Official Report: Minutes of Evidence

The Chairperson (Mr Irwin): I welcome David Porter, grade 6, and Kieran Brazier, grade 7. I ask you to take up to 10 minutes to address the Committee and, following the briefing, we will seek Members' questions. You are both very welcome.

Mr David Porter (Department of Agriculture and Rural Development): Thank you, Mr Chairman, as ever, for inviting us to the Committee to debate what are hopefully the final stages of the Reservoirs Bill. I want to do two things. First, I will give you a brief update on two things: the number of reservoirs, which we have reviewed, and the audit that you had asked for. Secondly, Kieran will take over and talk us through the amendment to the Bill as requested.

What are the numbers at this time? If I may refresh your memory, we started by identifying 180-ish reservoirs at the very early stages. By the time we got to public consultation, we had refined that number to 156. That was the number — 156 reservoirs that were going to be subject to the future legislation — that I came with to the Committee and talked about. By refining the definition when we were going through the scrutiny phases, we got that number down to 150 or 151. Again, you are probably familiar with that number, because we have mentioned it before. Since then we have continued to look at what other reservoirs we can get out at this stage, because we recognise that this is a burden on people and, in some cases, an unwelcome one. It would be very helpful if we could give people the good news, at this early stage, that they will not be subject to the Reservoirs Bill, so that they do not start employing engineers, incurring costs and giving us evidence. 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. We intend to write out — we have literally just completed this work in that last number of days — to those people and tell them: "You know that we invited you to the consultation sessions on the Reservoirs Bill. We told you about it and had various discussions; but the good news is that you will not be subject to it, for the following reasons."

Most have been excluded on the basis of detailed work we have done to determine the size of the embankment. If you recall, we are talking about 10,000 cubic metres of water that could escape. We looked at those that were too small or just on the borderline, such that, with some further work, they could be taken out. We did that work and made sure that we knew those were out. We also carried out a piece of work on a further 21, which are sitting in that 7,500 to 12,500 range, some of which will also, I think, come out of the scope of the Reservoirs Bill. We are probably aiming for a figure of 130 reservoirs that will actually be subject to the legislation. Hopefully, that will be welcome to the Committee; I suspect it will be very welcome to the people who own those reservoirs. It means that we are really focusing in on people who need to know the detail of the Bill and will be subject to the burden of the legislation, while relieving those who do not, at this early stage. That is an update on the numbers.

The Committee had asked for a reservoir audit to be carried out. We have proposed to deal with that by amending the legislation to provide for a phase 1 and 2. Phase 1 brings in the definitions, makes it clear who is responsible and requires that initial assessment. Phase 2 covers the recurring elements of the Bill. We had to do a business case. The last time we were here we reported that it had been submitted to the economists and that we were at the final stages. We have now cleared all those hurdles and have an approved business case. Very shortly we will write to the reservoir owners to explain the scheme and make that available to them to start the process. That then will inform a report, which can be brought back to the Assembly or to the Committee, and the commencement date if phase 2 has to be commenced. That is a little bit of an update on the work we have done to reduce the number of reservoirs subject to the legislation and on the audit.

I now ask Kieran to give you an update on the amendment.

Mr Kieran Brazier (Department of Agriculture and Rural Development): Good afternoon, Committee members and Chair. I start by going back a bit and setting the context. Forgive me if the Clerk has recently briefed you on this, but I think it is worth going over again. The Bill as introduced sets out the frequency and number of visits by supervising engineers. This was always a contentious issue for the Committee, but the Bill as introduced advises that a high-consequence reservoir would receive a visit at least twice in every 12-month period and a medium-consequence at least once. That was debated long and hard in Committee, and the Department agreed that it would bring forward a proposed amendment to reduce that. The proposed amendment was to reduce visits to a high-consequence reservoir to one every 12 months and to a medium-consequence reservoir to one every 24 months. The Committee was not content with that, and during the formal vote on clauses, it voted that it was not content with that proposed amendment.

The Department brought forward a second proposed amendment that moved the number of visits out again. It remained the same for a high-consequence reservoir, at once every 12 months, but for a medium-consequence reservoir it moved out to once every 36 months. In fairness to the Committee, it noted that it was a bit too late for the formal voting stage, and that is the position that was recorded in the Committee's report to the Assembly.

That is where it sat until the Committee's meeting on 11 November, when it considered this matter again and deliberated on five options. It decided to ask the Department to amend the Bill to provide that the number of visits by a supervising engineer would be set by regulations subject to draft affirmative procedure. The Department considered and agreed to that request and put forward a proposed amendment that I will take you through. It is set out in the Department's letter to the Committee dated 2 February.

