitable materials into the drainage system. The flood always occurred downstream from the property in question. When the problem was brought to the attention of the occupiers of the alternating houses, they all shrugged their shoulders and claimed it was not their problem. It was the problem of the person in whose garden the stuff was coming up. To be fair, the intervening properties were not responsible either.
This is an entirely new provision in law to allow such intervention. The intention is to cater for circumstances such as those outlined by the Deputy.
I appreciate that, as this is a significant improvement. I ask the Minister to give some direction or guidance to local authorities in this regard because I fear that in some cases, local authorities will opt to send out the notice, rather than sending out the gully sucker.
There is provision in the Bill for the issuance of guidelines.
Very well. In that case, I will withdraw the amendment.
The Deputy has made a prudent point. It is important that everyone should say the same thing. We will make sure that the guidelines will ensure proper practice within the local authorities.
Yes.
To be fair to local authorities, this is a completely novel arrangement that has never been made previously.
To be fair to local authorities, there will be a considerable amount of such work.
Yes.
This issue is becoming an increasing problem for much of the older housing stock and on many older housing estates.
I accept that. This provision has been included in recognition of the Deputy's point.
Local authorities must be alert to the fact that they will be receiving calls from distressed householders on bank holiday Mondays.
And from distressed Deputies who are the first port of call on bank holidays.
I always know when it is a bank holiday because for some reason, I always encounter such problems on those days. Local authorities must be made aware they will be required and expected to deal with the problem, rather than sending off those affected to look for Dyno-Rod or similar companies.
The Deputy is correct and this will be dealt with in the guidelines.
Amendment agreed to.
Amendment No. 140 not moved.
I move amendment No. 141:
In page 49, lines 11 to 14, to delete subsection (4) and substitute the following:
"(4) Where a person cannot be identified for the purposes of subsection (3), responsibility under that subsection shall lie with the owner or owners of any premises using the connection, in direct proportion to the level of use of the connection to supply water to or convey waste water from the premises or respective premises, as the case may be.”.
Section 43(4) places responsibility for maintenance or repair on the users of a connection where ownership of the connection cannot be established. The current wording of subsection (4) provides for an apportionment of such responsibility across all persons using the connection. This could lead to enforcement difficulties as arguably it would necessitate the identification of every person occupying such premises. Following this amendment, the amended wording will place responsibility on the owner or owners of any premises using the connection, who are likely to be more readily identifiable.
This deals with the precise point Deputy Gilmore has just raised, whereby many older premises and houses, particularly in some of the more built-up areas such as the Chairman's constituency, have been turned into bedsits, flats or whatever and in which it is difficult to identify the occupiers. It is easier to identify the owners.
Amendment agreed to.
Amendments Nos. 142, 146 and 182 are cognate and will be discussed together.
I move amendment No. 142:
In page 49, subsection (6), line 20, to delete "threat" and substitute "risk".
These are technical amendments to replace the word "threat" with the word "risk" for drafting consistency throughout the Bill. Amendments Nos. 142 and 146 make the changes in subsections (6) and (7) of section 43, while amendment No. 182 makes the same change to section 55(3).
Amendment agreed to.
I move amendment No. 143:
In page 49, subsection (6)(b), lines 29 and 30, to delete “maintenance and renewal”.
Amendment agreed to.
Amendment No. 144 in the name of Deputy Gilmore has already been discussed with amendment No. 139. Does the Deputy wish to move the amendment?
I will withdraw amendments Nos. 144 and 145 because they are covered by the new provisions to which the Minister drew members' attention.
Amendments Nos. 144 and 145 not moved.
I move amendment No. 146:
In page 49, subsection (7), line 35, to delete "threat" and substitute "risk".
Amendment agreed to.
I move amendment No. 147:
In page 49, lines 43 to 45, to delete subsection (8).
This amendment to section 43 is a drafting amendment to remove inadvertent duplication between subsections (2) and (8).
Amendment agreed to.
I move amendment No. 148:
In page 49, lines 46 to 53, to delete subsection (9) and substitute the following:
"(9) Where—
(a) a person wishes to install a connection, or
(b) a person responsible for the maintenance or renewal of a connection wishes, or has been directed under subsection (6)(a), either by himself or herself or by arrangement with a third party to undertake maintenance or renewal works on a connection, which runs, or is intended to run through, across, under, over or along any public road or place intended for a public road, then he or she may do so, subject to the consent of the road authority in whose functional area the road is situated.”.
Section 43(9) provides that where a person responsible for the renewal and maintenance of a connection wishes or has been directed by the water service authority under section 43(6) to undertake maintenance or renewal work on a connection or any part of it which runs through, across or under a road, street etc., he or she may do so subject to attaining the consent of the relevant road authority.
The amendment provides for the extension of the powers relating to the renewal and maintenance of a connection provided for in section 43(9) to the installation of a connection in the first place, subject to attaining the consent of the relevant roads authority.
Amendment agreed to.
I move amendment No. 149:
In page 50, subsection (13), lines 22 and 23, to delete "all or part of a connection." and substitute the following:
"a connection, which shall thereafter come under the sole control and responsibility of the water services authority.".
This provides that the water services authority may, at its sole discretion take in charge all or part of a connection. The amendment provides that on such a taking in charge of a connection, it will therefore come within the sole control and responsibility of the authority.
Amendment agreed to.
I move amendment No. 150:
In page 50, lines 24 to 47 and in page 51, lines 1 and 2, to delete subsections (14) to (18) and substitute the following:
"(14) (a) Without prejudice to section 180 of the Act of 2000, where a water services authority proposes to take in charge a connection under subsection (13), then it shall by notice inform any person who owns or controls the connection, of its intention to take it in charge, and where the identity of that person cannot be ascertained by reasonable enquiry, a notice for the purposes of this subsection may issue in accordance with section 19(5).
(b) Where, for the purposes of paragraph (a), the identity of the person or persons who owns or controls a connection cannot be ascertained after reasonable enquiry, then the water services authority shall also by notice inform any person who is responsible, in accordance with subsection (4), for the maintenance or renewal of that connection, and notwithstanding section 19 such notice may be issued by publication in a newspaper circulating in the area where the connection is located.
(15) A notice under subsection (14) may be appealed in accordance with section 92(8) by the person to whom it is addressed as if it was a notice issued under section 92(2), and shall be enforceable as if it was issued under that section.
(16) A person to whom a notice under subsection (14) is addressed shall, unless he or she waives that right, be entitled to reimbursement, from the water services authority which issued the notice, for the costs of the materials and labour expended by him or her in providing the connection, together with any additional compensation arising from a reduction in the value of his or her interest in the connection concerned.
(17) Where a dispute arises between a person to whom a notice under subsection (14) is addressed and the water services authority which issued it, then the matter may be referred by either of them to arbitration as if it was a referral for arbitration under section 92(15) but only to the extent that it relates to reimbursement or compensation under subsection (16) of this section.
(18) A person who—
(a) damages a connection, or
(b) fails to comply with a notice under subsection (6)(a), commits an offence.”.
Amendment agreed to.
Section 43, as amended, agreed to.
SECTION 44.
The Minister has indicated his intention to accept amendment No. 151, which has already been discussed with amendment No. 52.
I move amendment No. 151:
In page 51, subsection (1)(b), line 14, to delete “seven” and substitute “7”.
Amendment agreed to.
Section 44, as amended, agreed to.
SECTION 45.
I move amendment No. 152:
In page 51, line 27, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 45, as amended, agreed to.
SECTION 46.
The Minister has indicated his intention to accept amendment No. 153.
I move amendment No. 153:
In page 51, lines 28 and 29, to delete all words from and including "Unless" in line 28 down to and including "no" in line 29 and substitute "No".
The amendment removes the first couple of lines of section 46 to simplify the provision. I indicated that I was generally in support of it. It makes a clearer statement and I am pleased to accept it.
Amendment agreed to.
Section 46, as amended, agreed to.
Amendments Nos. 154 and 155 not moved.
Section 47 agreed to.
Amendment No. 156 not moved.
Section 48 agreed to.
SECTION 49.
I move amendment No. 157:
In page 52, subsection (1), line 40, to delete "waste waterworks" and substitute "waste water works".
This is a simple technical amendment to correct the syntax.
Amendment agreed to.
The Minister has indicated his intention to accept amendment No. 158, which has already been discussed with amendment No. 52.
I move amendment No. 158:
In page 52, subsection (2), line 44, to delete "six months" and substitute "6 weeks".
Amendment agreed to.
I move amendment No. 159:
In page 52, subsection (2), line 46, after "being" to insert "provided,".
Section 49 requires water services authorities to keep maps of all service connections, water distributions and waste water connection networks in their area. I have encountered several examples in which this was not the case. As currently worded, each water services authority is required to update its record within six months of an existing network or service connection being altered or added to. However, no such time limit is placed on the recording of the provision of new connections to the network or of new distribution or collection networks in the first instance.
The purpose of this amendment is to extend the application of the six month limit for updating mapping records under subsection (2) to include all changes, whether arising from an alteration or expansion of existing facilities or the provision of new facilities. It is a prudent extension of the existing arrangements.
Amendment agreed to.
I move amendment No. 160:
In page 53, subsection (5), line 3, to delete "subsections” and substitute “subsection”.
The purpose of the amendment is to correct a drafting error.
Amendment agreed to.
I move amendment No. 161:
In page 53, subsection (6), line 12, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 49, as amended, agreed to.
SECTION 50.
Amendments Nos. 162 and 163 not moved.
I move amendment No. 164:
In page 53, subsection (3), line 25, to delete "declaring the waterworks" and substitute "declaring by order the waterworks".
Section 50 enables a water service authority to enter into an agreement with a developer for the provision by the developer of relevant water service infrastructure and its subsequent handover to the water services authority. The purpose of this essentially technical amendment is to clarify the formal procedure for handing over water services infrastructure from a developer to a water services authority under such an agreement.
Amendment agreed to.
Section 50, as amended, agreed to.
Section 51 agreed to.
SECTION 52.
I move amendment No. 165:
In page 54, subsection (2), line 22, after "premises" to insert "other than a domestic dwelling".
This is to underpin the issue of water not being charged for in domestic dwellings.
We have already discussed this issue.
The amendment is not moved.
I have already moved the amendment.
I apologise. Does the Deputy wish to discuss it again?
No, I will give the Minister the pleasure of shutting his mouth.
I have already indicated that there is no intention in this Bill, which, in another section, already specifically emphasises that there will be no charging for domestic water. This is already protected in other primary law. To protect it not once but twice in primary law seems adequate but to protect it three times is primary law seems superfluous. It is adequately covered.
Does the Deputy wish to press the amendment or withdraw it?
I wish to press the amendment. If the Minister says much more about it, I may even call a division on it.
Amendment put and declared lost.
Section 52 agreed to.
SECTION 53.
I move amendment No. 166:
In page 55, subsection (1)(c), line 13, after "authority" to insert "to a material extent".
The Minister has indicated his intention to accept this amendment.
I am happy to accept this amendment as it is not intended that individuals should be chased and harassed over negligible amounts of water wastage. I thank the Deputy for the suggestion, which I am pleased to accept.
Amendment agreed to.
I move amendment No. 167:
In page 55, subsection (1), to delete line 14 and substitute "commits an offence.".
Amendment agreed to.
Section 53, as amended, agreed to.
SECTION 54.
Amendment No. 168 not moved.
Amendments Nos. 169 and 170 are related and may be discussed together by agreement.
I move amendment No. 169:
In page 55, subsection (1), line 21, after "shall" to insert the following:
"take such steps as are reasonably within his or her control to".
In this amendment I am addressing the extent to which the Bill is overly bureaucratic. Most occupiers of dwellings can do very little to ensure the water on their premises meets prescribed quality standards. One is stuck with the water that comes into the supply. There is not much that an individual householder or building owner can do about quality.
I cannot accept these amendments. Sections 54(1) and 54(2) place a duty on the owner of premises to maintain the internal water distribution system of the premises in good repair and in such condition as to ensure drinking water meets prescribed quality requirements at the taps used for this purpose. The owner is also required to ensure that all taps connecting to the distribution system do not leak from the system. Removal of the absolute requirement in this regard, which the current wording of the subsections provides, could undermine the enforcement actions by water services authorities under the section. Protracted legal argument over what constitutes reasonable steps could in time potentially allow serious water wastage or contamination to go unchecked and unpunished. I consider it reasonable to assume that a court would adjudicate on each case before it, having regard to any factors which may have militated against the owner of a premises fulfilling his or her obligations. Therefore, in the circumstances, I ask the Deputy to withdraw the amendments.
I understand the need to keep the internal system in a building up to speed for the purposes of avoiding leaks. How does a householder ensure the water intended for human consumption meets prescribed quality requirements? What is the Minister getting at? The water comes in from the mains.
Contamination could enter the system in the premises and if, for example——
How?
A person could carry out some botched plumbing. It could involve old lead pipes and people messing around up at water storage tanks. Contamination could occur and it is reasonable, particularly in a multiple occupier premises such as a large house divided into bedsits, that the owner should be required to protect the water source, which is used by all the people in that house.
I see the point where multiple occupancy or buildings like hotels are involved but I do not see the point where an ordinary domestic dwelling is involved.
The application is a universal one. I could see how there could be problems even in an ordinary domestic dwelling. If somebody behaved carelessly or recklessly, one could have a problem of contamination.
I cannot square this with the earlier provision we discussed which related to the effective indemnification of water service authorities against any claims brought against them. I know the Minister said he has tightened this slightly. Certainly in respect of domestic dwellings, this is slightly excessive. It is fair enough that the system for the purposes of avoiding leaks and wastage should be maintained. However, I would question putting a legal obligation on the householder for the water quality when he or she has no control over it in reality. Even if it is an old-fashioned system and involves lead pipes, a person would hardly get lead poisoning from water going through——
That would be an extreme case. This measure prescribes the general duties of the owner of a premises. Prescribing a general duty is a prudent provision.
Yes, but this is law. The Minister is putting a legal obligation on every householder in the country for the quality of the water coming out of their taps, over which they have no control. The water they have is the water they——
They have control over what happens within their premises. Deputy Gilmore is right in saying they have no control over the water that flows into their premises but within their premises, they have control over the taps, connections and various elements that form into it. They have a general duty of care, which is all that is provided for.
