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Northern Ireland Orders in Council


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

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Collection of data and information by Department
     34.  - (1) The Department may - 

as it considers to be necessary for the purpose of performing any of its functions under this Part.

    (2) The Department may publish, or permit the publication of, any data or information collected, or the results of any research carried out, by or on behalf of the Department under paragraph (1).

    (3) The Department shall provide reasonable facilities for the inspection of records of data and information collected by it, or on its behalf, in pursuance of paragraph (1)(a), and for the taking of copies of, and extracts from, those records.

Miscellaneous

Abandoned mines
    
35.  - (1) If, in the case of any mine, there is to be an abandonment at any time after the expiration of the initial period, it shall be the duty of the operator of the mine to give notice of the proposed abandonment to the Department at least 6 months before the abandonment takes effect.

    (2) A notice under paragraph (1) shall contain such information (if any) as is prescribed for the purpose, which may include information about the operator's opinion as to any consequences of the abandonment.

    (3) A person who fails to give the notice required by paragraph (1) shall be guilty of an offence and liable - 

    (a) on summary conviction, to a fine not exceeding the statutory maximum;

    (b) on conviction on indictment, to a fine.

    (4) A person shall not be guilty of an offence under paragraph (3) if - 

    (a) the abandonment happens in an emergency in order to avoid danger to life or health; and

    (b) notice of the abandonment, containing such information as may be prescribed, is given as soon as reasonably practicable after the abandonment has happened.

    (5) Where the operator of a mine is the official receiver acting in a compulsory capacity, he shall not be guilty of an offence under paragraph (3) by reason of any failure to give the notice required by paragraph (1) if, as soon as reasonably practicable (whether before or after the abandonment), he gives to the Department notice of the abandonment or proposed abandonment, containing such information as may be prescribed.

    (6) Where a person gives notice under paragraph (1), (4)(b) or (5), he shall publish prescribed particulars of, or relating to, the notice in one or more local newspapers circulating in the locality where the mine is situated.

    (7) For the purposes of this Article, "abandonment", in relation to a mine, - 

    (a) subject to sub-paragraph (b), includes - 

      (i) the discontinuance of any or all of the operations for the removal of water from the mine;

      (ii) the cessation of working of any relevant seam, vein or vein-system;

      (iii) the cessation of use of any shaft or outlet of the mine;

      (iv) in the case of a mine in which activities other than mining activities are carried on (whether or not mining activities are also carried on in the mine), the discontinuance of some or all of those other activities in the mine and any substantial change in the operations for the removal of water from the mine; but

    (b) does not include any disclaimer under Article 152 or 288 of the Insolvency (Northern Ireland) Order 1989 (power of liquidator, or trustee of a bankrupt's estate, to disclaim onerous property) by the official receiver acting in a compulsory capacity.

    (8) In this Article - 

    "acting in a compulsory capacity", in the case of the official receiver, means acting as - 

    (a) liquidator of a company;

    (b) receiver or manager of a bankrupt's estate, pursuant to Article 260 of the Insolvency (Northern Ireland) Order 1989;

    (c) trustee of a bankrupt's estate;

    (d) liquidator of an insolvent partnership;

    (e) trustee of an insolvent partnership;

    (f) trustee, or receiver or manager, of the insolvent estate of a deceased person;

    "the initial period" means the period of 6 months beginning with the day on which paragraph (1) comes into operation;

    "mine" has the same meaning as in the Mines Act (Northern Ireland) 1969;

    "the official receiver" has the same meaning as it has in the Insolvency (Northern Ireland) Order 1989 by virtue of Article 356 of that Order;

    "relevant seam, vein or vein-system", in the case of any mine, means any seam, vein or vein-system for the purpose of, or in connection with, whose working any excavation constituting or comprised in the mine was made.

Power to give effect to Community and other international obligations, etc.
    
36.  - (1) Regulations may provide that the provisions of this Part shall have effect with such modifications as may be prescribed for the purpose of enabling Her Majesty's Government in the United Kingdom - 

    (2) In this Article - 

    "regulations" - 

    (a) in relation to any Community obligation, means regulations made by the Department; and

    (b) in relation to any international agreement, means regulations made by the Secretary of State;

    "related right", in relation to an obligation, includes any derogation or other right to make more onerous provisions available in respect of that obligation.

