Wednesday, 16 June 2004
Seanad Eireann Debate
This is a technical amendment to assist the reader. Concepts and definitions should be kept to a minimum. Good drafting practice requires that where the concept occurs more than twice, it is best to define it, but we refer to the Act of 1851 only once in the body of the Bill. Its definition is not justified and should be deleted.
Minister of State at the Department of the Environment, Heritage and Local Government (Mr. Gallagher): As the Petty Sessions (Ireland) Act 1851 is mentioned only once in section 9 of the Bill, I am pleased to accept amendments Nos. 1 and 32.
Mr. Gallagher: While there are many amendments here, a thread runs through them. They form a package of technical measures designed to make the legislation operate more efficiently. After the publication of the Bill, departmental officials consulted widely on it, as the Minister indicated on Second Stage, particularly with local authority engineers. We are, therefore, making changes of an engineering nature. These amendments have nothing to do with policy, they are technical in nature and I hope the House will accept them.
“‘distribution system’ means pipes, and related fittings, that are not a service connection, that are not owned by, vested in or controlled by a water services authority, 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 that are 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), extending, in the case of water used in manufacturing or food or drinks production undertaking, to include the point where water is used in the undertaking;”.
“‘internal distribution system’ means that part of a distribution system, within the curtilage or a premises, which is used for the provision of water for human consumption or food or drinks production;”.
“‘service connection’ means a water supply pipe or drainage pipe, or related accessories, extending from a waterworks or waste water works 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 for connecting more than one such premises, it shall extend to the curtilage of the premises which is furthermost from the said waterworks or waste water works;”.
“‘sewer’ means drainage pipes and sewers of every description, including storm water sewers, owned by, vested in or controlled by water services authority, 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 for the avoidance of doubt, does not include drains to which the words “drain”or “service connection” interpreted in this section apply;”.
“‘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 or controlled by a water services authority, 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;”.
“‘water main’ means water supply pipes owned by, vested in or controlled by a water services authority, 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 for the avoidance of doubt, does not include pipes, fittings and appliances to which the words “distribution system” or “service connection” interpreted in this section apply;”.
“‘water services’ means all services, for households, public institutions or any economic, social or service activities which provide storage, treatment or distribution of surface water or groundwater, or waste water collection, storage, treatment or disposal, and, for the avoidance of doubt, the following shall be excluded:
The use of active voice in the legislation was recommended by the Law Reform Commission in its report on legislative drafting. It is important that the style of our legislation should represent best practice and be made more readable for the public. Amendments Nos. 26, 29 and 31 are technical amendments designed to introduce the active voice. As the preceding sections use the active voice, my amendment proposes consistency in the Bill.
Mr. Gallagher: I thank Senator Bannon for tabling the amendments and Senator Brady for supporting them. Having revisited sections 3 and 8, I accept that the revised wording is an improvement on the existing text. I will, therefore, take on board the amendments and thank the Senator for bringing the matter to our attention.
My party is opposed to the imposition of water charges. While the Bill was initiated in December 2003, we are only debating in detail its provisions following the local and European elections. The provisions in the Bill will give the Minister power to meter and charge for water. I want to make clear that the Bill will not be used as a vehicle for introducing water charges either through the back door, front door or any other door. It is important to define in the Bill this aspect. Perhaps the Minister of State will deliberate on whether there are plans to introduce water charges. We oppose the imposition of water charges. Our party abolished water charges when it was in Government. Water charges would be most unfair for people who are already over taxed. In the last two years a number of stealth taxes have been imposed and these have affected people’s daily lives. It is important that the Minister clarify if there is provision in this Bill to re-introduce domestic water charges and that he give a firm commitment that they will not be re-introduced.
Mr. Brady: I reject the use of the phrase “stealth taxes”. We have been open about the charges that have been introduced, including the bin charges. We have seen the benefits of some of these charges. The Government is open about these matters; there is no stealth involved. I reject the Senator’s assertions.
Mr. Gallagher: I will deal with the amendments and then confirm the position regarding domestic water charges. The common thread running through these amendments is that they propose to introduce provisions relating to water charges in the Bill. This is not appropriate or necessary.
The Water Services Bill is designed primarily to regulate the delivery and supervision of water services and to enable operating standards to be set and public health and the environment to be protected. It deals with the nuts and bolts of water service delivery. Water charges, on the other hand, are an integral part of the local government financial matrix. They are inextricably linked to the broader issue of public financing. It makes more sense, therefore, to provide for them in financial provisions legislation.
The Local Government (Financial Provisions) Act 1997 precludes the charging of domestic users of water services. This is in line with Government policy and there is no intention to change it. This Bill is not a vehicle to introduce water charges by the front or back door or by any other means. The Government’s position on water charges has not been changed by this Bill. The Bill makes no provision for water charges and the provisions of the Local Government (Financial Provisions) Act 1997 prohibiting charges for domestic water services continue to apply. There is no question of using devious means to introduce water charges by way of legislation. If water charges were to be introduced, and it is not our policy or intention to do so, it would be necessary to do so by way of primary legislation. I hope Senators accept that assurance.
The charging of commercial users of water services is already provided for under existing legislation. This Bill does not propose to amend that. The Minister went to great lengths during the debate on Second Stage to assure Members that the Bill would not change the current position on charging. All reference to charges were excluded from the Bill to provide additional assurance on this issue. In the circumstances, I am reluctant to accept an amendment which would alter this approach.
In page 15, subsection (1), line 15, after “purposes of” to insert “discharging”. This is another technical amendment. Perhaps the Minister of State will see fit to accept it. I am fearful of the imposition of water charges and I am not too happy with the Minister’s response on this issue. He should give us a clearer statement about the reintroduction of water charges. There is genuine fear among the general public that this will happen. Memos have been circulated to various local authorities on this issue. Perhaps the Minister will give a clear indication that there will be no reintroduction of water charges.
Mr. Gallagher: I have reviewed this section with my officials and I agree the proposed amendment adds clarity to the intention of the section. Therefore, I am happy to accept it. On the further question raised by Senator Bannon, I state unambiguously that the Government’s position on water charges has not been changed by this Bill. The Bill makes no provision whatsoever for water charges. The Local Government (Financial Provisions) Act 1997, which specifically precludes charging for domestic water services, continues to apply.
The matter may be debated in various local authority chambers and I cannot prevent anyone from debating it in this House. As far as the Government is concerned, however, the matter is black and white. There is no grey area. There is no section in this Bill that provides for the Minister to introduce water charges by way of regulation and if anyone pointed out such a section to me I would be extremely surprised. There is no such provision, nor will there be. I hope this will allay the fears of Members and that this message will go out to the wider public.
Mr. Gallagher: I confirm that and state emphatically and unambiguously that this is not part of the Government’s or the Minister’s agenda. A review of all aspects of local government funding is currently under way and I do not intend to tie the hands of those who are carrying it out. It would not be appropriate for me to engage in speculation on the outcome of the review. There is no point in ordering a review and setting provisions in advance. Such behaviour on my part would only serve to undermine the integrity of the review process.
This matter will arise time and again as we discuss this Bill, the aim of which is to consolidate Acts from as far back as Victorian times. I am sure it will be raised by other Members, but my answer will be the same, that there is no provision for water charges in the Bill and the matter is not on the Government’s agenda.
Mr. Gallagher: This amendment deals with section 6 of the Bill, which enables the Minister, the Water Services Authority or other person prescribed for the purpose of his functions under this Bill to serve notice on specified persons requiring them to provide information. The amendment to section 6(1) is necessary to ensure the obligations to provide information apply equally to all, not just water service providers. The amendment also enables notification under the section to include a requirement to keep specified records.
