Official Report (Hansard)
Date: Tuesday, 25 September 2012
Committee for Agriculture and Rural Development
Reservoirs Bill: Consultation Outcome
The Chairperson: I do not need to welcome David, as he is already here. I welcome Averil Gaw, head of the Reservoirs Bill team, to the Committee. Do you have a presentation?
Mr David Porter (Rivers Agency): Yes. Thank you for your invite. This is a formal stage in the development of the Bill. As you will recall, we have been here on a number of occasions, initially to outline the need for the Bill, and, after that, the proposed policy was presented to you. We have now had our public consultation, and, this afternoon, I want to do three things. First, I want to give you a bit of information about the mechanics of the public consultation: the hows, wheres, whys and some of the numbers that are associated with it. Secondly, I want to quickly run through the policies that we have changed as a result of the public consultation, and, finally, I want to draw your attention to a couple of other issues that were raised at the public consultation that have not changed our policy position but that I think that members will be interested in.
The 12-week consultation finished on 1 June, and we ended up with 32 written responses. We also had some very useful public meetings. A couple of them were very lightly attended, but a couple, particularly those with councils, which brought some officials, proved to be very worthwhile. So, we ended up having meetings in Antrim, Belfast, Cookstown, Craigavon, Hillsborough and Newry. Most of the 32 written responses were quite positive, and very few said that it was a fundamentally bad idea. A lot of responses were about the detail, and we expected that because of the process of informal stakeholder engagement that we undertook. We had three meetings before we even went to public consultation to try to explain the issues to people and to give them the opportunity to inform our policy.
The changes to the reservoir safety proposals were issued to you. I will take time over only a couple of them. At least three changes are very minor. The first is an example of that and is just a change in the policy. We had suggested that we would use the term "owner occupier", but legal advice is that we should use "reservoir manager". All the definitions that sit behind that remain exactly the same. So, it is a very small change.
The next change, which is about the designation process, is slightly more significant. We suggested in the public consultation that we would designate reservoirs on the basis of whether they have high or low impact, and we got very clear voice back from the consultation that it was not as simple as that and that we should consider high, medium and low designations. We have mulled over the pros and cons of that and are content that that is a good suggestion that will give us a better policy going forward. We also had lots of questions about the reservoir inundation maps, and we have accepted that the inundation maps of reservoirs that we have at present are for worst-case scenarios. We accept that we need to do more detailed work on that, because a reservoir may fail in a slightly different way or have a different volume of water to what we had assumed and, therefore, the impact could be different. At this early stage, we are better getting it right than designating something as high or medium, which would have a consequential cost for a private individual, only to find out later in the process that that person did not need to suffer that burden. So, we have accepted that, at this early stage, we need to develop some more detailed reservoir inundation maps.
There is also the issue of non-impounding reservoirs. For the Committee's benefit, an impounding reservoir is formed by putting a blockage in a river. That impounds the water: it stops the flow of water. A non-impounding reservoir does not stop anything. If you think of a concrete tank, you will know that that is a non-impounding reservoir, because it does not stop the flow of anything. The only way that water can get into it is by being pumped into it. So that is, typically, a non-impounding reservoir. We have to develop an approach to non-impounding reservoirs, because we recognise that they may also cause an issue. I suspect that that is not really a public issue, because the vast majority of them — in fact, all those that we have looked at or could find — are all connected with public water supplies, so they are all in government ownership. So, I do not see that there is a cost disbenefit to that change. That is certainly not for the public.
The last three changes are very minor. One is to have an increased timescale for registration, going from two to six months, and we were happy to accept that. We had the timescale for the strategic assessment as two months, and we have been advised to put that in as a reasonable period, in case there is a complexity about ownership or detail of inundation on which we might want to do more detailed work. Finally, there is a minor point on registration, record keeping and incident reporting.
So, we have changed those policies as a result of the public consultation. Where the other areas that I think that you will be particularly interested in are concerned, we got a very, very strong voice about owners' ability to afford this. I know that we discussed that before this went out to public consultation. We got that message very strongly through the public consultation, both for owners' ability to pay for the management regime that we are requiring and for the potential works that are identified. Again, we have had discussions about that. Our answer to that point is that we still intend to bring forward the powers to introduce our grant scheme. That is because we are bringing forward primary legislation, which only brings forward the powers to do it. The decision to actually introduce the scheme is a matter for the Assembly and Executive, which must say whether it is affordable and the right thing to do. We will certainly be bringing forward through the Bill the powers to enable us to introduce the scheme, if it is decided subsequently that that is a good idea. We heard a very strong voice on that.