The proposed amendment does a number of things. First of all, it removes at clause 25(2)(k) any reference to the number and frequency of visits by a supervising engineer. It also removes the reference to those visits from clause 33(4)(i) and amends it slightly. Those were the two main clauses that were a bone of contention, so from the Bill has been removed the specific reference to the minimum number of visits by a supervising engineer. That is entirely consistent with the request that was made by the Committee to the Department.

Secondly, it would introduce a new clause 25A, which makes provision for the making of the regulations regarding the frequency of visits to a medium- and high-consequence reservoir. New clause 25A also allows for an appeal by a reservoir manager against any decision that the Department may make with regard to the acceptable standard of a reservoir.

It then does a number of other things. It makes reference in clause 103A and schedule 3, which deal with appeals to the Water Appeals Commission, to new clause 25A. Importantly, it also includes reference to clause 25A in clause 117(3). That lists those regulations and makes sure that they are brought forward through draft affirmative resolution procedure. Therefore, the Committee will be given an opportunity to consider the draft regulations before they are put before the Assembly and to challenge them.

It also makes reference to new clause 25A in clause 120. That is the clause that introduces the Bill in two phases, so it makes sure that that clause is in the second phase. Supervising visits come in the second phase of the Bill, so it makes sure that that is all done.

Those are the technical aspects of the proposed amendment. How this will work is pretty straightforward. Every medium- and high-consequence reservoir will commence with a standard number and frequency of visits. That will reflect the position that the Department put forward as its final proposed amendment, that is, a high-consequence reservoir would receive a visit at least once every 12 months and a medium-consequence reservoir once every 36 months. That is entirely consistent with the Committee's request to the Department.

That position will be reviewed when the Department is satisfied that the reservoir is in good condition. We will review it for a number of reasons. If we receive an inspection report that states that there are no concerns with safety, we will review it. If we receive an inspection report that states that works are needed in the interests of safety, and then we receive a certificate that advises that those works have been done by the reservoir manager and the reservoir has therefore been made safe, we will also review it. If we get an annual statement from the supervising engineer that shows that there are no safety issues, we will review it. If we get formal information from inspecting engineers or supervising engineers, the Department will review the frequency and number of inspections.

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. I am happy to take any questions that you might have on that.

The Chairperson (Mr Irwin): OK. Thank you very much for your presentation. I welcome the fact that a number of smaller so-called reservoirs have been taken out of the equation. That was a big concern for me and for many Committee members. What is the indicative timescale for the introduction of the new regulations?

Mr Brazier: As I said earlier, once the Bill is enacted, certain parts of it will be commenced in phase 1. The requirement to engage a supervising engineer will come in phase 2, and that will only be considered when the Assembly receives the audit on the condition and capital costs of fixing the reservoirs. We expect that that report will be before the Assembly in July next year at the latest. Assuming that it comes in July next year and that phase 2 of the Bill is commenced after that, we imagine bringing forward regulations in the autumn of 2016.

The Chairperson (Mr Irwin): OK. Will you talk us through the appeals process, please? How will a reservoir manager appeal a decision on the frequency of visits?

Mr Brazier: 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.

Mr McMullan: Thanks for your presentation. I, too, welcome the fact that the smaller reservoirs have been taken out.

I do not have a lot to ask you. The one thing that still bugs me is the definition of high- and medium-consequence reservoirs. If a high-consequence reservoir is brought up to standard, when can it be downgraded to a medium-consequence reservoir? I am thinking away ahead and of problems with getting insurance or a block on planning or something like that downstream from the reservoir. I would like to see something in the Bill that shows how a high-consequence reservoir could be downgraded to a medium-consequence reservoir.

I would maybe like the inspections to be extended from once every 24 months to once every 36 months. It could maybe even be the same as the five-year one — the 60 months. Those are my concerns.

Mr Porter: There are a number of items there. You mentioned planning, extending the time and the difference between high- and medium-consequence reservoirs. Planning is dealt with under planning policy statement (PPS) 15, and the new version has been accepted. It does not block development downstream of a reservoir except for very specific types of use. It calls into question whether you want to put critical infrastructure there, for instance, a power station, or whether you want to put dwellings for vulnerable people, an old-people's home or a hospital or something like that, there. It questions whether that is the best use of it.

