Drainage (Northern Ireland) Order 1973

PART I N.I. INTRODUCTORY

Title and commencement N.I.

1.—(1) This Order may be cited as the Drainage (Northern Ireland) Order 1973 … Commencement …

Paras.(2)(3)—Commencement

Interpretation N.I.

2.—(1) The Interpretation Act [1954 c.33] (Northern Ireland) 1954 shall apply to the interpretation of Article 1 and the following provisions of this Order as it applies to an Act of the Parliament of Northern Ireland.

(2) In this Order—

• [F1 “another member State” means a member State other than the United Kingdom;]

• [F2 “additional information” in any case where an environmental statement has been prepared in respect of a drainage scheme means any information relating to the statement which is not contained in it;

• “another EEA State” means an EEA State other than the United Kingdom;]

• “authorised” means authorised by the Ministry;

• “bank” means any bank, wall or embankment adjoining or confining, or constructed for the purposes of or in connection with, any watercourse, or for the protection of any land from flooding;

• [F3 “the Commission” means the Water Appeals Commission established under Article 7 of the Water and Sewerage Services (Northern Ireland) Order 1973;

• “consultation bodies” shall be construed in accordance with Article 12A(5);]

• “dam” includes a lock, weir or other structure whatsoever which is likely to affect the flow of water in any watercourse;

• “designated sea defences” means sea defences designated by the Drainage Council under this Order;

• “designated watercourse” means a watercourse designated by the Drainage Council under this Order;

• [F4 “the Directive” means Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC and Council Directive 2003/35/EC;]

• “drainage” includes protection;

• “the Drainage Council” has the meaning assigned to it by Article 3(1);

• “drainage scheme” means a scheme prepared under Article 11(1);

• [F5 “EEA State” means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed in Brussels on 17th March 1993;]

• “embankment” includes an embankment which is part of any sea defence works;

• [F6 “environmental information” means information in an environmental statement and any additional information provided in accordance with this Order in relation to an application or referral for a determination under Article 12A(8) or Article 12H(5) in relation to the likely environmental effects of the scheme which is the subject of the application;]

• [F7 “environmental statement” means a statement that includes—

  (a)

  such of the information referred to in Part I of Schedule 2A as is reasonably required to assess the environmental effects of the drainage scheme and which the Department can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile; and

  (b)

  at least the information referred to in Part II of Schedule 2A;]

• “fish pass” means a channel for the free run or migration of fish in, over or in connection with an obstruction in a watercourse, and includes a fish ladder or any contrivance which facilitates the passage of fish;

• [F8 “general advertisement” means publication of a notice—

  (a)

  in the Belfast Gazette; and

  (b)

  on the website maintained by the Department;

• “local advertisement” means a notice in one or more newspapers circulating in the immediate locality of a proposed drainage scheme;]

• “the Minister” and “the Ministry” mean respectively the Minister and the Ministry of Agriculture;

• “occupier”, in relation to any land, includes an agent or other person entrusted by any owner, occupier or person having an estate therein with the management thereof;

• “protection” means protection against flooding but not erosion by the sea;

• “sea defences” means any works designed for the protection against flooding by the sea of land and existing at the commencement of this Order;

• “sea defence works” means any works of construction, reconstruction, alteration, improvement, repair, maintenance, demolition or removal for the purpose of the protection against flooding by the sea of any land, and includes the sowing or planting of vegetation for that purpose;

• “sluice” includes any appliance capable of regulating the flow of water and all structures and apparatus connected with that appliance;

• “statutory provision” has the meaning assigned to it by section 1( f) of the Interpretation Act (Northern Ireland) 1954 [1954 c.33] ;

• “transferred provision” has the meaning assigned to it by section 1( g) of the said Act of 1954;

• “tree” includes bush and shrub;

• “watercourse” means any channel or passage of whatever kind, whether natural or artificial, through which water flows and, without prejudice to the generality of the foregoing, includes any river, stream, canal, ditch, drain, cut, culvert, dyke, sluice, valve, sewer, overland carrier, millrace or layde, but does not include any drain or sewer, or any water main or service pipe under the control of the Ministry of DevelopmentF9 .

[F10 (2A) In this Order, any reference to significant effects on the environment shall include a reference to such effects on the environment in another EEA State.

(2B) Expressions used in this Order and in the Directive have the same meaning for the purposes of this Order as they have for the purposes of the Directive.]

Para.(3) rep. by SLR 1976

F1 SR 1998/446

F2 In art. 2(2) definitions of "additional information" and "another EEA State" substituted (20.3.2006) for definition of "another EEA State" by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(1)(a)

F3 SR 2001/394

F4 In art. 2(2) definition of "the Directive" substituted (20.3.2006) by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(1)(c)

F5 Art. 2(2): definition of "EEA State" substituted (20.3.2006) by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(1)(d)

F6 Art. 2(2): "for the definition of "environmental information" there shall be inserted" definition of "environmental information" (20.3.2006) by virtue of Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(1)(e)

F7 Art. 2(2): "for the definition of "environmental statement" there shall be inserted" definition of "environmental statement" (20.3.2006) by virtue of Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(1)(e)

F8 Art. 2(2): "for the definition of "local newspaper" there shall be inserted" the definitions of "general advertisement" and "local advertisement" (20.3.2006) by virtue of Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(1)(f)

F9 Now D/Env., SRO (NI) 1973/504

F10 Art. 2(2A)(2B) substituted (20.3.2006) for "art. 2(2A) where it appears twice" by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 17(2)

PART II N.I. FUNCTIONS OF DRAINAGE COUNCIL AND MINISTRY

Functions of Drainage Council N.I.

3.—(1) The Council known as the Drainage Council for Northern Ireland (in this Order referred to as “the Drainage Council”) shall, subject to paragraph (2), continue in being as such, and the provisions of Schedule 1 shall have effect with respect to the constitution and proceedings of the Drainage Council.

Paras.(2)(3) rep. by SLR 1980

(4) The Drainage Council shall—

(a) after considering such particulars of any watercourses in Northern Ireland as may be submitted to it by the Ministry or by any other person, determine which of such watercourses, or portions thereof, are to be treated or, as the case may be, are not to continue to be treated as designated watercourses for the purposes of this Order;

(b) after considering such particulars of any sea defences in Northern Ireland as may be submitted to it by the Ministry determine which of such sea defences, or portions thereof, are to be or, as the case may be, are not to continue to be treated as designated sea defences for the purposes of this Order;

(c) consider the proposals of the Ministry in respect of drainage schemes, and substantial variations suggested by the Ministry in relation to drainage schemes;

(d) consider all bye-laws proposed to be made by the Ministry under Article 22 in respect of the maintenance and efficient operation of drainage works;

(e) consider drainage proposals affecting roads, bridges, culverts and embankments;

(f) consider such matters affecting or affected by drainage questions as may be referred to it by the Ministry or, after consultation with the Ministry, by any other government department.

(5) The Drainage Council, in determining matters coming before it in pursuance of this Article, shall have regard to the uniform treatment of drainage throughout Northern Ireland, and shall consider all such matters and schemes in their relation to any interest which may appear to the Drainage Council to be affected.

(6) The Ministry shall consult the Drainage Council with regard to the general drainage programmes from time to time proposed by the Ministry, shall cause an annual summary of the work of the Ministry in relation to drainage to be made available to the Council and shall, if requested, supply the Council with full information as to the progress of any drainage works being undertaken by or on behalf of the Ministry.

(7) The expenses of the Drainage Council, to such amount as may be approved by the Ministry of Finance, shall be paid by the Ministry.

Submission of particulars with respect to designated watercourses N.I.

4.  The Ministry or any other person may at any time submit to the Drainage Council such particulars as the Council may consider necessary to enable it to determine with respect to any watercourse whether that watercourse is to be treated or is not to continue to be treated as a designated watercourse for the purposes of this Order.