The second —
The Chairperson: I am sorry to interrupt, but would the onus be on the Minister of Agriculture and Rural Development at any given time to ask for that through the Executive?
Mr Porter: It could come from various different routes. Certainly, in the same way as are we flagging this up to the Committee, we have flagged up to our Minister that we heard that strong voice and that it needs serious consideration. As officials, we have to do some work on the proposals to see what the costs are so that we can make a recommendation.
Equally, through the development of this Bill, there is the opportunity for some discussion about whether it is a good idea and about what the consequences will be for people. That would add the other side to the argument. We can certainly work on the cost, but the other side of the argument is the disbenefit to the individuals. We may possibly need to have that represented. There is the opportunity for the individual Members or the Committee to look into that as we go through the Bill development stage.
The second thing that we heard very strongly but that has not really changed our policy position is that the consequence of the legislation may be that some people will draw down the reservoirs. That may be a loss to the community. The reservoirs are not just bodies of water; they are places that people walk around, fish in, boat on and do all sorts of other things with. They are a part of our everyday life. Again, that came through very clearly. We have also discussed that point at the Committee. I see that as an opportunity either for individual Members here or for the Committee to put that forward and look for some examples showing that the loss of those community assets would be much greater than reservoir safety. We have heard it through the public consultation, but it is an opportunity for the Committee or individual Members to take that on as an issue and to help us to understand what impact our legislation would have on the wider community through the loss of that amenity or those facilities.
The last thing that I want to draw your attention to is that a number of consultees also flagged up planning policy. Now that we know the inundation, how are we going to manage that downstream risk? What are we going to do with land use below that level? We have had various meetings with Planning Service to discuss that, and it has accepted in principle that, in the new version of PPS 15, there will be an enhanced reservoir policy — an FLD 5 policy. We are still working through what that will look like in practice, but at least Planning Service has accepted the need for it in principle, which will certainly help us in bringing forward the legislation.
Hopefully, that has given you an insight into the consultation. It lasted 12 weeks, and there were a number of responses and public meetings. You have an insight into the policies that we have changed as a result of the public consultation and into a couple of those issues that did not change the policy direction but are very important and may have a wider impact. We need the response from the Committee within, I think, a week to allow us to clear this stage and, if there are any comments, to allow us to put a paper to the Minister to take it to the Executive so that the formal drafting stage can start. That is really the purpose of today's meeting: to outline that and to give you, as a Committee, the opportunity to comment to us.
The Chairperson: OK, David, thank you very much for your presentation. I have a couple of questions. I know that you talked about the Committee doing a job of work at the scrutiny stage, but do you have any indication of how many community facilities are in the number of reservoirs that would fall within the remit of the legislation? We are talking about 10,000 cubic metres, and I am wondering how many fall below or go above that area threshold.
Mrs Averil Gaw (Rivers Agency): We have not actually done an assessment on that, but when we were out speaking with councils we raised the issue with them and asked them to consider which of the reservoirs in their areas they would regard as community assets and which they have a feel for. That is because they have a better understanding of the activities and events that happen in the area. No one has specifically come back to us to identify particular reservoirs. You will probably all have seen the article in the 'Belfast Telegraph' about Northern Ireland Water selling off, or trying to sell off, some of its reservoirs. A number of councillors have actually raised issues about specific reservoirs on that list that they regard as community assets or environmental assets.
The Chairperson: OK. I am a wee bit concerned about the further policies on planning and the FLD 5. In the previous session, we talked about your engagement with Planning Service. I am sometimes aghast at some of the consultation responses that the Rivers Agency put out to the planners in some cases. I think that, in some regards, there can be a very flippant response on flood plains. That would frustrate me and some of the people who were affected by planning applications. Can you give us a bit more detail on the main spirit of FLD 5? If you are living below a reservoir, are we talking about what it will mean for that area if that reservoir fails?
Mr Porter: Yes.