    (3) Regulations under this Article made by the Secretary of State shall be subject to annulment in pursuance of a resolution of either House of Parliament in the like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.

Prosecutions
    
37. No proceedings shall be instituted for an offence under this Part except by the Department or by or with the consent of the Attorney General.

Repeal, amendment and adaptation of local enactments
    
38.  - (1) If it appears to the Department that any local or private Act passed before the making of this Order - 

it may by order made subject to affirmative resolution repeal, amend or adapt that Act to such extent, or in such manner, as it considers appropriate.

    (2) In this Article "Act" includes an Act of the Parliament of the United Kingdom.



PART III

POWERS OF DEPARTMENT OF AGRICULTURE IN RELATION TO WATERWAYS

Introductory

Application and interpretation of Part III
    
39.  - (1) This Part does not apply to a reservoir or the sea.

    (2) In this Part - 

    "canal scheme" means a scheme prepared under Article 42(1);

    "the Department" means the Department of Agriculture;

    "premises" includes any land, vehicle or vessel;

    "regulations" means regulations made by the Department;

    "specified canal" has the meaning assigned to it by Article 42(5).

Matters to be taken into account in exercising certain functions
    
40.  - (1) The Department shall, in exercising its functions under this Part, have regard to - 

    (2) The Department shall, in exercising its functions under any statutory provision relating to drainage, have regard to the matters set out in sub-paragraphs (a) to (f) of paragraph (1).

    (3) In Article 11(2)(d) of, and paragraph 5(2) of Schedule 7 to, the Drainage Order for "section 2(2) of the Water Act (Northern Ireland) 1972" there shall be substituted "Article 40(2) of the Water (Northern Ireland) Order 1999".

Principal powers of Department in relation to waterways

Power of Department to carry out works and provide facilities in relation to waterways
    
41.  - (1) The Department may execute and maintain such works, including the dredging and maintenance of channels and the provision and maintenance of aids to navigation, as it considers appropriate for the purpose of improving or restoring, or promoting the recreational or navigational use of, any waterway.

    (2) The Department may provide, maintain, operate, improve or restore such facilities as it considers appropriate for the purpose of promoting the recreational or navigational use of any waterway.

Canal schemes
    
42.  - (1) Where the Department intends to carry out works under Article 41 in relation to a specified canal, the Department may prepare a scheme (a "canal scheme") for the carrying out of those works.

    (2) A canal scheme shall contain such particulars and shall be in such form as the Department may consider fit and, in particular, and without prejudice to the generality of the foregoing, shall contain such provisions as the Department may consider necessary for the protection of rights or interests affected by the scheme.

    (3) Every reference in this Part to a canal scheme shall be construed as including every map, drawing, plan, section and schedule annexed to such scheme.

    (4) Without prejudice to the generality of any other provision of this Part, the Department may, for the purposes of its functions under this Part - 

    (a) in relation to a specified canal, undertake, construct and maintain all such canal works and do all such things as are mentioned in Schedule 4;

    (b) reconstruct any works interfered with under the powers of a canal scheme, or construct new works in lieu thereof either in the same or a different place or position.

    (5) In this Part "specified canal" means a waterway specified in an order subject to negative resolution made by the Department for the purposes of this Article, being a waterway which, in the opinion of the Department is, or has been, a canal.

Powers of maintenance
    
43.  - (1) This Article applies to any waterway which is not a designated watercourse within the meaning of the Drainage Order.

    (2) The Department may, in relation to any waterway to which this Article applies, carry out such works of repair and maintenance as the Department may consider fit, and, for that purpose, the Department may exercise any of the powers mentioned in paragraph (3) and any other powers which may be reasonably necessary for, or incidental to, the carrying out of such works.