I do not agree. It is clear that the owner of a premises shall ensure the internal distribution of the premises is sufficient and maintained in such condition as to ensure that water intended for human consumption meets prescribed quality requirements. There is no ambiguity here. There is nothing general about that. One could read it as meaning that if the water coming into the house was not fit for human consumption, there is an obligation on the householder to have some kind of apparatus to clean it up. One could interpret this as meaning that every householder would need to have some filtering system at his or her tap for water because it is supposed to be fit for consumption when it comes out of the tap.
The legislation could not be interpreted in that way. The provision, which is mainly precautionary, will prescribe the general duties of an owner of a premises. Whether the premises are private or multiple occupancy, owners have responsibilities within their households. Taps used for such purposes must meet the prescribed quality requirements, namely, the distribution system of a premises and all taps connected to it are to be maintained in such condition as to ensure that water does not leak and the owner shall be responsible for its repair and renewal. This is an important provision.
The water services authority may and shall, on request from an authorised provider of water services or person providing water services jointly with or on behalf of the water services authority, direct the owner of a premises to undertake such remedial action as may be specified. The provision will not have a draconian impact. While it will not require someone to attach a filter to a tap or to take over the water authority's responsibilities, it will require people to operate within their premises to ensure that certain conditions will apply.
One does not know what will come out of a tap until it does. From time to time, water will be discoloured or so on. For example, a tenant in a rented dwelling may wake up one morning and turn on the tap to find brown water pouring out of it. What will the local authority do if the tenant puts the water in a bottle or jar, shows it to the local authority and states that his or her landlord is in breach of section 54(1) of this Bill?
The local authority——
A person who contravenes this section will be guilty of an offence. Must the local authority prosecute?
On request, the local authority must first issue the necessary notice and then establish that the fault is with the owner rather than itself.
If the absolute requirement were removed, the current wording of the subsection could undermine the enforcement actions of water services authorities under the section. Unless there is a statutory basis for water services authorities applying controls, a fault due to serious water wastage or contamination would condemn the local authorities before a matter that everyone was reasonably willing to correct can be corrected, leading to all sorts of legal arguments and litigation. A problem could go unchecked and unpunished for a long time. It would not be wise to strike the section as is.
Amendment put and declared lost.
Amendments Nos. 170 and 171 not moved.
I move amendment No. 172:
In page 56, subsection (6), to delete line 27 and substitute "commits an offence.".
Amendment agreed to.
Section 54, as amended, agreed to.
SECTION 55.
Amendments Nos. 173 and 196 are related and will be discussed together.
I move amendment No. 173:
In page 56, lines 28 to 31, to delete subsection (1) and substitute the following:
55.—(1) (a) A person who—
(i) causes or permits the connection of a premises to a water supply of a water services provider, either directly or indirectly, or
(ii) otherwise takes such a supply, without the agreement of the water services provider, commits an offence.
(b) For the purposes of paragraph (a), and without prejudice to subsection (5), the agreement of a water services authority under this subsection may be made the subject of such conditions as the water services authority may specify.
(c) In considering whether to agree to a connection under this section, a water services authority shall be entitled to take into account the matters referred to in paragraph 1 of the Fourth Schedule to the Act of 2000 in so far as they may apply to the provision of water supplies by it or another person acting jointly with it or on its behalf.”.
We are discussing amendments Nos. 173 to 177, inclusive, 196, 198 and 201 together. The various amendments to sections 55 and 61 prohibit the connection of a premises to the water supply or waste water works of any water service provider without the provider's permission.
To clarify, we are only discussing amendments Nos. 173 and 196.
The Chairman is right. These amendments to sections 55(1)(c) and 61(1)(c) will enable the water services authority, at its absolute discretion, to require as a condition of connection to a public water supply or sewerage system that a service connection or related pipes or accessories of a larger capacity than required by the applicant for his or her current needs be put in place to facilitate the connection of other premises to the supply or sewerage system.
To avoid problems in respect of subsequent maintenance of or guaranteed access to the expanded connection, the water services authority is required to take the connection into its charge or otherwise enter into an agreement with the applicant in respect of its use. The existing provision in both sections enables a water services authority to require pipes to be opened for inspection or testing prior to connection.
Amendment agreed to.
Amendments Nos. 174 and 198 are related and will be discussed together.
I move amendment No. 174:
In page 56, subsection (3), line 36, to delete "section 42” and substitute “section 42(2)”.
These are technical amendments to correct errors in cross-references.
Amendment agreed to.
Amendments Nos. 175 and 199 are related and will be discussed together.
I move amendment No. 175:
In page 57, lines 3 to 10, to delete subsection (5) and substitute the following:
"(5) (a) As a condition to the agreement of a water services authority to the connection of a premises to water supplies which are provided, or to be provided, by the water services authority or any person providing water services jointly with it or on its behalf, the water services authority may, in its absolute discretion and for the purposes of this section, require—
(i) that the length or overall capacity of the service connection, or such related pipes or accessories as it considers necessary, be increased to such extent beyond technical requirements as it may specify so as to enable adjoining or other premises to be connected to a waterworks, but subject to the water services authority—
(I) paying for any consequential increase in the cost of providing and installing the service connection or related pipes or accessories, and
(II) taking the service connection or related pipes or accessories into its charge or otherwise entering into an agreement in relation to their future use with the person seeking its agreement to connect the premises to the said water services, as if the requirement was a requirement under section 34(4)(m) of the Act of 2000, or
(ii) that the service connection, or such related pipes or accessories as it considers necessary, be opened for inspection or testing, or otherwise inspected or tested, by an authorised person.
(b) For the purposes of the application of section 34(4)(m) of the Act of 2000 to this subsection, a reference to a planning authority shall be deemed to include a reference to a water services authority.”.
This amendment relates to cross-references, namely, a link from sections 55(5) and 61(6) to section 34(4)(m) of the 2000 Act. It will ensure the administrative and compensatory arrangements pertaining to the imposition of related conditions on a prospective connection to water services will be the same regardless of the Act under which they are imposed. It synchronises the legislative codes.
Amendment agreed to.
Amendments Nos. 176 and 200 are related and will be discussed together.
I move amendment No. 176:
In page 57, subsection (7)(a), to delete lines 23 and 24 and substitute the following:
"(ii) technical specifications, including levels, for the service connection or related pipes or accessories, or their installation, or".
These amendments clarify the directions that an authorised person may give under section 55(7)(a)(II) or section 61(8)(a)(II) in respect of technical specifications for service connections. It may also include requirements relating to the levels at which the pipes shall be laid. This will enable specifications to not only apply to the quality and dimensions of pipes, but also to require their placement in the ground at appropriate levels to facilitate flow. The term “pipes or accessories” is substituted for “materials or fittings” to synchronise with the terminology used elsewhere.
Amendment agreed to.
Amendments Nos. 177 and 201 are related and will be discussed together.
I move amendment No. 177:
In page 57, lines 31 to 41, to delete subsection (8) and substitute the following:
"(8) A water services authority, or any person providing water services jointly with it or on its behalf, may—
(a) close a connection to its water services made in contravention of subsection (1), or a connection to water services referred to in subsection (5) which is made in contravention of subsection (6) or a direction under subsection (7), or
(b) without prejudice to any power to prosecute provided for under this section—
(i) agree to the retention of a connection referred to in paragraph (a) subject to such conditions as it may specify, and
(ii) carry out such work on the connection (including associated pipes and fittings) as it considers necessary to bring it up to a proper standard, or direct that such work be carried out by a specified person, and may recover any expenses incurred under this subsection from the person who made or caused the connection to be made, or on whose behalf it was made, or such other person who derives benefit from the connection.".
These amendments to sections 55(8) and 61(9) provide that, as an alternative to closing a connection made contrary to its agreement, a water services authority or person acting jointly with or on its behalf may give retrospective agreement in respect of the connection. In such circumstances, the authority will be empowered to carry out such works as it considers necessary to bring the connection and the associated pipes up to standard or to direct a specified person to carry out the work. As the subsections are currently worded, the only course of action open to the authority under either subsection would be to close the connection.
Amendment agreed to.
I move amendment No. 178:
In page 57, subsection (9), line 44, to delete "regulation" and substitute "regulations".
This is to correct a typographical error.
Amendment agreed to.
I move amendment No. 179:
In page 58, subsection (11), line 12, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 55, as amended, agreed to.
SECTION 56.
Amendments Nos. 180 and 181 not moved.
I move amendment No. 182:
In page 58, subsection (3), line 28, to delete "threat" and substitute "risk".
Amendment agreed to.
I move amendment No. 183:
In page 58, subsection (4), line 36, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
I move amendment No. 184:
In page 58, subsection (5), line 37, to delete "Notices" and substitute "A notice".
This is a drafting amendment to correct a syntax error.
Amendment agreed to.
I move amendment No. 185:
In page 59, subsection (9)(c), line 19, to delete “of the notice.” and substitute “of the notice, whichever is the later.”.
The additional words avoid circumvention of the standard one month time lapse envisaged before notice under section 56(1) or 56(2) requiring conservation of water use in the premises by appealing to the District Court and withdrawing within one month of the notice being issued.
Amendment agreed to.
I move amendment No. 186:
In page 59, subsection (11)(b)(i), line 34, to delete “or a notice” and substitute “or an emergency notice”.
This drafting amendment is for the purposes of consistency within the section. The amended term "emergency notice" is used throughout the section in section 56(11)(a) and 56(13) (a).
Amendment agreed to.
I move amendment No. 187:
In page 60, lines 14 to 19, to delete subsections (14) and (15) and substitute the following:
"(14) The Minister may make regulations for the purposes of water conservation and, without prejudice to the generality of the foregoing, such regulations may provide for 1 or more of the following:
(a) the specification of devices or systems to reduce demand for water in premises, and of obligations in relation to the design, installation or use of such devices or systems;
(b) the specification of obligations or technical requirements in relation to—
(i) the design, installation and use of devices or systems for collection, treatment or distribution of storm water or grey water,
(ii) the introduction of storm water or grey water into the distribution system of premises,
(iii) the redistribution of storm water or grey water for use for purposes other than human consumption;
(c) the specification of treatment standards for storm water or grey water, including different standards for different applications;
(d) the duties of owners or occupiers of premises in relation to conservation of water or waste water in the premises;
(e) the duties of water services providers in relation to conservation of water or waste water.
(15) (a) A person who contravenes a regulation under subsection (13) which is stated to be a penal regulation commits an offence.
(b) A person who contravenes a regulation under subsection (14) commits an offence.
(16) Where a water services authority is of the opinion that a serious deficiency of water available for distribution exists or is likely to exist in all or part of its functional area, either by itself or by another provider of water services, then it may by order, for a specified period, prohibit or restrict such class or classes of use, including use at specified times of the day, of any water supplied by it or the other provider of water services. Without prejudice to the generality of the foregoing, an order under this subsection may so prohibit or restrict the use of water—
(a) drawn through a hosepipe or similar apparatus for the purpose of—
(i) watering a garden,
(ii) watering recreational parks or sports grounds, either generally or any particular type of such park or ground,
(iii) irrigating or spraying crops, either generally or any particular type of crop, or
(iv) washing a mechanically propelled vehicle or a trailer,
(b) used for the provision of a commercial washing service for a vehicle or trailer, or
(c) used for filling or replenishing a swimming pool, artificial pond, lake or similar application.
(17) Before making an order under subsection (16) the relevant water services authority shall give public notice of its intention to make such order and the period for which the order will remain in force by—
(a) causing an advertisement to be published in a newspaper circulating in the area,
(b) causing notification of the proposed order to be broadcast on a radio or television channel available in the area, or
(c) such other means as the Minister may direct.
(18) A person who contravenes an order under subsection (16) commits an offence.
(19) An authorised person or a member of the Garda Síochána who has reasonable grounds for believing that a person is committing or has committed an offence under subsection (18), may request that person to furnish his or her name and address to such authorised person or member.
(20) A person who, when requested to furnish his or her name or address to an authorised person or member of the Garda Síochána under subsection (19), fails to do so, or when so requested furnishes a name and address which is false or misleading commits an offence.
(21) Where a member of the Garda Síochána is of the opinion that an offence under subsection (20) is being or has been committed, then the member may arrest that person without warrant.
(22) Where an authorised person or a member of the Garda Síochána has reasonable grounds for believing that a person is committing or has committed an offence under subsection (18), he or she may give to such person a notice in the prescribed form stating that—
(a) the person is alleged to have committed the offence,
(b) the person may during the period of 21 days beginning on the date of the notice make to the water services authority specified in the notice a payment, accompanied by the notice, of an amount, being a fixed amount of €125, and
(c) a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice, and if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.
(23) Where a notice is given under subsection (22), then-
(a) a person to whom the notice applies may, during the period specified in the notice, make to the water services authority specified in the notice the payment specified in the notice, accompanied by the notice,
(b) the water services authority shall receive the payment and issue a receipt for it and may retain the money so paid to offset costs incurred by it in the course of performing its functions under this Act, and no payment so received shall in any circumstances be recoverable by the person who made it, and
(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence shall be instituted.
(24) In a prosecution of an offence referred to in subsection (18), the onus of showing that a payment pursuant to a notice under subsection (22) has been made shall lie with the accused.
(25) In this section—
"grey water" means domestic waste water excluding that which is flushed from a toilet bowl or urinal;
"water services authority", other than in subsections (16), (17) and (23), includes—
(a) an authorised provider of water services, and
(b) a person providing water services jointly with or on behalf of—
(i) a water services authority, or
(ii) an authorised provider of water services.".
This provision allows a Garda to stop someone watering the garden or washing the car and arrest the person. Is a member of the Garda reserve permitted to do so?
Is Deputy Gilmore referring to arresting someone?
Or going around checking up on these people.
I am not sure the Garda reserve members have those powers.
Is this what the Garda reserve will do?
I am not sure this is what Deputy McDowell had in mind when he thought up the Garda reserve.
I do not think this will go down well on Ailesbury Road.