The Chairperson: If we are, you are suggesting that people who live there may well be penalised in planning due to something that might happen if someone else does not reach a standard. That would be very hard for anyone to take, regardless of whether they are from the farming community. Could you give us a wee bit more on that?
Mr Porter: I can indeed. I stress that we are at a very early stage of our thinking, but I can give you an indication of the situation, as two clear issues come out of this.
The legislation is being brought forward to require owners to bring reservoirs up to a particular standard. The people who live downstream of those reservoirs should be assured by that. In our minds, the fact that there are already houses in that area should not restrict all development downstream of a reservoir. Lots of people live downstream of reservoirs. The issue is the maintenance. However, we have identified that you may not want everything down there. Think, for example, of the tsunami that impacted on the nuclear power plant in Japan. It had a much wider impact because of the flood event that cut off the power supply to a large portion of the island.
If we have a choice about where to put the power plant for Northern Ireland and we have one site below a reservoir and one site that is not below a reservoir, the sensible thing may be to not have it in the risk zone. So, we are trying to think not about restricting all development but about restricting certain types of development below reservoirs. That will be a much more onerous policy to write than just a simple presumption against development. There will not be a presumption against development below reservoirs. However, there may be a restriction about what you can put there in the wider interests of the community.
The second issue is that, if you have a low-impact reservoir and Planning Service decides to permit a development below it, the risk designation of the reservoir could change and a burden could be put on a third party. We are trying to work out in our minds how then we can write into policy that the person undertaking the development and getting the benefit of it must assist with the upgrade of the reservoir to permit the development.
The Chairperson: Can you offer any examples of where that would happen?
Mr Porter: The examples are fairly light. Of the 156 reservoirs that we have identified, something like 135, which is the vast majority, are medium- or high-impact reservoirs. The reservoirs that are low-impact at this minute in time tend to be in very rural areas and, therefore, tend not to get large developments below them. We have also identified that a single dwelling below a reservoir would not necessarily change the risk designation, because that involves one person's right to live in the area against another's right to maintain the structure. So, it applies only to sizeable developments.
The Chairperson: Am I right in saying that the population that you implant in that area is all about numbers?
Mr Porter: We are trying to work out how we can put it in numbers but not leave a slight loophole in the policy. A clever developer would apply for one dwelling and then apply for the rest of it. We need to be careful that we do not write a policy that leaves that possibility open.
The Chairperson: Is the spirit of it more about the population numbers that would arrive than the flow of the flood?
Mr Porter: Correct. The legislation requires the structure to be maintained to a certain standard. That standard reduces the likelihood of failure, and, therefore, the risk is mitigated. We accept that reservoirs are built to very high standards and that the instances of failure are very low.
The Chairperson: I will give you an example. This is a very important point, which is why I want to stay on it. Are you saying that this will stifle the growth of a hamlet or village that is already below a reservoir?
Mr Porter: No. If it is below the reservoir and in the flood inundation area, that reservoir is already a high-impact reservoir. Therefore, the designation criteria cannot change. We have accepted that stopping all development in a flood inundation area is unreasonable because of the standard of construction. If you were going to build a hospital, a power plant or an old people's home, we would ask that you maybe think about it.
The Chairperson: Those are strategic buildings.
Mr Porter: We would ask that you think about it. If the reservoir does go, how are you going to get those people out of there? If it does go, and takes out your power supply, not only does it take that out but it has a wider impact on the community. Therefore, maybe you want to think about putting those types of assets somewhere different. It will not be about individual houses or even existing developments. Certainly, if we bring this legislation forward, it will give assurance that living below a reservoir is a relatively safe place to live. It is not as safe as living outside that hazard area; we have to be realistic that there is a potential for the reservoir to breach. However, requiring a high maintenance and inspection standard will give people living below a reservoir the assurance that all reasonable steps have been taken to ensure their safety.
Mrs Dobson: I have just a quick question, David. What form will the guidance for record keeping and incidence reporting take? Will it be online or through paperwork? What do you plan for that?
Mrs Gaw: We plan to have written guidance that we can give out to people, as well as to hold seminars and have the information available online. That means that, as we are working through and developing the legislation, we are identifying the different types and pieces of guidance that we feel that people will need. The guidance will be for professionally qualified engineers as well as the individual reservoir managers.
Mrs Dobson: Will that require a greater level of funding?
Mrs Gaw: We have identified that the funding will be about £200,000 a year.
