Official Report: Minutes of Evidence

The Chairperson (Mrs Erskine): I welcome Alison Clydesdale; director of the water and drainage policy division; Ryan Robinson, head of flooding and drainage policy; James Kelly, head of DFI Rivers operations; and Violeta Morosan, head of reservoirs operations and engagement branch. Thank you very much for coming, and apologies for the slight delay. I seek agreement, as per usual, from the Committee that the evidence be recorded by Hansard. Do we all agree?

The Chairperson (Mrs Erskine): We have the consultation document and the details from the Department that have been given to the Committee. Will you make a brief opening statement of about five minutes? I am keen to come to members' questions.

Ms Alison Clydesdale (Department for Infrastructure): Good morning, Chair and members. Thank you for the invitation to brief the Committee this morning on the implementation of a legislative framework for reservoir safety in Northern Ireland.

As you are aware, the Northern Ireland Assembly passed the Reservoirs Bill in 2015, and, following Royal Assent, it came into force as the Reservoirs Act (Northern Ireland) 2015. However, statutory responsibility for the Act was not transferred to DFI until 2021 due to a delay in the required transfer of functions order being made. The policy area has stretched over multiple Assembly mandates and various Committees. If you are content, Chair, I thought that it would be helpful if I cover what has happened in the intervening period and set out how we plan to implement the reservoir safety policy in Northern Ireland.

Only a small number of the sections of the Act commenced following Royal Assent in 2015. Therefore, in the intervening period, DFI Rivers has been limited to reminding reservoir managers of their responsibility under common law. That engagement has resulted in a number of reservoir managers taking action to improve the safety of their reservoirs, but some have not; therefore, a public safety risk remains. The Act introduces a proportionate regulatory and management framework for controlled reservoirs in order to protect people, the environment, the economy and areas of cultural heritage from a risk of flooding due to an uncontrolled release of water from a reservoir. The Act provides that a reservoir manager is responsible for reservoir safety. Generally, the reservoir manager is the person who manages or operates the reservoir. If no one manages or operates the reservoir, the reservoir owner is the reservoir manager by default.

The Act provides for a reservoir safety regime that is based on industry best practice. That includes a registration process; designation, supervision and inspection of the reservoir; and a requirement to undertake measures that are necessary in the interests of safety. Integral to the management framework is the supervision and inspection of reservoirs by specialist civil engineers who are known as reservoir panel engineers. The Department will establish panels of engineers, and reservoir managers will be able to commission them to supervise, inspect and carry out works on a controlled reservoir.

The Act requires the managers of all controlled reservoirs to register the reservoir with the Department and requires the Department to give each controlled reservoir a reservoir designation. Controlled reservoirs will be given a designation of "high", "medium" or "low" consequence. "High" and "medium" consequence reservoirs will require a higher degree of regulation and management than those that are designated as "low". Controlled reservoirs are defined as reservoirs that are:

To give you an idea of scale, that is equivalent to four Olympic-sized swimming pools. When the Reservoirs Bill was passing through the Northern Ireland Assembly in 2015, the Assembly considered the threshold and voted for the 10,000 cubic metres threshold, as flood mapping showed that even smaller reservoirs could endanger lives in the case of a breach.

There are 176 controlled reservoirs in Northern Ireland that are known to the Department. At present, approximately 68% of those are managed in the public sector by a combination of Northern Ireland Water (NIW), councils and Departments; 25% are in private ownership; and 7% are managed by not-for-profit organisations.

The 2016 audit that the then Agriculture and Rural Development Committee requested identified 45 reservoirs as being in "poor" or "very poor" condition. Follow-up surveys that were conducted in 2019, 2020 and 2021 identified 11 reservoirs as needing urgent works. The Department has contacted all potential reservoir managers regularly to remind them of their common-law responsibilities and has provided them with reports on reservoir condition from the 2019, 2020 and 2021 follow-up surveys in order to assist them with their responsibilities. In the absence of legislation, some reservoir managers are voluntarily upgrading in the spirit of the Act, with the Department conferring on them responsible reservoir manager status or condition assurance. Northern Ireland Water and many councils have received responsible reservoir manager status, which has been helpful for providing planning consultation responses for proposed development in the inundation zone of controlled reservoirs. However, that has been only an interim approach, and a public safety risk remains without the Act's being fully implemented.

The Department's proposals to further implement the Reservoirs Act were consulted on between November 2021 and January 2022. I gratefully acknowledge the contribution of the 19 individuals and organisations that took the time to respond. The consultation, which the then Infrastructure Committee considered, set out the fundamental components of reservoir safety policy and included the publication of the associated draft statutory rules (SR). The secondary legislation that was consulted on at that time included provisions for calculating the volume of water; how to register a controlled reservoir; the information that will be held on the publicly available controlled reservoirs register; the frequency of visits by a supervising engineer; the recording of water levels and record-keeping in general; the display of emergency information; the dispute referral process; stop notices; establishing the panels of reservoir engineers; provision to pay grants to reservoir managers; and forms, notices and written statements, reports and certificates that are included in the SR's schedules. Although not included in the secondary legislation, the consultation also covered the criteria that the Department will apply when giving a designation.