Right to apply for review of determination of Drainage Council N.I.

5.—(1) Any person aggrieved by a determination made by the Drainage Council under Article 3(4)( a) or 8(3) in relation to any watercourse or part of a watercourse affecting land owned or occupied by him may, within twenty-eight days from the date on which he is notified by the Council of such determination and on giving notice to the Council and to the Ministry referring to the determination and specifying the land, apply to the Lands Tribunal for a review of that determination.

(2) On an application under paragraph (1) the Lands Tribunal may review the determination to which the application relates, and any decision of the Lands Tribunal on such review shall have effect as if it were a decision of the Drainage Council.

(3) On a review under this Article, the person applying for the review and the Ministry shall be entitled to appear, be heard and adduce evidence before the Lands Tribunal, and for that purpose may appear by counsel or solicitor.

Ministry to be drainage authority N.I.

6.  Save as otherwise provided by this Order, the Ministry shall be the authority for the exercise of all functions conferred on or transferred to it under this Order or under any other statutory provision (whether passed before or after the commencement of this Order) in relation to the drainage of land, and for that purpose the Ministry may, subject to the provisions of this Order, exercise all such functions as are conferred on or transferred to it under this Order.

General powers of the Ministry N.I.

7.  Without prejudice to the generality of the provisions of Article 6, the Ministry may—

(a) undertake, construct and maintain all such drainage works and do all such things as are mentioned in Schedule 2;

(b) cause such surveys, reports and plans to be made as may be necessary for the purposes of this Order;

(c) reconstruct any works interfered with under the powers of a drainage scheme, or construct new works in lieu thereof either in the same or a different place or position; and

(d) execute such works and do all such other things as may be necessary for the purpose of the Ministry's functions under this Order.

Emergency works: watercourses N.I.

8.—(1) Where the Ministry is satisfied that any works are required, as a matter of urgency, to be exercised in relation to any watercourse, or the banks thereof, then, notwithstanding anything contained in this Order, the Ministry may,F11 . . . forthwith exercise, in relation to that watercourse, or those banks, all or any of the powers conferred on the Ministry by Article 14 as if a scheme, in respect of that watercourse or those banks, had been confirmed under Article 13.

[F11 (1A) The Department shall not incur expenditure exceeding £25,000 in relation to any watercourse or the banks thereof under paragraph (1) without the approval of the Department of Finance and Personnel.]

(2) Where the Ministry proposes to exercise its powers under paragraph (1), it shall as soon as may be furnish to the Drainage Council full particulars of the circumstances requiring the exercise of those powers and of the works which have been executed or which are required to be executed.

(3) If the watercourse in relation to which, or the banks of which, the particulars are furnished is an undesignated watercourse, the Drainage Council shall, on receipt of the particulars, determine whether or not the watercourse is to be treated as a designated watercourse.

(4) Where the Drainage Council determines, in pursuance of paragraph (3), that the watercourse is not to be treated as a designated watercourse, the Ministry may recover from any occupier of land who is, by virtue of Schedule 5, under a liability in respect of any portion of the watercourse the whole, or such proportion (if any) as the Ministry considers equitable, of the cost of the works executed under paragraph (1) in relation to that portion.

F11 1991 NI 6

Emergency works: sea defences N.I.

9.—(1) Where at any time prior to—

(a) the submission to the Drainage Council of particulars of any sea defences under Article 3(4)( b); or

(b) a determination by the Drainage Council on any such submission;

the Ministry is satisfied that those sea defences are in imminent danger of being breached by the sea or otherwise rendered ineffective, the Ministry may forthwith exercise in relation to those sea defences all or any of the powers conferred on it by Article 14 as if a scheme in respect of those sea defences had been confirmed under Article 13.

(2) Where the Ministry proposes to exercise any power by virtue of paragraph (1), it shall as soon as may be furnish to the Drainage Council full particulars of the danger apprehended and of the works necessary to avert it.

Powers of Ministry in relation to land N.I.

10.—(1) For the purpose of carrying this Order into effect (including the settlement of claims for compensation arising under this Order), the Ministry may, with the approval of the Ministry of Finance and subject to the provisions of this Order—

(a) acquire (either by agreement or compulsorily in accordance with the following provisions of this Article), or take on lease, any land;

(b) dispose of any land for the time being vested in it;

(c) carry out works on any land;

(d) restrict, terminate or otherwise interfere with easements, fisheries, water rights, inland navigation rights and other rights.

(2) Where the Ministry desires to acquire otherwise than by agreement any land which it considers necessary for the purpose aforesaid, it may make an order (in this Order referred to as a “vesting order”) vesting such land in the Ministry.

(3 )F12  Schedule 6 to the Local Government Act (Northern Ireland) [1972 c.9] 1972 shall, subject to the modifications thereof specified in Schedule 3 to this Order, apply for the purposes of the acquisition of land by means of a vesting order under this Article in the same manner as it applies to the acquisition of land by means of a vesting order under that Act.

(4 )F12  The power to make a vesting order in respect of land—

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

(b) which is declared by or under any transferred 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 to make the vesting order has been approved by a resolution of each House of Parliament.

F12 1948 c.25 (NI); 1950 c.11 (NI); 1954 c.1 (NI); 1955 c.15 (NI); 1965 c.9 (NI)

PART III N.I. DRAINAGE SCHEMES

Preparation of drainage schemes N.I.

11.—(1) If the Ministry is of opinion that the carrying out—

(a) of drainage works on a designated watercourse; or

(b) of works on any designated sea defences;

is expedient for the drainage of any land, the Ministry may prepare a scheme for the carrying out of those works, and for that purpose may make such surveys as shall appear to the Ministry to be necessary or expedient.

(2) Every drainage scheme prepared by the Ministry shall contain such provisions as the Ministry may consider necessary for the protection of rights (including rights to water cattle or other animals) or interests affected by the scheme, and shall show, either in the body of the scheme or by means of appropriate maps, drawings, plans, sections and schedules annexed thereto, the following matters—

(a) the watercourses, or the sea defences, proposed to be dealt with;

(b) the land which will be drained or otherwise improved by the carrying out of the scheme;

(c) the details of the drainage works proposed to be carried out in pursuance of the scheme, together with a description of the works to roads, bridges or culverts which will be necessary to enable the scheme to be carried out or to be effective for drainage purposes;

(d) the manner in which it is proposed to implement[F13 Article 40(2) of the Water (Northern Ireland) Order 1999].

(3) Without prejudice to Article 37, the officers, agents and servants of the Ministry may, at all reasonable times, on production (if so required) of their authority, enter on any land and do there all such things as may appear to them to be reasonably necessary or expedient for the purposes of the preparation of a drainage scheme.

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

F13 1999 NI 6

[F14 Restrictions on drainage schemes N.I.

12.   The Department shall not confirm a drainage scheme unless—

(a) it has complied with the requirements of Articles 12A to 12H in relation to the scheme; and

(b) where a proposal for the scheme has been referred to the Commission under Article 12H(5)—

(i) the Commission has consented to the carrying out of the scheme; and

(ii) the scheme is carried out in accordance with any conditions to which the consent is subject.]

F14 Arts. 12 - 12H substituted (20.3.2006) for arts. 12 - 12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), regs. 1, 18

[F15 Consultations and determination of whether a drainage scheme has significant effects on the environment N.I.

12A.— (1) Where the Department has prepared a drainage scheme it shall—

(a) consider, taking into account the selection criteria in Schedule 2B, whether the works specified in the scheme are likely to have significant effects on the environment;

(b) send a copy of the scheme, together with an estimate of the cost of the scheme, to the district council of the district or, as the case may be, each district in which the proposed works specified in the scheme are situate.