Mrs Dobson: How will you ensure that the record keeping will not be overburdensome and repetitive?
Mrs Gaw: It will be record keeping that people should actually be maintaining under common law, if they are managing their structure in a prudent way. When the inspecting engineer goes out and does the first inspection for high- and medium-risk reservoirs, he will establish what records need to be kept and maintained. The records will be monitored and maintained by the reservoir manager or his staff. During his one or two visits a year, the supervising engineer will check to see whether those records are being maintained properly. Our understanding is that they would need to be maintained on approximately a monthly basis. The reservoirs that DARD currently owns are maintained and monitored in that way.
Mrs Dobson: Does that mean that it will not be overburdensome?
Mrs Gaw: It should not be.
Mr Buchanan: My question maybe ties in with what Jo-Anne asked. You highlighted a few concerns that emerged during the consultation — a few of the negatives, if you like — including the cost of any works that may need to be done to a reservoir to bring it up to a standard that DARD was satisfied with. Obviously, if a farmer felt that that work was much too costly, he might well turn round and drain the reservoir. If that was a reservoir of community benefit, that situation would have a detrimental consequence for that particular community. In the situation where a reservoir is of community benefit, is any grant or funding available from your side to assist farmers in bringing that reservoir up to the proper standard and to keep it there so that your requirements are satisfied?
Mr Porter: At this minute in time, all that we are doing is bringing forward primary legislation that will include the power to do exactly what you said. That will give us the powers to bring forward a scheme. The decision for a scheme is for the future; it is not for this minute in time. We have accepted that we need to be able to do that and to have those powers. However, there is a question about whether a scheme would be affordable and the right thing to do. The previous time that we were here, somebody used the example of dangerous buildings. The legislation requires you to bring a dangerous building to standard; it is your building, so you bring it up to standard. That example was used to ask, "If it is right in that case that the burden sits with the individual owner, why is it any different here?".So, there are arguments either way with this. We have said to a couple of the councils that, if they recognise that this is a community asset, they might want to talk to the owner about the long-term ownership of it and how, collectively, a council and an owner can work together to ensure that this is there in the longer term. We recognise that, in some cases, this will be a financial burden on individuals because, in some cases, they have an asset that they do not really know that much about and of which they certainly do not know the condition.
Mr Buchanan: In some cases, there are community benefits. In west Tyrone, we have examples of that. That is why I raised the issue.
Mr McMullan: Could this come under diversification?
Mr Porter: It could, possibly. The problem is that there are also some reservoirs in urban areas as well. It has that potential, but again it is a question. We are making sure that we have the powers to introduce a scheme. What that scheme will look like, who will fund it, how it will be funded and whether it should be funded are decisions for the future.
Mrs Gaw: We have also spoken to colleagues in rural development and to colleagues in the Northern Ireland Environment Agency about schemes that they may introduce in the future. For example, the Environment Agency may be looking at sustainable development in the future, and, potentially, sustainable energy. That might include looking at hydroelectric power as a potential source for that, and it may provide grant aid for that. People who own reservoirs may be able to obtain funding under rural development. We have been making people aware of that at our various stakeholder meetings so that it is not just to think of a scheme that would be introduced under the Reservoirs Bill but that there may be other schemes out there that people could use.
Mr McMullan: I do not see anything in here for compulsory powers. Say, for example, someone had a reservoir and just could not afford to do anything with it. I do not see anything in here — I may have missed it — to say that a local authority or somebody could step in. I see plenty in here that says that their assets can be used. That is a worrying thing.
Mrs Gaw: We are working with the Departmental Solicitor's Office (DSO), and it is looking at that to see whether there would be a mechanism whereby people would not have to file bankruptcy in order that ownerless reservoirs or reservoirs that people can no longer afford to maintain could be transferred to another organisation or individual who wished to maintain them.
Mr Porter: Some of the councils that we spoke to made it very clear that they did not want a default position that it automatically went to them. Remember, we are talking about a liability, and that liability would automatically be transferred onto the ratepayer. A number of councils said that that should not be made the default position. That is not to say that they would not work with landowners and take the decision to accept them in some cases, but there would not be the default position that reservoirs would automatically transfer to them. That would just move the burden about from central government, through taxation, onto the ratepayer. We want to avoid that as a default position.