You will not be blocked from development for dwelling houses downstream of a reservoir because, as I have said a number of times, provided that a reservoir is inspected by a competent person, they are safe to live below. A reservoir failure is a highly unlikely event. Our issue with reservoirs is that, if they are allowed to deteriorate and they do collapse or fail, the consequence of that failure, because of the amount of water that they hold, would be so catastrophic. However, the likelihood of that happening is remote, and it is particularly remote if you have an inspection regime and a competent person keeping an eye on it. Planning for dwelling houses will not be blocked downstream of reservoirs, so hopefully that will give you some comfort.

As Kieran has outlined, we have not firmed up our thinking on extending the timescale. What Kieran has outlined are just our initial thoughts. We are happy enough, through the process of developing the regulations, to have that debate and possibly even to get some evidence to satisfy ourselves and the Committee that what we propose is correct. However, as Kieran has also outlined, that will be a number of months down the line — it will be 2016 — and we will have time to do that.

On the difference between the definitions, high consequence is where we identify that there is potential for a wall of water of a depth and velocity that could potentially cause death, and medium consequence is where it is going to wet the area below, but it will be shallow, slow-moving water. As I said before, it is deep, fast-moving water that kills people. We can model that and show how it impacts on people's property. The lower impact is what gets you into the medium-consequence category. We have also introduced, through the more recent amendments that we have taken through, a way in which you can carry out works to the reservoir to change that position.

Mr McMullan: Can I just quickly follow on from that? On the likes of planning, can we get a guarantee that there will be no charge to anybody who wants to find out about a certificate of competence from a high-consequence reservoir in the area, if it is asked for in their application? It could be in agricultural ground where diversification for tourist need, a hotel, a hospital — you name it — and would include vulnerable people, because we are talking about old-people's homes and things like that if we are talking about public buildings. If we need a certificate, will there be no charge for that?

Mr Porter: There is no formal certificate. What we have to do through the Bill is produce a register. There will be certain information on that register that a person who is compiling a planning application could seek access to. They would not get all of the information from the register, because, as we have talked about before, there are vulnerabilities surrounding a reservoir. There are certain pieces of information that should not be put out into the public domain. However, the presence of the reservoir, what category it is in and whether it is compliant with the Reservoirs Bill is information that will be readily available through the planning process.

Mr McMullan: What is the safe ground around a reservoir? What is the clear ground around a reservoir that nothing can happen in?

Mr Porter: It is not that nothing can happen. As we all know, water flows downhill, so the area that we are concerned about is the area immediately downstream from a reservoir.

There are now very sophisticated packages that can model what would happen in the event of a breach. They tell you not only the area that would be flooded but the depth and velocity of the water. As we are going through the process, we will be able to determine the depth and velocity that are triggers for concern. That takes in the high-consequence category. We will also set a threshold below which we are not concerned about the reservoir. You will be able to get access to that information.

Mr Milne: Thanks for your presentation. We have come a long way since the first time that I heard of the Reservoirs Bill. I was not very comfortable with it, but today I feel that we are in a better place. We now have a situation in which every aspect of it looks more realistic.

You say that 13 reservoirs have been taken off the list of 150. Where are those reservoirs? People have talked to us about them, and I would just like to know where they are. Who took the decision that those 13 reservoirs should be downgraded? Was it you and the engineers in the Rivers Agency?

My third and final point relates to the 21 reservoirs that you are revisiting. How many of those are in private ownership?

Mr Porter: There are three questions there: where the reservoirs are; who made the decision; and what the make-up of the 21 reservoirs is.

I do not have the details about

but the 10 individuals will get a letter. I am not sure that I would want this in the public domain, but we are certainly happy enough to talk to you privately about where they are. Three are owned by councils. One is in the Ards Borough Council area, another is in Lisburn and the third is in Belfast. They will also get a letter to say that we have done the work.

Who decided? We set up a group in the Rivers Agency by pulling together four people who collectively took the decision, having recognised that there was a series of decisions to be taken about impact and designation. Rather than put the burden of hearing some of the informal appeals, as well as deciding what is a reservoir and whether it meets the threshold, on one individual, a group of engineers, policy people, and mapping and modelling people debated what we felt collectively was the right answer. Therefore, the group in the Rivers Agency decided.

We are going to go through the same process with the 21 reservoirs. The difference is that we needed some further information, because they are so close to the 10,000-cubic-metre threshold that we need to send out a survey team to make sure that we have the height and size of the dam correct. A small change to the assumptions that we made at the early stage, particularly on those that are very close to that threshold, could make a big difference and knock some of those out. We are going to commission that work externally, both because we do not have the survey team in the Rivers Agency and because it brings a level of independence to the work. Somebody will look at the 21, give us the size information and the other information that we require, and then the panel that I mentioned earlier can review it.

We do not have the details on the ownership of the 21. It is a different 21.