(2) The district council to which a copy of a drainage scheme is sent by the Department pursuant to paragraph (1)(b)—

(a) shall cause a copy to be exhibited at its principal offices or other convenient place during the period of 28 days from the date of the publication in the Belfast Gazette of the notice relating to the scheme given under paragraph (3) or Article 12B(2) and shall permit the copy to be inspected by any person;

(b) shall examine and consider the scheme; and

(c) may, at any time within the period referred to in sub-paragraph (a), send to the Department any representations with regard to the scheme which it wishes to make.

(3) Where, pursuant to paragraph (1)(a), the Department considers that the works specified in a scheme are not likely to have significant effects on the environment, it shall, by general and local advertisement—

(a) state that it proposes to carry out the works specified in the scheme;

(b) describe briefly the nature, size and location of those works;

(c) state that it does not intend to prepare an environmental statement in respect of the works specified in the scheme;

(d) state that any person may make representations to the Department in writing in relation to the likely environmental effects of the works at the address specified in the notice within 28 days of the publication of the notice in the Belfast Gazette; and

(e) describe what other information relating to the environmental effects of the works is available and give details of where it can be obtained.

(4) Every notice published pursuant to paragraph (3) shall—

(a) state the place or places where and the period, not being less than 28 days following the date of the publication of the notice in the Belfast Gazette, during which a copy of the scheme will be available for inspection; and

(b) state that any person who considers that his interests will be prejudicially affected by the scheme may, at any time within 28 days of the date of publication of the notice in the Belfast Gazette, send to the Department any representations with regard to the scheme which he wishes to make.

(5) Where, pursuant to paragraph (3), the Department publishes a notice, it shall send a copy of the notice to each of the consultation bodies, that is to say—

(a) the Drainage Council;

(b) the district council of the district or, as the case may be, each district in which the works to which the notice relates are situate;

(c) any other public authority, statutory body or organization which exercises statutory functions, or is otherwise designated by any statutory authority as having responsibilities relating to the environment; and

(d) any other person who appears to it to have an interest in the matter including, where appropriate, another EEA State.

(6) Where, within the period specified in paragraph (3)(d), no representations have been made to the effect that the works specified in a drainage scheme are likely to have significant effects on the environment, the Department may proceed to carry out the scheme.

(7) Where, following the period specified in paragraph (3)(d), the Department considers (whether in the light of any representations or otherwise) that the works specified in a drainage scheme are likely to have significant effects on the environment, it shall make a determination accordingly.

(8) Where, within the period specified in paragraph (3)(d), any representations have been made to the effect that the works specified in a drainage scheme are likely to have significant effects on the environment and, notwithstanding those representations, the Department still considers that the works are not likely to have significant effects on the environment, it shall apply to the Commission for a determination of whether the works specified in the scheme are likely to have significant effects on the environment and shall provide the Commission with all the relevant information and copies of all relevant documents in its possession.

(9) Where the Commission considers that the information and copy documents provided in accordance with paragraph (8) do not provide sufficient information to enable it to make a determination for the purposes of that paragraph, it shall notify the Department in writing of the matters on which further information is required and may make a written request to the Department for such information as the Department may be able to provide on the matters raised.

(10) Where an application is made to the Commission under paragraph (8) in relation to any drainage scheme the Commission shall, taking into account the selection criteria in Schedule 2B, determine whether the works specified in the scheme are likely to have significant effects on the environment and shall inform the Department and any person who made representations under paragraph (3)(d), of its determination.

(11) Where an application is made to the Commission under paragraph (8) in relation to any drainage scheme the Commission shall, prior to making a determination for the purposes of that paragraph, afford to the Department and to any person who made representations under paragraph (3)(d) in relation to works specified in the scheme an opportunity of appearing before and being heard by the Commission.]

F15 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F16 Drainage schemes likely to have significant effects on the environment N.I.

12B.— (1) This Article applies where—

(a) under Article 12A(7) the Department determines that the works specified in a scheme are likely to have significant effects on the environment; or

(b) under Article 12A(10) the Commission determines that the works specified in a scheme are likely to have significant effects on the environment.

(2) In any case to which this Article applies the Department shall by general and local advertisement—

(a) describe briefly the nature, size and location of the works specified in the scheme;

(b) state that the works specified in the scheme are likely to have significant effects on the environment and the Department intends to prepare an environmental statement in respect of the works;

(c) state that any person may obtain information from, or make representations in writing to, the Department in relation to the likely environmental effects of the works specified in the drainage scheme at an address specified in the notice within 28 days of the date of the publication of the notice in the Belfast Gazette;

(d) indicate the nature of the information in question and the times where and the means by which it will be made available;

(e) state the nature of the possible decisions that may be made in the case or, if there is one, the draft decision;

(f) indicate whether the works specified in the scheme are likely to have significant effects on the environment in another EEA State; and

(g) state that any person who considers that his interests will be prejudicially affected by the scheme may, at any time within 28 days of the date of the publication of the notice in the Belfast Gazette, send to the Department any representations with regard to the scheme which he wishes to make.

(3) Where the Department publishes an advertisement in accordance with paragraph (2) it shall on or before the date of the publication of the notice in the Belfast Gazette, send a copy of that notice to each of the consultation bodies.

(4) The Department shall make available to the public concerned any further information which is relevant to a case to which this Article applies but which only becomes available after the publication of the advertisement under paragraph (2).]

F16 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F17 Preparation of an environmental statement and consultations thereon N.I.

12C.— (1) The Department shall prepare an environmental statement in any case to which Article 12B applies.

(2) The Department may request the Commission to give an opinion as to the information to be contained in any environmental statement.

(3) Where the Department requests an opinion under paragraph (2) before a determination has been made under Article 12A(7) or (10), the Commission shall deal with the request on the assumption that the works specified in the drainage scheme will have significant effects on the environment.

(4) Before giving an opinion under paragraph (2) in relation to any drainage scheme the Commission shall consult the Department and each of the consultation bodies.

(5) Giving an opinion under paragraph (2) shall not preclude the Commission from requesting further information from the Department under Article 12H(6).]

F17 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F18 Publicity for an environmental statement N.I.

12D.— (1) Where the Department has prepared an environmental statement in relation to the works specified in a drainage scheme, it shall by general and local advertisement give notice in accordance with paragraphs (2) and (3).

(2) The advertisement shall state—

(a) that the environmental statement has been prepared and give details of the places where and times at which the statement may be inspected;

(b) that any person wishing to make representations in relation to the likely environmental effects of the drainage works to which the statement relates should make them in writing to the Department at the address specified in the advertisement within 28 days of the publication of the notice in the Belfast Gazette; and

(c) that where no objection in relation to the likely effects of the works specified in the scheme is made and the Department, having undertaken the assessment specified in Article 12H(1), considers that the scheme should proceed, it may proceed with the scheme.

(3) On or before the date of publication in the Belfast Gazette of the notice under paragraph (1), the Department shall—

(a) send a copy of the environmental statement and notice to each of the consultation bodies so that any such body has an opportunity to make representations as to the likely environmental effect of the works to which the statement relates before the expiry of the period specified in the notice;

(b) make available for inspection at an office of the Department or at some other convenient place, for a period of at least 28 days following the date of the publication of the notice in the Belfast Gazette, the details of the drainage scheme and the environmental statement relating to the works therein specified, and ensure that a reasonable number of copies of the statement are made available and, if a charge is to be made for any such copy under Article 12F, the amount of the charge.

(4) Where, in accordance with paragraph (3)(a), the Department sends any person a copy of an environmental statement it shall consult that person about the statement and the likely environmental effects of the proposed works to which it relates.]

F18 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F19 Assistance in the preparation of an environmental statement N.I.

12E.— (1) Subject to paragraph (6), where the Department is required to prepare an environmental statement in pursuance of Article 12C(1), it may consult with any person to determine whether that person has in his possession any information which may be relevant to the preparation of the environmental statement and if that person has any such information, he shall make it available to the Department.

