Report on the Reservoirs Bill (Addendum)

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Executive Summary

1. The Reservoirs Bill (NIA187/11-15) was referred to the Committee on 4th February for the Committee Stage of the Northern Ireland Assembly legislative process. The Committee completed its scrutiny and produced a Committee report on 24th June 2014. During that time the Committee carried out the Committee Stage of the Reservoirs Bill and identified a number of concerns. Rivers Agency brought draft Ministerial amendments to address these concerns and the vast majority of these were agreed by the Committee. The detail on these amendments can be found in the Committee Bill report which can be accessed here.

2. However, one area which was not addressed to the satisfaction of the Committee was the issue of Frequency of visits by Supervising Engineer. As a result the Committee voted not content with the relevant clauses within the Bill namely clause 25 and clause 33.

3. This Committee revisited the issue on 11th November 2014 when it finalised its position on the issue. That position was presented to Rivers Agency with a request that it bring amendments to address the issue. Rivers Agency returned to the Committee with proposed amendments on 10th February and after scrutiny the Committee agreed that it was content with the proposed amendments.

Background

4. The Reservoirs Bill will define and provide a regulatory regime for what will be known as a controlled reservoir. On 10th February 2015, the Department indicated to the Committee that while it was initially anticipated that that 151 reservoirs will fall under the remit of the Bill, as a result of some recent work that figure has been reduced to 137 with the potential for further reductions. The vast majority of reservoirs are in public ownership with the recent reduction taking 10 privately owned reservoirs and 3 council owned reservoirs out of the remit of the Bill. The Committee welcomed this reduction in numbers and looks forward to hearing in due course of further such reductions. The Committee understands that another 21 reservoirs are under review with perhaps 6 or 7 of these potentially coming out from under the remit of the Bill. In oral evidence to the Committee on 10th February 2015 the Department stated (see Appendix 3) :-

“The good news is that we have managed to get the 151 down to 137. Of those that have been eliminated, 10 are owned privately and three by local councils.”

5. The Department subsequently provided further written information on this reduction in the number of reservoirs that will fall under the remit of the Bill and this can be found in Appendix 4. That written information contains the following table which provides further detailed information on ownership of the 137 reservoirs.

Frequency of Visits by Supervising Engineers

6. During Committee Stage of the Bill the Committee indicated it was content with the principles of the Bill, but had concerns around the methodology outlined in the Bill for its implementation. The Committee identified a number of concerns and sought a number of amendments to the Bill as presented to the Assembly. The Department brought draft Ministerial amendments which the Committee agreed addressed its concerns on all bar one issue. This is the position which is reflected in its Committee Report on the Reservoirs Bill.

7. However, there was one issue were there was no firm agreement between the Committee and the Department – the frequency of visits by a supervising engineer. Clause 24 requires a high or medium consequence reservoir to be under the supervision of a supervising engineer at all times i.e. on an ongoing basis. Clause 25 sets out the duties of the supervising engineer with clause 25(2)(k) specifying a minimum number of visits by the supervising engineer per year to high and medium consequence reservoirs. Clause 33 requires a high or medium consequence reservoir to be subject to an inspection at specified periods and sets out the duties of the inspection engineer. Clause 33(4)(i) provides that the inspecting engineer can specify visits by a supervising engineer over and above that provided for in C25. The Bill as drafted at C25(2)(k) and C33(4)(i) states the following:-

C25(2)(k)

(2) The supervising engineer must

(k) visit the reservoir—

(i) where it is a high-risk reservoir, at least twice in every 12 month period,

(ii) where it is a medium-risk reservoir, at least once in every 12 month period,

C33(4)

(i) if the inspecting engineer considers that the supervising engineer should visit the reservoir more frequently than—

(i) in the case of a high-risk reservoir, twice in every 12 month period,

(ii) in the case of a medium-risk reservoir, once in every 12 month period,

must specify at what intervals, when, or in what circumstances, any additional visit should take place.

8. The Committee felt that these requirements were gold plated particularly as the Department could not prove that this level of supervision was required for reservoirs in Northern Ireland. During the Committee Stage of the Bill the Committee voted not content at Clauses 25(2)k and 33(4)(i).

9. Subsequent to this, the Department proposed amendments that would reduce the number of supervised visits at clause 25. The first amendment, rejected by the Committee as not going far enough was :-

(i) where it is a high-risk reservoir, at least once in every 12 month period,

(ii) where it is a medium-risk reservoir, at least once in every 24 month period,

10. The second amendment was received too late for Committee consideration as it was signing off its report and the Committee felt it had not been given adequate time to decide if it was sufficient. That amendment was

(i) where it is a high-risk reservoir, at least once in every 12 month period,

(ii) where it is a medium-risk reservoir, at least once in every 36 month period,

11. On 11th November 2014 the Committee revisited this issue and after a closed session discussion, consideration of various options and an open session oral briefing with the Department, the Committee confirmed its position. It subsequently wrote to the Department confirming this position (see Appendix 4)

“The Committee requests that the Department brings forward an amendment to the Bill to provide that the regime on the number of visits by the supervising engineer to high and medium consequence reservoirs is done by regulation subject to draft affirmative procedure. This would replace the provisions in the Bill at C25(2)(k) and 33(4)(i).

