Official Report: Minutes of Evidence

The Chairperson (Mrs Erskine): We have oral evidence this morning from Mark Allen. You are very welcome to the Committee today.

Are members in agreement that the evidence session be recorded by Hansard?

The Chairperson (Mrs Erskine): OK, thank you.

Thank you, Mark, for coming to the Committee today. At the outset, let me say that I found the research paper really useful, and I thank you for the work that you put into it, going back over a decade's worth of how the Bill came to be. I found it really helpful for my understanding. I want to put that on record on behalf of the Committee. It is very useful and will be useful in the rest of our deliberations. Mark, without further ado, if you do not mind briefing the Committee for five minutes, I will then go to members for any questions.

Mr Mark Allen (Northern Ireland Assembly): Thank you, Chair, and thank you, members. You have mentioned where the paper is in the members' pack, Chair, so I will not go over that. The broad aim, as you said, was to provide an overview of where the Reservoirs Act has come to since 2007 — it has been 18 years. It was a bit of a challenge trying to put all of that into a paper, but, hopefully, it was accessible, and thank you for your comments on that. I am happy to take questions. In some instances, it may be that DFI Rivers or the Department is better placed to answer, but I will do my best where I can.

The figure on page 118 in your pack shows where it all began: the EU floods directive in 2007, which is when the potential flood risk from reservoirs became an area of concern. The Department at the time, the Department of Agriculture and Rural Development (DARD), responded to the situation. Effectively, it recognised that the rationale for legislation was that reservoir safety was being covered in Northern Ireland only by common law considerations, which were driven by the Rylands v Fletcher case of 1868. No dedicated or specific legislation dealt with reservoir safety or regulation. Rivers Agency then brought forward a Reservoirs Bill. There was quite a bit of consultation and engagement, including the creation of a stakeholder group in 2011, which led, ultimately, to the introduction of the Bill in 2014. You are well aware of the issues at that time: what size of waterbody constituted a reservoir, the proposal being a capacity of 10,000 cubic metres; the creation of a reservoir manager role with associated responsibilities; the creation of a reservoirs register; the introduction of a risk categorisation designation for reservoirs — low, medium and high; the requirement for regular inspections by engineers, particularly for medium- and high-risk designated reservoirs; and potential powers for the Department to bring forward a grant scheme.

The Bill was subject to extensive scrutiny and amendment by the Agriculture and Rural Development (ARD) Committee. I am here today because I was part of that process — I may have been here too long when I can remember that long ago — but I do not think that anyone else around the table today was here then. The Committee did extensive work and made a significant number of amendments — the figure touted at the time was, I think, about 200 — so the work done was significant.

Areas of concern that the Committee identified included, primarily, the lack of information on the physical condition of the reservoirs on which the Assembly was being asked to legislate and the associated costs; and how risk designations would be used, particularly the concepts of high risk and medium risk. There was also concern around the role of engineers. Indeed, some witnesses outlined the risk that the Bill might over-engineer or, effectively, add a level of engineering involvement that was not required, so that was a question. There were also concerns around the environmental impacts of changes and the costs to reservoir managers, particularly, in the Committee's mind, for reservoir managers in the third or voluntary sector, of whom there were a number.

The Bill received Royal Assent in July 2015. As I said, there were notable changes. I have picked out a couple to mention. The primary, major one was that the Act was to commence on a phased basis: not all of it came into force. One of the primary considerations for that was that the Department was to conduct an audit to establish the status, condition and costs of the reservoirs identified. At the time, we were talking about roughly 151 reservoirs; that was the Department's estimate. The Committee also secured a change to reservoir designation from risk to consequence. That was a convoluted process, but the Committee was content with what it secured, and that change received agreement in the House. There was also the removal of a prescribed minimum requirement for visits from a supervising engineer, which became a power for the Department to set by regulation, and the inclusion of a new requirement for an operational review report three years after Royal Assent. That was a quick summary. There were more changes; those are just the ones that I picked out.