Or in certain parts of Rathgar, Rathmines and Ranelagh.
Amendment put and declared carried.
Section 56, as amended, agreed to.
SECTION 57.
Amendment No. 188 not moved.
I move amendment No. 189:
In page 60, line 21, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 57, as amended, agreed to.
SECTION 58.
I move amendment No. 190:
In page 60, lines 22 to 35, to delete subsections (1) and (2) and substitute the following:
"58.—(1) A water services authority may, for the purposes of analysis, take samples from—
(a) any water supply, whether public or private, serving any part of its functional area, and
(b) a water supply referred to in section 32(9).
(2) Where, on analysis of samples of water taken by a water services authority, it is found that the water constitutes a potential danger to human health, the water services authority shall, as soon as possible—
(a) ensure that—
(i) the supply of affected water is prohibited, or
(ii) the use of affected water is restricted,
or
(b) ensure that—
(i) subject to regulations under section 32, such other necessary action, including remedial action, is taken to protect human health and to restore the quality of the supply to such prescribed standards as apply to the water supply concerned,
(ii) users are promptly informed of the potential danger and given any necessary advice, and
(iii) except where the extent of non-compliance with prescribed quality standards is considered by the water services authority not to be material in the circumstances, users are notified promptly of any remedial action taken.".
This is a technical amendment to correct a drafting error.
Amendment agreed to.
I move amendment No. 191:
In page 61, subsection (4), line 6, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 58, as amended, agreed to.
SECTION 59.
I move amendment No. 192:
In page 61, subsection (1), line 8, after "surface", to insert "water".
This amendment seeks to correct a drafting error.
Amendment agreed to.
I move amendment No. 193:
In page 61, subsection (2), line 20, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 59, as amended, agreed to.
SECTION 60.
I move amendment No. 194:
In page 61, subsection (1), to delete lines 23 to 28 and substitute the following:
"60.—(1) A person who owns, has in his or her charge or otherwise has control over a waste water works shall cause it to be properly maintained so as not to—".
This is a technical amendment to close a potential loophole that could undermine the application of the duty of care in section 60 to all operators of wastewater works. The current wording in 60(1) applies the duty of care to specified operators only, namely, water services authorities, authorised providers and contractors operating jointly with them. This could lead to legal difficulties with the enforcement of a duty of care where a dispute arises over the validity of a water service licence or an operating contract or where an operator is not licensed and is not therefore an authorised provider. It is not intended that such a person, committing an offence of operating contrary to the terms of the water services licence or without a licence, should be afforded shelter from further sanction for such behaviour. This amendment blocks the potential gap.
Amendment agreed to.
I move amendment No. 195:
In page 61, subsection (2), lines 33 and 34, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 60, as amended, agreed to.
SECTION 61.
I move amendment No. 196:
In page 61, lines 35 to 38, to delete subsection (1) and substitute the following:
"61.—(1) (a) A person who causes or permits the connection of a premises to waste water services, either directly or indirectly, without the agreement of the provider of those services, commits an offence.
(b) For the purposes of paragraph (a), and without prejudice to subsection (6), the agreement of a water services authority under this subsection may be made the subject of such conditions as the water services authority may specify.
(c) In considering whether to agree to a connection under this section, a water services authority shall be entitled to take into account the matters referred to in paragraph 1 of the Fourth Schedule to the Act of 2000 in so far as they may apply to the provision of waste water services by it or another person acting jointly with it or on its behalf.”.
Amendment agreed to.
I move amendment No. 197:
In page 61, subsection (2), line 42, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
I move amendment No. 198:
In page 62, subsection (4), line 5, to delete "section 42” and substitute “section 42(1)”.
Amendment agreed to.
I move amendment No. 199:
In page 62, lines 17 to 24, to delete subsection (6) and substitute the following:
"(6) (a) As a condition to the agreement of a water services authority to the connection of a premises to waste water services which are provided, or to be provided, by the water services authority or any person providing water services jointly with it or on its behalf, the water services authority may, at its absolute discretion and for the purposes of this section, require—
(i) that the length or overall capacity of the service connection, or such related pipes or accessories as it considers necessary, be increased to such extent beyond technical requirements as it may specify so as to enable adjoining or other premises to be connected to a waste water works, but subject to the water services authority—
(I) paying for any consequential increase in the cost of providing and installing the service connection or related pipes or accessories, and
(II) taking the service connection or related pipes or accessories into its charge or otherwise entering into an agreement in relation to their future use with the person seeking its agreement to connect the premises to the said waste water services, as if the requirement was a requirement under section 34(4)(m) of the Act of 2000, or
(ii) that the service connection, or such related drainage pipes or accessories as it considers necessary, be opened for inspection or testing, or otherwise inspected or tested, by an authorised person.
(b) For the purposes of the application of section 34(4)(m) of the Act of 2000 to this subsection, a reference to a planning authority shall be deemed to include a reference to a water services authority.”.
Amendment agreed to.
I move amendment No. 200:
In page 62, subsection (8)(a), to delete lines 37 and 38 and substitute the following:
"(ii) technical specifications, including levels, for the service connection or related pipes or accessories, or their installation, or".
Amendment agreed to.
I move amendment No. 201:
In page 62, lines 45 and 46 and in page 63, lines 1 to 9, to delete subsection (9) and substitute the following:
"(9) A water services authority, or any person providing water services jointly with it or on its behalf, may—
(a) close a connection to its water services made in contravention of subsection (1), or a connection to water services referred to in subsection (6) which is made in contravention of subsection (7) or a direction under subsection (8), or
(b) without prejudice to any power to prosecute provided for under this section—
(i) agree to the retention of a connection referred to in paragraph (a) subject to such conditions as it may specify, and
(ii) carry out such work on the connection (including associated pipes and fittings) as it considers necessary to bring it up to a proper standard, or direct that such work be carried out by a specified person,
and may recover any expenses incurred under this subsection from the person who made or caused the connection to be made, or on whose behalf it was made, or such other person who derives benefit from the connection.".
Amendment agreed to.
I move amendment No. 202:
In page 63, subsection (12), line 25, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 61, as amended, agreed to.
SECTION 62.
I move amendment No. 203:
In page 63, subsection (1), line 26, to delete "seven" and substitute "7".
Amendment agreed to.
I move amendment No. 204:
In page 64, subsection (6), lines 34 and 35, to delete "subsection (1)” and substitute “section 42”.
This is a drafting amendment to correct an error.
Amendment agreed to.
I move amendment No. 205:
In page 64, lines 40 and 41, to delete subsection (8) and substitute the following:
"(8) A person who fails to comply with a direction under subsection (3)(a)(ii) commits an offence.”.
Amendment agreed to.
Section 62, as amended, agreed to.
SECTION 63.
Amendments Nos. 206 and 208 are related and may be discussed together.
I move amendment No. 206:
In page 66, subsection (7), line 27, to delete "Where" and substitute "Where,".
Amendment agreed to.
I move amendment No. 207:
In page 66, subsection (7), line 27, to delete "three" and substitute "3".
Amendment agreed to.
I move amendment No. 208:
In page 66, subsection (7), line 28, to delete "granted" and substitute "granted,".
Amendment agreed to.
I move amendment No. 209:
In page 66, subsection (7), line 29, to delete "or" and substitute "or, at any time,".
Amendment agreed to.
Amendments Nos. 210 and 211 are related and may be discussed together.
I move amendment No. 210:
In page 66, subsection (7), line 30, to delete "three" and substitute "3".
This is a technical amendment and consistent with standard drafting practice.
Amendment agreed to.
Amendment No. 211 not moved.
Amendment No. 212 not moved.
I move amendment No. 213:
In page 66, subsection (11), lines 48 and 49, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
I move amendment No. 214:
In page 67, subsection (12)(a), line 7, to delete “is guilty of an offence.” and substitute “commits an offence.”.
Amendment agreed to.
I move amendment No. 215:
In page 67, between lines 44 and 45, to insert the following subsection:
"(18) (a) Where a water services authority has obtained a court order in respect of the recovery of a charge to offset the costs incurred by it for the purpose of the treatment and recovery or disposal of the effluent to which a licence under this section relates and the charge remains unpaid, then a water services authority may by order declare that the licence stands revoked with effect from a date specified in the order and shall so stand revoked unless the charge is paid to the water services authority before that date.
(b) A licence revoked under paragraph (a) shall not be subject to appeal under section 66.”.
This amendment provides for the insertion of an additional subsection (18) in section 63 to enable a water services authority revoke a trade effluent licence issued under that section, where waste water charges in respect of the treatment, recovery and disposal of the effluent have not been paid by a specified date.
Amendment agreed to.
Section 63, as amended, agreed to.
SECTION 64.
I move amendment No. 216:
In page 68, subsection (2), line 6, to delete "three" and substitute "3".
Amendment agreed to.
Section 64, as amended, agreed to.
SECTION 65.
I move amendment No. 217:
In page 69, subsection (1), line 4, to delete "three" and substitute "3".
Amendment agreed to.
I move amendment No. 218:
In page 69, subsection (2), lines 10 to 15, to delete paragraph (a) and substitute the following:
"(a) the water services authority has reasonable grounds for believing that the discharge authorised by the licence conflicts, or is likely to conflict, with the sustainable use of water resources or is inconsistent, or likely to be inconsistent, with requirements of a river basin management plan or a programme of measures under the EU Water Framework Directive,”.
This is a technical drafting amendment to improve the syntax in this provision. The meaning of paragraph (a) is not affected.
Amendment agreed to.
I move amendment No. 219:
In page 69, subsection (3), lines 38 and 39, to delete "such commencement" and substitute "the commencement of such regulations".
This is also a technical amendment concerning syntax the purpose of which is to clarify beyond doubt that the "commencement" referred to at the end of line 38 is that of the regulations referred to in subsection (3).
Amendment agreed to.
Section 65, as amended, agreed to.
SECTION 66.
I move amendment No. 220:
In page 71, subsection (2), line 5, to delete "appeal," and substitute "appeal in whole or in part,".
Amendment agreed to.
Section 66, as amended,agreed to.
Section 67 agreed to.
SECTION 68.
Amendment No. 221 is in the name of Deputy O'Dowd. Amendment No. 222 is alternative to amendment No. 221 and both may be discussed together.
I move amendment No. 221:
In page 72, subsection (2), lines 23 and 24, to delete all words from and including ", and" in line 23 down to and including "facilities" in line 24.
I request that the amendment be withdrawn. Section 68 enables a water services authority to provide pump-out facilities for boats, tour buses and caravans. The provision is intended to facilitate the involvement of local authorities in the development of leisure and amenity facilities in their areas. The section is based on section 27(2) of the Local Government (Water Pollution) Act 1977 which will be repealed and consolidated into this Bill.
The purpose of subsection (2) is to remove any impediment on charging for the use of such facilities. Where local authorities go to the trouble and expense of providing pump-out facilities, it is only reasonable that they should be in a position to charge for their use, and it is specific to those circumstances.
Amendment, by leave, withdrawn.
I move amendment No. 222:
In page 72, subsection (2), line 24, after "the" to insert "provision or".
Amendment agreed to.
Section 68, as amended, agreed to.
SECTION 69.
Amendments Nos. 223 and 225 are related and may be discussed together.
I move amendment No. 223:
In page 73, subsection (3), lines 4 to 10, to delete paragraph (b) and substitute the following:
"(b) a person on whom a notice is served under paragraph (a) may within 30 days of the giving to him or her of the aforesaid notice make representations in writing to the water services authority in relation to the making of the order and the authority shall, before deciding whether to make the order, take into consideration any representations made by that person.”.
The purpose of these two related amendments is to change references to "occupier", where they occur in subsection (3)(b) and subsection (5), to “other person” to ensure consistency with the earlier similar reference in subsection (3).
Amendment agreed to.
I move amendment No. 224:
In page 73, subsection (4), line 12, to delete "six" and substitute "6".
Amendment agreed to.
I move amendment No. 225:
In page 73, subsection (5), lines 18 and 19, to delete all words from and including "the" where it firstly occurs in line 18 down to and including "aforesaid." in line 19 and substitute "each person served under subsection (3)(a).”.
Amendment agreed to.
Amendment No. 226 is an alternative to amendment No. 227 and both may be discussed together.
I move amendment No. 226:
In page 73, lines 20 to 50, to delete subsection (6) and substitute the following:
"(6) (a) Where an order is made by a water services authority under subsection (2), then any person causing or permitting a discharge of trade effluent or other matter (other than domestic waste water or storm water) to the drain concerned shall, within 6 months after the order is made—
(i) apply to the authority which made the order for a licence under section 63 in respect of the discharge, or
(ii) cease the discharge.
(b) (i) A person who, in pursuance of paragraph (a), duly applies for a licence under section 63 and furnishes any information duly required by the water services authority concerned in relation to the application shall be deemed not to have contravened section 63 during the period from the commencement of the order to the grant or, as the case may be, the expiration of one month after the refusal to grant the licence, in respect of any discharge to the drain concerned that is similar in nature, composition, temperature and volume, and is made, during that period, at a rate similar to that of the discharge concerned to which paragraph (a) relates during the corresponding period before such commencement.
(ii) In a prosecution for an offence under section 63 it shall be presumed until the contrary is shown that the discharge concerned is not one to which subparagraph (i) applies.
(c) Where a drain or part of a drain through which relevant effluent is discharged is declared to be a sewer under subsection (2), then a licence under section 4 of the Act of 1977 may be reviewed by the local authority which granted it, in accordance with the provisions of that Act.”.
This is a drafting amendment to restructure the content of subsection (6) of section 69 which does not alter the substance of the section. I ask that amendment No. 227 be withdrawn.
Amendment agreed to.
Amendment No. 227 not moved.
I move amendment No. 228:
In page 73, subsection (7), line 52, to delete "six" and substitute "6".
Deputy Gilmore's generosity in moving all amendments should be recognised.
I never had such a run of success with amendments.
I thought the same thing. He is entitled to the water services medal.
I will put any future amendments in Deputy O'Dowd's name.
It seems like that.
They have a better chance than any amendment appearing over my name.
Amendment agreed to.
I move amendment 229:
In page 73, subsection (7), line 53, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 69, as amended, agreed to.