The detail of what is in the regulation will need to be discussed with the Committee in due course but as an early indication the Committee would like to see a regime where the supervising engineer would visit a high consequence reservoir at least once in every 12 month period and for a medium risk reservoir at least once in every 36 month period, until the reservoir is brought to a standard that is acceptable. Thereafter the Committee would like to see the number of visits by a supervising engineer reduced.

The Committee has indicated that its position on this issue is based on the lack of information about the condition of reservoirs in Northern Ireland. This lack of information means it is extremely difficult for it to judge whether the schedule of supervised visits as proposed in the Bill and the amendment is at the correct level. You may also wish to assume that the information from the Reservoir Audit, when available, may influence the thinking of what the Committee would like to see in the proposed regulation.”

The Amendments Proposed by Rivers Agency

12. Rivers Agency agreed to consider the Committee position and, subject to Ministerial Approval, to draft amendments as requested by the Committee. The amendments were made available for the Committee to consider at its meeting on 10th February 2015. The full text of the amendments can be found at Appendix 1.

13. The proposed amendments will introduce a new clause – clause 25A. This will make provision for the Department to make regulations regarding the frequency of visits to a high or medium consequence reservoir by a supervising engineer. This proposed amendment provides that the regulation can vary the frequency of visits by a supervising engineer once the reservoir is brought to an acceptable safety standard. In oral evidence on 10th February 2015 the Department confirmed that the standard minimum number and frequency of visits by a supervising engineer will be reviewed when the Department is presented with information that suggests that the reservoir has achieved an acceptable standard of safety. This information will take the form of an inspection report, an inspection compliance certificate, or an annual statement from a supervising engineer. The frequency and number of visits by a supervising engineer in such circumstances has yet to be determined but it would be less than the standard minimum. (see Appendix 3)

“We have not yet decided how that will manifest itself, but the number and frequency of inspections will be reduced at that stage. We imagine that it will move from at least once every 12 months for a high consequence reservoir. I want you to bear with me on that, because we have not absolutely decided. It may move, for example, from an inspection of a high -consequence reservoir at least once every 12 months to at least once every 24 months. For a medium-consequence reservoir, it could move from an inspection at least once every 36 months to once every 60 months, which is five years. That is our thinking at this point.”

14. In oral evidence on 10th February 2015 to the Committee the Department noted that it had not finalised what would be in the new clause 25A regarding a position on the number of supervised visits as this would need to be informed by the results of the audit of reservoirs. The Department also confirmed that the detail will be in the regulations which can only be made after a draft has been laid before, and approved by a resolution of, the Assembly. Therefore, the Committee and the Assembly will have every opportunity to scrutinise, challenge and, where necessary, suggest changes to, the draft regulations before they are made.

15. Members noted that the inspecting engineer can specify additional visits by a supervising engineer over and above that in the regulation are required. But in doing so the inspecting engineer must specify why and how many, and this decision is open to challenge and appeal by the reservoir owner. (see Appendix 3)

"When the Department receives information with regard to the condition of the reservoir, hopefully the reservoir owner will have nothing to appeal. If a reservoir is given a clean bill of health and is found to be safe, the Department will readily amend the frequency and number of visits. If we decide not to do that, the reservoir owner would appeal that decision to the Water Appeals Commission. That is the independent body that will hear evidence from the reservoir manager and the Department and will make an independent decision that will hold good. The Department will have no say over that once the appeals mechanism has been engaged by the reservoir manager.”

Summary of Proposed Amendments

16. In summary, the proposed amendments introduces a new clause into the Bill namely at clause 25A. This clause makes provision for the Department to make regulations regarding the frequency of visits to a high or medium consequence reservoir by a supervising engineer.

17. The amendment also removes reference to visits by a supervising engineer to a reservoir by deleting clause 25(2)(k) and by re-drafting clause 33(4)(i).

18. The regulations in the proposed new clause 25A will provide for a reservoir manager to appeal against the Department’s decision as to whether or not it considers that a reservoir is of an acceptable standard and, accordingly, the frequency of visits to be made to it by the supervising engineer. As a result, clause 103A and Schedule 3 have been re-drafted to include reference to this appeal procedure. In oral evidence to the Committee on 10th February Department officials explained the appeals mechanism as follows:-

19. Further consequential amendments are required to clause 117 to ensure that the draft regulations are approved by a resolution of the Assembly, and to clause 120 to include the new clause 25A in the arrangements for the phased commencement of the Bill.

Committee Decision

20. The Committee discussed the amendments with officials from Rivers Agency and voted that it was content. The Committee agreed that its decision should be reflected in an addendum to the Committee Report on Reservoirs Bill to be provided to the Assembly in time for the Consideration Stage Debate.

Committee Consideration of the Amendments

21. Clause 25 – Duties etc. in relation to supervision

The Committee indicated it was content with the clause as amended.

22. New Clause 25A – Regulations as to visits by supervising engineers

The Committee indicated it was content with the new clause as amended.

23. Clause 33 – Duties in relation to inspection

The Committee indicated it was content with the clause as amended.

24. New Clause 103A – Power of Water Appeals Commission to award costs in an appeal

The Committee indicated it was content with the new clause as amended.

25. Clause 117 – Orders and Regulations

The Committee indicated it was content with the clause as amended.

26. Clause 120 – Commencement

The Committee indicated it was content with the clause as amended.

27. Schedule 3

The Committee indicated it was content with the schedule as amended.

Download the full report here.