In 2015 and early 2016, as part of the phased approach, Rivers Agency undertook a reservoirs review and audit. That meant that the number of reservoirs being considered dropped to 131. Rivers Agency did an audit of those, and 119 or 120 were assessed, 45 of which were in "poor" or "very poor" condition. Annex 1 of the paper sets out what "poor" or "very poor" condition constitutes. As I said, further analysis by the Department got the number of reservoirs about which it had very serious concern down to 26. At that time, the Department's assessment of the cost of repair for safety-related works, based on the 2016 audit, proposed an approximate figure of £10 million. There was subsequent audit activity in 2019, 2020 and 2021. To all intents and purposes, that resulted in identifying 11 reservoirs that required urgent action. The majority of those were privately owned, with one being managed in the third, or not-for-profit, sector.

A theme throughout the period was the fact that the move from 12 to nine Departments in 2016 required the transfer of statutory functions from their old Department to their new one. Reservoirs fell within that purview. They had been with DARD, and the intention was to move them to the Department for Infrastructure, but those functions were omitted from the order that delivered that change. As a consequence, the transfer of powers and functions did not occur until June 2021. There was a bit of a limbo period: the Department that was meant to own those powers and functions did not have them until June 2021. As you will be aware — I will not rehearse it — there was also significant political instability and disruption in that period, which impacted on whichever Department's ability to bring forward commencement orders or regulations to deliver the Act's full provisions. I think that the Department has previously spoken to you about that challenge.

In the absence of full commencement of the provisions, DFI made a number of interventions around practical applications, particularly in relation to strategic planning policy for development in proximity to reservoirs. There were two interventions in 2018. In 2018, there was a technical advice note, which became a technical guidance note in 2020. At that most recent iteration in 2020, the provisions sought to deliver a short-term pragmatic approach in the absence of the full implementation of the Act, and that works on the concept of responsible reservoir manager and condition assurance.

A significant thing that I included in the paper was the fact that Northern Ireland Water announced a £6·4 million investment in major reservoir improvements in 2021. That scheduled work was to improve 36 reservoirs owned by NI Water. It was scheduled to complete in September 2024.

Also within the purview of this Committee, DFI consulted on proposals to commence sections of the Reservoirs Act. That was done in 2021. Whilst there was a broad endorsement of the decision to bring those powers forward, there were concerns about the lack of detail on financial assistance, which was a key concern for many respondents.

The Committee has recently had a briefing on the three commencement orders and two sets of regulations. I will not deal with those at the minute.

We currently have 176 controlled reservoirs, according to the Department. You can see how the figure has changed over time. Here are a couple of concluding points. Despite the full provisions or obligations of the Act not being in place at present, reservoir managers continue to have a common law responsibility for reservoir safety. More specifically, they:

That raises the obvious question of whether reservoir managers, whilst they might face obligations under the legislation, may, if the provisions of the Act were fully commenced, also be afforded additional protection.

There have been changes in the number of reservoirs over the period that we have looked at. We have gone from 151 to 131 to 179 to 176. That has made the assessment of controlled reservoir capital and ongoing operational costs hard to determine, in the Department's defence. When the Act comes into force, it is not inconceivable that more reservoirs may appear, as managers are required to register them.

The approximate figure of £10 million was identified in 2016. DFI has estimated this figure as potentially being in excess of £13·7 million in 2025, but I do not know at this point whether that includes the £6·4 million that NI Water has committed. There appear to be particular concerns around 11 reservoirs. DFI data that I received suggests that there was remedial activity at those reservoirs, but there is no confirmation from a suitably competent reservoir engineer to verify that any works undertaken would meet the engineering standards relevant to reservoir safety. I referenced the fact that there have been pragmatic approaches to trying to deliver planning in proximity to reservoirs. I have not been able to assess the overall operational impact of those solutions on levels of development in such proximity.

My final point takes me back almost to where I began: 2014. At that time, the number of reservoirs and their condition, the cost of potential remedial action and responsibility for those matters were major issues of concern for the Agriculture and Rural Development Committee, as was the potential level and nature of public grant support. Many of those issues are still live today.

Thank you for your time. I am happy to take questions.

The Chairperson (Mrs Erskine): Thank you, Mark. The most interesting thing from the research paper is the fact that the concerns of the Committee back in the day are still live for us today. There still do not seem to be many answers to negate the concerns that the Committee has. We do not take away from the fact that this is about public safety as well. We are trying to strike a balance on that.

Your briefing paper states:

but that you have not been able to access that report. It has not been published anywhere, and there is no record of it. It definitely took place, but nobody seems to have had sight of it.