SECTION 70.
Amendment No. 230 is in the name of Deputy O'Dowd. Amendment No. 231 is related and amendment No. 232 is alternative to amendment No. 231. Therefore, amendments Nos. 230 to 232, inclusive, may be discussed together.
Amendment No. 230 not moved.
I move amendment No. 231:
In page 74, lines 8 to 14, to delete subsection (2) and substitute the following:
"(2) The owner of a premises shall ensure that all drains, manholes, gullytraps and storage and treatment systems for waste water, including related accessories, not in the charge of a water services provider, which serve that premises are kept so as not to—
(a) cause, or be likely to cause, a risk to human health or the environment, including to waters, the atmosphere, land, soil, plants or animals, or
(b) create a nuisance through odours.”.
This amendment provides for the application of the duty of care requirement under subsection (2) to the owner of a premises in the first instance, rather than to an occupier as is provided for in the section as it stands in the Bill.
Amendment agreed to.
Amendment No. 232 not moved.
I move amendment No. 233:
In page 74, subsection (3), lines 17 and 18, to delete paragraph (a) and substitute the following:
"(a) by which the free flow of the contents of such sewer or drain may be interfered with,”.
Subsection (3) imposes duties of care on all persons involved in disposal to sewers and drains. The amendment to paragraph (a) is a technical amendment to improve the wording of that paragraph.
Amendment agreed to.
I move amendment No. 234:
In page 74, subsection (3)(c), line 21, to delete “effect” and substitute “affect”.
This is a drafting amendment to correct a minor typographical error.
Amendment agreed to.
I move amendment No. 235:
In page 75, subsection (10), lines 20 and 21, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
Section 70, as amended, agreed to.
NEW SECTION.
I move amendment No. 236:
In page 75, before section 71, but in Part 5, to insert the following new section:
71.—This Part shall not apply to domestic dwellings.".
Part 5 is concerned with the metering of water. The principal purpose of installing water meters in buildings is to charge for water. The proposal that it should not apply to domestic dwellings goes hand in hand with what we stated during the afternoon on preventing charging for domestic water supply.
We have already discussed this issue which returns to the question of charging. Metering is a central element of every water conservation programme. It helps pin down leakage and stem wastage, and is an essential aid to water management. I understand the point made by the Deputy but it will not have the effect about which he is concerned. A double legislative prohibition exists on charging for domestic water. Domestic metering is also used extensively in the rural water sector.
Demand for meters in that sector has arisen from the need to keep water demand to a minimum to keep operating costs under control. The group schemes themselves and its representative body, the National Federation of Group Water Schemes, strongly favour metering all connections. I heard the president speak specifically on that point. I repeat, the purpose is not to introduce charges — by the back door, the front door or any door. It is simply a tool to preserve water and reduce leakage. We already have in legislation double protection against the introduction of charges. Therefore, while I understand the point the Deputy makes, the amendment is not necessary.
If there is to be a meter, there will be a charge.
I reject the idea that a meter automatically leads to a charge. Therefore, I will not accept the amendment.
Amendment put and declared lost.
SECTION 71.
I move amendment No. 237:
In page 75, to delete lines 37 to 40 and substitute the following:
" "water services authority" includes—
(a) an authorised provider of water services, and
(b) a person providing water services jointly with or on behalf of—
(i) a water services authority, or
(ii) an authorised provider of water services.".
This is a drafting amendment which makes no substantive change to the meaning of the section. If we had accepted the last amendment would we have to dig up all the meters?
It is all the rage these days.
It would be very expensive.
Amendment agreed to.
Section 71, as amended, agreed to.
NEW SECTION.
Amendments Nos. 238 to 243, inclusive, 246 and 248 are related and may be discussed together.
I move amendment No. 238:
In page 75, before section 72, to insert the following new section:
72.—(1) Subject to any direction of the Minister under this Act—
(a) a water services authority may—
(i) supply water by measure,
(ii) meter or otherwise measure the volume of water supplied or the volume of waste water discharged,
(iii) subject to complying with other enactments in relation to charging for water services, charge a rent or otherwise recover from a consumer the costs incurred by it in respect of every meter or other instrument provided for measuring the water supplied to or the waste water discharged by that consumer,
(iv) require any consumer of water supplied by it to take such supply through a specified water supply meter,
(v) require any consumer of waste water services provided by it to discharge their waste water via a specified waste water discharge meter,
and
(b) a water services authority shall—
(i) keep every meter whether let by it for hire to a consumer or supplied free of charge, in proper order for measuring the supply of water or discharge of waste water, and in default of so doing, such consumer shall not be liable to pay rent as long as the default continues, and
(ii) have access to and be at liberty at all reasonable times to install, read, remove, examine, repair, replace, or reinstall such meter.
(2) An owner of a meter shall, subject to the requirements of—
(a) the Metrology Acts 1980 to 1998,
(b) any relevant instrument made under those Acts, and
(c) any relevant regulations made under the European Communities Act 1972,
ensure that the meter is the correct type and size required for the accurate measurement of consumption or discharge, that is foreseen or foreseeable. For that purpose account shall be taken in particular of the operating conditions for the meter, including flowrate range, temperature range, and relative pressure range of the water or waste water to be metered.
(3) Where, following testing pursuant to the Metrology Acts 1980 to 1998 or any relevant instrument or regulations specified in subsection (2), it is determined that a meter has failed to record correctly the volume of water supplied, or of waste water discharged, then a water services authority may estimate usage on the basis of historical data, and any amount of charges which are found to be outstanding on the basis of such estimate may be recovered by the water services authority from the person to whom the water services were provided.
(4) Subject to subsection (2), the Minister may make regulations in relation to the provision of a meter.
(5) Without prejudice to the generality of subsection (4), regulations under that subsection may provide for all or any of the following matters:
(a) responsibility of the consumer for the safe custody of a meter, and any piping or ancillary fittings belonging to a water services authority;
(b) rental of meters;
(c) taking of meter readings;
(d) estimation of usage on the basis of historical data;
(e) any incidental or ancillary matters.
(6) A person commits an offence if he or she—
(a) fails to comply with a requirement under subsection (1)(a)(iv) or (v),
(b) contravenes subsection (2), or
(c) contravenes a regulation made under subsection (4) which is stated to be a penal regulation.”.
The purpose of this amendment is to amend the provisions of Part V on metering to ensure it is fully in line with the related provisions of the Metrology Act 1996. The amendment duly provides that Part V is effectively subject to the 1996 Act and for the updating of terminology and procedures to ensure compatibility with it.
Amendment agreed to.
Amendments Nos. 239 to 242, inclusive, not moved.
Section 72 deleted.
NEW SECTION.
I move amendment No. 243:
In page 77, before section 73, to insert the following new section:
73.—(1) For the purpose of the measurement of water usage or waste water discharge determined by a meter, the register of that meter shall be prima facie evidence of the volume supplied or discharged, as the case may be.
(2) The Minister may issue guidelines to a water services authority in relation to procedures to be adopted for dealing with consumer complaints in relation to the performance of meters, and the water services authority shall act in accordance with those guidelines.".
This provides for the substitution of section 73 by a new section. The general thrust of section 73 has been changed from providing for a disputes resolution mechanism to providing guidance to water services authorities as to how to ensure access for consumers to mechanisms to resolve problems over meter performance, which will operate under section 22 of the Metrology Act 1996.
Amendment agreed to.
Section 73 deleted.
SECTION 74.
I move amendment No. 244:
In page 77, subsection (1), to delete line 32 and substitute "commits an offence.".
Amendment agreed to.
I move amendment No. 245:
In page 78, subsection (3), line 7, to delete "is guilty of an offence." and substitute "commits an offence.".
Amendment agreed to.
I move amendment No. 246:
In page 78, subsection (4)(a), line 8, to delete “user” and substitute “consumer”.
Amendment agreed to.
I move amendment No. 247:
In page 78, subsection (4)(b), lines 15 and 16, to delete “is guilty of an offence.” and substitute “commits an offence.”.
Amendment agreed to.
I move amendment No. 248:
In page 78, subsection (5), lines 19 and 20, to delete all words from and including "involved" in line 19 down to and including "offence" in line 20 and substitute the following:
"incurred from the person or persons guilty of the offence".
Amendment agreed to.
Section 74, as amended, agreed to.
Sections 75 to 78, inclusive, agreed to.
SECTION 79.
I move amendment No. 249:
In page 80, lines 42 to 44, and in page 81 lines 1 and 2, to delete subsection (1) and substitute the following:
"79.—(1) (a) On or after such date or dates as may be prescribed, a person shall not—
(i) provide water for human consumption from a tanker, or
(ii) otherwise provide water services,
except under and in accordance with a water services licence issued under this Chapter.
(b) Paragraph (a) does not apply to the provision of water in bottles or containers for human consumption, where such provision is in the ordinary course of business.
(c) In this subsection “person” means a person other than a water services authority or a person acting jointly with it or on its behalf under an agreement for that purpose.”.
This amendment to section 79 provides the substitution of subsection (1) by a new subsection. Paragraph (a), for the avoidance of doubt, provides that the licensing requirements of that paragraph apply to the provision of water for human consumption from a tanker, for example, water provided by a group water scheme from a tanker during a water shortage.
Paragraph (b) clarifies that provision of water in bottles or containers for human consumption will not be subject to licensing where it is provided in the normal course of business. The sale of bottled water, subject to food, health and safety legislation, promulgated by the Department of Health and Children and it is not necessary to cover it again at the meeting today.
The amendment will make it illegal to provide water from a tanker unless the tanker or its operator has been licensed. I envisage emergency circumstances, perhaps arising from climatic conditions, where it may be necessary to bring in water by tanker. If an emergency arises and urgent provision of water is required to an area hit by a water shortage caused by a natural disaster the Minister can hardly ask people to go and get licences.
This provision does not apply to local authorities.
A local authority will not have tankers but it might need to put measures in place to provide water.
I am not sure that is the case. It is quite common for local authorities to have tankers now. Whether they do or do not, it is prudent that any tanker used is suitable for such a purpose.
If there were an emergency it might be necessary to allow water to be provided for relief of distress.
I appreciate the Deputy's point but this is a precautionary provision to ensure any tanker so used is appropriate. I am sure the Deputy would not want it to be otherwise. If the Deputy believes this amendment causes an undue imposition I will consider an amendment for Report Stage. However, I believe it is a good provision.
Amendment agreed to.
It is now 5.30 p.m. and we agreed to conclude business today.
We can continue for a little while.
I have a commitment at 6 p.m. but I am happy to continue.
The Deputy will secure agreement to more amendments, albeit in somebody else's name.
I am sure we will come across a difficult one that will put paid to proceedings.
Amendments Nos. 250 and 254 are related and both may be discussed together.
I move amendment No. 250:
In page 81, subsection (4)(a), lines 38 and 39, to delete “specified in a notice under section 80 (2)” and substitute “or within one month of a notice under section 80 (2) taking effect,”.
These are related technical drafting amendments to ensure consistency between the wordings of section 79(4)(a) and 80(2) dealing with notices served under section 80.
Amendment agreed to.
I move amendment No. 251:
In page 81, subsection (4)(c), line 45, to delete ”section 80(3)“ and substitute ”section 80”.
This is a drafting amendment to replace the reference to section 80(3) in subsection (4)(c) with a more general reference to section 80.
Amendment agreed to.
I move amendment No. 252:
In page 82, subsection (5), to delete line 3 and substitute "commits an offence.".
Amendment agreed to.
Section 79, as amended, agreed to.
SECTION 80.
I move amendment No. 253:
In page 82, subsection (2), line 18, after "providing" to insert "the".
This is a drafting amendment to correct a syntax error.
Amendment agreed to.
I move amendment No. 254:
In page 82, subsection (2), lines 19 and 20, to delete "from the service of the notice." and substitute "of the notice taking effect.".
Amendment agreed to.
I move amendment No. 255:
In page 82, subsection (5), lines 36 and 37, to delete paragraph (b) and substitute the following:
"(b) in case an appeal is taken and is not so withdrawn, within 1 month of the appeal subsequently being withdrawn or determined, but only if the determination by the District Court does not annul the requirement to apply for a water services licence.”.
This amendment clarifies the timescale within which a notice under section 80 takes effect when an appeal against a notice is taken and is not withdrawn.
Amendment agreed to.
I move amendment No. 256:
In page 82, lines 38 and 39, to delete subsection (6) and substitute the following:
"(6) A person who fails to comply with a notice under subsection (2) commits an offence.”.
Amendment agreed to.
Section 80, as amended, agreed to.
Section 81 agreed to.
SECTION 82.
I move amendment No. 257:
In page 83, subsection (2), line 43, to delete "of" and substitute "and".
This is a technical amendment to correct a typographical error.
Amendment agreed to.
Section 82, as amended, agreed to.
Section 83 agreed to.
SECTION 84.
The Minister has indicated his intention to accept amendment No. 258.
I move amendment No. 258:
In page 85, subsection (2), line 35, to delete "five" and substitute "5".
Amendment agreed to.
Section 84, as amended, agreed to.
Section 85 agreed to.
SECTION 86.
I move amendment No. 259:
In page 86, subsection (1), line 14, to delete "under this Act or".
This is a technical drafting amendment, the effect of which will be that the water services authority will be required to consider only submissions made to it in accordance with regulations under section 88 when making a decision on a licence application, review, transfer or revocation.
Amendment agreed to.
Section 86, as amended, agreed to.
SECTION 87.
I move amendment No. 260:
In page 86, subsection (1), line 26, to delete "notice" and substitute "notification".
This amendment will correct a minor drafting error.
Amendment agreed to.
I move amendment No. 261:
In page 86, subsection (3), lines 41 and 42, to delete paragraph (a) and substitute the following:
"(a) in case an appeal is not made under subsection (1), on the expiration of the period referred to in that subsection,”.
This is drafting amendment to ensure consistency in the wording between paragraphs (a) to (c) of the subsection.
Amendment agreed to.
Section 87, as amended, agreed to.
SECTION 88.
I move amendment No. 262:
In page 87, to delete lines 15 and 16 and substitute the following:
"88.-(1) The Minister may make regulations in relation to licensing procedures in respect of water services generally.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for all or any of the following matters:”.