    (3) For the purposes of repairing or maintaining any waterway to which this Article applies, the Department may - 

General powers of the Department
    
44.  - (1) Without prejudice to the generality of any other provision of this Part, the Department may, for the purposes of its functions under this Part - 

    (2) The power conferred by paragraph (1)(a) to survey land includes power - 

    (a) to sink boreholes; and

    (b) to survey land for the purpose of determining whether it is appropriate or practicable for the Department to exercise any of its powers under this Part.

    (3) Subject to paragraph (4), the Department may temporarily close any waterway.

    (4) The Department, before closing any waterway, shall, except in the case of an emergency, give to all persons likely to be affected by the closure, such notice as is reasonably practicable.

    (5) Where the Department considers it appropriate, it may - 

    (a) carry out any experimental, advisory, research or development work either in relation to waterways generally or in relation to any particular problem relating to waterways;

    (b) enter into a contract or arrangement with any person for the carrying out of any such work;

    (c) make grants by way of contribution towards the cost of any such work undertaken by any person.

Provisions of the Drainage Order applied for the purposes of this Part
    
45.  - (1) The provisions of the Drainage Order specified in Part I of Schedule 5 shall, with the modifications of those provisions specified in Part II of that Schedule, apply in relation to works under this Part in the same manner as those provisions apply in relation to works under that Order and those provisions, as so modified, shall have effect as if they were provisions of this Part.

    (2) Article 25 of the Drainage Order (power of Department to carry out works on behalf of other persons) and Article 32 of, and Schedule 6 (except paragraph 2) to, that Order (protection of watercourses) shall apply in relation to waterways as those provisions apply to watercourses within the meaning of that Order.

    (3) Article 26 of the Drainage Order (power of Department to contribute to cost of works) shall apply in relation to waterways as that Article applies to designated watercourses within the meaning of the Drainage Order.

Power of Department to enter into arrangements for improvement or restoration of waterways
    
46.  - (1) The Department may enter into arrangements with any other body or person designed to bring about the improvement or restoration, or promote the recreational or navigational use, of any waterway.

    (2) The Department shall have power to do all things necessary or expedient for the purposes of, or in connection with, the carrying out of, any arrangements entered into by it under this Article and, in particular, may - 

Schemes extending outside Northern Ireland
    
47.  - (1) The Department may co-operate with any persons outside Northern Ireland (in this Article referred to as an "external authority") in the preparation and carrying out of schemes for the improvement or alteration of any waterway which is situated partly inside and partly outside Northern Ireland, and for the use, control or maintenance of works in relation to any such waterway whether provided in pursuance of any such scheme or otherwise.

    (2) For the purposes of any such scheme, the Department may enter into and carry into effect any arrangement or agreement with an external authority - 

but nothing in the arrangement or agreement shall diminish in any respect any responsibility of any party for any act or thing done by it or on its behalf.

    (3) A scheme under paragraph (1) shall specify - 

    (a) the extent of the works to be carried out; and

    (b) the manner in which, and the persons by whom and in what proportion, the cost of carrying out the scheme and of maintaining or operating anything constructed thereunder are to be borne.

    (4) For the purposes of carrying into effect in Northern Ireland any scheme under paragraph (1), the Department or any agent authorised by it to act on its behalf may carry out any such works as are referred to in Article 43(3)(a) to (d), and the Department may, without prejudice to any other provision of this Article, exercise any power exercisable by it under any other provision of this Part or the Drainage Order.

    (5) Nothing in this Article or in any scheme, arrangement or agreement made thereunder shall - 

    (a) prejudice the application of any provision of this Part in relation to any waterway, or part of a waterway, which is in Northern Ireland; or

    (b) prevent the Department from preparing and carrying into effect any canal scheme under this Part, or exercising any other function under this Part or the Drainage Order, in relation to so much of any waterway as is in Northern Ireland;

and so much of any scheme under this Article as relates to a part of any waterway in Northern Ireland may be treated as a separate scheme for the purposes of any provision of this Part.

Acquisition of land and other rights by the Department
    
48.  - (1) The Department may, for any purpose in connection with its functions under this Part (including the settlement of claims for compensation arising under this Part) - 

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

 
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© Crown copyright 1999
Prepared 12 April 1999


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URL: http://www.bailii.org/nie/legis/num_orders/1999/1990662(6).html