Mr Allen: My understanding is that, at that time, there was a behind-closed-doors briefing to the then ARD Committee. However, as you will be aware, reservoirs, by their very nature, are critical infrastructure, and information might enable people to identify where specific elements were, so there were considerations that impacted on the ability to publish that report.

The headline figures that came out of that have been in the public domain at various junctures. Indeed, I have noted that, at that time, DFI officials referenced the costings of 45 reservoirs that were in poor or very poor condition. Beyond that, you are correct that there is no published report in the public sphere that I have been able to access.

The Chairperson (Mrs Erskine): The Committee might want to check to see whether we can get access to it, just to inform ourselves. Am I right in saying that there has been nothing further since 2016?

Mr Allen: There was audit activity in 2019, 2020 and 2021. That moved the number of reservoirs requiring urgent intervention down from 45 to 26 and then to 11. I do not know whether the format of that activity was published in reports or whether it was simply an audit that was undertaken. I assume that there is a paper record of it at some level, but, to my knowledge, there has been no briefing on the full detail of any report that might have been prepared.

The Chairperson (Mrs Erskine): It would be interesting to see the differences to compare and contrast between 2016 and the intervening period since. It might be useful for the Committee to see the audits.

Mr Allen: Yes, I understand. You could see how that has developed.

The Chairperson (Mrs Erskine): Can we agree that now as an action?

The Chairperson (Mrs Erskine): The other thing that I want to check is to do with the common law that is in place at the moment. Have you come across any instance in the research that you have been conducting where that has been used or any instances where it may be used? Obviously, we are talking about high consequence. Some of the legislation still has to be enacted. Do you know of any episodes or instances where common law has been used?

Mr Allen: It was not in the purview of the paper, so, to be honest, I did not look at that. However, I remember that, back in 2014, because there was a concern about what people's obligations were in the absence of a Bill at that time, that very issue was rehearsed,

It goes back to that case from 1868, which specifically related to a reservoir that was built on land. There were mine shafts under the bed of the reservoir, and water leaked in and flooded the coal mine. In simple terms, that established a general responsibility around liability. The implication was that it set a precedent for imposing strict liability for inherently dangerous activities, which meant that, if someone engages in an activity that is potentially dangerous and something goes wrong causing harm to others, they can be held liable. It was in that context that the reservoir that had been built resulted in harm to the coal mines that were flooded, and there could have been houses or businesses downstream. I am not aware of any instances. You are getting out of my area. I am not a lawyer, but, in summary, that was the basis of the case that was made in 2014. I remember distinctly that the Department referred to common law consideration, and that was the basis of it.

The Chairperson (Mrs Erskine): Can I have more detail of the deliberations that the Committee had on changing from "risk" to "consequence"? That is quite important. For some, particularly private owners whose reservoirs may be deemed as "medium risk" or "high risk", that still is a consideration that they have to take account of, particularly when you think about the grant.

The Committee has been hearing about dewatering and things like that. Obviously, there is that environmental concern there too. Was that part of the deliberations on changing from "risk" to "consequence"?

Mr Allen: From memory, it was. It was as much about semantics and the fact that, in any parlance, the assumption with "high risk" is that it will fail, but the reality was that something could be high risk but in very good condition. At that time, from memory, it was the Committee's effort to try to provide language that reflected what was, in its mind, the reality. A massive reservoir of 50,000-plus cubic metres could have a high consequence and be very well built and very well maintained, so unlikely to fail. It is about trying to inform and educate, in some ways, how effective that has been. It is beyond my pay grade, but that was the consideration at that time. It was almost a red flag — if high and medium risk were applied to some, maybe that meant that these things were going to go overnight. However, that was not the intention. That clarification was accepted by the Department at that time.

The Chairperson (Mrs Erskine): Remedial work will potentially have taken place — you mentioned that — but an engineer will still have had to have come to assess that, regardless of whether the Department had signed it off.

Mr Allen: Correct.

The Chairperson (Mrs Erskine): Did the Committee have any concerns about the fairness of that at that time, in that owners had to employ somebody who had to come from England? That was at a cost to them.