As currently drafted, the obligation to provide information only applies to water service providers and persons discharging waste water and not to consumers of water supplies. This omission is rectified by the addition of paragraph (c). In paragraph (b), the addition of reference to a drain and service connection is for the purpose of preventing the application of the provision being frustrated by the existence of complex drainage structures linking a premises to a waste water works and is therefore intended to cover all possibilities in this regard. Specification of requirements to keep records may be necessary to ensure the data and other particulars required from the person specified in the notice are properly recorded, produced and verifiable.
To ensure there is a proper flow of information from the providers, all the information required from the consumer will be provided either for the Minister or the Water Services Authority or any other person prescribed. Like some Opposition amendments which I accepted, this is an important amendment. It intends to ensure that all the information that will be required can be made available. The inclusion of others over and above those providing the water is necessary.
Mr. Gallagher: The purpose of this amendment is to enable regulations to be made dealing with the provision of information under the Bill by electronic means. For example, in the matter of licensing applications or appeals, data on monitoring or strategic water services plans, it will enable procedures under the Act to be kept abreast of ongoing developments in technology. The detailed provisions are based on similar provisions in section 248 of the Planning and Development Act 2000.
The reference in subsection (4) to section 19(1)(f) is intended to prevent doubt by ensuring the section, which enables a notice to be served by fax or e-mail, provided a hard copy is also served, continues to apply notwithstanding the provisions of this section. Regulations may specify the circumstances in which information may be provided electronically and related technical and procedural requirements including those dealing with the retention of records. Subsection (6) provides that these additional provisions are subject to any requirement in other more generic legislation dealing with data provision, such as the data protection Acts. Before Senator Bannon takes the opportunity of reminding me of the importance of VVPAT, a hard copy will be provided.
An Leas-Chathaoirleach: Amendment No. 25 is consequential on amendments Nos. 87 and 88 and all three may be discussed together. Is that agreed? Agreed.
Government Amendment No. 25:
Mr. Gallagher: I will deal with the substantive amendment to section 49 under amendment No. 87 first. Amendment No. 87 replaces the existing section 49 and expands the scope of its application to include service connections in addition to waterworks and waste waterworks as before. In addition, for the avoidance of doubt, the obligation on third parties to provide relevant information to the water services authority is now applied also to the update of any records under subsection (2). Additional powers are also introduced to enable a water services authority to provide specified records to be provided to it for the purposes of this section, and a new offence provision is provided for in relation to failure to provide the requisite information.
The entire section as revised is reproduced as one amendment to facilitate a clearer understanding of the effects of the various changes to the original text. The amendment applies the mapping obligations under section 49 additionally to service connections in order to ensure, for example, that pipe networks within industrial and housing estates are adequately mapped. This was always the intention of this subsection. However, in the light of the revised definition of waterworks and waste waterworks under section 2, the mapping obligation in accordance with the original wording would now apply to such pipes in the charge of a water services provider. Where pipes had not been taken in charge by the water services authority, they would not have been subject to this section. The revised wording closes the gap.
Two additional subsections have also been added. Subsection (5), to facilitate enforcement, enables a water services authority to instruct a person who is in charge of relevant pipes to keep relevant records and to provide it with relevant dates and information within a specified period. Subsection (6) provides that it is an offence not to comply with a notice under subsection (5). Failure by a person to provide information under subsection (1) in the first place will also be an offence. Thus it is envisaged that there will be an onus on third parties in the first instance to provide information to water services authorities whenever relevant works are being undertaken. For the information of the House, subsections (3) and (4) remain as before. Subsection (3) ensures that records kept will be open to the public during regular office house. Subsection (4) enables the Minister to make regulations specifying the types of information to be kept by the water services authority.
Amendment No. 25 is a technical amendment to include reference to the offences under subsection (6) of the new subsection in the general offences provision in subsection (8)(1). On amendment No. 88 in the name of Senator Bannon, it would not be practical to impose a six-week deadline on a water services authority to bring all maps of works up to date at the end of a job. The Minister has been resisting pressure from water services authorities to extend the period beyond the six months which is currently proposed. Six months is considered to be the minimum time needed to produce final “as constructed” drawings recording the precise finished details of pipe layouts. The job of producing and checking drawings could not possibly be done any sooner and could not possibly be done within a period of six weeks as suggested in Senator Bannon’s amendment. We all know from experience of dealing with planning issues that planning permission is granted on the basis of plans submitted but that in a number of cases amended plans must be provided to the authority which reflect the final construction. While they may not be important at the time or for the next few years, time passes, and how many of us could say where the stopcocks in our houses or in any housing scheme are located? It is, therefore, important that this be recorded and sufficient time given to the providers to submit any changes there may be. I ask Senator Bannon to reflect on this and to take into account that the Department is, perhaps justifiably, resisting pressure for a period longer than six months. We feel this is a good compromise.
Mr. Bannon: I disagree with the Minister. In areas of high development the mapping of water pipes should be updated in order to address the problem of burst water mains. This serious problem would not occur if maps were updated regularly and made available for inspection. It is not unreasonable to expect maps to be updated after the completion of works. If there is a delay of six months, the issue is usually long-fingered and nothing is done. Burst water mains result in the imposition of major costs on group and county council water schemes and greatly inconvenience the general public. We have an opportunity today to rectify that. I ask the Minister to examine this again and to reconsider his decision not to accept amendment No. 88.
Mr. Gallagher: I cannot agree with Senator Bannon. We have all dealt with group water schemes in our time. However, I am referring to large schemes. If the final plans are submitted within six months of the completion of the works we will have made tremendous progress. The problems to which Senator Bannon referred do not necessarily emerge for a considerable time, generally some years. I want to ensure that all maps are submitted within six months. There will be no extension of that. As a result of this legislation, which it is hoped will be enacted later this year, there will be an obligation to submit plans within six months, and there will be a record in both electronic and hard copy form. That is important, perhaps not to those who are operating the scheme now, but to those operating it in the future. I suggest I am being very reasonable in stipulating a six-month period. It would be unreasonable and would not lead to good legislation if we curtailed that to six weeks. I accept that Senator Bannon tabled his amendment in good faith. However, I ask him to reflect on the issue. If sound arguments are put forward on Report Stage, I am usually open to persuasion, but I do not envisage accepting this amendment at any stage.
Mr. Bannon: We all know of cases where roadworks have been the cause of burst mains. It cannot be beyond the Minister’s remit to change this a little because six months down the road, when grants and so on have been drawn down, there is not the same interest in a project and there is little interest in completing it. It is important to have the arrangements in place within the shortest possible period after the works have been completed.
Will there be a charge imposed on various bodies and private individuals who are looking for copies of those maps?
Mr. Gallagher: There will be a nominal charge and that is reasonable. If one currently seeks copies of a planning application or details from an application, there will be a charge. It will certainly not be a question of trying to meet substantial costs, but rather to recover the actual cost.
Amendment agreed to.
Amendment No. 26 not moved.
An Leas-Chathaoirleach: Amendment No. 27 is a Government amendment and is consequential on amendment No. 107, therefore, both amendments may be discussed together by agreement.
Government amendment No. 27:
Mr. Gallagher: Amendment No. 27 is consequential on amendment No. 107, so I will first deal with the substantive amendment. Amendment No. 107 expands the scope of the original section 61 to include, in addition to prohibiting the unauthorised connection of a premises to waste water services, an explicit prohibition on discharging anything into a sewer without the permission of the relevant water services provider. The entire section as revised is reproduced as one amendment to facilitate a clearer understanding of the effects of the various changes to the existing text. The original subsection (1), which is being deleted, limited the application of the section to all structures constructed after 10 June 1990 and any structure erected prior to that which is not connected to the water services authority sewer. It was based on section 258(1) of the Planning and Development Act 2000. Such restriction is no longer considered appropriate, and could hinder the application of section 61 of the Bill, where for example, a building which was previously connected to services undergoes substantial refurbishment involving additional connections to a sewer. It would be invidious to leave such a connection outside of the scope of this section. In the revised section, while “waste water services” is not defined for the purposes of subsection (1), its meaning is implicit from the definition of “water services” in section 2 as amended. The wording of the subsection subsequently refers to “those water services”, with a view to removing any doubt as to waste water services being an element of “water services”.