(2) Where the Department has prepared an environmental statement in relation to any proposed works and made that statement available in accordance with Article 12D(3), the Department or, as the case may be, the Commission acting in accordance with Article 12H(6) may determine that there is additional information available.

(3) Subject to paragraph (6), the Department may consult with any person to determine whether that person has in his possession any additional information and if that person has any such information, he shall make it available to the Department.

(4) Where, pursuant to paragraph (3), the Department obtains any additional information, it shall—

(a) by general and local advertisement state that the additional information is available and give details of the places where and times at which a copy of that additional information may be inspected or obtained and, if a charge is to be made for any such copy under Article 12F, the amount of the charge; and

(b) state that any person who wishes to make representations in relation to the additional information should make such representations in writing to the Department at the address specified in the advertisement within 28 days of the date of the publication of the notice in the Belfast Gazette.

(5) At the same time as the notice in the Belfast Gazette is published under paragraph (4)(a), the Department shall—

(a) send copies of the additional information to each of the consultation bodies;

(b) make available for inspection at an office of the Department or at some other convenient place for a period of at least 28 days following the date of the publication of the notice in the Belfast Gazette, the additional information, the details of the proposed works in question and the environmental statement relating to the works and ensure that a reasonable number of copies of the information are made available.

(6) Nothing in paragraph (1) or (3) shall require the disclosure of information which is capable of being treated as confidential under regulation 12(1) or must be so treated under regulation 13(1) of the Environmental Information Regulations 2004 F20 .

(7) Any person making information available to the Department in accordance with paragraph (1) or (3) may make a reasonable charge reflecting the cost thereof and the Department shall pay the charge.]

F19 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

F20 S.I. 2004 No. 3391

[F21 Charges N.I.

12F.   A reasonable charge reflecting printing and distribution costs may be made to any person for—

(a) any copy, in excess of one, of the whole or any part of an environmental statement supplied to that person in accordance with Article 12D(3) or 13A; or

(b) any copy, in excess of one, of the whole or any part of any further information supplied to that person in accordance with Article 12E(5) or 13A.]

F21 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F22 Drainage schemes likely to have significant effects on the environment in another EEA State N.I.

12G.— (1) Where it appears to the Department that the works specified in a proposed drainage scheme are likely to have significant effects on the environment in another EEA State, or where another EEA State likely to be significantly affected so requests, the Department shall—

(a) send to the State, as soon as possible, and no later than the date of the publication in the Belfast Gazette of the notice referred to in Article 12B(2)—

(i) a copy of that notice; and

(ii) any available information on the possible significant effects of the proposed works on the environment of the State;

(b) make available to the State any further information which is relevant to the notice in the Belfast Gazette forwarded to it under sub-paragraph (a) but which only became available after its publication;

(c) inform the EEA State in writing that if it wishes to be consulted further in relation to the proposed drainage scheme in accordance with paragraphs (2) to (4) it must inform the Department of that fact within 28 days beginning with the day on which the Department forwarded the copy of the notice or other information, whichever is the later, to that State.

(2) Where an EEA State indicates in accordance with paragraph (1)(c), that it wishes to be consulted further, the Department shall send to that EEA State—

(a) a copy of the proposal for the drainage scheme;

(b) a copy of the environmental statement in respect of the scheme;

(c) all the information required to be given to any person under Article 12B; and

(d) relevant information regarding the procedure for consultation under this Part,

but only to the extent that such information has not been provided to the EEA State earlier in accordance with paragraph (1).

(3) The Department shall also—

(a) arrange for the particulars and information referred to in paragraphs (1) and (2) to be made available, within a reasonable time, to the authorities referred to in Article 6(1) of the Directive and the public in the territory of the EEA State likely to be significantly affected; and

(b) ensure that those authorities and the public are given an opportunity, before a determination is made as to whether the drainage scheme should proceed, to forward to the Department within reasonable time, their opinion on the information supplied.

(4) The Department shall in accordance with Article 7(4) of the Directive—

(a) consult with the EEA State concerned regarding, inter alia, the potential significant effects of the drainage scheme on the environment of that EEA State and the measures envisaged to reduce or eliminate such effects; and

(b) determine in agreement with the other EEA State a reasonable period of time for the duration of the consultation period.

(5) Where an EEA State has been consulted in relation to any proposed drainage scheme in accordance with paragraph (4) the Department shall inform the EEA State of the determination in respect of the drainage scheme in question and shall forward to it a statement of—

(a) the determination and any conditions attached thereto;

(b) the main reasons and considerations on which the determination is based; and

(c) a description, where necessary, of the main measures to avoid, reduce and, if possible, offset the adverse effects of the scheme.]

F22 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F23 Determination of whether a drainage scheme should proceed N.I.

12H.— (1) On the expiry of the period referred to in Article 12D(2)(b) the Department shall assess in the light of the environmental statement, any additional information and any representations made in accordance with Article 12D and Article 12G the direct and indirect effects of the proposed works on the environmental factors specified in Schedule 2C.

(2) Where—

(a) no objections in relation to the likely environmental effects of the scheme have been made; or

(b) any such objection has been withdrawn,

the Department, having undertaken the assessment required by paragraph (1) may determine, (unconditionally or subject to conditions) that the drainage scheme shall proceed.

(3) Where the Department has determined—

(a) in accordance with paragraph (2) that it should proceed with a drainage scheme; or

(b) that it should not so proceed,

it shall publish a general and local advertisement in accordance with paragraph (4).

(4) Each advertisement referred to in paragraph (3) shall—

(a) inform the public of the determination;

(b) give details of the places where and times at which the public may inspect a statement of—

(i) the Department's determination and any conditions to which it is subject;

(ii) the main reasons and considerations upon which the determination was based; and

(iii) where necessary, a description of the main measures to avoid, reduce and, if possible, offset the adverse effects of the works specified in the scheme.

(5) Where the Department, having undertaken the assessment specified in paragraph (1), considers that the scheme in question should proceed but objections to the works specified in the scheme made in relation to their likely environmental effects have not been withdrawn, it shall refer the proposal for a scheme together with the environmental statement, any additional information and any representations on it to the Commission for determination in accordance with paragraphs (6) to (9).

(6) Where the Commission considers that the information about a scheme supplied to it in accordance with paragraph (5) does not provide sufficient information to enable a determination to be made in relation to the works specified therein, the Commission shall notify the Department in writing of the matters on which further information is required and may make a written request to the Department for such information as it may be able to provide on the matters raised.

(7) Where, in accordance with paragraph (6), the Commission requests further information from the Department, the Department shall no later than the time when it provides that information to the Commission—

(a) by general and local advertisement at least 28 days before a determination as to whether the drainage scheme should proceed—

(i) state that the further information is available and give details of the places where and times at which a copy may be inspected; and

(ii) state that any person who wishes to make representations on the likely environmental effects of the drainage scheme to which the further information relates should make the representations in writing to the Commission at the address specified in the notice within 28 days of the date of the publication of the notice in the Belfast Gazette;

(b) on or before the date of the publication of the notice in the Belfast Gazette, supply a copy of the further information and notice to each of the consultation bodies so that they have an opportunity to make representations to the Commission on the likely environmental effects of the works specified in the scheme in question before the expiry of the period specified in the notice.