The Department published its consultation response on 27 October 2022 and subsequently provided it to this Committee in March 2024 on the Assembly's restoration. The main issues that were raised in the consultation included concerns about the cost that is associated with the introduction of the legislation and the potential for reservoirs to be discontinued. The Minister recognises those concerns and the fact that costs will be incurred for supervision and initial inspection by specialised engineers. In order to address those concerns, this suite of legislation includes a power to give DFI the ability to develop a grant scheme to help reservoir managers to mitigate some of the costs of compliance. The Minister has confirmed that he intends to introduce a grant scheme for those who need it in order to assist reservoir managers to meet their obligations under the Act. The Executive approved the progression of the suite of secondary legislation on 17 October 2024. That now allows the Department to commence the majority of the remaining sections of the Act, which will introduce the key elements of the regulatory framework. The five pieces of legislation that are before the Committee are intertwined and interconnected, so all five are required in order to ensure that reservoir safety policy is commenced, implemented and operated effectively.

The Department proposes to make two regulations and three orders. Two of the orders are commencement orders. Five SL1s are in your written briefing. The two commencement orders simply set out the sections of the Act that are now being commenced. Commencement order No. 1 commences approximately 100 sections or part sections and three schedules. Commencement order No. 2 commences approximately 40 sections or part sections and is subject to draft affirmative resolution, as the Act requires that some sections be commenced only when the draft order has been laid before and approved by a resolution of the Assembly. Those sections cover areas, such as grants, that the Assembly raised interest in at the time that the Bill was being passed. It should be noted that both commencement orders must be made at the same time in order to ensure that the reservoir safety policy is commenced, implemented and operated effectively.

The third order provides for the commissioning of the panel engineers. You then have two sets of regulations, one of which is subject to negative resolution and one of which is subject to affirmative resolution. The Reservoirs (NI) Regulations provide for the majority of the policy areas that were consulted on in the consultation document, which I covered, including the calculation of the volume; information that is held on the register; recording of water levels; emergency information; dispute referral; and the notices, certificates and reports.

The other set of regulations is the Reservoirs (Visits by Supervising Engineers, Stop Notices and Grants) Regulations. That is subject to draft affirmative resolution, and it covers the frequency of visits by supervising engineers, stop notices and the payments of the grants to reservoir managers.

We welcome any questions that you may have on the secondary legislation and the implementation of a reservoir safety framework in Northern Ireland. However, there is a national protocol surrounding reservoir information that can be released, so you will appreciate that we may not be able to answer queries on individual reservoirs or reservoir managers if they fall under that protocol.

The Chairperson (Mrs Erskine): Thank you. It seems like quite a number of sections have not been commenced. It might be easier to ask what sections of the Act were commenced in 2015.

Ms Clydesdale: Yes. A very small number — there were around 15 or so — were commenced in 2015. Ryan might have the detail of those. They were about basic things like definitions and what have you.

Mr Ryan Robinson (Department for Infrastructure): Yes. The sections that commenced in 2015 did not place any operational responsibility on reservoir managers or the Department. As Alison said, it was more to do with definitions.

The Chairperson (Mrs Erskine): OK. A period of time has now lapsed. We were sitting in 2014, and the legislation came through the Assembly in 2015. A lot has changed, including with watercourses. You said that action had been taken to improve safety in some of the reservoirs that have been classified. Have any of the reservoirs where safety measures were put in place been declassified?

Ms Clydesdale: Do you mean "designation"?

The Chairperson (Mrs Erskine): Yes. Sorry.

Ms Clydesdale: James might want to come in on that.

Mr James Kelly (Department for Infrastructure): The designation of the reservoirs to date has almost been a provisional designation in the absence of the Act. It is like a draft or indicative designation for those reservoirs. When the Act comes in, the reservoirs that the reservoir manager has registered will become designated. Some designation work — it is provisional work, if you like — has been done to highlight different designations. A high designation means a risk to life and economic activity. A low designation means that there is not a risk to life or economic activity. There are three designations: high; medium; and low.

The designation that exists at present, which we have spoken about, is almost like a draft. The Act is not in force yet, so the designation has not been enacted. Really, it has been a provisional exercise. The formal designation of any reservoir will come in after the Reservoirs Act is commenced and the reservoir manager has registered the reservoir.

The Chairperson (Mrs Erskine): I want to get this clear in my head. The 176 controlled reservoirs all have provisional designations at the moment: is that right?

Mr Kelly: Yes.

The Chairperson (Mrs Erskine): For example, let us say that a reservoir in Fermanagh has had work done on it. Will it be affected by the legislative changes that we will be agreeing, or will it be stuck with the provisional designation that it got in 2015?

Mr Kelly: When the rest of the legislation is made, it will be like flicking a switch: it will be 100% on. We want to be sure that we are alert to that before the day that that happens. We are operating in almost a draft or shadow form, whereby "responsible reservoir manager" is a status that we use for people who take on what is a voluntary engagement, which means that they are following the spirit of the Act, the provisions of which have not yet been commenced, although we are working towards that. It is therefore very much about reservoir managers working in a provisional, shadow or voluntary form, following the spirit of the Act. The designations are not yet in force, because much of the Act has not been commenced, but a lot of our reservoir managers are operating as such, which is good and healthy. We are grateful to those who have taken two steps towards adhering to the Act by operating in that shadow form. Responsible reservoir managers are operating to a provisional designation that has been conferred on individual reservoirs, but, as yet, there is not a legal obligation on any reservoir manager to do anything about that.