Mr Allen: You are right. That is particularly the case with supervising engineers. As I highlighted in the paper, the original Bill was prescriptive about the number of visits that a supervising engineer would have to make to a medium- or high-risk reservoir. That was taken out. Effectively, the Committee believed — it also heard this from a few stakeholders — that the Bill at that time was, in some people's eyes, an over-engineering charter, and the question was whether that was required. In fairness, the Department and Minister reflected on that, and the minimum level was taken out and the power to make regulation given to the Department. It could make common regulation, but the power to have a minimum number of visits over a certain period was removed.

Mr Boylan: Mark, you are very welcome. You and I have dealt with a lot of things down through the years; we have been round the corners. I am trying to get a better understanding. It is fair to say that we know exactly what the status is now. I understand that we need to get an engineer out to do a full report, but, after all these years, I think that we have a fair idea of the number of reservoirs. Do we know the status of all reservoirs in 2025?

Mr Allen: I am not here to talk for the Department — it is for the Department to say — but its audit activity has given it a degree of confidence. The fact that we are at 11 reservoirs requiring urgent action and that the Department has a broad figure for the potential financial cost of those suggests that it has a reasonable idea.

Mr Boylan: I ask that in the context of bringing in legislation, and, regardless of whether we say high, medium or low, it will be clearly defined. The question was this: what general standard are they bringing a reservoir up to? The other issue was one of health and safety. We heard from anglers and members of the public who use reservoirs. This is my main question. Obviously, the funding package is a major issue, but is it private versus public? NIW has some, councils have some, and there are other ways of generating funding. There are responsibilities there. Are we saying that those in the largest bracket — the privately owned — will have most challenges? Is that what you are hearing in the conversations that you are having?

Mr Allen: Yes. I said that the majority of the 11 are privately owned, and one is in the third/voluntary sector. Theoretically, those are the people who are less able to afford it. The consultation in 2021 reflected people's concerns that those who were least able to pay were those who would most require grant aid. You are right: that is where the concerns lie.

Mr Boylan: I am trying to get a better understanding. At some point, we will move the legislation. Those are the kinds of questions that we have. A good body of work was done, but it has been around for a long time. Thanks very much for your paper.

Mr McMurray: Thank you for the paper, which is pretty comprehensive. There was a lot to get through. One thing became apparent at our most recent meeting when we took evidence from the anglers. We talked about the number of reservoirs fluctuating in and around 170, and that triggered something in my head. One of the things that arose was communication between owners and managers. From your previous knowledge of this, which is also very useful for us, is that continually raised as an issue?

Mr Allen: I will be honest: I have not looked at that. The Department engaged as part of the process that was undertaken. I have not seen what the methodology was in that regard. As you say, how we got to the number that we got to is probably a question for the Department. I remember one example very vividly. You will have heard of people perceiving something as a pond. I accompanied the then ARD Committee to the duck pond in Newtownards — any of you who are local will know it — which is actually a controlled reservoir, and houses have been built in its proximity. In local parlance, that was simply a pond, but its capacity was more than 10,000 cubic metres. As you looked at it, you could see from one side to the other. It was not be what you might perceive to be a reservoir, but, as the officials highlighted, had it flooded, most of Ards shopping centre would have flooded. Part of the challenge is that people are looking at a body of water and not realising the implications of its being a controlled reservoir. Part of the Department's emphasis was to try to get that message out at that time.

Mr McMurray: Thank you.

The Chairperson (Mrs Erskine): Does anybody else want to come in? Keith?

Mr K Buchanan: I have a quick question. It is a very good paper, and I appreciate that, Mark. I am confused about numbers; not your numbers, but the Department's numbers. I just do not know how many reservoirs there are. I will be blunt. I do not know who owns them, and I do not know where they are. That is not a reflection on your paper. There are all these magic numbers floating about. How do we ever agree anything if we do not know what the number is?

Mr Allen: I was at pains to point out how the number has changed over the time frame. It is for the Department to say why that was the case. Was it that people came forward? Was it, as I alluded to in my answer to Andrew, that people suddenly thought, "Oh, that might be a reservoir. I need to check that"? I am not sure why we have the fluctuation. All I know at the moment is that we have 176 reservoirs. The Department knows the ownership of those, so it has that information, and it knows the locations. Obviously, there is sensitivity about sharing that information. The paper includes where they are by district council area, but I assume that you will struggle to get any information beyond that, unless it is in closed session. One of the considerations that I had when I spoke to the Department was what I could and could not share. I made the point that the number may well change again if the Act's full provisions come in. We do not know whether it could go up or down, but the Department is best placed to give you a commentary on why that has evolved over time. It is very clear that the number has changed.