This is a technical drafting amendment to align the wording of the section with current drafting standards. The original purpose of the section to provide for the general power of the Minister to make regulations relating to licensing and water services is unaffected.
Amendment agreed to.
I move amendment No. 263:
In page 87, lines 32 to 39, to delete paragraphs (g) and (h) and substitute the following:
"(g) making available for inspection by members of the public of an application for the grant, transfer, amalgamation or review of a water services licence, or a proposed water services licence, and the making of submissions by members of the public to a water services authority, within a specified period in relation to such application or proposed licence;
(h) the publication or notification by a water services authority of decisions made by it in relation to water services licences;”.
This amendment expands the scope of the existing paragraph to enable regulations to be made that provide for the procedure for public inspection of applications for a grant, transfer or review of a licence or applications for the amalgamation of a number of water services licences or public inspection of draft water services licences prior to their finalisation.
The amendment will ensure that public consultation can be factored into all stages of a licensing procedure.
Amendment agreed to.
Section 88, as amended, agreed to.
Sections 89 and 90 agreed to.
SECTION 91.
Amendments Nos. 264 and 265 are related.
I move amendment No. 264:
In page 88, subsection (1), line 14, after "may" to insert "by order".
The purpose of these amendments is to clarify the procedure for initiating or extending the temporary takeover or operation of water works or wastewater works provided for under section 91. It is appropriate that the temporary takeover of works should be an executive function, given the immediate and operational nature of the underlying decision.
Amendment agreed to.
I move amendment 265:
In page 89, subsection (5)(b)(i), line 17, to delete “extend” and substitute “by order extend”.
Amendment agreed to.
Section 91, as amended, agreed to.
NEW SECTION.
I move amendment No. 266:
In page 89, before section 92, to insert the following new section:
92.—(1) In this section "connection" includes, where the context permits, a drain, sewer, distribution system, water main, service connection or any other pipe or related fittings, including manholes, which is or are connected to, or to be connected to water services, whether directly or indirectly.
(2) (a) In this subsection—
"facilitate" means do, or refrain from doing, as the case may be, such things as are directed in, or which arise from a direction in, a notice under this subsection to enable the water services or drainage of storm water which are the subject of the notice to be provided or put in place;
"premises" includes waterworks or waste water works.
(b) Without prejudice to section 31(18), a water services authority may by notice direct that a person who owns or has control over or uses all or part of-
(i) a connection, or proposed connection, to water services provided by the authority, an authorised provider of water services or any person acting jointly with or on behalf of the authority or authorised provider of water services, or
(ii) a drain that is used, or is capable of being used, for the drainage of storm water to storage facilities or waters, shall facilitate the provision of specified water services to a specified person or premises, or part of a premises, or the drainage of storm water from a specified premises or part of a premises to storage facilities or to waters through that connection or drain and in accordance with the notice, and that person shall comply with the notice.
(c) Where a notice under paragraph (b) indicates the position of any pipe or related accessories, such position shall be deemed to include any minor modification that is not of any material consequence and which may be carried out in the course of installation.
(3) A notice under subsection (2) shall not be directed at another water services authority or its servant or agent.
(4) Without prejudice to the generality of subsection (2), a notice under that subsection may also include, as appropriate, directions in relation to—
(a) actions to be taken or works to be carried out under the notice,
(b) the proposed route of any new pipe and location of any related accessories specified in the notice,
(c) the location of the junction between the connection or pipe referred to in the notice and the pipe through which water services will subsequently be provided to the person or premises,
(d) standards of workmanship or work practices generally in relation to works carried out under the notice,
(e) technical specifications for any materials or fittings provided for in the notice, and
(f) the latest date for compliance with the notice,
and the notice may include annexed to it such maps or drawings as the water services authority considers appropriate for illustrative purposes, and may specify the person by or on behalf of whom works in accordance with the notice shall be carried out.
(5) A person shall not be regarded as a water services provider for the purposes of this Act solely because of his or her compliance with a notice under subsection (2).
(6) Subsection (2) may not be exercised so as to interfere unreasonably with—
(a) the capacity of the person, to whom a notice is directed, to carry on a business which is connected to the water services, or drained to the storm water storage facilities or waters referred to in the notice, or
(b) in the case of another water services provider, the capacity of that person adequately to provide water services.
(7) (a) A person to whom a notice under subsection (2) is directed shall be entitled to be paid the following costs and compensation, as the case may be, arising from his or her compliance with that notice:
(i) to the extent that he or she has reasonably incurred or will incur them, the cost of works necessary to effect compliance with the notice, or expenses related directly to such compliance;
(ii) compensation determined in accordance with paragraph (b);
(iii) any additional costs, expressed in current prices, already incurred by the person to whom the notice is addressed for the purpose of installing in the first instance a pipe of larger capacity than necessary to meet technical requirements, including minimum technical requirements of a local authority, but only to the extent that the excess capacity will be reduced by the additional connection which is the subject of the notice;
and in determining the amount of compensation payable, regard shall also be had to any grant or subsidy that has been paid or provided in respect of all or any part of the connection.
(b) (i) Where, on a claim made to a water services authority, it is shown that, as a result of any action pursuant to this section in-
(I) placing, renewing or removing any pipe for the purposes of this section, or
(II) affixing any notice,
the value of an interest of any person in the connection or drain referred to in subsection (2) or in any adjacent land existing at the time of the action of the water services authority is reduced, or that any person having an interest in such connection, drain or land at that time has suffered damage by being disturbed in his or her enjoyment or use of it arising from compliance with the notice, then that person shall be entitled to claim compensation in the amount of the reduction in value or the amount of the damage, and such a claim shall be determined as if it were a claim for compensation under section 199 of the Act of 2000.
(ii) The provisions of Chapter 1 of Part XII of the Act of 2000 shall, in so far as they are relevant to this section, apply in relation to a claim for compensation under this subsection as if-
(I) references to a planning authority were references to a water services authority or such other person performing the action concerned pursuant to this section,
(II) references to section 199 were references to this subsection,
(III) the reference to section 182 was a reference to this section, and subject to any other necessary modifications.
(c) Subject to paragraph (d), the costs and compensation referred to in paragraph (a) shall be met in full by any person for whom a connection to water services or the drainage of storm water to storage facilities or waters is facilitated by the issue of the notice.
(d) A water services authority which issues a notice under subsection (2) may, at its sole discretion, contribute towards related costs and compensation referred to in paragraph (a), to such extent, if any, as it considers appropriate, and may carry out such related works as it considers appropriate.
(8) (a) Where a notice under subsection (2) is directed at a person who owns or controls all or part of a relevant connection or drain, or proposed connection or drain, that person may, within 28 days of the date of the notice, appeal to the High Court in relation to the notice.
(b) Where a notice under subsection (2) is directed at a user of all or part of a relevant connection or drain, that person, and in addition any person who claims to be the owner or to have control over the connection or drain and who satisfies the Court in relation to proof of such ownership or control, may within 28 days of the date of the notice appeal to the High Court in relation to the notice.
(c) Paragraph (a) or (b) shall not apply to provisions in subsection (7) in relation to costs.
(9) On hearing an appeal under subsection (8), the High Court may, by order, as it thinks proper-
(a) confirm the notice, with or without variation, or
(b) set the notice aside.
(10) The determination by the High Court of an appeal under subsection (8) shall be final, and no appeal shall lie from the decision of the Court to the Supreme Court save with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. If such an appeal is taken the Supreme Court shall have jurisdiction to determine only the point of law certified by the High Court.
(11) Subsection (10) does not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.
(12) (a) The High Court shall, in determining an appeal under subsection (8) act as expeditiously as possible consistent with the administration of justice.
(b) The Supreme Court shall, in determining an appeal from a determination of the High Court under subsection (8), act as expeditiously as possible consistent with the administration of justice.
(c) Rules of court may make provision for the expeditious hearing of appeals under this section.
(13) The notice under subsection (2) shall be enforceable in accordance with this Act—
(a) in case an appeal is not brought against it, upon the expiration of the period referred to in subsection (8),
(b) in case an appeal is brought against it and the determination of the appeal does not set it aside, upon and in accordance with such determination,
(c) in case an appeal is brought against it and the appeal is withdrawn, upon withdrawal of the appeal, or the expiration of the period referred to in subsection (8), whichever is the later,
and the water services authority which issued the notice, or an authorised person acting on its behalf, or such other person specified in the notice or his or her servant or agent, may enter any relevant land and carry out all necessary works for the purposes of enforcing the notice.
(14) Responsibility for the maintenance, repair or renewal of any pipes and accessories connecting the junction referred to in subsection (4)(c) and the premises for which the provision of water services is facilitated by the notice under subsection (2) shall remain with the owner of that premises, until such time as the water services authority which issued the notice, at its discretion, takes them into its charge.
(15) (a) Subject to paragraph (b), any dispute between a person to whom a notice under subsection (2) is addressed and the water services authority which issued it in relation to the calculation of costs or compensation for the purposes of subsection (7) may be referred by either party to an agreed arbitrator, as if such referral was in accordance with an arbitration agreement under the Arbitration Acts 1954 to 1998.
(b) In the absence of agreement on choice of an arbitrator for the purposes of paragraph (a), the President of the High Court may, on the application of either party, appoint an arbitrator.
(c) Any decision of an arbitrator appointed under paragraph (a) or (b) made at proceedings held in accordance with the Arbitration Acts 1954 to 1998 as to the calculation of costs or compensation shall be binding and enforceable in accordance with those Acts.
(16) (a) Where on application by a water services authority to the Circuit Court the Court is satisfied that a person has failed to comply with or is obstructing or preventing compliance with a requirement of a notice under this section, whether or not that person has an interest in any pipe or land referred to in the notice, then the Court may by order—
(i) direct that person to comply with the requirement or cease obstructing or preventing compliance with the requirement, and
(ii) make such other provision, including provision in relation to payment of costs, as the Court considers appropriate.
(b) An application under this subsection to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the connection or drain, or any part of it, which is the subject of the application is located, or to be located as the case may be.
(c) An application to the Circuit Court for an order under this subsection shall be by motion, and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.
(d) Rules of court may provide for an order under this subsection to be made against a person whose identity is unknown.
(17) (a) The Minister may make regulations for the purposes of this section.
(b) Without prejudice to the generality of paragraph (a), regulations under that paragraph may provide for 1 or more of the following:
(i) the format of a notice under subsection (2);
(ii) procedures for service of a notice under this section;
(iii) inclusion of such additional details in a notice under subsection (2) as required to clarify the actions which are necessary to effect compliance with the notice;
(iv) procedures for calculation of excess capacity under subsection (7)(a)(iii);
(v) procedures or related time limits for referral of a dispute to arbitration under subsection (15);
(vi) related or ancillary matters to any of the foregoing.".
Amendment agreed to.
Amendment No. 267 not moved.
Section 92 deleted.
SECTION 93.
I move amendment No. 268:
In page 92, subsection (2), lines 5 to 8, to delete paragraphs (b) and (c), and
substitute the following:
"(b) water, or right of access to water, or right to take or convey water,
(c) waterworks or part of a waterworks, or related accessories or right of access to them, or
(d) waste water works or part of a waste water works, or related accessories or right of access to them.”.
This is a drafting amendment to provide greater clarity as to the intent of paragraphs (b) and (c) of subsection (2).
Amendment agreed to.
Section 93, as amended, agreed to.
NEW SECTION.
I move amendment No. 269:
In page 92, before section 94, to insert the following new section:
94.—The powers of a water services authority under section 93 or 97 shall also apply to any such acquisition or any such laying of pipes or related infrastructure, fixtures or fittings for the purpose of facilitating the provision of water services by-
(a) any authorised provider of water services, or
(b) a person providing water services jointly with or on behalf of—
(i) a water services authority, or
(ii) an authorised provider of water services.".
This amendment is consequential to amendment No. 274(2) in section 97. The new section 94 includes cross-references to sections 93 and 97 which contain provisions enabling a water services authority to acquire existing infrastructure in addition to water sources and rights to water.
Amendment agreed to.
Section 94 deleted.
SECTION 95.
I move amendment No. 270:
In page 92, lines 23 to 30, to delete subsections (2) and (3) and substitute the following:
"(2) (a) Where a water services authority proposes to take into public charge all or part of the distribution network of a waterworks or the collection network of a waste water works, together with the accessories of the network concerned (in this section referred to as the “pipe network and accessories”) whether within or outside its functional area, and it cannot after reasonable enquiry establish the identity of those persons entitled to agree to such transfer, then the water services authority shall publish in one or more newspapers circulating in the area served by the waterworks or waste water works, and serve on the owner of every premises which appears to it to be connected to the pipe network and accessories in question, a notice which—
(i) describes the pipe network and accessories in question, including a description of the area it serves,
(ii) states the intention of the water services authority to take the pipe network and accessories into its charge,
(iii) names the place where a map of the pipe network and accessories in question is deposited and the times during which it may be inspected, and
(iv) specifies the manner and period within which (not being less than 1 month from the date of the notice) any person, claiming entitlement to agree to or disagree with such transfer, may register such a claim with the water services authority.
(b) Where no entitlement to agree to or disagree with the transfer referred to in paragraph (a) is claimed, or no claim to such entitlement is substantiated, then the water services authority shall hold a plebiscite to ascertain the wishes of the owners of the premises concerned in relation to the taking in charge of the pipe network and accessories by the water services authority.
(c) Where a simple majority of owners who vote in the plebiscite referred to in paragraph (b) indicate their agreement to the water service authority taking in charge the related pipe network and accessories, then the water services authority may by order declare such pipe network and accessories to be in its charge.
(d) Where a simple majority of the owners who vote in the plebiscite referred to in paragraph (b) indicate that they do not wish the water services authority to take in charge the related pipe network and accessories, then the water services authority may by order declare the pipe network and accessories to be a connection for the purposes of section 43.
(e) Where a claim of entitlement to agree to or disagree with the transfer referred to in paragraph (a) is substantiated and a consequential direction to the claimant under section 80 to apply for a licence under section 79 is annulled by the District Court, then the water services authority may declare the pipe network and accessories to be a connection for the purposes of section 43.