The purpose of section 61(2) is to prohibit unauthorised discharges to sewers. For example, it could be applied to prevent surreptitious discharge of the contents of bulk tankers to sewers via manholes on the side of the road. Such unregulated discharges, depending on their nature, could severely impact on the capacity and integrity of a waste water treatment system.
Section 61(3) introduces a good defence provision whereby subsection (1) will be deemed not to have been contravened in respect of a connection made in accordance with a direction issued by a water services authority under section 92. Section 92 enables a water services authority to direct any person who is already connected to its water services to facilitate extension of those services to another person through his or her pipes.
Section 61(4) provides that where a connection is made in compliance with a notice under section 42, directing a person to connect to a waste water works, it will be deemed that the agreement of the water services provider has been given for the purpose of compliance with subsection (1). It applies without prejudice to subsection (6), which enables a water services authority to require a proposed service connection to be opened for inspection prior to being attached to the public collection network, notwithstanding agreement in principle to the connection.
Section 61(5) provides that where a water services authority is also a planning authority it may include agreement to a connection in the conditions attaching to a planning permission. This will help to streamline the operation of the two consent mechanisms in the interests of greater efficiency. As with subsection (4) it is also without prejudice to subsection (5). This provision replaces a similar provision in section 258(7) of the Planning and Development Act 2000, which is being repealed. The 2000 Act provided that, unless otherwise indicated, the grant of a planning permission for a structure would be taken as permission to connect to a sewer of the sanitary authority. Such an approach is no longer appropriate, since with the transfer of the water functions of town authorities to county level with effect from 1 January 2004 under the Local Government Act 2001, not all planning authorities have responsibility for water services. The same general approach was replicated in the published Bill, but only in respect of applications where the planning authority was also the relevant water services authority. That may not now be the position. It has been decided, however, in the context of the general amendment of the section to leave such integration of procedures at the discretion of individual water services authorities, depending on individual circumstances, in order to facilitate greater operational flexibility. In addition, where a combined planning permission and agreement to connect to water services is provided, the water services authority, for the avoidance of doubt, is enabled to require the inclusion of such conditions as it considers necessary in the planning permission, consistent with its powers generally under this section.
Section 61(6) enables a water services authority to require a proposed service connection to be opened for inspection prior to being attached to its waste water collection network, or that of its agent. The reference to “otherwise inspected” is intended to facilitate remote or robotic testing without recourse to excavation where that is feasible. The obligation is not confined to the connecting pipe. It is intended that it can be applied also in respect of any related pipe which the water services authority, at its absolute discretion, wishes to inspect prior to the services connection being connected to its supply. Thus, the drainage pipe network of successive interconnected stages of a housing development could be subjected to opening for inspection prior to connection to the water supply service if necessary, or indeed pipes within a premises itself if required.
Section 61(7) provides that pipes opened up for inspection under subsection (6) shall not be connected until the water services authority is satisfied that they are up to standard and that the connection will be carried out properly. Subsection (8) provides that subject to any regulations under subsection (10) regarding works or materials standards, an authorised person may give directions on materials specifications, standards of workmanship or work practices for the purposes of ensuring that pipes and accessories are installed to his or her satisfaction. He or she may also carry out such inspection and testing as necessary to verify compliance.
The purpose of section 61(9) is to remove any doubt as to the right of a water services authority or its agent to close a connection made to its water services without its agreement, or in contravention of related directions. It will also enable them to recover any costs arising from such incidents from the perpetrator, or from the person on whose behalf a connection is made. It is intended that liability for costs would accrue, either to the premises’ owner or a relevant contractor acting on his or her behalf, effectively at the discretion of the water services authority. The provision is based, broadly, on section 258(5) of the Planning and Development Act 2000, which provides similar powers in relation to unauthorised connections to sanitary authority sewers. The Planning and Development Act provision is being repealed and incorporated into section 61, as amended.
Subsection (10) will enable the Minister to make regulations regarding standards of workmanship and work practices or specification of materials and fittings for the purposes of this section. Subsection (11) enables water services authorities to recover all costs under this section from the person making a connection. Subsection (12) provides that it is an offence to make a connection unless the relevant water services authority is satisfied that the pipes and fittings are up to standard, can be connected properly and are not contrary to any related direction from an authorised person. This subsection also makes it an offence to contravene a regulation under subsection (10). It is envisaged that these could be tried summarily or on indictment.
Amendment No. 27 is a technical amendment consequent on amendment No. 107. It provides that offences under section 61(10) may be prosecuted summarily or on indictment.
I regret that the explanation of these amendments was long, detailed and technical. The Government is convinced that these amendments will make this a much better Bill.
Mr. McCarthy: Could the Minister of State repeat that?
Amendment agreed to.
An Leas-Chathaoirleach: On the list of amendments, an asterisk alongside amendment No. 28 has been omitted and the amendment appears as being in the name of Senator Bannon. This is an error. Amendment No. 28 is a Government amendment and is consequential on amendment No. 170. Both may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 28:
Mr. Gallagher: As we are discussing amendments Nos. 28 and 170 together and as amendment No. 170 is the substantive amendment I will deal with it first.
The purpose of the new section introduced by amendment No. 170 is to prohibit building over another person’s water pipes 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. Building without or in contravention of a consent and failure to comply with a follow-up enforcement notice is an offence.
In addition to prosecution in respect of such an offence, a water services authority may seek enforcement via a High Court injunction. Alternatively, it may carry out remedial works itself in the first instance and recover its costs from the offending party. Remedial action may constitute anything from re-routing effective pipes to provision of alternative pipes, alternative access to demolition or alteration of related structures.
The provision is based generally on section 29(1) of the Public Health (Ireland) Act 1878 and section 51 of the Local Government (Sanitary Services) Act 1948, both of which are being repealed. The 1878 Act provides for penalties for unauthorised building over urban authority sewers together with related powers to alter, demolish or otherwise deal with such structures and recover any costs incurred. The 1948 Act extends these provisions to all public sewers and water mains.
Construction, generally, is subject to control under the Planning and Development Act 2000. However, certain exceptions and regulations under that Act enable small extensions below a specified floor area, such as sheds or extensions to the rear of a house under a specified area, to be built without recourse to specific planning authorisation procedures. In any event, individual planning permissions would not, necessarily, fully address the issue of building over another person’s pipes. Building regulations under the Building Control Act 1990 provide only for the application of specified standards in the course of building, to protect pipes from being crushed by the weight of a building overhead. They do not provide for issues relating to protection of access or provision of alternative access to such pipes, which will vary from site to site depending on location and proximity to other structures. In the circumstances, the consent procedures of the 1887 Act are still necessary. Some modernisation of the provisions of the 1887 Act is envisaged to reflect present day water services practice.
The prohibition on building over pipes without consent applies additionally to pipes belonging to authorised water service providers, such as group water services schemes, and to persons acting on behalf of a water services authority or authorised water services provider in the public private partnership. Individual consumers are also protected against inappropriate building by third parties over pipes connecting them to their water services. I can give detailed information on the other subsections if the House requires them.
Amendment No. 28 is a technical amendment consequential on amendment No. 170. This provides that offences under the new section 103 connected to building over specified water pipes without the consent of a water services authority under the new section 103(1) or failure to comply with an enforcement notice under the new section 103(4) may be prosecuted summarily or on indictment.
Amendment agreed to.
Mr. Bannon: I move amendment No 29:
Amendment agreed to.
An Leas-Chathaoirleach: Amendments Nos. 173, 175, 177, 178, 180, 182, 184, 185, 187 to 190, inclusive, 192 and 194 to 198, inclusive, are related to amendment No. 30 and all may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 30:
Mr. Gallagher: These amendments reduce from 12 months to six months the maximum term of imprisonment which may be imposed following conviction for a summary offence under the Act. The six months maximum term of imprisonment is in line with standard practice in all modern legislation. A 12 month sentence is considered to be outside the scope of summary jurisdiction.