Mr McMullan: Are many councils involved in all of this through ownership of reservoirs or whatever?
Mrs Gaw: Yes, a number of councils own reservoirs, but all councils need to be aware of the reservoirs in their area from an emergency planning perspective. Therefore, councils should have an interest in the legislation. That is why we have been engaging with them, both at our stakeholder events and as part of our consultation.
Mr McAleer: Is the Rivers Agency the lead agency for all reservoirs, and are all lakes or loughs that are a public source of water considered to be reservoirs? In the context of you designating them as high risk, what will that actually mean, particularly, as Councillor Buchanan said previously, for local communities, particularly where community organisations have invested in the reservoirs, by way of walks and whatnot, to enhancing their local area? Out of pure curiosity, what interest would the NI Judicial Appointment Commission have in this consultation?
Mrs Gaw: The answer to your last question is that it is a statutory consultee.
Mr Porter: It is registered on the list of consultees, so it automatically gets everything. Under the legislation, Rivers Agency will become the enforcement authority for the legislation to make sure that reservoirs are maintained to a particular standard. DARD has ownership of a number of reservoirs. Hillsborough lake, for instance, sits within the Forest Service estate, so it is within the DARD portfolio, and we have a number of reservoirs as well.
The vast majority of the public water supply is owned by Northern Ireland Water. A number of public water supply reservoirs are not necessarily owned by Northern Ireland Water, but it has agreement to abstract water from them. The definition that we have written does not necessarily depend on the use; it is the amount of water that is stored and the way in which it is stored. So a natural lake is not a reservoir, but a natural lake that has been enlarged by putting in a dam structure, if it is greater than 10,000 cubic metres of escapable water, would be deemed to be a reservoir. The issue is whether an engineered structure has been put in the way of the water in order to hold that back, because that is what creates the hazard. By putting in that structure, you are storing water, which, in the event of failure, could spill out and cause harm. That is what we are focused on, and that is what the definition is. Not every body of water is a reservoir. Some are natural lakes, and some are too small to be considered under this legislation, but many of the big bodies of water that we can think of have had some dam structure and are, therefore, typically, reservoirs.
I think that was the —
Mr McAleer: The potential impact on communities, particularly in the community development end of things, not necessarily residents.
Mr Porter: That is sort of tied up with the question of grant-aiding and, a little bit, with the council. We would encourage councils to try to work with community groups, when they have identified that there may well be a risk. One to flag up is that the structures have a real value to the community. We would be keen to hear examples of where they really are community assets, because that will, at least, inform us of their value. It is certainly very difficult for me as an engineer to go out and try to quantify what the community benefit of a reservoir is. However, I think that you, as elected representatives, may well be better at communicating or articulating that fact to us. We would encourage community groups, where they are identifying that they actually own a reservoir or have use of a reservoir, to talk to the owner and the council to work out some sort of management for that going forward, because we recognise that the legislation is a burden, and we do not want to see community assets lost as a consequence of the legislation.
The Chairperson: On that, it is equally important that it does not become the default position, because then you will have reservoirs that have no real community interest being placed into the hands of councils.
Mr Porter: That is right. We are absolutely not putting in that the default position will be the councils — absolutely and utterly not. The legislation is entirely focused on regulating the responsibility that current owners have. Under common law, you are meant to look after the hazard that you have. There is very clear evidence that that is not happening. That is what is driving the need for regulation to regulate their activities. The thrust of the legislation is to put that responsibility clearly on the manager, owner or operator of that structure. It will not be in any way a default or fallback position to put that onto district councils.
Mr McMullan: Are we saying that there are possibly councils that do not maintain their reservoirs? Do they know they have them?
Mr Porter: The vast majority of councils probably know they have them, whether or not they recognise them fully as reservoir structures. A lot of them actually recognise them as a result of carrying public liability insurance; their insurance company will have asked them how they manage their body of water, and actually required them to manage it in a way similar to the English legislation. We have seen a couple of examples of that.
In all honesty, we are not overly concerned about those in public ownership. We are really concerned about the reservoirs — there are about 50 of them — in private ownership. We have clear evidence that very little inspection or maintenance has been done on them. Therefore, we cannot determine the risk. There may well be structures in very poor condition that pose a real threat to public safety. At this minute in time, we do not know. We need the legislation to require owners to register their structures and carry out an inspection. We need to see that inspection to assure the public that those structures are safe.