(3) A water services authority may not acquire or take in charge all or part of a waterworks or waste water works which is located, in whole or in part, outside its functional area unless with the agreement of the water services authority in whose functional area the waterworks or waste water works, or part of it is situated.
(4) The Minister may make regulations in relation to the procedures and notification requirements necessary for the purposes of this section.".
This amendment proposes to substitute a new subsection for subsection (2) of section 95 and it also includes a minor drafting change to subsection (3). The purpose of the amendment to subsection (2) is to enable the water services authority to regularise the status of private water supply pipes or waste water collection pipes where the ownership cannot be readily ascertained or where the identity of the person exercising control over them cannot readily be determined after a reasonable inquiry. This would typically apply to group water schemes.
There is provision made here for a plebiscite, which is not unusual. Such provisions are made in the planning Act regarding taking charge of housing estates and so on. In those cases the entitlement to vote rests with the registered voters and universal suffrage applies. What is proposed here is a return to the arrangement prior to 1918 where only property owners were entitled to vote. I am surprised by this and wonder if the Minister wishes to reflect on it before Report Stage.
This relates specifically to ownership of the asset. I accept that it jars, but if the Deputy thinks this through he will see the logic.
I welcome this amendment, if I understand it correctly. I am aware of a contaminated private group water scheme where the members in question refuse to allow the county council take charge. I understand that this amendment would allow the county council take charge of the scheme without a veto being put in place by the scheme's directors.
I know from my own experience that there have been cases where group water schemes get into difficulties, for example, where a trustee dies.
There are cases where they cannot pay the ESB bill.
There have been many complications, though they have lessened significantly in recent years because group water schemes have become highly professional. In the past some of my relations have had difficulties with such schemes. The intention is to clear up circumstances where difficulties arise.
I am raising a general issue of who should vote. I might return to this on Report Stage. There is an issue in this. I understand what the Minister is saying, but there is still the issue of the right to vote. If there is a house and group water scheme, the right to vote should rest with individuals and should not attach to the property.
If the Deputy wishes to take a view on that before Report Stage, I will look at it again. We will both return to it to make certain.
Amendment agreed to.
Section 95, as amended, agreed to.
NEW SECTION.
Amendments Nos. 271 to 273, inclusive, are related and may be discussed together.
I move amendment No. 271:
In page 92, before section 96, to insert the following new section:
"96.—Where a compulsory acquisition by way of compulsory purchase order is made in respect of a waterworks or waste water works, or part thereof, a duly appointed arbitrator shall, to the extent that it can reasonably be ascertained, in determining the amount of compensation payable, have regard to any grant or subsidy that has been paid or provided in respect of all or any part of the waterworks or waste water works.".
This shortens and simplifies the wording of section 96 for ease and clarity of interpretation, without changing the intent of the existing paragraph. While I express my appreciation to Deputy Gilmore for his interest in showing the correct collective citations, the changes proposed to the section in amendment No. 271 anticipate the change the Deputy's amendment proposes.
Amendment agreed to.
Amendments Nos. 272 and 273 not moved.
Section 96 deleted.
NEW SECTION.
I move amendment No. 274:
In page 93, before section 97, but in Chapter 1, to insert the following new section:
97.—(1)(a) Where in the opinion of a water services authority it is considered necessary for the purpose of any of its functions to-
(i) place, construct, lay or connect, as may be appropriate, water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires on, into, through, under or over any land not forming part of a public road,
(ii) attach to or erect on a premises any bracket or other fixture required for the carrying or support of those water mains, sewers or service connections or any ancillary apparatus or related cables or wires, or
(iii) affix to or erect on any premises a notice referred to in subsection (2), then it may, after giving 28 days notice of its intention to the owner and the occupier of that land or premises, as the case may be, indicating the position of the proposed installations referred to in subparagraph (i), and with the consent of the said owner and occupier, place, construct, lay or connect water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires, or attach to the premises such bracket, or notice referred to in subsection (2), or other fixture as indicated in the notice given under this subsection, and may, from time to time, inspect, repair, alter, renew or remove any of them.
(b) In paragraph (a) “position” includes any minor modification that is not of any material consequence which may be carried out in the course of installation.
(2) A water services authority may erect and maintain notices indicating the position of water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires referred to in subsection (1).
(3) Where a person to whom a notice under subsection (1) is addressed has not, within 28 days of the giving of such notice, indicated his or her consent, that person's consent shall be deemed to have been withheld.
(4)(a) Where a person to whom a notice under subsection (1) is addressed has withheld his or her consent, or where his or her consent is deemed to be withheld under subsection (3), then, the water services authority which issued the notice may appeal to the Circuit Court.
(b) The Circuit Court in considering an appeal under this section may, by order-
(i) confirm the notice, with or without variation, or
(ii) set the notice aside,
but shall not determine any matter to which subsection (8) refers.
(5) Where the Circuit Court confirms, with or without variation, a notice under subsection (1), consent shall be treated as having been given for the purposes of subsection (1), with effect from the date of such confirmation.
(6) A water services authority may exercise all or any of the powers conferred on it by this section outside its functional area with the agreement of the water services authority in whose functional area the works are to be carried out.
(7)(a) A consent under this section may be registered, in the appropriate manner taking account of requirements to facilitate access from time to time for inspection, repair, alteration, renewal or removal of infrastructure to which the consent relates, by the relevant water services authority, in either the Land Registry or in the Registry of Deeds, as may be appropriate.
(b) The full cost of registering a consent under this subsection shall be borne by the water services authority which issued the related notice under subsection (1).
(8)(a) If, on a claim made to a water services authority, it is shown that, as a result of the action of the authority pursuant to this section in—
(i) placing, renewing or removing any water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires, referred to in subsection (1),
(ii) attaching any bracket or fixture, or
(iii) affixing any notice,
the value of an interest of any person in the land or structure existing at the time of the action of the water services authority is reduced, or that any person having an interest in the land or structure at that time has suffered damage by being disturbed in his or her enjoyment or use of the land or structure affected by the action of the water services authority, that person shall be entitled to claim compensation in the amount of the reduction in value or the amount of the damage, and such a claim shall be determined as if it were a claim for compensation under section 199 of the Act of 2000.
(b) The provisions of Chapter 1 of Part XII of the Act of 2000 shall in so far as they are relevant to this section, apply in relation to a claim for compensation under this subsection as if—
(i) references to a planning authority were references to a water services authority,
(ii) references to section 199 were references to this subsection,
(iii) the reference to section 182 was a reference to this section,
and subject to any other necessary modifications.
(9) An authorised person may enter on land for any purpose connected with this section and that entry shall be subject to the relevant provisions of section 252 of the Act of 2000 as if—
(a) it were an entry made under that section, and
(b) any reference in the said section to appropriate authority or local authority was a reference to a water services authority.”.
Amendment agreed to.
SECTION 97.
I move amendment No. 275:
In page 93, lines 13 to 27, to delete subsection (1) and substitute the following:
"97.—(1) Subject to subsection (2), any person authorised (however expressed) by any Act or instrument made under an Act to—
(a) navigate or use any river, canal, dock, harbour or river-basin, or
(b) charge a toll for such use,
may take up, divert, or alter the level of any pipe which is-
(i) constructed by or vested in a water services authority or an authorised provider of water services, or a person providing water services jointly with or on behalf of a water services authority or an authorised provider of water services, and
(ii) passing under or interfering with such river, canal, dock, harbour or river-basin or any towing path thereof,
and, subject to complying with any statutory or contractual requirement and the giving of any due notice to any person concerned, the person so authorised may do all such things as may be necessary for carrying into effect such taking up, diversion or alteration.
(2) Any work carried out by a person pursuant to subsection (1) shall be at his or her own expense, and shall be subject to his or her substituting other equally effective pipes.”.
This amendment provides for a redrafting of this subsection (1) to recast it from a long, single subsection to a number of subsections, paragraphs and subparagraphs. Its purpose is to provide clarity and ease of reference.
Amendment agreed to.
Amendment No. 277 is alternate to amendment No. 276 and they can be discussed together.
I move amendment No. 276:
In page 93, subsection (3), line 40, to delete "1954 to 1980" and substitute "1954 to 1998".
Amendment No. 276 provides for the updating of references to the collective citation of the Arbitration Acts. The Parliamentary Counsel advises that the most modern, and therefore more appropriate, collective citation for the Arbitration Acts is "Arbitration Acts 1954 to 1998", as inserted by the Arbitration (International Commercial) Act 1998. In the circumstances I ask the Deputy to withdraw amendment No. 277.
Amendment agreed to.
Amendment No. 277 not moved.
Section 97, as amended, agreed to.
SECTION 98.
Amendment No. 278 not moved.
I move amendment No. 279:
In page 94, lines 3 to 16, to delete subsections (4) to (6) and substitute the following:
"(4) Whenever the Minister gives a direction under this section, he or she shall—
(a) as soon as may be cause a copy of the direction to be laid before each House of the Oireachtas,
(b) cause a copy of the direction to be transmitted to each water services authority concerned, and
(c) cause to be published in Iris Oifigiúil a notice of the giving of the direction.
(5) (a) A notice under subsection (4)(c) shall specify where a copy of the direction concerned may be viewed or obtained.
(b) The Minister may charge a fee (if any) for providing a copy of a direction under this subsection but any such fee shall not be greater than the costs incurred in making copies available.”.
This is a technical amendment to correct syntax error in the text of subsections (4) to (6) by replacing them with new subsections (4) and (5).
Amendment agreed to.
Section 98, as amended, agreed to.
Amendment No. 280 not moved.
Section 99 agreed to.
Sections 100 and 101 agreed to.
SECTION 102.
Amendment No. 281 has already been discussed with Amendment No. 52. The Minister indicated he is prepared to accept the amendment.
I move amendment No. 281:
In page 95, subsection (2), line 38, to delete "three" and substitute "3".
Amendment agreed to.
I move amendment No. 282:
In page 95, subsection (3), line 44, to delete "all" and substitute "All".
This is a technical amendment to correct a syntax error in subsection (3).
Amendment agreed to.
I move amendment No. 283:
In page 95, subsection (4), line 51, to delete "eight" and substitute "8".
Amendment agreed to.
Section 102, as amended, agreed to.
SECTION 103.
I move amendment No. 284:
In page 96, lines 12 to 16, to delete subsection (1) and substitute the following:
"103.—(1) A person shall not, except with the consent of a relevant water services authority and following an application for the purposes of this section to that authority, erect or commence to erect, or cause to be so erected, any structure-
(a) over, or
(b) so close to as to cause a risk to, or interfere with, the structural integrity of or access to,
a sewer, drain, water main, distribution system, service connection or related accessories which are owned, controlled or used by another person.".
Section 103 prohibits building over water pipes owned, controlled or used by another person without the consent of the relevant water services authority. It applies to building over water mains, sewers, distribution systems, drains, service connections or related accessories. The purpose of this amendment is to facilitate the designation, as required, of a sterilised corridor around a pipe to ensure that the structural integrity of the pipe is protected and that access for ongoing maintenance is facilitated. It is a sensible proposition.
Amendment agreed to.
I move amendment No. 285:
In page 96, subsection (4)(b), line 43, to delete “or” and substitute “of”.
This is a drafting amendment to correct a typographical error.
Amendment agreed to.
I move amendment No. 286:
In page 97, lines 37 and 38, to delete subsection (11) and substitute the following:
"(11) Regulations under section 18 may provide for—
(a) the form of an application for a consent under subsection (1),
(b) the information to be provided with any such application,
(c) the time limits relating to such application, including time limits relating to—
(i) consideration of such an application, and
(ii) notification of a decision on such an application.
(12) A person who contravenes subsection (1) or who fails to comply with a notice under subsection (4) commits an offence.”.
This amendment inserts an additional subsection (11) in section 103 to enable the Minister to make regulations on administrative procedures under the section. It is envisaged that regulations will be made in due course to standardise procedures, time limits and pro forma information etc.
Amendment agreed to.
Section 103, as amended, agreed to.
NEW SECTIONS.
I move amendment No. 287:
In page 97, before section 104, but in Chapter 1, to insert the following new section:
"104.—(1) A water services authority shall not charge for water supplied to or discharged by—
(a) a household, which is used by that household for domestic purposes, or
(b) a person, other than another water services authority, providing water services to a household for domestic purposes.
(2) Subject to subsections (1) and (4), and any regulations under section 105, a water services authority shall charge for all costs associated with the provision of water services provided, whether within or outside its functional area, by it or a person providing water services jointly with it or on its behalf.
(3) Subject to any regulations under section 105, a charge under subsection (2) may be fixed from time to time by the water services authority, by reference to one or more of the following:
(a) the quantity of water supplied;
(b) the volume and strength of waste water discharged to a sewer;
(c) the purpose for which water supplied is used;
(d) such other criteria as may be prescribed.
(4) (a) A water services authority may, subject to such criteria as may be specified or direction as may be made by the Minister for such purposes, if the authority is satisfied that it is appropriate to so do on grounds of personal hardship, waive a charge made under this section.
(b) Where a charge is waived under paragraph (a), the liability of a person to pay such charge and any obligation on the water services authority by whom the waiver was made to collect such charge shall cease.
(c) In this subsection “charge” includes portion of a charge.
(5)(a) A charge under this section shall be paid by and recoverable from the person to whom the water services concerned are provided.
(b) For the purposes of this section and subject to paragraph (c), where a premises to which water services are provided is let, then the occupier of the premises to which water services are provided shall be deemed to be the person to whom the water services are provided, unless the occupier concerned proves to the contrary.
(c) Where after reasonable inquiry, a water services authority cannot establish the identity of the occupier of a premises to which water services are provided, then the owner of the premises shall be deemed to be the person to whom the water services are provided, unless the owner proves that the water services are provided to another specified person.
(d) In this subsection, a reference to a premises which is let includes a reference to a part of such premises which is sublet.
(6) A water services authority may appoint an agent to collect water services charges on its behalf, and that person shall be deemed to be an authorised person for the purposes of this section, and references in this section to a water services authority shall be construed, where appropriate, as including such agent.