Amendment agreed to.
Mr. Bannon: I move amendment No. 31:
Amendment agreed to.
Section 8, as amended, agreed to.
Mr. Bannon: I move amendment No. 32:
Amendment agreed to.
Mr. Bannon: I move amendment No. 33:
The amendment seeks to substitute the word “five” with the word “three”. The Petty Sessions (Ireland) Act 1851 requires a prosecution to be taken within a six month period. It is common for legislation to extend this provision to one year and, in some cases, to two years. However, an extension to five years is exceptional and is not warranted. People who are to be prosecuted are entitled to put their best case. Taking a case based on five year old evidence is unacceptable. The 1851 Act stipulates that a case must be taken within a six month period and the furthest we should divert from that is three years as proposed by the amendment, which the Minister may perhaps consider accepting.
Mr. Gallagher: While I am aware Senator Bannon tabled this amendment in good faith, it is necessary to flesh out the matter. There are a number of situations whereby an offence committed may not come to light for some time. An example is damage caused by a breach of a duty of care regarding a discharge or damage caused to a pipe during building works which may not become apparent until some time after the offence was committed.
In the circumstances, it is considered appropriate and necessary to provide for the maximum reasonable period of time during which proceedings may be commenced following the commitment of an offence. I believe that in this instance five years is a reasonable period. I refer to previous legislation in this regard such as the Environmental Protection Agency Act 1992 and the Waste Management Act 1996. The five year requirement, which is included in the examples given, is a standard provision in environmental legislation.
We are all aware, from practical experience, that damage caused may not come to light for a considerable time. In that regard, the wastage of water in Ireland immediately comes to mind. Local authorities in many parts of the country are unable to account for approximately 48% to 50% of water which leaves the source and never comes out at the other end of the pipe. They are providing billions of euro for new water schemes. It is important that we try to in some way reduce that loss in monetary terms because, more important, it would allow for developments which are unable to take place until such time as new schemes are up and running. That is why the Department provides so much to local authorities for water conservation purposes. Funding is now being made available to assist in reducing water wastage. Even a reduction of a couple of percentage points each year is extremely important.
It may take some time before the offence committed comes to light and in that regard the provision of five years is reasonable. Some would say the time limit should be longer but we must realistic. Such offences should come to light within a five year period. This provision mirrors that contained in the Environmental Protection Agency Act 1992 and the Waste Management Act 1996. While I am extremely anxious to accommodate Senator Bannon, I must take the practical view on this matter.
Mr. Bannon: The Minister of State appears to be saying that it becomes more difficult to prove a case with the passage of time in terms of identifying a particular person as the culprit who caused the burst mains and so on.
I agree with the Minister’s remarks regarding the wastage of water which is not cheap to produce. Local authority maintenance bills in terms of water production and reservoirs are very high. Approximately 50% of the water produced is wasted. Many companies and individuals are negligent in that regard. The matter is, perhaps, one for the local authorities rather than Government. Local authorities must deal with the problem of water wastage which is becoming a burden on their finances. There should be greater conservation of water produced through the different local authority systems.
Amendment, by leave, withdrawn.
Section 9, as amended, agreed to.
Sections 10 to 16, inclusive, agreed to.
Mr. Bannon: I move amendment No. 34:
It would be more appropriate that the Minister make regulations rather than a scheme which he does by way of regulations. Perhaps the Minister of State will accept this sensible and more appropriate wording.
Mr. Gallagher: I have studied the amendment and appreciate the point Senator Bannon makes. I have consulted on the matter with the Office of the Attorney General.
The purpose of subsection (3) is to remove any doubt as to the power of the Minister to amend or revoke a scheme of financial assistance. It is unnecessary to insert such a provision regarding the amendment or revocation of regulations as the necessary powers for this purpose are already provided under section 15(3) of the Interpretations Act 1937. Section 17(1) provides for the making of a scheme in accordance with regulations and where the relevant regulations may in due course be amended or revoked in accordance with the provision of the Interpretations Act. Technically speaking there is no similar general power as regards schemes per se. Subsection (3) is intended to remove any doubt in this regard by providing explicitly for the amendment or revocation of a scheme as required. In the circumstances, I am unable to accept the amendment.
Senator Bannon will be aware that the intent of his amendment is already covered by the general power given to the Minister as regards amendments or revocation of regulations under the Interpretation Act 1937.
Mr. Bannon: The word “schemers” can have a different definition from the one implied here in certain parts of the country. One often hears the term, “a bit of a schemer”.
Mr. Gallagher: It is not a word peculiar to Donegal.
Amendment, by leave, withdrawn.
Section 17 agreed to.
Section 18 agreed to.
Government amendment No. 35:
Mr. Gallagher: This is a technical amendment to facilitate the smooth operation of the process for serving notices. As previously worded, a notice may only be served by one of the methods provided for in section 19(1), paragraphs (a) to (f). This restriction could conflict with the proviso in paragraph (f) which requires a notice to be served by supplementary means to verify service of a notice by facsimile or e-mail under that paragraph. The effect of the amendment will be to leave it to the discretion of the issuing authority whether to issue a notice by more than one method, subject to the requirement in paragraph (f) to do so where facsimile or e-mail is involved. Of course, many will not have facsimile or e-mail and, therefore, to tie a local authority to any one means would be wrong. The intention is to give discretion to the authority to serve the notice as it sees fit.
Amendment agreed to.
Mr. McCarthy: I move amendment No. 36:
E-mail is one of the methods described in the Bill by which notices can be served, however, the serving of notices by electronic mail is unworkable. First, it more or less imposes a legal requirement on every person in the country to check his or her e-mails. Given the difficulties people can experience in this regard and the endemic spam problem, I do not believe it is practical or reasonable to make it a legal requirement to check e-mails. It is totally unworkable.
Mr. Brady: Section 19(1)(f) makes clear that e-mail is only one of the ways that can be used to serve notices. It can be used in conjunction with other methods. It is the same as sending a facsimile. If one sends a hard copy in the post, it will be received two days later. We should not go down the road of technophobia, although many people use e-mail in the ordinary course of business on a daily basis. I suggest that the wording of paragraph (f) is appropriate.
Mr. Gallagher: Senator McCarthy’s amendment would delete paragraph (f), which provides for e-mail or facsimile transmission of notices. It is difficult to accept the proposition that significant modern legislation, designed to place 1878 legislation — old 19th century legislation from the time of Queen Victoria — on a 21st century footing should intentionally exclude provision for the service of notices by the most modern means of communication available. The Bill has been drafted against the backdrop of an ongoing and comprehensive programme of regulatory reform. The intention of that programme is to make legislation generally more accessible and to facilitate the conduct of administrative affairs in the most efficient manner possible. It would be contrary to the spirit of that programme to prevent the service of notices under the Bill by the most modern and efficient means.
As pointed out by Senator Brady, the purpose of paragraph (f) is to facilitate the quickest and most convenient possible service of a notice. It enables it to be sent either by facsimile or e-mail. These are two of a number of options available to the authority issuing the notice. It is clear that if the person to whom the notice is addressed does not have facilities to receive it by a certain means — there are many who do not have facsimile or e-mail facilities, as I believe Senator McCarthy is contending — the issuing authority will have to opt for alternative means of delivery in the first instance. In addition, to avoid possible oversight or breakdown in electronic delivery, paragraph (f) also provides that where a notice is served by facsimile or e-mail, it must also be served by one of the more traditional ways provided for in the preceding paragraphs. This is intended as a fail-safe mechanism to ensure that notices are delivered in all circumstances.
The point of providing for the delivery of notices by electronic means is to facilitate speedy and efficient delivery. This could be advantageous to both sides and to all the stakeholders. Where a person requests that a notice be provided to him or her electronically, it would reflect badly on a modern modernised regulatory process if such a request could not be facilitated.