(8) The Commission shall—

(a) assess, in the light of the environmental statement, any further information provided by the Department in response to a request under paragraph (6) and any representations referred to in Article 12D, Article 12G or paragraph (7), the direct and indirect effects of the proposed scheme on the environmental factors specified in Schedule 2C;

(b) afford the Department and any person who made the representations the opportunity of appearing before and being heard by the Commission;

(c) having regard to the assessment under sub-paragraph (a) and the representations made under sub-paragraph (b) and having examined the concerns and opinions expressed by the public and the main reasons and considerations upon which the determination under consideration was based, including information about the public participation process—

(i) consent to the carrying out of the works specified in the scheme unconditionally or subject to such conditions as the Commission considers appropriate; or

(ii) refuse to consent to the works; and

(d) send to the Department and to any other person who made representations under Article 12D, Article 12G or paragraph (7) a statement in writing of—

(i) the Commission's determination under sub-paragraph (c) and any conditions to which the determination is subject;

(ii) the main reasons and considerations upon which the determination was based; and

(iii) where necessary, a description of the main measures to avoid, reduce and, if possible, offset the adverse effects of the scheme.

(9) The Department shall by general and local advertisement—

(a) inform the public of the Commission's determination under paragraph (8)(c); and

(b) give details of the places where and times at which the public may inspect a copy of the statement sent to the Department under paragraph (8)(d).

(10) In relation to any determination made by itself or by the Commission under this Article or Article 12A, the Department shall maintain a record of, and make available to the public on request the following—

(a) the content of the determination and any conditions attached;

(b) the main reasons and considerations on which the decision is based, including information about the public participation process; and

(c) a description, where necessary, of the main measures proposed to avoid or mitigate any major adverse effects.]

F23 Arts. 12-12H substituted (20.3.2006) for arts. 12-12E by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 18

[F24 Confirmation of drainage schemes N.I.

13.— (1) Where—

(a) the Department has determined in accordance with Article 12A(1)(a) that the works specified in the proposed scheme are not likely to have significant effects on the environment; and

(b) no representations made in accordance with Article 12A(3)(d) are received in relation to those works within the time limit therein specified,

it may, within 28 days of the expiration of the time limit referred to in Article 12A(3)(d) and, after considering any representations sent to it under Article 12A(4)(b) and after holding such inquiry, if any, as it considers necessary, by order confirm the scheme in whole or in part, either without modification or with such modifications as the Department thinks fit.

(2) Subject to paragraph (3), where the Department has prepared an environmental statement in relation to the works specified in a drainage scheme it may, after the expiration of 28 days from the expiration of the period of notice referred to in Article 12D(2)(b) and after holding such an inquiry, if any, as it considers necessary, by order confirm the scheme in whole or in part, either without modifications or with such modifications as the Department thinks fit.

(3) Where the Department has prepared an environmental statement in relation to the works specified in the drainage scheme it shall not, under paragraph (2) confirm the scheme unless it has first taken into consideration—

(a) the statement and any additional information;

(b) the works specified in the drainage scheme;

(c) any representations sent to it under Article 12A(3)(d), 12D or made by an EEA State in pursuance of Article 12G;

(d) the direct and indirect effect of the works on the environmental factors specified in Schedule 2C; and

(e) the determination made by the Department under Article 12H(2) or, as the case may be, any consent or refusal of consent given by the Commission under Article 12H(8)(c) and any conditions attached to such consent.

(4) Where having taken into consideration the matters specified in paragraph (3) the Department decides to confirm a scheme in accordance with paragraph (2) it shall—

(a) inform in writing any person who or EEA State which made representations in accordance with Article 12A (3)(d) or Articles 12D or 12G of its decision and any reasons and considerations upon which it was based and that in making it the Department has taken into consideration the matters specified in paragraph (3); and

(b) by general and local advertisement announce its decision and the considerations on which it was based and state that in making it the Department has taken into consideration the matters specified in paragraph (3).

(5) In this Article, modification includes a variation, addition or exception.]

F24 Arts. 13-13A substituted (20.3.2006) for art. 13 by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 19

[F25 Public Participation N.I.

13A.   The Department shall, in relation to any works specified in a drainage scheme, make available to the public—

(a) at the time that the notice in the Belfast Gazette relating to those works is published under Article 12A(3), all information that is relevant to them;

(b) any other information which is relevant to a decision under Article 13 and which only becomes available after the time that the public was given notice in accordance with Article 12A(3), whether as a result of a request from the Commission under Article 12A(9) or otherwise; and

(c) any further information which is relevant to the assessment under Article 12H(1) and which only became available after the time that the notice in the Belfast Gazette relating to those works was published under Article 12B(2).]

F25 Arts. 13-13A substituted (20.3.2006) for art. 13 by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 19

The carrying out of drainage schemes N.I.

14.  When the Ministry has made an order confirming a drainage scheme, then, unless the order is revoked, the Ministry shall proceed to carry out the scheme, and, without prejudice to any other provision of this Order, for that purpose the order shall operate to confer on the Ministry power—

(a) to construct, execute and complete the drainage works or sea defence works specified in the scheme, with such additions, omissions, variations and deviations as shall be found expedient in the course of the work;

(b) to enter on any land and do there all such acts and things as shall be reasonably necessary for, or incidental to, the construction, carrying out or completion of those drainage works or sea defence works, with such additions, omissions, variations and deviations as aforesaid;

(c) to do all such other acts and things as may be necessary for the purposes of the scheme;

(d) for the purpose of the due carrying out of the scheme, to do all or any of the following things—

(i) take from any land any earth, sods or other material required for that purpose;

(ii) deposit on any land all spoil or other material obtained in the course of such carrying out; and

(iii) utilise or dispose of any earth, sods, gravel, stone, rock or other material removed in the course of such carrying out.

Provisions in regard to roads, bridges, culverts and embankments N.I.

15.—(1) Where any works under a drainage scheme affect any road, bridge, culvert or embankment which is maintainable by any authority, the Ministry may either—

(a) itself design and carry out the works, subject to compliance with any requirement of the authority reasonably necessary for the purposes of traffic or other user; or

(b) agree in writing with the authority for the designing and, subject to consultation with the Ministry of DevelopmentF26 , the carrying out of the works by the authority, and for the payment by the Ministry to the authority of the whole or a proportion of the cost thereof.

(2) Where, in the carrying out of any works by the Ministry under paragraph (1)—

(a) any road, bridge, culvert or embankment has been improved as a means of communication or otherwise in consequence of the carrying out of those works, the authority shall bear such proportion of the expenses of the works as ought fairly to be borne by it;

(b) any extra expenses are incurred by the Ministry by reason of the carrying out of additional works at the request of any authority, such extra expenses shall be borne by the authority at whose request the additional works were carried out.

(3) Where an authority refuses, neglects or fails to give due effect to any such agreement as is referred to in paragraph (1) within the time provided by the agreement, the Ministry may do anything which ought to have been done by the authority, and the authority shall pay to the Ministry such proportion of the expenses incurred by the Ministry as would, but for such refusal, neglect or failure, have been properly borne by the authority.

(4) Any dispute between the Ministry and an authority arising under the foregoing provisions of this Article shall be referred to arbitrationF27 . . . .

(5) For the purposes of this Article, “authority” means any person entitled or liable to maintain any road, bridge, culvert or embankment, or any part thereof, whether under any public general, local or private statutory provision or under any order of court, scheme, deed or other instrument, or otherwise, and the provisions of any such statutory provision or instrument shall have effect subject to the foregoing provisions of this Article.

F26 Now D/Env., SRO (NI) 1973/504

F27 1996 c.23

[F28 Amendment of drainage schemes N.I.

16.— (1) Where, in the course of carrying out works specified in a drainage scheme, the Department considers that any provisions of that scheme ought to be substantially varied, it may, subject to paragraphs (2) and (3), after consultation with the Drainage Council and after giving notice to—

(a) such person as the Department considers likely to be materially affected; and

(b) any person who, or EEA State which, made representations under Article 12A(3)(d) or Article 12D or Article 12G,

direct that such variations be made in the scheme as appear to be necessary.