Mr K Buchanan: There may be more questions that we could ask — not of you, Mark, but of the Department.

The Chairperson (Mrs Erskine): Yes, definitely.

Mr K Buchanan: That was very good, thank you.

Mr Durkan: Thank you for that evidence, Mark. There is a lot of meaty stuff in there, as if it was not complicated enough. I am not saying that your paper has brought more complication, but there is more information to digest and try to read across, over and above what we have heard already. I have one wee issue, which is numbers-based. Your report mentions the 45 reservoirs that had been identified as poor or very poor and the fact that further work reduced that number to about 26 with serious concerns. Elsewhere in your report, however, you tell us that 48 reservoirs have no assurance status and that DFI needs to carry out an assessment of flood risk and to advise the relevant planning authority accordingly. Do we know what overlap there is between those that are poor or very poor and those that still await that flood risk assessment?

Mr Allen: The short answer is no, I do not. Again, I can work only with the information that I was provided with for that. That is a very valid question, but I do not have the information to be able to answer it at this point.

Mr Durkan: That is more worrying. It is not your fault that you do not have the answer, but it is worrying if there are reservoirs out there that there are serious concerns about and for which that assessment has still not taken place. They should maybe be prioritised.

Mr Allen: In the Department's defence, it gave indications that remedial works were undertaken on the 11 that it deemed to be the most concerning. However, as the paper highlights, that has not been assessed by a suitably qualified engineer to allow us to know whether the remediation work has been carried out to a standard. Where the impact on planning considerations and proximity is concerned, that work might mean that those reservoirs could get an assurance, but I do not know. In essence, your question, Mark, is this: are those 11 within the 48?

Mr Durkan: Yes. I do not know how those 11 were identified. Were they identified maybe because planning applications came along in proximity to them and the work then was done? How were they prioritised?

Mr Allen: I am not sure what the motivation was. The 11 were identified through the audit process, so that work was not driven by planning considerations but simply by trying to establish the condition of the reservoirs. There is almost a separate work stream in how those 45, 26 and 11 reservoirs interact with the interim solution that we have for development in proximity to reservoirs. That is definitely a matter for the Department to address; it is above my pay grade, I am afraid, but that is a very valid question.

Mr Durkan: OK. Thank you.

The Chairperson (Mrs Erskine): Thank you. Were you looking to get back in, Keith?

Mr K Buchanan: I have a quick question. If a developer or someone else were going to build houses beside one of those reservoirs, what response would come back from DFI Rivers about that body of water? If you are on a floodplain, you would get a response —

Mr Allen: Yes.

Mr K Buchanan: — so what way does that work now?

Mr Allen: That three-tier system, which I outline in my paper, is set out in the technical guidance note. It is on page 27 of my paper, which is page 110 of the Committee's pack. The "short-term/pragmatic approach" that is utilised falls, effectively, under three terms, the first of which is "Responsible Reservoir Manager Status", which means that the:

If the developer were to have that status, that would be taken into consideration.

If they had only condition assurance:

That would also be done in line with the Reservoirs Act 1975.

For those for which there is insufficient or no assurance on condition, management and maintenance, it effectively comes down to the Department actively arranging and considering an individual flood risk assessment. Flood risk maps from reservoirs are in the public domain as well as additional maps, which we do not have access to, that deal with depth and speed. Those are the factors that would be looked at whenever there is no assurance.

Mr K Buchanan: Thanks.

The Chairperson (Mrs Erskine): That is all that I have on my list, unless anybody is looking to get back in on any other points. There are a number of questions that the Committee still needs to scope out with the Department, even from what is in your report. I looked at the capital investment for NI Water. We need to find out whether that has occurred, its cost and whether anything remains that still needs to be done. We know about that in the context of Northern Ireland Water funding. We will also need to check that out as a Committee.

Mark, thank you very much. We appreciate the work that you did. It was good to be able to go through it with somebody with knowledge. Thank you, Mark, we really appreciate it.

Mr Allen: Thank you, Chair. Thank you, members.