This provision is based in the first instance on similar provisions for the service of notices under section 56 of the Food Safety Authority Act of 1998. Similar provisions are also to be found in the Europol Act 1997, the Air Navigation and Transport Indemnities Act 2001 and the Extradition (European Union Conventions) Act 2001. An earlier amendment to section 6 provides the Minister with powers to make regulations on the provision of information or documentation in electronic format by any person for the purposes of the Act. Such regulations may provide for any requirements regarding the retention of records and related technical or procedural requirements. It is envisaged that they will enable the Act to be kept abreast of developments in the area of electronic communications, in this world of IT, while ensuring that all necessary controls and safeguards are brought to bear.
When I first examined Senator McCarthy’s amendment, I believed it made sense and that everyone must be facilitated, bearing in mind that there are more who do not have facsimile or e-mail facilities than those who have. However, those with e-mail and facsimile facilities will also receive a hard copy and those who do not have such facilities will receive notice by the traditional means or, to put in another parlance, there will be a VVPAT.
Mr. McCarthy: I thank the Minister of State for his reply, which I accept. However, I reiterate that the service of notices by electronic mail is a dangerous thing. I understand the context in which the Minister of State puts it and I accept his reply, but we must bear in mind that the failure to respond to the notices in question can result in jail. The issue is more grave than the amendment might suggest.
Amendment, by leave, withdrawn.
Section 19, as amended, agreed to.
Sections 20 and 21 agreed to.
Government amendment No. 37:
Mr. Gallagher: The purpose of this amendment to subsection (2)(b) is to broaden the scope of application of the power to halt a vehicle to include circumstances where there are reasonable grounds for believing that an offence is being or is about to be committed. For example, such an offence could occur if a bulk tanker illegally discharged its load into a sewer through a roadside manhole. It may not always be possible to link such incidents with a threat to human health or the environment. Consider the example of the bulk tanker, for instance. While its contents may not adversely affect the waste water treatment process per se, it would nevertheless be essential for an authorised person to have the appropriate powers of intervention before evidence was disposed of down the sewer. It is very sensible and practical to include this amendment and I hope the House will accept it.
Amendment agreed to.
Government amendment No. 38:
Mr. Gallagher: Section 22 provides generally for the powers of authorised persons. This amendment specifically provides authority to enter premises for the purposes of performing any function under the Act in addition to obtaining information. It is considered that the existing wording of section 22(2)(c) was cast too narrowly in the first instance as it provided only for obtaining information. It did not provide a sufficiently clear link between the functions of an authorised person and his or her powers to enter premises. I believe this improves the Bill.
Amendment agreed to.
Government amendment No. 39:
Mr. Gallagher: Section 22(5) sets out in detail the powers of authorised persons on entering premises or boarding a vehicle, including at section 22(5)(i) provision for powers to carry out repairs. The purpose of this amendment is to enable an authorised person also to carry out other such remedial works as may be considered necessary to make good any damage to the surrounding area which may in itself be contributing to further risk. Such powers could be necessary, for example, where an inspection disclosed an immediate risk to public health or the environment from the poor state of repair of drains or water pipes. Repair of a pipe or drain alone might not be sufficient to rectify the problem in the light of resultant damage to the surrounding area.
Amendment agreed to.
Government amendment No. 40:
Mr. Gallagher: To avoid doubt, this amendment expands the scope of the original section 22(5)(k) to enable the powers of authorised persons, for the purposes of investigating the connection of and ascertaining the course of pipes, to be applied to distribution systems, water mains and related accessories. The amendment arises from previous amendments to clarify references to various types of pipes under section 2. As distribution systems and water mains are now defined separately in section 2, it is considered necessary to make specific reference to them in section 22(5)(k) to ensure they come within the necessary scope.
For the avoidance of doubt, the powers of authorised persons will now also apply to related accessories, for example valves or meters. To avoid frustration of the provision, the revised paragraph also provides for maintenance generally as well as renewal and repair of pipes in anticipation of cases where a maintenance check might not lead to any repair or renewal works. The amended paragraph will also provide for the installation of all such equipment in the first instance to cover all eventualities. We want to ensure this is all-embracing.
Amendment agreed to.
Government amendment No. 41:
Mr. Gallagher: As currently worded section 22(6)(a), which enables an authorised person to direct the owner or occupier of premises to take corrective measures to remove a risk to human health or the environment, could be interpreted as applying only to water services providers regarding the water services activity carried out by them. This is not the intention of this subsection, which is intended to apply in respect of all premises. Such powers are essential to enable water services authorities adequately to carry out their public health protection role under the Act.
This amendment therefore removes the reference to service activity in line 23 and provides explicitly that the powers of authorised persons to require corrective action to be taken applies in respect of water services or waste water present in any premises and to any associated infrastructure in premises.
Amendment agreed to.
Section 22, as amended, agreed to.
Sections 23 and 24 agreed to.
Government amendment No. 42:
Mr. Gallagher: This is a technical amendment to correct a typographical error.
Amendment agreed to.
Section 25, as amended, agreed to.
Section 26 agreed to.
Mr. McCarthy: I move amendment No. 43:
This section could possibly result in the privatisation of water services through the transfer from local authorities to “another person prescribed”, which could be a private company. The issue here relates to democratic accountability. Following a high turnout in the local and European elections, it is obvious that people expect an element of accountability and transparency in how local government provides services to and for the people. This amendment reflects that type of spirit and I want to ensure that adequate controls are introduced if this is to be the case.
Mr. Bannon: I support this amendment, as I do not want to see our water services go in the direction they have gone in Britain in recent times, where private companies have come in and imposed huge charges on the public.
Mr. Gallagher: Section 27 provides for the transfer of functions from a water services authority to the Minister or other prescribed body, or from the Minister to a water services authority or prescribed body as required. It anticipates, for example, possible changes as arrangements are developed for implementation of the EU water framework directive. Such provision is desirable to leave flexibility for the ongoing development of best administrative practice in the implementation of the directive.
Having said that, I confirm there is no intention that the level of democratic accountability for any transferred function will be diminished. For that reason section 27(1) provides for the authorisation of such a transfer of functions by regulations rather than, for example, by administrative order. The purpose of the Minister to authorise a transfer of functions is therefore governed by section 18(5), which provides that every regulation made by the Minister must be laid before both Houses of the Oireachtas and that either House may pass a resolution to annul it within 21 sitting days.
The Minister is accountable to the Oireachtas in the first instance for any proposal to transfer functions. It will be a matter for the Oireachtas, if it considers that democratic accountability for any function is being diminished by a regulation under section 27(1), to exercise its powers under section 18 to prevent such an occurrence.
Senators Bannon and McCarthy made reference to privatisation. It should be absolutely clear that privatisation of our water services is not being contemplated. Any involvement by the private sector other than in group water services schemes will be as appointed agents of a water services authority under contract to a public private partnership. Indeed, design, build and operate arrangements are now standard in all capital water service investment functions funded by my Department. I had the pleasure of opening a number of schemes in Monaghan recently where I was more than impressed with the success of design, build and operate procedures. It is a great tribute to all involved in group water schemes who consented to the procedures as well as to the officials of my Department and the companies that will maintain and operate schemes for a 20 year period. This does not mean any of the assets will be transferred to any private company. They will remain in our hands.
Public private partnerships will operate on the basis of a contract between a water services authority and a private operator for the provision of services or between a joint water services authority and private sector interests providing the service. In either case, the water services authority will retain overall responsibility for conformity with statutory requirements and exercise its authority through the relevant contracts or legal agreements. Public private partnerships and design, build and operate procedures play an important role and anyone who visits a scheme employing these approaches will be very envious of the quality water being provided. To allay any fears Senator McCarthy has in tabling his amendment, there is nothing in the legislation which points to privatisation nor is it a precursor to such a process.