(2) The Department shall not direct that any variation be made in a drainage scheme unless it has first taken into consideration—

(a) the environmental statement and any additional information;

(b) the works specified in the scheme as the Department proposes to vary it;

(c) any representations made in accordance with Article 12A(3)(d) or Article 12D or Article 12G;

(d) the direct and indirect effect of the works on the environmental factors specified in Schedule 2C; and

(e) any determination made by the Department under Article 12H(2) or, as the case may be, any consent or refusal of consent given by the Commission under Article 12H(8)(c) and any conditions attached to such consent.

(3) Where, pursuant to paragraph (1), the Department gives notice of the variation of a drainage scheme which has been made subject to an environmental statement such notice shall be given in writing and shall indicate the reasons and considerations upon which the variation was based and that the Department has taken into consideration the matters specified in paragraph (2).

(4) Where a direction given under this Article varies a drainage scheme, that scheme shall have effect, and be deemed always to have had effect, subject to that direction, and, accordingly, references in this Order to a drainage scheme shall, in relation to that scheme, be construed and have effect as referring to that scheme as varied by that direction.

(5) A direction given under this Article shall not have effect so as to authorise the Department to purchase land compulsorily for the purposes of the drainage scheme otherwise than in accordance with, and subject to, the provisions of Article 10(3) and (4) and Schedule 3.]

F28 Art. 16 substituted (20.3.2006) by Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2006 (S.R. 2006/34), reg. 20

Compensation for certain losses due to construction of drainage works N.I.

17.—(1) Where any person suffers any loss by reason of the entry by the Ministry on any land owned or occupied by him, or by the construction of drainage works or sea defence works thereon, or by direct interference with any land belonging to him, the Ministry shall, subject to the provisions of this Order, pay to him reasonable compensation in respect of such loss, such compensation to be calculated in accordance with the following provisions of this Order.

(2) The Ministry may, before the carrying out of any drainage works or sea defence works, enter into an agreement with any person likely to suffer loss by reason of the carrying out of the works, whereby, in consideration of the carrying out of the works, the Ministry will be either wholly or partially exonerated from liability for payment of compensation in respect thereof, and the provisions of any such agreement shall bind that person and all the estate of that person, and any person deriving title under him in, to or over any land specified in the agreement.

(3) In lieu of awarding compensation, the Ministry may by agreement construct works or provide facilities to replace works or facilities which have been removed or impaired in the carrying out of drainage works or sea defence works; but, in the event of such construction or provision affording any additional or improved advantages, facilities or rights as compared with those existing prior to the carrying out of the drainage works or sea defence works, the Ministry may enter into an agreement with any person whereby a fair proportion of the cost incurred by the Ministry in connection with such construction or provision shall be borne by that person, and any sums so required to be borne shall be recoverable by the Ministry.

(4) Every claim for compensation under this Article—

(a) shall be made forthwith in writing to the Ministry, and such details of the claim as the Ministry may require shall be furnished in writing to the Ministry within such period as the Ministry may determine; and

(b) shall, in default of agreement, be heard and determined by the Lands Tribunal.

(5) In computing the amount of reasonable compensation, the Ministry may allow a sum in respect of the cost of the employment of any solicitor, and may allow a sum in respect of the cost of the employment of any engineer, surveyor or valuer, where the Ministry is satisfied that such employment has been necessarily and properly incurred in connection with the preparation of a claim for compensation, but, save as aforesaid, costs shall not be payable by the Ministry in respect of claims for compensation.

Compensation for injury to canals, fisheries, etc. N.I.

18.—(1) Where any person suffers any loss or damage by reason of an injury to any canal or other navigable inland waterway, to any water-power or other water right or to any fishery or fishing right, the Ministry shall, subject to the provisions of this Article and of Articles 19 and 40(6), pay him compensation in respect of injury where, but only where, such injury is caused by the operation of the drainage works or sea defence works, or by any particular mode or course of operation of such works, and would, apart from this Order, give rise to a right of action for damages against any person causing the injury.

(2) Every claim for compensation under this Article shall be made in writing to the Ministry and shall be made, in the case of an injury to a fishery or fishing right, within ten years or, in any other case, within one year after the completion of the drainage works or sea defence works in relation to which the claim arises.

(3) Every claim duly made for compensation under this Article shall, in default of agreement, be heard and determined by the Lands Tribunal.

(4) Paragraph (5) of Article 17 shall have effect for the purposes of this Article as it has for the purposes of that Article.

Matters to be regarded in assessing compensation N.I.

19.  When assessing compensation in pursuance of Articles 17 and 18, regard shall be had in every case to any benefit to any property (whether such property is or is not the property in respect of which such compensation is claimed) of the person claiming such compensation which is occasioned by, or may reasonably be expected to arise from the carrying out of, the drainage scheme in relation to which the compensation is claimed, and, in particular, regard shall be had—

(a) in the case of a claim in respect of a canal or other navigable waterway, to any permanent benefit to the navigation of such waterway occasioned by, or which may reasonably be expected to arise from, the carrying out of the drainage scheme, and to the extent to which that canal or waterway was used for purposes of navigation during the ten years immediately preceding the date of confirmation of the drainage scheme;

(b) in the case of a claim in respect of water rights, to any alternative water supply provided by the Ministry; and

(c) in the case of a claim in respect of interference with water or a watercourse providing power for a mill or other industrial concern or for domestic purposes, to the extent to which the power so provided was used during the ten years immediately preceding the date of the confirmation of the drainage scheme by the Ministry, and to any alternative source of power provided by the Ministry or otherwise available to the claimant.

Disposal of surplus lands, etc. N.I.

20.—(1) As soon as conveniently may be after the completion of any drainage works or sea defence works, the Ministry shall determine whether any, and if so, what land acquired by it under this Order for the purposes of the relevant drainage scheme is unnecessary, and not required, for the proper working and maintenance of any such works.

(2) Any land determined by the Ministry in pursuance of paragraph (1) to be unnecessary and not required as mentioned in that paragraph shall, subject to paragraph (3), be disposed of by the Ministry in such manner as the Ministry, with the approval of the Ministry of Finance, considers fit.

(3) The person from whom any such land was acquired by the Ministry, or such other person as appears to the Ministry to be the successor in title of such first-mentioned person in relation to that land, may, if, within three months from the completion of the works, he so requests the Ministry in writing, re-purchase such land at a price comparable with the price paid by the Ministry in respect of the acquisition thereof by the Ministry.

PART IV N.I. MAINTENANCE OF WATERCOURSES AND SEA DEFENCES

Powers of maintenance in relation to designated watercourses and sea defences N.I.

21.—(1) Subject to paragraph (2), the Ministry may, in relation to any designated watercourse or to any designated sea defences, carry out such works of repair and maintenance as the Ministry may consider fit, and, for that purpose, the Ministry may exercise any of the powers mentioned in paragraph (3) and any other powers which may be reasonably necessary for, or incidental to, the carrrying out of such works.

(2) Where any injury is caused to the property of any person by reason of the carrying out by the Ministry of any such works of repair or maintenance, he shall, subject to the provisions of this Order, be entitled to receive from the Ministry the like compensation in respect of such injury as would be payable under this Order if such injury had been caused in the carrying out by the Ministry of a drainage scheme under Part III.

(3) For the purposes of repairing or maintaining any designated watercourse or any designated sea defences, the Ministry may—

(a) maintain existing works, that is to say, cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or drainage work, or sea defence works;

(b) improve any existing works, that is to say, deepen, widen, straighten or otherwise improve any existing watercourse, or remove or alter dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any drainage work or sea defence works;

(c) construct new works which may be required for the purpose of repairing or improving the watercourse or sea defences;

(d) repair, strengthen, alter, replace or renew any existing embankment and, for that purpose, use any shingle, sand, clay, gravel, stone, rock or other material removed in the carrying out of any drainage work or sea defence works, and deposit any material so removed on any adjacent land.

Bye-laws N.I.