The Chairperson (Mrs Erskine): Let us take this step by step. I am talking from a local perspective, but say that I have a reservoir in Fermanagh that is designated high.

Mr Kelly: High-consequence.

The Chairperson (Mrs Erskine): Yes. Say that it is designated high-consequence. Work has been done on it in the past nine years that could bring down the designation to medium- or low-consequence. Once we flick the switch, as you said, will it still be designated high-consequence?

Ms Violeta Morosan (Department for Infrastructure): I will take it back a bit. The provisional designation was given for the purpose of the reservoirs audit that the Department undertook in 2016. For the purpose of that audit, we looked at all the reservoirs in Northern Ireland. We gave them a provisional designation of high-, medium- or low, and we took into account only those that were designated high or medium. We disregarded the low-consequence reservoirs, because we felt that they would flood only agricultural land, for example, whereas, with medium and high designations, there would be consequences for life, property or economic activity.

The reservoirs were therefore given a provisional designation in 2016. It is important to note that their provisional designation may change when the Act comes into force, as the designation at the time considered different criteria, and the criteria have been consulted on and refined — Alison touched on that — and, moreover, properties may have since been built. Depending on the geography of the reservoir, the provisional designation therefore may or may not change.

The Chairperson (Mrs Erskine): Designation will therefore involve a cost to reservoirs such as the 25% that are privately owned and the 5% that not-for-profit organisations manage. A change to the designation would come at a cost to them, because they would have to do reports and external consultations, for example.

Ms Morosan: Compared with a low-consequence designation, a high- or medium-consequence designation will place a greater degree of management responsibility on reservoir managers. Under the Act, a reservoir that is designated high or medium must appoint a supervising engineer and an inspecting engineer, and that will come at a cost. Alison will say more about the costs.

Ms Clydesdale: Yes. The first step when the legislation comes into force is for the reservoir managers to register the reservoirs. The Department is responsible for designating them, so the cost to the reservoir managers comes at the point at which they register, although registration itself is free — there is a fee for registration in the rest of the UK — because we are not commencing the elements of the Act that introduce a fee. It is therefore free to register, and the Department then designates the reservoirs. At that point, they have to undergo a series of inspections by an inspecting engineer and a supervising engineer. The Minister has recognised the cost of those inspections, so he intends to introduce a grant to support, in the first instance, people who need to meet the cost of those inspections. We cannot say exactly what those costs will be, because they will vary from reservoir to reservoir, but a ballpark figure would be somewhere in the region of £5,000 for both inspections.

The Chairperson (Mrs Erskine): What is the timescale for the grant scheme being introduced? Will that happen in tandem with our flicking the switch?

Ms Clydesdale: At the moment, we are working through the business case for the grant scheme for the inspecting engineer and supervising engineer inspection costs. We will consult on that, and the business case will have to be approved, subject to normal approvals and future budget availability.

The Chairperson (Mrs Erskine): I am slightly disappointed that the grant will not come in at the same time as our agreeing the legislation, because the 25% of reservoirs that are owned by private organisations and the 7% that are managed by not-for-profit organisations will feel the pain from that as soon as it comes into effect. Some of the individual clubs and organisations that own reservoirs could go under. There would also be a detrimental environmental impact if they were unable to monitor them or hold on to ownership of them.

Ms Clydesdale: They will not feel the impact when the legislation comes into effect. There will be six months in which to register. After that, there will be a period for the reservoirs to be designated. I estimate — Violeta, you can keep me right here — that it will probably be somewhere between 12 and 18 months after the reservoirs have been registered before those inspections will be required. There is therefore six months in which to register, and then the Department has to do some work on designations. It is the designation that will influence the costs. Reservoir managers need to know their designation before they have their inspection in order to understand what capital works are needed. Is 12 to 18 months reasonable, Violeta?

Ms Morosan: Yes.

The Chairperson (Mrs Erskine): The grant scheme will still not be in place, however. I have a question about the grant scheme, because it is not clear to me. This is where it could get a bit messy. The consultation responses report states:

We have just heard from the Utility Regulator. The situation with the funding element of PC21 is not a pretty sight. It is expected that NI Water will provide the funding for the grant scheme. Can you explain that?

Ms Clydesdale: No, Northern Ireland Water will not provide the funding for the grant scheme for either inspection costs or capital costs. Northern Ireland Water's price control provides revenue for it to operate as a company. Within that, it has health and safety responsibilities. It would use its funding under PC21 to maintain its health and safety responsibilities to meet safety standards at its reservoirs, and it is already doing that. As James said, it is already acting in the spirit of the Act. The operating revenue that the regulator approves will therefore cover its health and safety responsibilities.

As he has said, the Minister intends to introduce the grant scheme to assist those who need help with inspection costs. That will not be required until perhaps at least 12 months down the line.

The Chairperson (Mrs Erskine): Will DFI administer the grant scheme?

Ms Clydesdale: It will be DFI funding, and DFI will administer it, yes.

The Chairperson (Mrs Erskine): OK. I will now bring in members.

Mr Stewart: Thanks very much for your presentation. The Chair has covered quite a few of the points. My first question relates to the breakdown of the reservoirs. There are 176 in total, of which 25% are in private ownership and 5% are owned by community groups. The rest are owned by Northern Ireland Water, the state or —.

