BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Northern Ireland Orders in Council
You are here: BAILII >> Databases >> Northern Ireland Orders in Council >> Statutory Instruments 1999 No. 662 (N.I. 6)
URL: http://www.bailii.org/nie/legis/num_orders/1999/1990662(4).html

[New search] [Help]

Statutory Instruments 1999 No. 662 (N.I. 6)
The Water (Northern Ireland) Order 1999 - continued

Back to previous page

 

Notices requiring persons to carry out anti-pollution works and operations
     17.  - (1) Subject to the following provisions of this Article, where it appears to the Department that any poisonous, noxious or polluting matter is likely to enter, or to be or have been present in, any waterway or water contained in underground strata ("relevant waters"), the Department shall be entitled to serve a works notice on any person who, as the case may be, - 

    (2) For the purposes of this Part, a "works notice" is a notice requiring the person on whom it is served to carry out such of the following works or operations as may be specified in the notice, that is to say - 

    (a) in a case where the matter in question appears likely to enter any relevant waters, works or operations for the purpose of preventing it from doing so; or

    (b) in a case where it appears that the matter appears to be or have been present in any relevant waters, works or operations for the purpose - 

      (i) of removing or disposing of the matter;

      (ii) of remedying or mitigating any pollution caused by its presence in the waters; or

      (iii) so far as it is reasonably practicable to do so, of restoring the waters (including the fauna and flora in them) to their state immediately before the matter became present in the waters.

    (3) A works notice - 

    (a) must specify the periods within which the person on whom it is served is required to do each of the things specified in the notice; and

    (b) is without prejudice to the powers of the Department by virtue of Article 16(2)(a).

    (4) Before serving a works notice on any person, the Department shall reasonably endeavour to consult that person concerning the works or operations which are to be specified in the notice.

    (5) The Department may by regulations make provision for or in connection with - 

    (a) the form or content of works notices;

    (b) requirements for consultation, before the service of a works notice, with persons other than the person on whom that notice is to be served;

    (c) steps to be taken for the purposes of any consultation required under paragraph (4) or regulations made by virtue of sub-paragraph (b); or

    (d) any other steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a works notice.

    (6) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of paragraph (4) or of regulations made by virtue of paragraph (5)(b).

    (7) A person on whom a works notice is served may, within the period of 21 days beginning with the day on which the notice is served, appeal against the notice to the Appeals Commission.

    (8) Nothing in paragraph (1) shall entitle the Department to require the carrying out of any works or operations which would impede or prevent the making of any discharge in pursuance of a discharge consent.

    (9) Where the Department - 

    (a) carries out any such investigations as are mentioned in Article 16(1), and

    (b) serves a works notice on a person in connection with the matter to which the investigations relate,

it shall (unless the notice is quashed or withdrawn) be entitled to recover the costs or expenses reasonably incurred in carrying out those investigations from that person.

Grant of, and compensation for, rights of entry, etc.
     18.  - (1) A works notice may require a person to carry out works or operations in relation to any land or waters notwithstanding that he is not entitled to carry out those works or operations.

    (2) Any person whose consent is required before any works or operations required by a works notice may be carried out shall grant, or join in granting, such rights in relation to any land or waters as will enable the person on whom the works notice is served to comply with any requirements imposed by the works notice.

    (3) Before serving a works notice, the Department shall reasonably endeavour to consult every person who appears to it - 

concerning the rights which that person may be so required to grant.

    (4) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of paragraph (3).

    (5) A person who grants, or joins in granting, any rights pursuant to paragraph (2) shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the person on whom the works notice in question is served compensation of such amount as may be determined in such manner as may be prescribed.

    (6) Without prejudice to the generality of the regulations that may be made by virtue of paragraph (5), regulations by virtue of that paragraph may make such provision in relation to compensation under this Article as may be made by regulations by virtue of Article 7 of the Waste and Contaminated Land (Northern Ireland) Order 1997 in relation to compensation under that Article.

    (7) In this Article "relevant land" means - 

    (a) any land or waters in relation to which the works notice in question requires, or may require, works or operations to be carried out; or

    (b) any land or waters adjoining or adjacent to that land or those waters.

Consequences of not complying with a works notice
     19.  - (1) If a person on whom the Department serves a works notice fails to comply with any of the requirements of the notice, he shall be guilty of an offence.