22.—(1) The Ministry may, after consultation with the Drainage Council, make bye-laws for ensuring the efficient drainage of land and, in particular and without prejudice to the generality of the foregoing provisions, may make bye-laws for any of the following purposes—

(a) regulating the use and preventing the improper use of any watercourse, banks or works constructed or maintainable by the Ministry, or for preserving any such watercourse, banks or works from damage or destruction;

(b) regulating the opening of locks, sluices and floodgates in connection with any of those works;

(c) compelling the occupier of any land on or through which any watercourse to which this Article applies runs, or of which such watercourse forms a boundary, to cut vegetable growth in or on the banks of the watercourse and, when cut, to remove the same therefrom;

(d) providing that, on the default or failure of any person to fulfil any obligation imposed on him under bye-laws made by the Ministry under this Article, the Ministry may enter on any land and do any act or thing necessary to fulfil that obligation, and that the amount of any expenses thereby incurred by the Ministry shall be paid to it by such person and may, without prejudice to any other remedy, be recoverable summarily from him as a debt to the Ministry.

(2) Schedule 4 shall have effect with respect to the making of bye-laws under this Article.

(3) Bye-laws made by the Ministry under this Article may provide for offences against them to be punishable on summary conviction by a fine not exceeding[F29 level 3 on the standard scale] and in the case of a continuing offence, an additional fine not exceeding £5 for each day during which the offence continues after written notice of the offence has been given.

(4) The prosecution or conviction of any person for an offence against any bye-law under this Article shall not prejudice or affect any civil or other liability of that person which may arise by reason of any act or omission constituting that offence, and shall not prejudice or affect any liability of that person arising under any other statutory provision by reason of such act or omission.

F29 1984 NI 3

Liability of occupiers of land protected by sea defences N.I.

23.—(1) This Article shall have effect in relation to land (in this Article referred to as “protected land”) protected by designated sea defences, but without prejudice to the provisions of Schedule 5.

(2) The Ministry may formulate a scheme providing for the carrying out on any protected land of such ancillary works, including the installation, operation and maintenance of such pumps or other plant as appear to the Ministry to be necessary to secure the efficient drainage of that land.

(3) The Ministry may serve on any occupier of any protected land a notice in writing requiring him, within such period as may be specified in the notice, to comply with the scheme or so much thereof as may be so specified.

(4) The provisions of paragraphs 6 to 8 of Schedule 5 shall have effect for the purposes of this Article as if in terms made applicable thereto.

(5) Nothing in this Article shall render an occupier of protected land liable for the reconstruction, repair or maintenance of any embankment forming part of sea defence works, nor of valves or other works forming part of such works.

(6) Articles 11 to 14 shall not have effect in relation to a scheme formulated under this Article.

Duty of occupiers with respect to undesignated watercourses N.I.

24.  The provisions of Schedule 5 shall have effect in relation to the duties of occupiers of land with respect to undesignated watercourses, and to the other matters specified in that Schedule.

PART V N.I. EXECUTION AND FINANCING OF CERTAIN WORKS

Power of Ministry to carry out works on behalf of other persons N.I.

25.—(1) Without prejudice to the provisions of Article 15 or of section 8 of the Agriculture Act (Northern Ireland) [1949 c.2] 1949, the Ministry may, by agreement with any person, carry out with respect to any watercourse and at the expense of that person any works which that person is required under any statutory provision, or is entitled, to carry out, and that person shall, subject to Article 26, pay the cost of any such work to the Ministry.

(2) The provisions of Article 40(8) shall have effect with respect to an agreement made under this Article, but, subject thereto, nothing in this Order shall diminish in any respect any responsibility of any person for any act or thing done in pursuance of any such agreement by or on behalf of that person.

Power of Ministry to contribute to cost of works N.I.

26.  Where the Ministry considers that the carrying out of any works, whether by the Ministry under Article 25 or by any other person, is conducive to the better maintenance or the improvement of any designated watercourse or of any fishery in respect of which the Ministry is liable to provide protection under Article 40, the Ministry may contribute towards the cost of those works such amount as is, in the opinion of the Ministry, commensurate with any benefit derived from the carrying out of those works.

Agreements with occupiers of land for contributions towards cost of certain works N.I.

27.—(1) Where the occupier of any land requests the Ministry to carry out drainage works on a designated watercourse and the Ministry is satisfied that, in the circumstances of the case, the whole cost of the works should not fall to be paid out of public funds, the Ministry may enter into an agreement with the occupier whereby the Ministry shall carry out the drainage works in consideration of the occupier reimbursing to the Ministry such proportion of the cost thereof as may be specified in the agreement.

(2) Any money required to be reimbursed pursuant to any agreement under paragraph (1) shall be recoverable by the Ministry.

Agreements for contributions towards cost of sea defence works N.I.

28.—(1) Without prejudice to the provisions of Article 15, where, before submitting to the Drainage Council, under Article 3(4)( b), particulars of any sea defences or, as the case may be, before exercising the power conferred by Article 9, the Ministry is satisfied that the carrying out of drainage work, or, as the case may be, of anything authorised by Article 9, will extinguish or substantially diminish the liability of any public body or other authority in respect of the reconstruction, repair or maintenance of the sea defences concerned, or otherwise enure for the benefit of such body or authority, the Ministry may, before proceeding under either Article 3(4) or 9, enter into an agreement with the body or authority concerned whereby, in the event of those sea defences being determined by the Drainage Council to be designated sea defences, that body or authority will become liable to pay to the Ministry such sum or sums as may be agreed on by way of contribution towards the expenses that may be incurred by the Ministry in respect of those sea defences.

(2) Any money required to be paid pursuant to any agreement under paragraph (1) shall be recoverable by the Ministry.

PART VI N.I. MISCELLANEOUS AND GENERAL

Transfer, etc., of drainage trusts and funds to the Ministry N.I.

29.—(1) Any trustee or other person (including a government department) holding any property on trust for the purpose of draining, or maintaining or improving the drainage of, any land may, notwithstanding anything in any statutory provision or in any scheme, order of court, deed or other instrument constituting the trust, and without the concurrence of any other person or authority, by agreement, transfer to the Ministry all or any of the property, powers, rights, duties, assets and liabilities of the trust on such terms and conditions as may be agreed with the Ministry, and the Ministry may accept any property so transferred.

(2) The Ministry may apply, for any drainage purpose connected with the land for the benefit of which the trust was constituted, any property accepted under paragraph (1), and any statutory provision or instrument mentioned in that paragraph shall have effect subject to the provisions of this Article.

(3) A transfer made under this Article shall effectively release and discharge the transferor from all duties, claims and liabilities in respect of the trust property thereby transferred to the Ministry, other than a claim or liability in respect of any antecedent breach of trust on the part of the transferor.

(4) Any power conferred by paragraph (1) on a trustee in relation to any trust may be exercised on his behalf by any court having jurisdiction to administer that trust, and any scheme or order made by such court may provide for the appointment, on such terms and subject to such conditions as the court may consider just, of the Ministry as a trustee for the purposes of that trust in any case where the Ministry is willing to act as such.

(5) Paragraphs (2) and (3) shall apply to any property held by the Ministry on trust for any of the purposes mentioned in paragraph (1) as they apply to any property transferred to the Ministry under that paragraph.

[F30 [F31 Dissolution of drainage trusts N.I.

29A.— (1) The Department may by order dissolve a trust to which this Article applies.

(2) This Article applies to—

(a) any trust constituted by a scheme under section 27(2) of the Northern Ireland Land Act 1925 (c. 34) (trusts for the maintenance of watercourses or other works);

(b) any trust in relation to which there has been a transfer under Article 29;

(c) any other trust constituted—

(i) for the purpose of draining any land; or

(ii) for the purpose of maintaining or improving the drainage of any land,

of which the Department is a trustee.

(3) Before making an order under paragraph (1), the Department shall publish—

(a) in the Belfast Gazette; and

(b) in at least two newspapers circulating in the area to which the trust relates,

a notice of intention to dissolve the trust.