(7) Where a charge under this section is calculated by reference to the quantity of water supplied or waste water discharged, then the water services authority, or person providing water services jointly with it or on its behalf, may-
(a) supply the water by measure, in which case a meter shall be used to measure the quantity of the supply, or
(b) measure the discharge, in which case the waste water discharge shall be discharged via a meter,
and Part 5 shall apply to the metering of such supply or discharge.
(8) For the purposes of this section, in the absence of evidence to the contrary or of an agreement otherwise entered into between a water services authority and a person to whom water services are provided, the quantity of waste water discharged from a premises may be deemed to equal the quantity of water supplied to that premises.
(9)(a) A charge under this section for water services to be provided otherwise than by measure shall—
(i) be payable in respect of any year to the water services authority in 2 equal instalments on or before the 1st day of January and the 1st day of July of that year, or in such other manner as the water services authority to whom the charge is payable shall determine, and
(ii) in default of being paid within 2 months after becoming payable, be recoverable as a simple contract debt in any court of competent jurisdiction.
(b) A charge under this section for water services supplied by measure shall—
(i) be payable on demand to the water services authority, and
(ii) in default of being so paid, be recoverable as a simple contract debt in any court of competent jurisdiction.
(10) A water services authority, or a person providing water services jointly with it or on its behalf and having received authority from the water services authority, may discontinue or restrict a related supply of water to a person where a charge under this section for water services provided to that person remains wholly or partly unpaid on the expiration of 2 months after becoming payable, and—
(a) the cost of the discontinuance shall be recoverable in any proceedings for the recovery of the charge,
(b) the cost of re-connection shall be payable by the person liable for the charge.
(11) Without prejudice to subsection (1), where water services provided by a water services authority, or jointly with it or on its behalf, constitute, or may constitute, services to a household for domestic purposes and other purposes, the water services authority may make such estimation as it considers reasonable of the proportion of those services which is used for domestic purposes, and may have regard to any such estimation in determining whether, and on what basis, to make a charge for provision of water services under this section.
(12) Any reference in this Act to provision of water services for domestic purposes shall be construed as a reference to provision of water services for day to day domestic requirements including drinking, washing and sanitation, but exclusive of water services used for—
(a) agriculture or horticulture,
(b) any trade, industry or business,
(c) any purpose incidental to a household or private garden (including washing a private vehicle) if the water is drawn otherwise than from a tap inside the household or if a hosepipe or similar apparatus is used,
(d) central heating other than central heating of a household,
(e) apparatus depending while in use upon a supply of continuously running water, not being an apparatus used solely for heating water.
(13) In this section—
"household" means a building or part of a building used by a person as his or her place of private residence (whether as his or her principal place of such residence or not) and includes accommodation provided in such a residence to one or more students to enable them to pursue their studies on a full-time basis but does not include any part of a building used for the provision, for the purposes of reward, with a view to profit or otherwise in the course of business, of accommodation, including self-catering accommodation, (other than accommodation provided in a place of private residence aforesaid to one or more students for the purposes aforesaid) unless the person to whom the accommodation is so provided uses the accommodation as his or her principal place of private residence;
"water services" includes abstraction or impoundment of water for supply.".
The purpose of this amendment is to strengthen and consolidate in a single provision the existing legal provisions authorising the imposition of charges for water services for ease of understanding and accessibility for the public to this important provision. The existing legal code for water services charges is scattered piecemeal over a number of enactments spanning a period of several years, making it difficult to access and interpret.
Government policy on water charges, which provides only for charges for non-domestic water services and prohibits the charging for water services provided to households for domestic use, is not affected by the amendment. Neither is the new provision intended to be capable of enabling existing policy to be changed at some future date. I want to make very clear that any proposal by a future Government to reintroduce domestic water charges would require additional legislation and, as far as this Government is concerned, it is not a runner.
Amendment agreed to.
I move amendment No. 288:
In page 97, before section 104, but in Chapter 1, to insert the following new section:
"105.—(1) The Minister may make regulations for the purpose of section 104.
(2) Without prejudice to the generality of subsection (1), regulations under this section may provide for all or any of the following:
(a) varied rates of unit charges to be applied in proportion to the volume of water supplied or the volume or strength of waste water discharged;
(b) fixing a minimum or maximum limit for charges;
(c) criteria for the achievement of full cost recovery;
(d) criteria for the allocation of charges among tenants in multi-occupancy premises;
(e) criteria for estimating elements of a charge subject to their subsequent adjustment, if necessary, and consequent offset from or addition to a future charge;
(f) criteria for the apportionment of the costs of water services provided to a household as between domestic and other purposes;
(g) criteria for deciding what level of provision may reasonably be regarded as necessary for the domestic purposes of a household;
(h) certification or provision of proof by a specified person that a particular premises is used as his or her principal place of residence;
(i) measures necessary to verify the volume of intake of water supply or the volume or strength of waste water discharges;
(j) procedures to be followed in relation to collection of charges under section 104, including the appointment of an agent to collect such charges;
(k) the design and layout of related forms.”.
Section 105 enables the Minister to make regulations. The details of regulations are set out in subsection (2).
Amendment agreed to.
I move amendment No. 289:
In page 97, before section 104, but in Chapter 2, to insert the following new section:
"104.—The Act of 1992 is amended—
(a) in section 6, by inserting the following new subsection after subsection (4) (inserted by section 8 of the Protection of the Environment Act 2003):
"(5) The power of the Minister to make regulations under this Act includes the power to make provision in such regulations to give effect to—
(a) a provision of the treaties of the European Communities, or
(b) an act adopted by an institution of those Communities.”,
(b) by substituting the following for section 58:
58.—(1) The Agency may request a water services authority to submit to it in such manner and at such times as it may direct, such information as the Agency may specify in relation to the management and treatment, and the monitoring of compliance with prescribed quality standards and other parametric values, of water intended for human consumption.
(2) The Agency shall arrange for, carry out or cause to be carried out, such inspection, auditing or monitoring as it considers necessary to verify information (including monitoring results) transmitted to it under subsection (1).
(3) The Agency shall, in relation to each year, prepare and submit to the Minister a report on—
(a) the monitoring, together with an assessment of the results, referred to in subsection (1) or (2), and
(b) the implementation by the Agency of section 58A,
and the report shall include such recommendations as seem to it to be appropriate.
(4) Each report under subsection (3) shall be laid by the Minister before each House of the Oireachtas and shall be published by the Agency.
(5) In this section and section 58A ‘parametric values' and ‘water services authority' have the meanings assigned to them, respectively, in section 2 of the Water Services Act 2006.
58A.—(1) Notwithstanding section 30 of the Water Services Act 2006, the Agency shall—
(a) monitor compliance with prescribed water quality standards and other parametric values of water supplied by or on behalf of a water services authority for human consumption, and
(b) be responsible for enforcement of compliance with such standards.
(2) Without prejudice to subsection (1), and with a view to achieving the satisfactory compliance with relevant prescribed water quality standards and other parametric values of water intended for human consumption supplied by the water services authority concerned, the Agency may, having exercised its powers under subsection (1) or (2) of section 58 and considered any information furnished to, or otherwise coming into its possession in consequence of that exercise, do all or any of the following:
(a) issue such advice, directions or recommendations to the water services authority, as it considers necessary;
(b) provide, on such terms and conditions as may be agreed, such assistance, support or guidance as the Agency considers, after consultation with the water services authority, would be helpful.
(3)(a) Notwithstanding any other provision of this section, where the Agency is of the opinion in respect of water for human consumption supplied by or on behalf of a water services authority that—
(i) there has been a breach of prescribed water quality standards or other parametric values,
(ii) the water contains a substance or micro-organism for which no water quality standard exists, or
(iii) a standard of efficiency of related disinfection equipment exists,
that constitutes, or may constitute, a risk to public health, then the Agency may issue such direction to the relevant water services authority as it considers necessary to ensure that appropriate measures are taken for the purposes of preventing, limiting, eliminating or abating such risk.
(b) A water services authority shall comply with any direction to it under paragraph (a).
(4)(a) Where the Agency, having reviewed the information—
(i) submitted to it in accordance with section 58(1), or
(ii) obtained during the course of inspection, auditing or monitoring carried out under section 58(2),
is of the opinion that a water services authority has failed adequately to carry out monitoring of its water supplies or related distribution networks, then the Agency shall direct the water services authority to arrange for such monitoring to be carried out adequately.
(b) A water services authority shall comply with any direction to it under paragraph (a).
(5) Where a water services authority fails to comply with a direction issued under subsection (2), (3) or (4), the Agency may arrange, carry out or cause to be carried out such action as it considers necessary to ensure compliance with the direction. The costs of such action may be recovered by the Agency from the water services authority concerned as a simple contract debt in any court of competent jurisdiction.
(6) A water services authority commits an offence if—
(a) it fails to comply with a request under section 58(1), or
(b) it fails to comply with a direction under subsection (2), (3) or (4).
(7) The Agency may apply to the High Court in a summary manner for an order against a water services authority to direct compliance with a request under section 58(1), or a direction under subsection (3), and the Court may grant such order as it considers appropriate.",
(c) in section 59 by inserting the following after subsection (8):
"(9) In this section a reference to a sanitary authority shall be construed, subject to the discretion of the Minister in relation to regulations under subsection (5), as including a reference to any person acting on behalf of or jointly with a sanitary authority.",
(d) in section 60 by inserting the following after subsection (2):
"(3) In this section, a reference to a sanitary authority shall be construed as including a reference to any person acting on behalf of or jointly with a sanitary authority.",
(e) in section 61 by inserting the following after subsection (3):
"(4) In this section, a reference to a sanitary authority shall be construed as including a reference to any person acting on behalf of or jointly with a sanitary authority.",
and
(f) in Part IV (inserted by section 15 of the Protection of the Environment Act 2003)-
(i) in section 84(1)—
(I) by deleting "or" in paragraph (b) and by substituting “the Fisheries (Consolidation) Act 1959, or” for “the Fisheries (Consolidation) Act 1959,” in paragraph (c), and
(II) by inserting the following after paragraph (c):
"(d) section 63 or 81 of the Water Services Act 2006.”,
(ii) in section 84(2)—
(I) by deleting "or" in paragraph (b) and by substituting “the Fisheries (Consolidation) Act 1959, or” for “the Fisheries (Consolidation) Act 1959,” in paragraph (c), and
(II) by inserting the following after paragraph (c):
"(d) section 63 or 81 of the Water Services Act 2006,”,
(iii) in section 87 by deleting subsection (10) and substituting the following:
"(10)(a) Subject to paragraph (b), a person shall not, by application for judicial review or in any other legal proceedings whatsoever, question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made.
(b) Where, on application to the High Court, the Court considers that in the particular circumstances there is good and sufficient reason for doing so, the Court may extend the period referred to in paragraph (a).”,
(iv) in section 99B(1)(a)—
(I) by deleting "or" in subparagraph (ii) and by substituting "the Fisheries (Consolidation) Act 1959, or" for "the Fisheries (Consolidation) Act 1959," in subparagraph (iii), and
(II) by inserting the following after subparagraph (iii):
(iv) section 63 or 81 of the Water Services Act 2006,”,
(v) in section 99E by inserting the following after subsection (5):
"(6) In this section, a reference to a sanitary authority shall be construed as including a reference to any person acting on behalf of or jointly with a sanitary authority.",
and
(vi) in section 99G(1)—
(I) by deleting "or" in subparagraph (b) and by substituting “the Fisheries (Consolidation) Act 1959, or” for “the Fisheries (Consolidation) Act 1959,” in paragraph (c), and
(II) by inserting the following after paragraph (c):
"(d) section 63 or 81 of the Water Services Act 2006,”.”.
Amendment agreed to.
Section 104 deleted.
Section 105 agreed to.
NEW SECTION.
I move amendment No. 290:
In page 99, before section 106, to insert the following new section:
"106.—The Act of 1977 is amended—
(a) in section 4(1) by inserting the following paragraph after paragraph (b):
"(c) In this subsection a discharge to waters includes a discharge from a septic tank or other waste water treatment system to a percolation area or to soil.”,
(b) in section 6(2) by substituting the following for paragraph (f) and paragraph (g) (inserted by the Local Government (Water Pollution) Act 1977 (Transfer of Appeals) Order 1978 (S.I. No. 96 of 1978)):
"(f) requiring an applicant to defray or contribute towards the cost of investigation carried out by a local authority in relation to an application;
(g) the oral hearing of any appeal to An Bord Pleanála and any such oral hearing conducted by it or by a person appointed for that purpose by it;
(h) procedural matters in relation to appeals;
(i) related ancillary and incidental matters.”,
and
(c) in section 30, by inserting the following after subsection (1):
"(1A) The power of the Minister to make regulations under this Act includes the power to make provision in such regulations to give effect to—
(a) a provision of the treaties of the European Communities, or
(b) an act adopted by an institution of those Communities.“.”.
Amendment agreed to.
Section 106 deleted.
NEW SECTION.
I move amendment No. 291:
In page 99, before section 107, to insert the following new section:
"107.—(1) The Act of 1977 (as amended by the Act of 1990) is amended-
(a) in section 3 by substituting the following for subsection (2):
"(2) A person who contravenes subsection (1) commits an offence and is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000,000 or imprisonment for a term not exceeding 5 years, or both.”,
(b) in section 4 by substituting the following for subsection (8):
"(8) A person who contravenes subsection (1) commits an offence and is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000,000, or imprisonment for a term not exceeding 5 years, or both.”,
(c) in section 6 by substituting the following for subsection (3)(a):
"(3)(a) A person who, in relation to an application for a licence under section 4 or an appeal under section 8, when—
(i) furnishing information under this section, or
(ii) verifying any such information,
makes a statement in writing which is false or to such person's knowledge misleading in a material respect commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
(d) in section 10 by substituting the following for subsection (2):
"(2) Without prejudice to any power of a court to enforce orders made by it, a person who does not comply with an order under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
(e) in section 12 by substituting the following for subsection (4):
"(4) Where a notice under this section is not complied with in the period specified in the notice, the person on whom it was served commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
(f) in section 14 by substituting the following for subsection (2):
"(2) A person who fails to comply with subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
(g) in section 16—
(i) by substituting the following for subsection (8):
"(8) A person who contravenes subsection (1) or (7) commits an offence and is liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000,000, or imprisonment for a term not exceeding 5 years, or both.”,
and
(ii) by substituting the following for subsection (13A):
"(13A) Where a notice under this section is not complied with, the person on whom it was served commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
(h) in section 19 by substituting the following for subsection (3)(a):
"(a) A person who, in relation to an application for a licence under section 16 or an appeal under section 20, when furnishing information under this section or when verifying any such information, makes a statement which is false or to such person's knowledge misleading in a material respect commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.”,
(i) in section 23 by substituting the following for subsection (4):
"(4) A person who—
(a) fails or refuses to comply with a requirement in a notice under this section, or
(b) in purported compliance with a requirement in a notice under this section gives to a local authority or sanitary authority information that, to such person's knowledge, is false or is misleading in a material respect,
commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
(j) in section 26A (inserted by section 66(1) of the Act of 1996) by substituting the following for subsection (3):
"(3) (a) A person who contravenes a regulation under this section commits an offence.