Mr. McCarthy: The spirit of my amendment is to ensure democratic accountability in the delivery of services by local authorities. The Minister of State and his team will be aware that the section I seek to amend will inspire fear. There has been a significant tightening of the public purse and we have seen a spate of public service cutbacks due to the fiscal situation. A section of this nature in a Bill like this leads us to think credibly that an element of privatisation for obvious financial reasons will lead to a lack of democratic accountability. When people elect their local government representatives they are not voting for a situation in which some services will be privatised.
The Local Government Act provided for the removal of Oireachtas Members from local authorities. Other legislative provisions introduced by the Minister of State’s Department have facilitated the removal of decision-making powers to set charges for refuse collection from local authority members. The power rests exclusively with management now. The shift in executive functions is a retrograde step for local government which erodes the reputation of local authorities and demeans the role they play. The spirit of my amendment is to ensure that there is democratic accountability. It does not ask for much more.
Mr. Gallagher: I appreciate the point the Senator made about waste management. The powers were transferred as a result of legislation enacted by the Oireachtas. If this or a future Government were to contemplate privatisation of water schemes, it would not rely on this Bill which features nothing to give power to a Minister in this regard. The enactment of further legislation would be absolutely necessary. I wish to allay fears by pointing out that there is no question of considering privatisation. The situation is the same as it was in terms of domestic water charges which we debated earlier in the day. We made it abundantly clear that the matter comes under financial provisions and there is nothing in this Bill of that nature.
Primary legislation would be required to introduce water charges but that is not on the agenda. Privatisation, which would also require primary legislation, is not on the agenda either. I could fully appreciate the Senator’s point if this legislation were providing the Minister with the power to privatise by way of regulation or secondary legislation.
Amendment, by leave, withdrawn.
Acting Chairman (Dr. Henry): Amendments Nos. 44, 45 and 46 are related and may be discussed together, by agreement.
Mr. Bannon: I move amendment No. 44:
These amendments are designed to ensure the Minister cannot delegate his dirty work to other bodies or persons including local authorities, councillors, directors of services and managers. I am sure the Minister is well aware of the anger which has been vented by local authority members from his own party up and down the country who lost their seats last Friday. Many of them are very angry about the imposition of development charges which they had to introduce on foot of the Minister’s regulations. If the Minister wants to introduce charges, he should do it himself and let it be on his own head rather than on the heads of others. There are a great many sick heads up and down the country after last weekend’s results. The amendments seek to ensure that the Minister takes full responsibility for any charges he may introduce.
Mr. Brady: The Minister has pointed out on numerous occasions that there is no intention to introduce charges. I point out to Senator Bannon that a 0.5% increase on his party’s last local election performance does not exactly constitute a victory. The Senator can be sure that the Minister will take on board the message we were given over the weekend and deal with it appropriately.
Mr. Gallagher: Section 27 provides for the transfer of functions conferred under this Bill. The legislation does not provide for any power to raise water charges. Such powers are provided separately under existing local government financial provisions legislation which I referred to earlier. In the circumstances, the insertion of the proposed words would be superfluous given that the function referred to is not provided for in the first place.
Section 28 provides for the assignment of new functions in addition to those provided for in the Bill. Its purpose is to keep the legislation abreast of ongoing developments in the EU and at international level generally without recourse to primary provisions whenever something new arises. It is anticipated that any such proposals will be discussed in advance by the Joint Committee on European Affairs during the development of relevant measures. As there are provisions on water charges in existing legislation, it is not possible to introduce by regulation any provisions purporting to make changes in this regard. Recent case law attests to this fact. As it is not possible to meet a requirement through regulations to change provisions on water services charges, the proposed amendment is unnecessary. As this Bill does not deal with water charges, I ask the House to acknowledge that I cannot accept amendment No. 44.
Acting Chairman: Is the amendment being pressed, Senator Bannon?
Mr. Bannon: No, but I wish to address the point raised by Senator Brady. I point out to him that my party has overcome Fianna Fáil for the first time since 1927. In the European constituencies, we have five seats and Fianna Fáil has four.
Acting Chairman: Senators, we will stop discussing the elections and stick to the Bill.
Amendment, by leave, withdrawn.
Section 27 agreed to.
Amendments Nos. 45 and 46 not moved.
Section 28 agreed to.
Section 29 agreed to.
Acting Chairman: Amendment No. 47 in the name of Senator Bannon has been ruled out of order because it involves a potential charge on the Revenue.
Mr. Bannon: If the Minister is honest in his assurance that the Bill will not result——
Acting Chairman: I cannot allow the matter to be discussed.
Mr. Bannon: That is interesting.
Acting Chairman: The Cathaoirleach has ruled on this matter.
Mr. Bannon: The Minister should have little difficulty in accepting this amendment.
Amendment No. 47 not moved.
Government amendment No. 48:
Mr. Gallagher: This amendment to section 30(1)(b) provides that the Minister shall have overall responsibility inter alia for the planning and supervision of investment programmes for the provision of water services. The amendment is necessary because as currently drafted, the wording of paragraph (b) could be interpreted so as to involve the Minister in day to day supervision of works projects including maintenance projects. This is not intended as such matters will be the responsibility of a water services authority. The amendment reflects current practice in accordance with which the Minister provides funding for water services projects while the decision to have the work undertaken, for instance to engage consultants, sign contracts and so on resides with the relevant sanitary authority. Relevant investment programmes at present would be the water services investment programme, the water conservation sub-programme of that programme and the rural water programme.
Amendment agreed to.
Amendment No. 49 not moved.
Acting Chairman: Amendment No. 50 has been ruled out of order because it involves a potential charge on the Revenue.
Amendment No. 50 not moved.
Government amendment No. 51:
Mr. Gallagher: This amendment is tabled to avoid doubt and to prevent paragraph i (viii) being interpreted as enabling the Minister to direct a water services authority to provide water services to specific individuals. Section 30(4) sets out in detail the functions of the Minister under the Bill, which include under paragraph i (viii) power to direct a water services authority on the general performance of its functions. It is not intended that these powers should extend to issuing directions to individual water services authorities regarding provision of water services to specified individuals. Such an interpretation could place the Minister in an invidious situation regarding his or her general powers of supervision over water services authorities. This amendment is based on similar wording in section 66 of the Housing Act 1965 regarding the Minister’s powers to direct housing authorities on schemes or priorities for letting housing accommodation.
Amendment agreed to.
Acting Chairman: Amendments Nos. 52 and 53 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 52:
Mr. Gallagher: Section 30 places overall responsibility with the Minister to facilitate the provision of safe and efficient water services and associated water services infrastructure, and provides for the necessary associated powers. Subsection (4) sets out a broad menu of powers which may be exercised by the Minister in the course of exercising his or her functions under this Bill. These include inter alia powers to carry out inspections and assessments of equipment, machinery, pipes, management and operating standards of water service providers. As this is currently worded, the powers of inspection under paragraph (j) apply only with regard to water services authorities and their agents and to licence holders under the Act. The combined purpose of these amendments to subsection (4)(j) is to ensure that the Minister’s powers to examine or carry out inspections of water services authorities, their appointed agents and authorised providers of water services apply only to the agent of an authorised provider of water services. This will also prevent frustration of the enforcement of the Act by the appointment of agents.
Amendment agreed to.
Government amendment No. 53:
Amendment agreed to.
Section 30, as amended, agreed to.
Acting Chairman: Amendments Nos. 54 to 56, inclusive, are related and may be discussed together. Is that agreed? Agreed.
Mr. McCarthy: I move amendment No. 54:
The Bill is quite bureaucratic in parts. One cornerstone of public policy has been omitted, and is obvious by its absence. That is the public’s right of access to water services. Amendments Nos. 54 and 55 both relate to the individual’s rights. I can accept the mechanics of the Bill along with the various controls and intentions of the Minister but there is no reference to the individual’s rights to access water services. That should be of paramount importance and enshrined in the Bill.