Ms Clydesdale: We have a breakdown with us. Ryan can take you through it.

Mr Stewart: Yes, please do.

Mr Robinson: Of the 176 controlled reservoirs known to the Department, 93 are managed by Northern Ireland Water, 45 are in private ownership, 18 are managed by councils, 12 are managed by not-for-profit organisations and eight are managed by Departments.

Mr Stewart: You said that all the reservoirs that are owned by Northern Ireland Water, and the majority overall, operate in the spirit of the Act. Does that mean that they have carried out assessments and done the work that needed to be done for them to be ready to proceed as soon as the legislation comes into effect? In acting in the spirit of the Act, have those reservoirs had all the assessment work done that is required to bring them fully up to standard?

Ms Clydesdale: James, do you want to answer that question on the subject of responsible reservoir manager status?

Mr Kelly: That is exactly the term. When the Act comes into force, the legal term "reservoir manager" status will be conferred on those who follow it properly. We currently call it "responsible reservoir manager" status. Those who have had the status of responsible reservoir manager conferred on them have it because they operate in the spirit of the Act, as if it were already in place.

Mr Stewart: How many of the privately owned, council-owned or community-owned reservoirs have brought their reservoirs up to an acceptable standard?

Mr Kelly: Do you have the numbers to hand, Violeta?

Ms Morosan: I do. Of the council-owned reservoirs, 13 have responsible reservoir manager status and three have condition assurance, which is another status, whereby the Department is provided with an assurance, with which we are confident, that the reservoir is in a safe condition. Only one of the not-for-profit organisations has condition assurance. One private-sector owner has responsible reservoir manager status, while four have condition assurance.

Mr Stewart: OK. Is that because they have not been able to carry out the required assessments, have not got the money to do so or have not been able to do the work that is required to bring their reservoir up to standard, or is it a combination of all three?

Ms Morosan: In the absence of the commencement the Reservoirs Act, the Department has taken the lead on introducing those statuses purely for planning purposes in order to allow development to continue in cases in which it is proposed in proximity to controlled reservoirs. In cases in which there is responsible reservoir manager status, individuals or organisations are acting in the spirit of the Act, as you said, and will have appointed a supervising engineer and an inspecting engineer to take action to address any safety matters.

Works may not be required to reservoirs with condition assurance status. Those individuals or organisations will have taken a step forward and appointed an inspecting engineer, which assures the Department, in its role as a statutory consultee for planning purposes, that their reservoir is in a satisfactory condition. They may not have appointed a supervising engineer or an inspecting engineer, however, and, if that is the case, they are not acting fully in the spirit of the Act.

Mr Stewart: Pardon my ignorance if I have not fully grasped this, but where a safety inspector is brought in to assess, will there be a grant for that inspection? Will the grant cover any works that need to be done on the back of the inspections? Will there be a grant for both?

Ms Clydesdale: There are two elements to any grant. At the moment, the Minister has —.

Mr Stewart: It could be quite small, if no work is being done, but it could be huge. We just do not know.

Ms Clydesdale: Yes. The range of work that needs to be done will not be known until the inspection has been carried out. The first step in establishing the safety framework is to carry out the inspection. The Minister recognises that there is a cost associated with assessments in the first instance, particularly for the private sector and the not-for-profit companies, such as small angling clubs. Assessments thus need to be done before the capital costs can be established.

Mr Stewart: It is therefore hardly surprising that those reservoirs that are community-owned or privately owned and that might be struggling have done the assessment and the work, if they know that a grant is coming down the road.

Ms Clydesdale: Any grant awarded will not be retrospective.

Mr Stewart: No, but some of the reservoirs have already had work done to bring them up to the required standard, while others are potentially waiting for the grant before they do that work.

This is my final question. Is there a process to follow for privately owned or community-owned reservoirs that cannot be brought up to standard for any reason, such as cost or lack of logistical capacity? If so, what is the cost to the Department of taking that on or of it passing it on to NI Water or into public ownership?

Ms Clydesdale: In the event of a reservoir manager not fulfilling the obligations under the Act or not complying with the Act once it comes into force, there is a range of enforcement measures, as you would expect there to be with any legislation.

Mr Stewart: OK. Ultimately, one of those enforcement measures could be that it is acquired.

Ms Clydesdale: Sorry?

Mr Stewart: One of the enforcement actions is that the reservoir could ultimately be acquired by the Department or put into public ownership.

Ms Clydesdale: No, that is not one of the available enforcement actions. The responsibility for looking after the reservoir will rest with the reservoir manger when the legislation comes into force. The legislation does not include any powers for the Department to take on ownership of a reservoir that does not comply with the Act. The Act does, however, provide the Department with powers to step in in an emergency situation to protect public safety, if it thinks that there is going to be an imminent breach. The Act absolutely provides powers for the Department to step in in that instance, but it does not provide powers for it to take on ownership of a reservoir. The legislation will place the duty on reservoir managers, and a range of enforcement measures will be available if they do not comply with that duty.

Mr Stewart: Thank you very much.

Mr Dunne: Thanks, folks, for the presentation. It is a fact that, in 2015, the Assembly agreed the threshold — 10,000 cubic metres — above which reservoirs will be regulated, and I presume that departmental officials were involved in that decision. Can you explain the rationale behind deciding on that threshold? If the threshold were the same as that in England, at 25,000 cubic metres, how many reservoirs here would fall into that category?