Mr Brazier: From memory, the vast majority of those are in private ownership.

Mr Anderson: Thank you, gentleman, for your presentation. Some of my questions have been answered. You talk about the 21. Do you think you can get the figure down to approximately 130, having started with 180 or so? Will that mean, then, most of the 21 being taken out? If the extra work were done to the 21, what do you think the final figure would be?

Mr Porter: I think that it is probably in and around 130.

Mr Anderson: Still only 130.

Mr Porter: We are sitting at 137. I am fairly sure, from looking at the 21, that we will take seven off the list — perhaps eight or nine — so we may get down below 130. Our gut feeling is that, from looking at the size of the 21, the figure will be in and around 130. We have tended to find that, when we do a little bit of refining work, the size of reservoirs is reduced. Only the size of very, very large ones increased. Some of the assumptions that we made worked quite well for the small reservoirs, as they did not overestimate their size. When we refined the assumptions, that brought their size down a little bit. I cannot think of any small reservoirs that actually got bigger. I am therefore being cautious by saying eight or nine of the 21. It may be a few more, but I do not want to oversell that to you. I am quite happy, once we have finished the work, to write to you with an update, if that will be helpful.

Mr Anderson: I know that this has been mentioned before, but is the ownership of any of the reservoirs still unclear?

Mr Brazier: We have two.

Mr Anderson: You still have two.

Mr Brazier: Yes, we have two.

Mr Anderson: What do we do with those?

Mr Brazier: We hope to find the owners.

Mr Anderson: What if you do not?

Mr Porter: There is provision in the Bill for the Department to step in to carry out measures in the interests of public safety. We would commission an inspection report, and, if there are matters to be dealt with in the interests of public safety, we would have emergency powers to step in. That case is dealt with in the —

Mr Anderson: Are the two high-consequence reservoirs or medium-consequence reservoirs ? Do we know?

Mr Brazier: Both are high-consequence reservoirs.

Mr Anderson: It is in our interests to find out who owns them or to ensure that, if we do not find who owns them, we get those tests carried out.

Mr Brazier: At the moment, we are looking at that informally. When the Reservoirs Bill becomes law, and people are required to register, at least the Department will then have the power to seek formally the owners of reservoirs that have not been registered, although the two might be registered in the meantime. At the minute, it is very informal, and we have been successful in getting all but two, but those are two that stand out. We cannot put our finger on who owns them.

Mr Anderson: Would the new councils have a role in working with the Department in whatever area they are in?

Mr Brazier: That would be helpful if that were the case, but the councils would not have the power to do anything. The provisions in the Bill lie with the Department.

Mr Anderson: Surely the councils concerned would be very interested were something to go wrong in their area.

Mr Brazier: Yes, absolutely. The more help that we can get, the better. We would very much welcome that. I am just distinguishing between the powers in the Bill that rest with the Department to require a reservoir manager to register a reservoir with the Department and the powers of a council. Those powers would not rest with the local council.

Mr Anderson: Would you consult with the councils in that area?

Mr Brazier: Yes, absolutely.

Mr Porter: To be clear, there is no requirement on a council to go in. At an early stage, there was a concern, particularly from councils, that we were trying to foist "orphaned reservoirs", as they were then termed, on to them.

Mr Anderson: The Department should certainly be in touch and working with a council that has a high-consequence reservoir that could have a detrimental effect on the area.

Mr Brazier: That is a good suggestion. Thanks.

Mr Anderson: Who pays for that is another issue. I am not suggesting that ratepayers do so. What I am saying is that it would certainly be very much in the Department's interests to get everyone on board.

Mr Porter: The powers are there for the Department to step in and carry out any works that are required in the interests of public safety, just to be clear. The Department, because it has the powers, would cover the cost of dealing with the things that need immediate attention and hold that cost until such times as an owner was found or it was accepted at some point —

Mr Anderson: Perhaps you will find the owners.

Mr Byrne: I welcome the update and am glad that you have managed to refine through your survey the number of potentially viable reservoirs in the Bill. The council areas of Belfast, Ards and Lisburn have reservoirs that are no longer in that category. Is that right?

Mr Porter: Yes, that is correct.

Mr Byrne: I want to ask you about Camlough lake, which caused some concern at the end of last year. Has its ownership been clearly established yet? What is the situation?

Mr Porter: As I reported before, the owners of Camlough lake are all deceased, and nobody took up the positions as trustees of the waterworks after those people became deceased. However, under the Reservoirs Bill, it is very clear that, if a water company removes water from a reservoir, it is a reservoir manager. The legislation is also very clear that others who have a responsibility for a reservoir will be reservoir managers.