    (2) A person who commits an offence under paragraph (1) shall be liable - 

    (3) If a person on whom a works notice has been served fails to comply with any of the requirements of the notice, the Department may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by the Department in doing it.

    (4) If the Department is of the opinion that proceedings for an offence under paragraph (1) would afford an ineffectual remedy against a person who has failed to comply with the requirements of a works notice, the Department may take proceedings in the High Court for the purpose of securing compliance with the notice.

Abstraction and impounding

Abstraction and impounding of water
     20.  - (1) Subject to paragraph (2), the Department may by regulations make such provision as appears to it to be expedient for the purpose of - 

    (a) controlling, restricting or prohibiting the abstraction of water from underground strata or waterways;

    (b) controlling, restricting or prohibiting the construction or alteration of any impounding works.

    (2) Regulations under paragraph (1) shall not apply to a person who - 

    (a) holds a licence under Article 10(1)(a) of the Electricity (Northern Ireland) Order 1992 (licences to supply electricity, etc.); and

    (b) is acting in accordance with an authorisation obtained from the Department under paragraph 2 of Schedule 5 to that Order (abstraction, diversion and use of water for hydro-electric generating stations).

    (3) Without prejudice to the generality of paragraph (1), regulations under that paragraph may include provisions - 

    (a) prohibiting the abstraction of water except in pursuance of a licence granted by the Department and in accordance with the provisions of that licence;

    (b) prohibiting the construction or alteration of impounding works except in pursuance of a licence granted by the Department and in accordance with the provisions of that licence;

    (c) for the issue, variation, transfer or revocation by the Department of any such licence as is mentioned in sub-paragraph (a) or (b);

    (d) as to the manner in which applications for the issue, revocation or variation of any such licence as is mentioned in sub-paragraph (a) or (b) are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such applications or decisions on any such applications;

    (e) for the holding of public local inquiries in such circumstances as may be prescribed;

    (f) for the payment, in such circumstances as may be prescribed, of compensation where any such licence as is mentioned in sub-paragraph (a) or (b) is revoked or varied;

    (g) for an appeal to lie to the Appeals Commission against any decision of the Department to issue, vary or revoke any such licence as is mentioned in sub-paragraph (a) or (b);

    (h) making persons guilty of an offence where there is a contravention of the regulations and for the imposition of fines on summary conviction of such an offence.

    (4) Regulations made by the Department under paragraph (1) shall contain such provisions as the Department may consider necessary for the protection of rights or interests affected by the regulations.

    (5) Where regulations made under this Article include provisions prohibiting the construction or alteration of impounding works except in pursuance of a licence granted by the Department and in accordance with the provisions of that licence, the Department shall consult the Department of Agriculture before issuing such a licence.

    (6) References in this Article to a waterway shall not include references to the sea or to any adit or passage constructed in connection with a well, borehole or other similar work for facilitating the collection of water in the well, borehole or work.

    (7) Any reference in this Article to the doing of anything in pursuance of such a licence as is mentioned in paragraph (3)(a) or (b) is a reference to its being done - 

    (a) by the holder of such a licence; or

    (b) by a person acting as a servant or agent of, or otherwise under the authority of, the holder of such a licence,

at a time when the licence is in force and in circumstances such that, if no such licence were in force, the doing of that thing would contravene a restriction imposed by regulations made under this Article.

    (8) In this Article and in Article 21, "impounding works" means either of the following, that is to say - 

    (a) any dam, weir or other works in any waterway by which water may be impounded;

    (b) any works for diverting the flow of any waterway in connection with the construction or alteration of any dam, weir or other works falling within sub-paragraph (a).

Power to make scheme of charges in connection with water resources
     21.  - (1) Where regulations made under Article 20 include provisions prohibiting the abstraction of water or, as the case may be, the construction or alteration of impounding works except in pursuance of a licence granted by the Department and - 

the Department may require the payment to it of such charges as may be specified in or determined under a scheme made by it under this Article.

    (2) The persons who shall be liable to pay charges which are required to be paid by virtue of a scheme under this Article shall be - 

    (a) in the case of a charge by virtue of paragraph (1)(a), the person who makes the application;

    (b) in the case of a charge by virtue of paragraph (1)(b) or (c), the person to whom the licence is granted or, as the case may be, the person holding the licence which is varied or is in force.