Ms Clydesdale: The threshold is 10,000 cubic metres because that is what the Assembly agreed at the time. It is also 10,000 cubic metres in Wales. In England and Scotland, it is 25,000 cubic metres at the moment. Both jurisdictions have legislative provision for a threshold of 10,000 cubic metres, but that provision has not yet been commenced. I do not think that we have the numbers for those reservoirs that are over 25,000 cubic metres, because we have always dealt with a threshold of 10,000 cubic metres, because that is what the Assembly agreed.

Mr Dunne: Are there any here?

Ms Clydesdale: I do not know. I would have to check.

Ms Morosan: From memory, in the Reservoirs Bill correspondence from 2014-15, there was a debate about the benefit of moving from the 10,000 cubic metres threshold to the 25,000 cubic metres threshold. Doing so would have benefited only 10 reservoirs or so, so that was not taken into account. It was therefore agreed at the time to stick to the 10,000 cubic metres threshold for registering a controlled reservoir.

Mr Dunne: I will pick up on some of the concerns, although there are not huge numbers of them in the consultation. Where there are concerns, however, there are a number from different groups, from small angling groups to councils. We have to note those concerns. Financial assistance has been covered, but there is not enough detail on the impact that the Act could have on small fishing and angling clubs. There are genuine concerns out there. What level of grant aid will be available to them? Will it be 100%? Will there be additional costs, particularly for the smaller, not-for-profit organisations?

Ms Clydesdale: We are working our way through the business case at the moment. The cost of an inspection is the cost of an inspection, regardless of the type of reservoir. Inspection costs are known, and we estimate them to be somewhere in the region of up to £5,000 for the initial inspections that need to take place. We will be consulting on the detail of the grant scheme, the threshold and what have you, but we do not have that detail available at the moment.

Mr Dunne: You can appreciate the concern from the sector. Reservoirs will have to go down that road, and there will be costs, which could be crippling. It could be the case that the future of some of the reservoirs will be under threat, so that is something to be concerned about. Thank you.

Mr Boylan: Thank you very much for your presentation. Chair, almost all the questions have been answered. The grant issue and the role of the reservoir manager were raised in the consultation. You may not be able to do so, because it is not exactly defined yet in the draft SRs, but, if you can, can you expand on the role of the reservoir manager and talk about the grants? I have been dealing with a few angling clubs in my constituency that have slight concerns about those issues. Although the clubs have been good keepers of their reservoir, they have genuine concerns. What is the role of the responsible reservoir manager, or is it "reservoir manager"?

Ms Clydesdale: When the legislation comes into effect, the role will be "reservoir manager". The definition is set out very clearly in the Act. A "reservoir manager" is defined as the person who owns or operates the reservoir. If an angling club has a lease in place, whereby it owns and operates the reservoir, it will become the reservoir manger.

Mr Boylan: Are there responsibilities attached?

Ms Clydesdale: There are responsibilities under the Act that will apply to the club.

Mr Boylan: Are those responsibilities clearly indicated in the Act?

Ms Clydesdale: Yes. Ryan can tell you the exact section. I think that it is section 6.

Mr Boylan: It is OK. I am asking about it only for reference.

Mr Robinson: The general responsibility will be for the club to register when the Act comes into force. The Department will give the reservoir a designation, after which the reservoir manager will have six months to appoint a supervising engineer and 12 months to appoint an inspecting engineer for an initial inspection. It will then be for the reservoir manger to address any safety matters arising from the inspection report.

Mr Boylan: In the interim period since 2015, have any conversations been held with those people?

Ms Morosan: We regularly correspond with reservoir managers. We have done so for the past eight to 10 years. It is important to note that, in the absence of commencement of the Reservoirs Act, common law — Rylands v Fletcher — established that people should manage their assets responsibly and that, in the event of failure, the owner or operator is responsible for the damage. People should therefore be inspecting and maintaining their reservoirs, irrespective of the Reservoirs Act. We have evidence, however, that that is not the case, and that is why we need the legislation.

Mr Boylan: That is OK. I know that you cannot talk about the cost of each of the support grants, but can you go into any more detail on what an upgrade would entail?

Ms Clydesdale: Do you mean the capital grants?

Mr Boylan: Yes.

Ms Clydesdale: The Minister has indicated his intention to provide for inspections. Should an inspection show that work is needed, that would have to be looked at, and another business case would have to be produced for the capital costs. We do not currently have any evidence to suggest what the level of cost might be.

Mr Boylan: Is there a model that has been used anywhere else?

Ms Clydesdale: There is not. Each reservoir is individual, so the works required are individual as well. It is very difficult at present to estimate what the potential capital costs will be, but, without an inspection in the first instance, one will not know. If the Minister were to decide to support capital costs being provided further down the line, we would produce another business case, but, hopefully, the inspection process will have provided more evidence about the types of works that may need to be done.

The Chairperson (Mrs Erskine): How many instances do you know of where managers are not acting responsibly and in the spirit of the Act?

Ms Morosan: Currently, 97 of the 176 reservoirs in Northern Ireland have responsible reservoir manager status or condition assurance status. The rest do not, so they are not acting in the spirit of the Act.