Mr. Bannon: Section 32 of this Bill is designed to make non-textual amendments to the Act of 1885 and it modifies that Act without changing the wording. My understanding of best practice is that we should make textual amendments wherever possible and that is proposed by means of amendment No. 56. I would appreciate it if this amendment were accepted by the Minister of State.
Mr. Gallagher: I understand the intent behind the three amendments under consideration and readily agree that in a modern society every person should have access to a safe water supply. However, I am concerned that the approach suggested could lead to an impossible burden being placed on water services authorities regarding the performance of their function under the Water Services Act. If accepted, these amendments could be interpreted in due course by the courts as requiring each water services authority to provide a water supply and sewage collection and disposal service in the remotest and most inaccessible areas regardless of other considerations such as cost or the sustainability of such an approach. Obligatory intervention by a water services authority into the provision of both water supplies and waste water collection and treatment in remote rural areas could also interfere with the ongoing development of the independent group water services scheme sector. That sector is the mainstay of water services provision in many rural areas and one of the primary objectives of this Bill, particularly under Part 6, is to put in place a suite of provisions to support and encourage its ongoing development. We know the important role that group water schemes and the providers of water in most rural areas have played. We want to ensure and support its ongoing development.
The general thrust of amendment No. 54 is implicit in the existing wording of section 31(2) without imposing an explicit obligation with the dangers this involves. Public policy in regard to proper planing and sustainable development and protection of human health and the environment presupposes the availability of adequate water services. However, it is not appropriate to express this in terms which could impose an unacceptably heavy burden of duty on a water services authority without regard to particular local circumstances.
With regard to amendments Nos. 55 and 56, the purpose of section 31(19) is to remove any possibility of a conflict between the provisions of section 7 of the Housing and Working Classes Act 1885, which obliges every local authority to secure the proper sanitary condition of all premises within its functional area. Depending on its interpretation, it could be used to force a local authority to provide water services even in the most unreasonable circumstances, for example, in an isolated inaccessible rural area where the cost or technical difficulty of providing a water supply or waste water collection and treatment might be prohibitive. Such indiscriminate application of a duty to provide services could undermine the ability of a water services authority to provide water services generally. It could also lead to abuses being perpetrated against the interests of water services authorities by the placing of unreasonable demands on them for service.
The alternative wording to subsection (19), proposed by Senator Bannon under amendment No. 56, is in the form of a new section 32. It does not have any material effect on the existing provision under subsection (19) and I am inclined to retain the existing wording. However, I am willing to reconsider the amendment and to consult further with the Attorney General. I suggest we could return to this on Report Stage and I would appreciate time to consult with the Attorney General.
Mr. McCarthy: I thank the Minister of State for his reply. I reiterate the importance of reflecting in the Bill the fundamental right of access to water which is the intention of the amendment. The Bill does not refer to this right and could take a narrow approach to it if the amendment is not considered.
Amendment, by leave, withdrawn.
Amendment No. 55 not moved.
Section 31 agreed to.
Amendment No. 56 not moved.
Acting Chairman: Amendment No. 57 is a Government amendment. Amendments Nos. 67, 69, 77, 82, 92, 97, 101, 104, 150, 162 and 164 are related and these amendments may be discussed together by agreement.
Government amendment No. 57:
Mr. Gallagher: The purpose of these amendments is to apply relevant functions under the Bill to the public private partnership partners of authorised water services providers. In all of the provisions identified, the relevant functions currently apply only to a water services authority, an authorised provider of water services, in effect a group water services scheme, or somebody acting jointly with or on behalf of a water services authority, for example, under a design, build and operate scheme. It is considered appropriate and equitable where such functions apply to a water services authority and an authorised provider of water services, and where they have been extended to include a public private partner of a water services authority, that they should also be extended to the public private partner of an authorised water services provider. While the issue is quite detailed, that is the basic principle. As with other amendments, this will improve the Bill.
Amendment agreed to.
Government amendment No. 58:
Amendment agreed to.
Government amendment No. 59:
Mr. Gallagher: The purpose of this amendment is to enable regulations under section 32(2) and (3), in regard to the provision of water services, to provide additionally for measures necessary to protect public health and the environment. It is possible that existing provisions for regulations at section 32(3)(b), on duties of persons providing water services, and section 32(3)(e), on performance standards for the provision of water services, could include measures to protect public health and the environment. However, the additional provision in paragraph (w) will put this beyond doubt. Such regulations might, for example, be necessary to provide for measures to prevent the spread of water borne diseases through the drinking water supply.
Amendment agreed to.
Section 32, as amended, agreed to.
Government amendment No. 60:
Mr. Gallagher: This is merely a technical amendment for consistency with the rest of the Bill.
Amendment agreed to.
Section 33, as amended, agreed to.
Section 34 agreed to.
Mr. McCarthy: I move amendment No. 61:
This is a drafting amendment. I want to ensure consistency of language in the Bill and I hope the Minister of State will accept it.
Mr. Gallagher: The change suggested by Senator McCarthy to the wording of subsection (3) brings an additional increment of clarity to it and removes any possible difficulty of interpretation. I am happy to recommend acceptance of the amendment.
Mr. McCarthy: I thank the Minister for his reply.
Amendment agreed to.
Section 35, as amended, agreed to.
Mr. McCarthy: I move amendment No. 62:
The amendment pertains to the roles of the executive, officials and members of local authorities. There is a serious issue in regard to the functions and powers of elected members of local authorities, to which I referred earlier in regard to the exclusive authority which the Minister now has to set the price of refuse collection. This occurs in many local authorities, including my own, and has resulted in the price of refuse collection soaring, yet there is little the elected members of local government can do about it.
In a broader context, the amendment takes into account the transparency that should exist in local government. The Government has been inconsistent in its treatment of local government and if it is serious about reform and handing real power to elected members it should accept the amendment. Those of us who came through the system know how restrictive and frustrating it is to discover that in many areas we can only make recommendations or plead with the city and county managers. Managers have too much power and members do not have enough.
Although there is an argument to be made when we see the filth emerging at the tribunals as a result of the activities of a select few in the system who abused their powers, the general experience is that the vast majority of members of local authorities are hard working and decent people. They are supported at election time and then they win the prize, namely the faith and trust of the electorate. Those of us lucky enough to be in such a position have a responsibility and are required to deliver for the electorate. The Minister of State should remember that when considering this amendment. We must show a commitment to local government and the Government must mend the fences with it by not removing any more of the powers that are already so scarce.
Mr. Cummins: Local government has had far too many powers removed from members, with more executive functions given to city and county managers. It is bad for democracy and removes councillors’ accountability to the electorate.
Mr. Gallagher: The purpose in providing that the making of water services strategic plans is an executive function and not a reserve function, as suggested in the amendment, is to draw a clear distinction between the various strands of the strategic planning process for water services. It will ensure that input into each is provided at the appropriate stage and as part of the overall planning and development process. Members are not excluded from the process but their input to the process must be pitched at the appropriate level.
These are management and operational rather than policy plans. If they were policy plans I would have no difficulty with the amendment. The primary role of councillors is to outline the demand for water services in their areas and the level of response or proposed response to that demand by the water services authority. The water services strategic planning process will be based on a partnership between my Department and each water services authority to ensure that national and local water service agendas are fully synchronised.
This relationship complements the Minister’s overall supervisory role in national water services provision. It will also help to ensure that plans for adjoining functional areas are properly integrated with each other to maximise potential synergies and efficiencies and guard against any cumulative impacts which might have an adverse effect on sustainable development or environmental protection in the broader surrounding region. Ultimately, therefore, the Minister will have the final say as to what goes into a water services strategic plan.
It would not be appropriate to involve members directly in such a process when they are already indirectly involved. Members’ input into the process will be pitched at the appropriate level. Involvement by members of the council in planning for water services will more appropriately take place on a broader, strategic level in the context of their input into planning and development issues affecting their areas generally.