Mr McMullan: Will those inspections be carried out by you, free of cost to the owner, or will the owner have to foot the bill?
Mr Porter: We asked how that should be done as part of the public consultation, which confirmed that the best system is the independent panel engineer. An owner will employ an independent panel engineer or supervising engineer who will produce a report. We will then just regulate that to make sure that they are done, and done to a reasonable standard, to assure the public that reservoirs are kept in a safe condition.
That is where the cost is, because you have to employ an engineer. The first thing that he will want to do is make sure that the banks are clear so that he can carry out an inspection, and there is a cost associated with that. Those are the costs that we put in the public consultation document and we have been upfront with people. This is not a no-cost option. There is a cost associated with it, hence why we got a very strong voice about the ability to pay and the need for grant aid, which we have had discussion on.
Mrs Gaw: The most expensive category, as you would expect, will be high-risk reservoirs. There will basically be no requirement on those with low-risk reservoirs to have inspections or to have a supervising engineer on site. Therefore, they will have no additional cost. However, we would recommend that they still do so because it would be prudent.
Mr McMullan: Who bands them high, medium and low? Do you do that?
Mrs Gaw: The reservoir authority will do that.
Mr Porter: We have included within that process the opportunity to appeal or to review and then appeal our decision, so there are two checks. We will take a decision based on the information we have. The owner then has the opportunity to provide additional information for a review to take place. If they are still not happy with our decision, there is an independent appeal on the decision. Those checks are built into the process.
Mr McMullan: That is all done within the two-year timeframe, not separate from the two-year timeframe?
Mrs Gaw: That is within the two years. We have already been speaking to any reservoir owner who has come through asking for information. We have been saying that one of our engineers will go out and walk the site with them. We are doing that already, because we do not want people draining down their reservoirs and abandoning them when that may not be required at all.
Mr Porter: There is no cost to that. We are happy to send our engineers out to give informal advice free of charge in order that informed decisions can be taken. At this stage of policy development and introducing this, it is in our best interest for people to understand what we are bringing forward. So there is no cost to that. We are quite happy to send out our own engineers to give informal advice. So, if there are people who find that this will be a burden on them when it comes in, encourage them to have a discussion with us, because we can give some informal advice, and maybe even direct them to more independent professional advice if we feel that that is the right route for them.
The Chairperson: Have you any thinking or suspicion about the estimated number of reservoirs that would be regarded as high-risk at present?
Mrs Gaw: There are about 131.
Mr Porter: That is medium and high.
Mrs Gaw: That will probably cover medium and high, because until we have more detailed maps available we cannot separate the medium out from the high.
The Chairperson: I understand that. OK.
Mr Porter: That is out of 156 reservoirs.
The Chairperson: We can see how serious an issue it is. There are no further questions. Thank you very much, David and Averil, for your attendance today.
Mr Porter: Can I ask to have, within a week, any further comments — obviously this session has been noted, but if there were any further comments — because that will enable us to send a submission to the Minister and get the matter tabled at the Executive for formal drafting.
The Chairperson: I will put that timescale to the meeting. If members feel that there are any matters that we need to delve into, then we will. That might cause a problem for the timescale.
Mr Porter: We understand that.
The Chairperson: We will do our own body of work on the scrutiny of the Bill. I know that you mentioned that the Committee could do a job of work on the community asset-type reservoirs. I would say — and I am sure that the Committee would say — that that should be all tied up in the Bill, for the spirit of the Bill to go forward, if you know what I mean, so that we know exactly what we are dealing with before we even get to Committee Stage.
Do members have any comments or areas of concern? Are we content to go forward?
Mr Byrne: Is it possible to get a map that shows the location of private reservoirs as well as the publicly owned ones so that we have some idea of the geographic spread across the region?
Mr Porter: I think that that was provided previously.
The Chairperson: It should be accessible to us.
Mr Porter: We can provide further copies of it if you want.
The Chairperson: You talked about a week, David, with regard to simply replying with any concerns that we have within a week.
Mr Porter: Yes, any comments.
The Chairperson: OK, so we are clear. Are members content to forward any additional comments within one week?
Members indicated assent.
The Chairperson: OK. Thank you very much.