    (3) Provision made by a scheme for the purposes of paragraph (1)(c) may impose a single charge in respect of the whole period for which a licence is in force or separate charges in respect of different parts of that period or both such a single charge and such separate charges.

    (4) A scheme under this Article may - 

    (a) make provision with respect to the times and methods of payment of the charges which are required to be paid by virtue of the scheme; and

    (b) contain supplemental, consequential and transitional provision for the purposes of the scheme.

    (5) The Department, in framing a scheme under this Article, shall, so far as practicable, secure that the fees and charges payable under the scheme are sufficient, taking one financial year with another, to cover the expenditure incurred by the Department in exercising its functions under regulations made under Article 20.

    (6) Where the Department proposes to make a scheme under this Article the Department shall, in such manner as it considers appropriate for bringing it to the attention of persons likely to be affected by the scheme, publish a notice - 

    (a) setting out its proposals and specifying the period within which representations with respect to the proposals may be made; and

    (b) consider any representations which are duly made and not withdrawn;

and, if the Department decides, after considering any such representations, to make a scheme under this Article, the Department may do so either in accordance with the proposals contained in the notice or in accordance with those proposals as modified in such manner as the Department considers appropriate.

    (7) The Department shall take such steps as it considers appropriate for bringing the provisions of any scheme made under this Article which is for the time being in operation to the attention of persons likely to be affected by them.

Orders as to charges for abstractions of water or discharges
     22.  - (1) Without prejudice to Article 21, the Department may, for the purpose of defraying any expenses incurred by it under this Part in the execution of works for the purpose of ensuring the better use of water, by order make such provision as appears to it to be expedient with respect to the levying of charges on - 

being in each case persons who receive a measurable benefit by reason of the execution of the works.

    (2) An order under paragraph (1) shall be subject to affirmative resolution.

Works, etc.

Power of Department to carry out engineering or building operations
     23.  - (1) The Department may - 

    (a) carry out such engineering or building operations as it considers necessary or expedient for the purposes of any of its functions under this Part;

    (b) vary the flow of water in a waterway for those purposes; and

    (c) discharge water into any waterway or underground strata or on to land for those purposes.

    (2) The Department may, for the purpose of performing any functions under paragraph (1), exercise such compulsory powers relating to the performance of those functions as may be specified in an order made by the Department under this paragraph.

    (3) The Department shall, in exercising its functions under this Article, have regard to - 

    (a) the conservation of water resources;

    (b) the prevention of pollution;

    (c) the needs of the community with respect to water and the disposal of effluent;

    (d) the conservation and enhancement of the natural beauty and amenity of waterways and of land associated with waterways;

    (e) the conservation and enhancement of flora and fauna;

    (f) the conservation of any feature of archaeological, historical, architectural or traditional interest.

    (4) Schedule 2 shall have effect with respect to orders under paragraph (2).

Acquisition of land by Department
     24.  - (1) The Department may, for any purpose in connection with the performance of any of its functions under this Part - 

    (2) Where the Department wishes to acquire, otherwise than by agreement, any land for a purpose referred to in paragraph (1), the Department may make an order (in this Article referred to as a "vesting order") vesting that land in the Department.

    (3) Schedule 6 to the Local Government Act (Northern Ireland) 1972 shall apply subject to the modifications specified in Schedule 3 of this Order for the purpose of the acquisition of land by means of a vesting order under this Article as it applies for the purpose of the acquisition of land by means of a vesting order under that Act.

    (4) Nothing in section 5 of the Stormont Regulation and Government Property Act (Northern Ireland) 1933 (which relates to the taking and disposal of land for the public services) shall affect the disposal of any land acquired or taken on lease by the Department under this Article.

    (5) The power to make a vesting order under this Article in respect of land - 

    (a) which is the property of any public body which has power under any statutory provision to acquire land compulsorily; or

    (b) which is declared by or under any statutory provision to be inalienable,

shall not, where representations objecting to the proposal for making the order have been duly made by the owner of the land and have not been withdrawn, be exercised in relation to that land unless the proposal for making the order has been approved by a resolution of the Assembly.

    (6) In paragraph (5) "public body" means a body established by or under any statutory provision.

 		 
  Continue
© Crown copyright 1999
Prepared 12 April 1999

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/nie/legis/num_orders/1999/1990662(4).html