That has enabled us to identify that Northern Ireland Water and Newry and Mourne District Council have a responsibility for that reservoir. When we came before the Committee previously, there was a concern about Camlough lake, and, to be fair to them, those two organisations have managed the situation very well. They have drawn down the water and put in works to ensure that the reservoir does not fail. They recognise their future responsibilities under the Reservoirs Bill and their current liabilities when they carry out activities.

There continues to be a discussion between Northern Ireland Water, Newry and Mourne District Council and us about the longer-term ownership. That has not been finalised, but it did not stop action being taken to alleviate the potential failure of the reservoir.

Mr Byrne: Are you satisfied that the necessary remedial action has been taken to safeguard the current operation there?

Mr Porter: Absolutely. I cannot praise Newry and Mourne District Council and Northern Ireland Water highly enough for the actions that they have taken. However, those are two public bodies that understood their liabilities and responsibilities. If it had been a privately owned reservoir, if it were one for which the ownership was unknown or if we did not have a public body involved, we might not have got the same level of cooperation. That really reinforces the need for the Reservoirs Bill, because, in the case of an imminent failure, we need people to take action. That is what the Bill does. It requires people to take action, not just during the emergency but in the run-up to it to try to alleviate the situation so that we do not get into the position that we faced in November with Camlough lake.

Mr Byrne: I welcome that. Finally, on those reservoirs that are owned or used by the third sector, what is the status of the Creggan reservoir in Derry? Who is its owner? Has that been determined yet?

Mr Porter: Evidence was given to the Committee that that reservoir is in the ownership of the association that is behind Creggan Country Park. Representatives of that organisation gave evidence to that effect. That position has not changed.

After those representatives gave evidence, we had informal discussions with them, because there are some other users of that water and some landowners who own land in and around the dam. I understand that representatives of the association were to have discussions with some other bodies. I have not had an update on that, and, when it is registered, it will be interesting to note how many other names appear. From listening to their evidence, it was clear that they knew that they were responsible for the dam, but there may be others who should share that ownership.

Mr Byrne: OK. I welcome the update on proposed new clause 25A. Good progress has been made on that.

The Chairperson (Mr Irwin): Oliver McMullan, do you want to come back in?

Mr McMullan: Yes, very quickly.

The Chairperson (Mr Irwin): Very quickly, please.

Mr McMullan: You said that councils do not have to inspect reservoirs. Would that duty not become part of councils' emergency plans? Furthermore, councils now have planning powers, so they would need to have a register in building control for applicants. Councils have a big role to play.

Mr Porter: For clarification, we are making it very clear in the Bill that a council will not become responsible for the ownership or maintenance of a structure. At a very early stage, there was a concern that, if we could not find anybody to look after a reservoir, responsibility would default to the council, and that is not in the Bill.

Mr McMullan: I do not mean that. Every council has a contingency plan.

Mr Porter: There are two areas of planning that we need to deal with: one is the emergency planning; and the other is the land-use planning. On the emergency plan, we have made available to the councils information about reservoirs, and we continue to do that for flooding. I have no concerns about that. Newry and Mourne District Council is a very good example. It was aware of the risks and had flood-inundation maps and a very well-developed flood plan for the reservoir.

You are correct about land use. A planner today needs to know that there is a reservoir there and have a flood-inundation map in its system. When that transfers to the council for it to take that decision, it will have access to the same information.

Mr McMullan: Chair, I am also happy with new clause 25A.

The Chairperson (Mr Irwin): Thank you very much for your presentation. I ask you to go back to the Public Gallery while I take the Committee through the amendments.

I advise Committee members that we need to decide whether we are content with the amendments.

Are members content to accept the proposed amendment to create new clause 25A?

The Chairperson (Mr Irwin): Are members to content to accept the proposed amendment to clause 33(4)(i)?

Mr Byrne: It is consequential, is that right?

The Committee Clerk: Clause 33(4)(i) is the one in which the inspecting engineer can specify extra visits by a supervising engineer.

The Chairperson (Mr Irwin): Are members content?

The Chairperson (Mr Irwin): Are members content to accept the proposed amendment to create new clause 103A and the proposed amendment to schedule 3?

The Chairperson (Mr Irwin): Are members content to accept the proposed consequential amendment to clause 117?

The Chairperson (Mr Irwin): Are members content to accept the proposed consequential amendment to clause 120?

The Chairperson (Mr Irwin): I advise members that the accepted amendments will be reflected in the addendum to the Committee report, which will be provided in time for Consideration Stage.