Mr K Buchanan: Thanks for coming along. I have a couple of questions. You said that, of the 176 reservoirs, 45 have been identified as being in poor condition. Are the 45 that are in poor condition publicly owned, privately owned or managed by a not-for-profit organisation? If you add together the number of privately owned reservoirs and those managed by not-for-profit organisations, you get a total of only 56. Who therefore owns the 45 that are in poor condition? By that, I mean the sector. I am not talking about individuals.

Ms Clydesdale: I believe that the figure of 45 was arrived at as a result of the 2016 audit. Follow-up surveys have since been done in 2019, 2020 and 2021, so the figure of 45 may have changed.

Ms Morosan: I can give you some details in that regard. The 2016 audit was done at the request of the then Committee for Agriculture and Rural Development. The purpose of the audit was to determine the condition of reservoirs in Northern Ireland at the time and the likely cost of bringing them up to an acceptable standard for public safety. Data was obtained for 105 reservoirs. At the time, 132 controlled reservoirs were known to the Department. We excluded 46 that were managed by Northern Ireland Water, because those reservoirs were in a satisfactory condition.

Mr K Buchanan: How did you establish that they were in a satisfactory condition?

Ms Morosan: Northern Ireland Water was maintaining its reservoirs in the spirit of the Reservoirs Act 1975 in England and Wales. It had appointed supervising engineers and inspecting engineers.

The audit revealed that 76% of reservoirs — 45 in number — were deemed to be in poor or very poor condition. To help reservoir managers, the Department carried out further surveys of those 45, and serious concerns remained about at least 26. The other 19 were deemed as not needing urgent intervention by reservoir panel engineers. At that stage, we were conscious that the Reservoirs Act was not coming into operation too quickly, and the Assembly was not sitting, so, to help reservoir managers focus on their responsibilities, we carried out further surveys with specialist reservoir engineers in 2019. Those surveys identified nine reservoirs that required urgent intervention.

In 2016, 15 reservoirs had not been surveyed, so, in order to be diligent and to get a complete picture, we did further surveys in 2020 and 2021 that identified another two reservoirs of concern. The Department therefore had concerns about 11 reservoirs in total. We understand that some works were undertaken, but we are not in a position to scrutinise or validate those works, so concerns remain.

While some reservoir managers have taken action, others have not, and public safety risks remain. The majority of those reservoirs were in the private sector, with one from the third sector, and all were provisionally designated as "high-consequence", as there are properties in their flood areas. We identified over 1,000 properties at risk due to their proximity to those reservoirs of concern.

Mr K Buchanan: You talked about the designation of a reservoir: how will that ever change? . You can do a risk assessment of the probability and severity of an uncontrolled release. Additional works around a reservoir will reduce the likelihood of something happening, but the severity will stay the same. Yes, you will reduce the risk number, but if today you designate a reservoir as being "high risk", that will never change. If the reality is different, will you explain it to me?

Mr Kelly: The inspection regime will reflect that.

Mr K Buchanan: It will never change. If a reservoir fails, additional works will reduce the likelihood of it failing but not the severity of what will happen if it does fail.

Mr Kelly: The inspection regime for that reservoir will be more onerous than it is for one that carries a lesser risk. However, the gravity of the situation will not change, so the required level of inspection —.

Mr K Buchanan: That will not change, theoretically.

Mr Kelly: Yes.

Mr K Buchanan: If 20 houses beside it or farmland, for example.

Mr Kelly: Yes, but if it has a reservoir manager looking after it, it will be in good order, and there will be confidence that it is being cared for and looked after properly. The whole idea of the legislation is about reservoir safety and the safety of people who are in the vicinity of reservoirs. That is the motivation for it. The number of people living within the potential inundation footprint of that reservoir will not change. However, there will be a regulatory regime in place, inspections will take place and any defects that are highlighted will be attended to within the stipulated timelines. That will give confidence that the reservoir has a good bill of health, for want of a better term. Part of the reason why we are keen for the legislation to take effect is so that we have that formal regulatory role. A lot of people are working in the spirit of the legislation, which is great, but doing so is not a legal requirement, so we will bring that in.

Mr K Buchanan: When I register my reservoir, the inspection engineer will visit and I will probably give him all of the grant. He or she will take all of the grant.

Ms Clydesdale: We will be consulting on the details of the grant.

Mr K Buchanan: They will take all of the grant. Effectively, the inspection guy will come out and take all the grant. I will probably spend all of my grant on getting a list. Does the inspection engineer assess the reservoir for fencing and access? If somebody drowns in my reservoir, am I, as the reservoir owner, liable based on the legislation? Or am I only liable if it fails and floods somewhere? Is the site engineer inspecting access to my reservoir?

Mr Kelly: The legislation is about reservoir safety: the safety of the reservoir, its collapse and its inundation. The responsibility on access may exist in the common law responsibilities.

Mr K Buchanan: If the inspection engineer gives me a list of actions, I am obliged, by law, to implement them. Will that list include access to my reservoir? If the inspection engineer puts that down in his paper, every reservoir and every fishing lake in the country will be fenced off.

Ms Morosan: I will clarify that. The Reservoirs Act only looks at the safety of a reservoir and the consequences of a breach to the downstream population. People accessing a reservoir and drowning is a matter for the Health and Safety Executive.