(b) A person who commits an offence under this section is liable—
(i) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(ii) on conviction on indictment, to a fine not exceeding €15,000,000, or imprisonment for a term not exceeding 5 years, or both.",
(k) in section 27 by substituting the following for subsection (3):
"(3) A person who contravenes a regulation under this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
and
(l) in section 28 by—
(i) substituting the following for subsection (3A)(b):
(b) A person who—
(i) fails or refuses to comply with a request under this subsection, or
(ii) in pursuance of such a request, furnishes, to such person's knowledge, information that is false or misleading to an authorised person,
commits an offence, and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.",
and
(ii) by substituting the following for subsection (4):
"(4) A person who obstructs an authorised person in the performance of duties under this section commits an offence and is liable on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both.".
(2) The Act of 1990 is amended—
(a) in section 21 by substituting the following for subsection (3):
"(3)(a) A person who contravenes or fails to comply with bye-laws under subsection (2) commits an offence.
(b) A person who commits an offence under this subsection is liable—
(i) on summary conviction to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(ii) if the offence is a contravention of or a failure to comply with a bye-law prohibiting the carrying on of a specified activity or a bye-law relating to a matter referred to in subsection (2)(c), on conviction on indictment to a fine not exceeding €15,000,000, or imprisonment for a term not exceeding 5 years, or both.”,
and
(b) in section 21A (inserted by section 66(3) of the Act of 1996) by substituting the following for subsection (11):
"(11) A person who fails to comply with a notice under subsection (1) or (8) within the period specified in the notice commits an offence and is liable on summary conviction to a fine not exceeding €5,000.".".
Amendment agreed to.
Section 107 deleted.
NEW SECTION
I move amendment No. 292:
In page 103, before section 108, to insert the following new section:
"108.—A person guilty of an offence under section 171 or 172 of the Fisheries (Consolidation) Act 1959 is liable, in lieu of the penalties specified in section 25 of the Act of 1990—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or
(b) on conviction on indictment, to a fine not exceeding €15,000,000, or imprisonment for a term not exceeding 5 years, or both.”.
Amendment agreed to.
Section 108 deleted.
NEW SECTION
I move amendment No. 293:
In page 103, before section 109, to insert the following new section:
"109.—The Water Supplies Act 1942 is amended—
(a) by substituting the following for section 2:
2.—Whenever a sanitary authority desires to take from a source of water (whether within or without its sanitary district) a supply of water for the purpose of increasing, extending, or providing a supply of water under the Local Government (Sanitary Services) Acts 1878 to 2001, or the Water Services Act 2006, they may make, under and in accordance with this Act, a proposal for so taking such supply from such source of water.”,
(b) by substituting the following for section 13(1)(b):
"(b) to use such supply for the purpose of increasing, extending, or providing under the Local Government (Sanitary Services) Acts 1878 to 2001, or the Water Services Act 2006, a supply of water, and”,
and
(c) by substituting the following for section 23:
23.—Any expenses incurred by a sanitary authority under this Act for the purposes of increasing, extending, or providing a supply of water under the Local Government (Sanitary Services) Acts 1878 to 2001, or the Water Services Act 2006, shall be raised and defrayed as part of the expenses incurred by such sanitary authority under any of those Acts for the said purpose.”. ”.
This amendment provides for the amendment of the Water Supplies Act 1942 which provides a statutory basis for the abstraction of water by sanitary authorities for the purposes of its subsequent supply in accordance with powers provided under the Public Health Acts. The amendment is necessary to ensure that the cross-reference between the power to abstract water and the power to supply water is maintained following the enactment of the Water Services Bill.
Amendment agreed to.
Section 109 agreed to.
NEW SECTIONS.
I move amendment No. 294:
In page 104, before section 110, to insert the following new section:
110.—The Act of 2000 is amended—
(a) in section 10, by substituting the following for subsection (2)(b):
"(b) the provision or facilitation of the provision of infrastructure including—
(i) transport, energy and communication facilities,
(ii) water supplies and waste water services (regard having been had to the water services strategic plan for the area made in accordance with the Water Services Act 2006),
(iii) waste recovery and disposal facilities (regard having been had to the waste management plan for the area made in accordance with the Waste Management Act 1996), and
(iv) any ancillary facilities or services;",
and
(b) in section 180—
(i) in subsection (1) by substituting "service connections (within the meaning of the Water Services Act 2006)” for “drains” and “water mains” for “watermains”, and
(ii) in subsection (4) by substituting "service connections (within the meaning of the Water Services Act 2006)” for “drains” and “water mains” for “watermains”.”.
Amendment agreed to.
I move amendment No. 295:
In page 104, before section 110, to insert the following new section:
"111.—The Act of 2001 is amended by substituting the following for Schedule 12:
SCHEDULE 12
ACTS OF THE OIREACHTAS: FUNCTIONS OF LOCAL AUTHORITIES
PART 1
RESPONSIBILITY PRIMARILY WITH THE MINISTER
Air Pollution Act 1987
Building Control Act 1990
Control of Dogs Acts 1986 and 1992
Derelict Sites Act 1990
Dublin Docklands Development Authority Act 1997
Electoral Acts 1992 to 2004
Environmental Protection Agency Acts 1992 and 2003
Fire Services Acts 1981 and 2003
Housing Acts 1966 to 2004
Housing (Private Rented Dwellings) Acts 1982 and 1983
Licensing of Indoor Events Act 2003
Litter Pollution Acts 1997 to 2003
Local Authorities (Miscellaneous Provisions) Act 1936
Local Authorities (Mutual Assurance) Acts 1926 to 1935
Local Authorities (Officers and Employees) Acts 1926 to 1983
Local Authorities (Works) Act 1949
Local Elections Acts 1974 to 2004
Local Government Acts 1925 to 2004
Local Government (Collection of Rates) Act 1924
Local Government (Multi-Storey Buildings) Act 1988
Local Government (Rates) Act 1970
Local Government (Sanitary Services) Acts 1878 to 2001
Local Government (Superannuation) Act 1980
Local Government (Water Pollution) Acts 1977 and 1990
National Monuments Acts 1930 to 2004
Planning and Development Acts 2000 to 2006
Presidential Elections Acts 1992 to 2004
Protection of the Environment Act 2003
Seanad Electoral (Panel Members) Acts 1947 to 2001
Town Renewal Act 2000
Urban Renewal Acts 1986 and 1987
Urban Renewal Act 1998
Waste Management Acts 1996 to 2003
Water Services Act 2006
Water Supplies Act 1942.
PART 2
RESPONSIBILITY PRIMARILY WITH A MINISTER OF THE GOVERNMENT OTHER THAN THE MINISTER
Abattoirs Act 1988
Air-raid Precautions Acts 1939 and 1946
Animals Act 1985
Arterial Drainage Acts 1945 and 1995
Arts Act 2003
Canals Acts 1986 and 2005
Casual Trading Act 1995
Civil Defence Acts 1939 to 2002
Coast Protection Act 1963
Communications Regulation Act 2002
Control of Horses Act 1996
Coroners Acts 1962 and 2005
Dangerous Substances Acts 1972 and 1979
Dublin Transport Authority (Dissolution) Act 1987
Finance (Excise Duties) (Vehicles) Acts 1952 and 1960
Food Safety Authority of Ireland Act 1998
Foreshore Acts 1933 to 2005
Gaming and Lotteries Acts 1956 to 2003
Harbours Acts 1996 to 2005
Harbours Acts 1946 to 2005
Health Acts 1947 to 2006
Health (Fluoridation of Water Supplies) Act 1960
Intoxicating Liquor Act 2003
Local Authorities (Higher Education Grants) Acts 1968 to 1992
Local Authorities (Traffic Wardens) Acts 1975 and 1987
Malicious Injuries Acts 1981 and 1986
Minister for Community, Rural and Gaeltacht Affairs (Powers and Functions)
Act 2003
Pounds (Provision and Maintenance) Act 1935
Roads Acts 1993 to 2001
Road Traffic Acts 1961 to 2006
Safety, Health and Welfare at Work Act 2005
Social Welfare Acts
State Authorities (Public Private Partnership Arrangements) Act 2002
Údarás na Gaeltachta Acts 1979 to 1999
Universities Acts 1997 and 1999
Valuation Act 2001
Vocational Education Acts 1930 to 2001.".".
Amendment agreed to.
Section 110 agreed to.
NEW SCHEDULE.
I move amendment No. 296:
SCHEDULE 1
In page 105, before Schedule 1, to insert the following new Schedule:
SCHEDULE 1
ENACTMENTS REPEALED
|
Session and chapter or Number and Year (1) |
Short title (2) |
Extent of Repeal (3) |
|
10 and 11 Vict., c.17 |
Waterworks Clauses Act 1847 |
The whole Act |
|
24 and 25 Vict., c. 172 |
Dublin Corporation Waterworks Act 1861 |
Sections 43 and 57 |
|
26 and 27 Vict., c. 93 |
Waterworks Clauses Act 1863 |
Sections 12 and 21 |
|
29 and 30 Vict., c. cclxi |
Bray Township Act 1866 |
Sections 45, 49, 50, 64, 65 and 66 |
|
37 and 38 Vict., c. cxlii |
Dublin Corporation Waterworks Act 1874 |
The whole Act |
|
41 and 42 Vict., c. 52 |
Public Health (Ireland) Act 1878 |
Sections 15 to 23, 27, 29(1), 30, 31, 32, 34, 44, 47, 48, 50, 57(2), 58, 61, 62, 64, 65, 65A, 67 to 71, 73, 74, 75, 77, 78, 79 and 92In section 202 (as amended by section 6(1) of the Act of 1962) in the first paragraph from “they may also” to the end of that paragraph, and the final sentence (inserted by the said section 6(1))Sections 228, 268, 285, 289 and 290 |
|
53 and 54 Vict., c. 59 |
Public Health Acts Amendment Act 1890 |
Sections 16, 17, 20, 22, 27and 47 |
|
59 and 60 Vict., c. 54 |
Public Health (Ireland) Act1896 |
In section 2, the words “and may with the like consent supply and sell water to any person in such adjoining district,” Sections 5(2) and 15 |
|
7 Edw., 7. c. 53 |
Public Health Acts Amendment Act 1907 |
Sections 36, 38 to 46, 49 and95 |
|
No. 3 of 1948 |
Local Government (Sanitary Services) Act 1948 |
Sections 10, 11, 18, 26 to 29and 51 |
|
No. 26 of 1962 |
Local Government (Sanitary Services) Act 1962 |
The whole Act |
|
No. 1 of 1977 |
Local Government (Water Pollution) Act 1977 |
Sections 6(2A)(b) (inserted by the Act of 1990), 9(3), 16 to 20 and 27(2) |
|
No. 21 of 1983 |
Local Government (Financial Provisions) (No. 2) Act 1983 |
Section 8 |
|
No. 21 of 1990 |
Local Government (Water Pollution) (Amendment) Act 1990 |
Sections 12 to 15, 22, 24 and 25 |
|
No. 31 of 1993 |
Local Government (Dublin) Act 1993 |
Section 33 |
|
No. 30 of 2000 |
Planning and Development Act 2000 |
Sections 258 and 259 |
Amendment agreed to.
Schedule 1 deleted.
Schedule 2 agreed to.
TITLE.
I move amendment No. 297:
In page 9, lines 5 and 6, to delete "MAKE PROVISION IN RELATION TO THE PROVISION OF" and substitute the following:
"PROVIDE, IN THE INTERESTS OF THE COMMON GOOD, FOR THE PROVISION OF".
Amendment agreed to.
Amendment No. 298 not moved.
I move amendment No. 299:
In page 9, line 12, after "1959" to insert the following:
"AND THE ENVIRONMENTAL PROTECTION AGENCY ACT 1992 AND CERTAIN OTHER ENACTMENTS RELATING GENERALLY TO THE PROVISION OF WATER SERVICES".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
I thank the Minister and his officials for attending. Before I adjourn the meeting, the Minister might like to say a few words.
I thank the Chairman for handling the proceedings during what has been a tiring day. I particularly thank Deputy Gilmore for not only dealing with his amendments with his usual good humour — I regret more of them could not be accepted — but also for stepping into the breach and dealing with Deputy O'Dowd's amendments. I also thank Deputies O'Dowd, Cregan and the others who attended. It has been a long saga to get to this point. As I said to Deputy Gilmore, I am willing to consider any further amendments he might table on Report Stage that would improve the legislation. I am genuinely grateful to the Deputy for his helpful and supportive role here today.
The clerk to the committee, Mr. Colm Downey, is leaving us from today and this is his last meeting of this committee. On my behalf and, I am sure, that of members of the committee, I thank him for his great service in the past year. It is much appreciated.
He has gone out with a big splash.
He has — excuse the pun.
I would also like to be associated with those comments. I wish Mr. Downey well in his future endeavours. I thank him for all his assistance to me and, I am sure, other members and for his work on the committee. I express appreciation to the Minister for accepting at least some of the amendments proposed. I also thank his officials for bearing with the proceedings through 299, often tiresome, amendments.
I would like to be associated with those comments, Chairman.