The Bill requires that water services authorities must have regard to proper planning and sustainable development of their areas when making a water services plan. In particular, they must have regard to relevant county development plans and the members have a major input into those. They must also take into account regional or spatial planning guidelines, housing strategies, special amenity orders, river basin management plans among others and consultations will take place with the strategic policy committees.
In the course of making a plan to facilitate its co-ordination with strategic policy issues affecting the functional area of a water services authority, all of these inputs, including the SPCs, the county development plans, housing strategies, special amenity orders, river basin management plans, will be given an opportunity for an input. This will ensure that the strategic overview of councillors is ultimately taken into account in the formation of water services strategic plans. I doubt if any manager in any local authority will not take into consideration the views expressed by councillors, particularly those on SPCs.
Mr. McCarthy: There have been occasions in the past and there will be in the future where county and city managers will disagree with the elected members. I can accept that but often there is good reason for a member of a local authority to make representations to or to plead with a manager to make a decision based on advice given by the member. When such a situation prevails in the context of a reserve function, the elected member has one hand tied behind his back because he does not have the power to make the decision or to be involved in the decision making process.
This amendment is as much about local government in general as it is about water service provision. The role of the elected member has been denigrated in recent times and that disconnects him from the public. There is cynicism abroad about politics for a variety of reasons and we must recognise what needs to be done by the Government to invigorate local government and to lessen the gap between the public and the political system. This system could be used to reconnect people with politics. We talk about it often enough, particularly when there are low turn outs at elections, but this small step could result in a turn about in how local government does its business, how politics is perceived by people and how people participate in the democratic process.
Mr. Gallagher: Senator McCarthy raises an important point. Many of us have come through the council system and it is not the intention to remove power from councillors. It is not a question of their having no input, they will have a major input. The manager must have regard to the relevant county development plans and the regional or spatial planning guidelines, whether housing strategies, special amenity orders or river basin management plans. There will be a direct input through the strategic policy committees. While the input of members into the process will not be excluded, it is a question of pitching them at the appropriate level. In view of this, while I appreciate the intentions behind Senator McCarthy’s amendment, which is supported by Senator Cummins, I regret I cannot accept it.
Amendment, by leave, withdrawn.
Government amendment No. 63:
Mr. Gallagher: This is a technical amendment. Section 36(9) enables the Minister to make regulations to prescribe detailed procedural arrangements for making water service strategy plans, including arrangements for public consultation and notification during the course of their preparation. Deletion of the word “public” in line 15 is a precautionary measure for the avoidance of any doubt that the Minister’s powers to make regulations apply to all consultations, that is, both with the public generally and with specified bodies.
Amendment agreed to.
Acting Chairman: Amendment No. 64 is consequential on amendment No. 168, therefore, amendments Nos. 64 and 168 may be discussed together by agreement.
Government amendment No. 64:
Mr. Gallagher: As amendment No. 168 is consequential, I will first address the substantive issue in amendment No. 64. The purpose of this amendment is to ensure consumers of water services provided by sanitary authorities prior to enactment of the Bill will continue to receive such services from their water services authorities after enactment unless the Minister approves a water services strategic plan which provides for alternative arrangements. With the Minister’s general powers to direct water service authorities under section 30(4)(i), the amendment, for the avoidance of doubt, further protects the position of individual consumers by preventing a water services authority unilaterally from discontinuing services to existing users on enactment of the Bill unless the suspension sanctioned by the Minister is part of a strategic plan for the effective and efficient provision of water services in the surrounding area.
For clarity and the avoidance of doubt, amendment No. 168 confirms that the application of section 101 is subject to section 36(10), inserted by amendment No. 64. Section 101 provides that a provision in any other statute, which obliges a water services authority to provide water services outside of its functional area, will in future be interpreted only as enabling it to do so. This amendment links that provision with the new section 36(10) and will ensure that action such as ceasing to provide services cannot be taken unilaterally by a water services authority under section 101 and must await sanction by the Minister under section 36 in the context of the orderly strategic planning of water services for the area. The interests of consumers continue to be protected as a result of these amendments.
Amendment agreed to.
Section 36, as amended, agreed to.
Sections 37 to 40, inclusive, agreed to.
Acting Chairman: Amendments Nos. 65, 66, 68, 70 and 71 are related and may be discussed together by agreement.
Government amendment No. 65:
Mr. Gallagher: Amendments Nos. 65, 66, 68, 70 and 71 have several aspects which arise from a series of amendments to the definitions of water services and infrastructure in section 2. Amendment No. 65 inserts a definition of ‘pipes’ for the purposes of the section. The amendment arises from the series of amendments in section 2 to streamline and clarify the distinction between drains, sewers, water mains, distribution systems and service connections and ensures, without the need for tedious repetition, that all are included within the scope of the section. The second and third amendments derive from the first amendment and replace existing references to sewers, drains, water supply pipes and their accessories within the text of the section, with a reference to pipes as previously defined.
Amendments Nos. 70 and 71 to subsection (12) will enable water services authorities to enter into joint agreements to interconnect any pipes and their pipe infrastructure networks. The amendments broaden the original provision, which was confined to sewers or water supply pipes, to cater for all eventualities. This aligns it with the approach of the rest of the section. The several aspects to these complementary amendments improved the Bill.
Amendment agreed to.
Government amendment No. 66:
Amendment agreed to.
Government amendment No. 67:
Amendment agreed to.
Government amendment No. 68:
Amendment agreed to.
Government amendment No. 69:
Amendment agreed to.
Government amendment No. 70:
Amendment agreed to.
Government amendment No. 71:
Amendment agreed to.
Section 41, as amended, agreed to.
Government amendment No. 72:
Mr. Gallagher: Section 42 enables a water services authority to require that a premises in its functional area be connected to its waterworks or waste water works located nearby subject to the right of appeal to the District Court. Subsection (4) expands these powers to enable a water services authority to require a premises to be connected to the services of its contracted agent or that of an authorised provider of water services, subject to the agreement of the water service provider.
The purpose of the amendment to subsection (4) is to apply the powers of direction under the section to require connection of a premises to services provided by a person operating on behalf of an authorised water services provider. For example, this could include a person operating under an EBO contract for a group water services scheme. The amendment is part of a series of similar amendments to apply relevant functions under the Bill to the public-private partnership partners of authorised water service providers. This will ensure equity of treatment to all water services providers.
Amendment agreed to.
Acting Chairman: Amendment 74 is an alternative to amendment No. 73 and amendments Nos. 73 and 74 may be discussed together by agreement.
Government amendment No. 73:
Mr. Gallagher: The provision in section 42(5) is based on section 8(7) of the Local Government Sanitary Services Act 1962, which is being repealed and consolidated into this Bill. Subsection (5) enables a person who has been directed to connect his or her premises to a waterworks or waste water works to appeal that direction to the Circuit Court. The intention behind providing that no further appeal is possible is to put a limit on the number of appeals a person may make against a direction. One avenue of appeal is considered adequate to ensure that natural justice applies and that the rights of the individual premises owners are protected. Indeed, such an approach is normal in appeals mechanisms, for example the planning appeals system.
The amendment proposed by the Senators seeks to remove the reference to the decision of the Circuit Court being final in such appeals. In doing so, it could open the appeals mechanism to a constant series of appeals through the courts system. This would place an unnecessary burden on the courts and hamper the efforts of water services authorities to provide efficient and effective water services in their areas.
However, it is not intended to deny access to a higher court for the purposes of establishing a point of law with regard to a decision of the District Court under subsection (5). While I doubt that the present wording of subsection (5) would be interpreted by the courts so as to deny such access, it is proposed, for the avoidance of doubt, to provide explicitly to this effect. Accordingly, amendment No. 73 provides that a decision of the District Court on an appeal may be further appealed to the High Court but only on a point of law. This expanded provision should clarify the intent of subsection (5) while avoiding any disruption to the orderly running of the courts system. In the circumstances, I am unable to accept the amendment.
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
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