Mr K Buchanan: So, the inspection is purely to do with reservoir failure and flooding as a result of it being breached. I am just concerned about the grant. I appreciate the point about the grant and what it covers. It will cover the cost of the inspection engineer, but he or she will leave a site with a list that will cripple angling clubs. Those clubs will not be able to survive: a small amount of work — possibly a bit of fencing or whatever — is OK, but any earthworks will cost thousands of pounds. How can we sign off on the legislation when we do not know what the grant will be? It is difficult. I will leave it at that, Chair. Thank you.

Ms Clydesdale: As I said, the grant scheme will not be required for 12 to 18 months.

Mr K Buchanan: At that point, the onus on the reservoir owner. He or she has no option. The grant could be £40.

The Chairperson (Mrs Erskine): I am concerned about that situation for angling clubs. I think that it will have a huge detrimental impact on them: they will fold overnight without knowing, indefinitely, what will come in a grant scheme.

Mr Durkan: Thanks for the evidence. We are glad to see the legislation; it has been a long time coming. That is not a reflection on those who brought it today, but it is ridiculous that nine years after the passage the Act that we are getting to this stage only now. Like I said, that is not your fault. It has been between Departments and there was a period in which we did not have an Executive.

Most of the points have been made. The success, or otherwise, of the legislation will come down to how it is it funded when passed. Alison, you said that public safety issues will remain if the Act is not fully enacted, but, even if it is fully enacted, unless adequate resource is put into the grant scheme, those public safety concerns will remain. I am sure you are aware of the Derry situation. There has been an ongoing issue with a reservoir there, where the council has finally been able to step in and become the responsible reservoir manager. That has been a huge impediment to development. Numerous planning applications have been —

The Chairperson (Mrs Erskine): Will you come quickly to your question, please?

Mr Durkan: — turned down. With regard to the impact that the current situation — the vacuum, if you like — has had on development or applications not just for new houses but for existing houses or on the insurance of existing houses, does DFI now have a role or will the reservoir managers have a role in relaying those changes to insurance companies? We have seen insurance premiums skyrocket for houses in inundation zones that were oblivious to the fact until eight years ago.

Ms Clydesdale: All the information is publicly available. I would have thought that insurance companies will welcome the introduction of this legislation in that it is introducing safety and, therefore, minimising the risk of an uncontrolled release of water from a reservoir. We have not spoken to the insurance companies directly, but the information will be fully available. In any case, they already have access to flood maps, which are publicly available. The enactment of the legislation would give the Department more powers than it has at the moment.

Mr Durkan: One does not envisage the grant being a huge amount. There will be one available to cover an initial inspection, and, hopefully, the capital works as well. However, there is space in between. Keith expressed a fear that the initial inspection will result in a list of works being issued that need to be done but are beyond the price range of some managers. It is also highly likely, if not inevitable, that the initial inspection will come back, and say, "You need to get more surveying or investigatory works done", which could cost another £100,000 or whatever. Will the grant bridge that gap as well?

Ms Clydesdale: James, you might want to detail what an inspecting engineer does.

Mr Kelly: The inspection engineer will be an all reservoir panel engineer. He will inspect the state of the reservoir in question — the controlled reservoir of more than 10,000 cubic metres — and highlight safety issues that require action. The supervising engineer will monitor that, but that inspection by the inspecting engineer will be required every 10 years. Is that right, Violeta?

Ms Morosan: Yes, every 10 years.

Mr Kelly: An inspection will be required at the start to work out what, if anything, is required at those reservoirs. The supervising engineer will then monitor, in the interests of safety, whether the matters that were identified by the inspecting engineer are being attended to in a timely manner. The inspecting engineer will then come back 10 years hence, unless something else has happened, there has been a change or somebody wants to do works that will require supervision. I am not sure if that answers your question.

Mr Durkan: So, the inspecting engineer will be qualified to inspect and assess everything —

Mr Kelly: Yes. He is a panel engineer.

Mr Durkan: — without having to require other agents or experts to come in at huge additional cost?

Mr Kelly: He or she will be the expert, yes.

Mr Durkan: Good. Turning to the issue of the grant, the Chair expressed concerns that Northern Ireland Water might not have the money for that and the Department is not in a particularly healthy situation either. Have you looked, not just at the funding but at how the grants will be prioritised? Will it be first come, first served? Do you have them ranked as higher or lower priorities? Has any consideration been given to that, or do you just want to get beyond this stage first?

Ms Clydesdale: We are looking at that through the business case. The Minister has confirmed that he intends to introduce a grant for those who need it. We are looking at the criteria for that.

Mr Durkan: Will there be any eligibility restrictions? For example, will councils be eligible to apply?

Ms Clydesdale: The eligibility criteria will have to be consulted on. We will have to agree that with the Minister in due course.

Mr Durkan: OK, thank you.

Mr McMurray: Going back to the 45 reservoirs that are not in a "satisfactory" condition, what state would a reservoir have to be in to require an urgent intervention? What are we talking about here?

Mr Kelly: It is probably useful to point out that if a reservoir is deemed to be "poor" or "very poor", it does not automatically follow that it is not stable.

Mr McMurray: OK.

Mr Kelly: If that reservoir required an emergency drawdown or something like that in order to lower its water level, and it did not have the pipes, the capacity, the sluices, the exits and the escapes to do that, it would be deemed to be "very poor". Just because a reservoir is classed as "poor" or "very poor", it does not automatically follow that it is not stable. I am not sure whether that answers your question.

Mr McMurray: No, that makes sense.

Mr Kelly: Other things may well be required. Each one is on its own, which reflects the fact that a lot of reservoirs here are very old. Many of them are more than 100 years old, and they are not getting any better by themselves. That brings us round to the importance of the legislation and its safety elements, and the requirement for the Act.

Mr McMurray: Does that reflect the fact that we are experiencing more intense bouts of weather and rain and that, therefore, the legislative provisions need to be implemented

Mr Kelly: We are operating in that context, yes, with the climate and weather that we have, and the changes that are coming to us. That train pulled out a long time ago. However, we are still working towards getting to the destination where we have a Reservoirs Act. The weather and the amount of water that is moving about can only exacerbate things, but each reservoir needs to be assessed on its own in order to consider the circumstances; the catchment; what is around it; its volume; its vulnerability; what is downstream of it; how it is served and constructed; and any other measures around and about it that may make it vulnerable. Two reservoirs of a similar size may be entirely different, depending on where they are.

Mr McMurray: I have two more questions. My next question follows on from Mr Durkan's point about the engineers and their qualifications. Are there enough engineers in Northern Ireland to do that job? Will that throw up a pile of problems?

Ms Morosan: The engineers tend to be multinational people who are willing to travel, so availability is not an issue. The Institution of Civil Engineers in London maintains a reservoirs committee that scrutinises applications. Under our Act, the Institution of Civil Engineers will make a recommendation to the Department, which will make an appointment to a specific reservoir panel.

The Chairperson (Mrs Erskine): One last thing.

Mr McMurray: OK. As the measures will be in legislation, what will be the potential repercussions for a reservoir manager who does not undertake sufficient works to bring their reservoir up to standard? What do you envisage happening there?

Ms Clydesdale: In the legislation, there is a range of enforcement sanctions. Those will be enacted as part of the suite of secondary legislation and will cover a range of areas. For example, there are sanctions if you do not register and there are different sanctions if you do not comply with a stop notice. That type of thing.

Mr McMurray: OK. Are there financial or judicial penalties?

Ms Clydesdale: Yes, there are. Ryan, do you want to cover the main bits of that?

Mr Robinson: There can be financial penalties and various sanctions. It really depends on the offence and the scale of the risk to safety.

The Chairperson (Mrs Erskine): Will you clarify exactly what the enforcement elements will be, as set out in the legislation? We are talking about small groups of men who, as a hobby, go out fishing. It is a recreational thing for those people, yet they would be taking on management of a reservoir, which could have serious consequences for them. Just outline exactly what enforcement will mean.

Ms Clydesdale: Sure. The enforcement clauses are set out in the SRs that were published with the consultation. I can go through them, but it might take me a while. Section 16 provides that an offence will occur where a reservoir manager fails to comply with the registration process. Sections 3 and 4 set out the maximum penalties for anybody who is found guilty of such an offence. Section 38 provides for enforcement in relation to supervision, inspection and record-keeping if the records are not kept. Section 52 sets out more enforcement in relation to the commissioning of engineers. Section 53 sets out enforcement in relation to other sections of the Act. There is an awful lot of detail. Would it be easier if I wrote to you with the detail on the enforcement?

The Chairperson (Mrs Erskine): Yes, please. That is a problem that we have in being able to make decisions on the SL1s. I am not confident that I have enough information. I am looking at the first SL1 that will be under consideration. Under the heading, "Purpose of the Statutory Rule", there is one line that states:

I could go and research all of that, take a look and try to tally it up, but I want to see, in black and white in front of me, exactly what I am deciding on in that SL1. I am deeply concerned that we do not have the detail. You said that you will have to go out and consult on the grant scheme. Clubs will fold and reservoirs will be left sitting. I genuinely believe that. As someone from the Fermanagh lakelands, that is a concern for me. I do not feel that I have enough information, so I would appreciate some more detail in writing.

Ms Clydesdale: On enforcement?

The Chairperson (Mrs Erskine): There has not been enough detail provided in the SL1s that are before the Committee. We will come to making a decision in a minute, and it will be for the Committee to decide. I would like some further information on the elements of the Act that the SL1s relate to. There are 140-odd sections in commencement order No. 1 and 70-odd in commencement order No. 2. I want to see the detail on exactly what those relate to.

Ms Clydesdale: The SRs were published as part of the consultation document that the previous Committee received. The full detail of the SRs has been published and is part of the consultation document, along with the explanatory note.

The Chairperson (Mrs Erskine): Today, this Committee has the SL1s in front of it, and this Committee has to decide on them. Speaking for myself, I do not feel that I have enough detail on exactly where that all sits. If you could provide us with some of that information in writing, that would be useful to the Committee.

Ms Clydesdale: OK.

The Chairperson (Mrs Erskine): Andrew, are you OK with the answers to your questions?

Mr McMurray: Yes.

The Chairperson (Mrs Erskine): OK. No one else has indicated.

Thank you for your evidence. Please remain for a minute while we see what the rest of the Committee feels about the SL1s. I might need you to explain some of the detail if we move to agreeing to them.