(4) The notice of intention to dissolve the trust shall—

(a) identify the trust;

(b) give details of any provision proposed to be included by virtue of paragraph (6)(a) in the order dissolving the trust;

(c) give notice that any person, who considers that the proposed dissolution of the trust would subject him to a significant detriment, may object to the Department in writing in relation to that dissolution, at the address specified in the notice, within 28 days of the publication of the notice in the Gazette.

(5) After considering any objections received in accordance with paragraph(4)(c), the Department may make an order under paragraph (1) unless it is satisfied that the dissolution of the trust in accordance with the order would subject any person to a significant detriment.

(6) An order under paragraph (1)—

(a) shall provide for the application of any property forming part of the trust;

(b) shall provide for all rights, duties, obligations and liabilities arising under the trust to be extinguished; and

(c) may contain such other incidental or supplementary provisions as the Department thinks necessary or expedient in connection with the dissolution of the trust.

(7) An order under paragraph (1) has effect in relation to a trust notwithstanding anything in any statutory provision or in any scheme, court order, deed or other instrument constituting the trust.

(8) An order made under paragraph (1) shall be subject to negative resolution.]]

F30 2005 NI 8

F31 2005 NI 8

Drainage schemes extending outside Northern Ireland N.I.

30.—(1) The Ministry 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 drainage of any land which is situate partly inside and partly outside Northern Ireland, or for the improvement or alteration of any watercourse so situate, and for the use, control or maintenance of works which are provided in pursuance of any such scheme, or which enable drainage to be controlled or improved.

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

(a) for the carrying out of any work or the doing of any act or thing specified in the arrangement or agreement, or for the settlement of claims for compensation for loss or injury arising therefrom (including the investigation of such claims and, where necessary, the assessment and payment of compensation, the carrying out of remedial works in settlement or partial settlement and the securing in advance of releases from claims)—

(i) by the Ministry or by the external authority, or by the Ministry and the external authority acting jointly;

(ii) by the external authority as agent for and on behalf of the Ministry;

(iii) by the Ministry as agent for and on behalf of the external authority;

(b) for making any resources (including plant, machinery, equipment, accommodation and [F32 , with the approval of the Department of the Civil Service,] services of staff) of one party to the arrangement or agreement available to the other;

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 Ministry or any agent authorised by it to act on its behalf may carry out any such works as are referred to in Article 21(3)( a) to ( d), and the Ministry may, without prejudice to any other provision of this Article, exercise any power exercisable by it under any other provision of this 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 Order in relation to any watercourse, or part of a watercourse, which is in Northern Ireland; or

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

and so much of any scheme under this Article as relates to a part of any watercourse in Northern Ireland may be treated as a separate scheme for the purposes of any provision of this Order, and Article 42(1) shall apply to any expenses incurred by the Ministry in respect thereof.

F32 SR 1976/281

Noxious weeds N.I.

31.  Notwithstanding any statutory provision or rule of law to the contrary, the deposit by the Ministry on any land, not the property of the Ministry, of spoil or other material excavated in the course of the carrying out of drainage works or sea defence works shall not render the Ministry subject to any civil or criminal liability in respect of any noxious weeds which may grow on such deposit or on any such land from which material has been excavated.

Protection of watercourses N.I.

32.  The provisions of Schedule 6 shall have effect in relation to the protection of watercourses and to the other matters specified in that Schedule.

Control of dams and sluices N.I.

33.—(1) Subject to paragraphs (2) and (3), where the Ministry considers that it is necessary or expedient to do so for the purpose of preventing or arresting injury to land, it may, by notice in writing served on the person in control of any dam, require him, during such times and in such manner as may be specified in the notice, to regulate or keep open or closed any sluice forming part of the dam, or otherwise to control the quantity of water in the dam.

(2) In exercising its powers under this Article in relation to any dam or sluice, the Ministry shall have regard to any purpose for which the person in control of the dam, or any other person interested in the water, uses or desires to use the water so controlled, and shall so exercise those powers as to interfere as little as may be practicable with such user.

(3) The Ministry shall not exercise the powers conferred by this Article in relation to any dam or sluice which is vested in or controlled by any other government department, any harbour authority, any district council or[F33 any licence holder within the meaning of Part II of the Electricity (Northern Ireland) Order 1992].

(4) If any notice served by the Ministry as aforesaid with respect to any dam or sluice is not complied with—

(a) the person on whom it is served shall be guilty of an offence;

(b) without prejudice to any prosecution for such an offence, the Ministry may, after giving notice in writing to that person, take control of the dam or sluice on such date and for such period as may be specified in the last-mentioned notice; and

(c) if, during that period, any person controls the dam or operates the sluice without the authority of the Ministry, he shall be guilty of an offence.

(5) Any person guilty of an offence under paragraph (4) shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding[F34 level 3 on the standard scale], or to both.

(6) In addition to the duties imposed upon persons in control of dams or sluices by the foregoing provisions of this Article, any such person shall control any dam, or operate any sluice forming part of a dam, over which he has control so that as little damage or injury as is practicable, having regard to the purpose for which the dam was constructed, shall be caused to land through flooding, and, in the event of any such person failing so to control any dam or operate any sluice, compensation for damage or injury suffered by any person by reason of such failure shall, without prejudice to any other remedy, be recoverable summarily by the person so damaged or injured.

F33 1992 NI 1

F34 1984 NI 3

Power of Ministry to execute experimental, etc., work N.I.

34.  Where the Ministry considers it appropriate, it may—

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

(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.

[F30 [F35 Power of Department to charge for exercise of functions N.I.

34A.— (1) The Department may by regulations make provision for the payment of charges to the Department in respect of the exercise of its functions under this Order.

(2) Regulations made under paragraph (1) may—

(a) prescribe the functions in respect of which charges are payable;

(b) prescribe the persons liable to pay such charges;

(c) prescribe the amount of the charges or the manner in which charges are to be determined;

(d) prescribe the times at which, and method by which, charges are payable;

(e) make provision for the review by the Lands Tribunal of any charge which the Department proposes to make under the regulations, including provision for the powers of the Lands Tribunal on any such review;

(f) provide for the remission or reduction of charges in prescribed circumstances;

(g) provide for the recovery by the Department of charges due to it;

(h) provide for the payment of interest if charges are not paid on time;

(i) make such incidental, supplementary and transitional provision as appears to the Department to be appropriate.

(3) Any regulations made by the Department under this Article shall be subject to negative resolution.]]

F30 2005 NI 8

F35 2005 NI 8

Provisions as to recovery of expenses N.I.

35.—(1) Where, by virtue of any provision of this Order, the Ministry is authorised to recover, or any person is required to pay to the Ministry, the cost of any work or any sum of money—

(a) the Ministry may, by certificate under the hand of the secretary or of an assistant secretary of the Ministry, certify the amount of such cost or that sum; and

(b) the amount so certified shall be recoverable by the Ministry summarily as a debt due to it.

[F36 (1A) Paragraph (1) shall not apply to any sum of money which the Department is authorised to recover by virtue of Article 34A.]

(2) A certificate under paragraph (1) shall be prima facie evidence of the amount stated therein.

F36 2005 NI 8

Miscellaneous offences N.I.

36.—(1) Any person who—

(a) wilfully obstructs any officer or servant of the Ministry in the exercise of any functions of the Ministry under this Order, or any person engaged in the construction of any works in pursuance thereof; or

[F37 (b) removes any works (whether constructed or in course of construction) which are vested in the Department for the purposes of this Order; or]

(c) removes, …F38 any pegs, poles or marks placed or made by any authorised person for the purpose of, or in connection with, the construction of any such works; or

(d) places any solid matter in, or causes or permits any solid matter to fall or pass into, any watercourse in respect of which any works are about to be, or are in course of being, constructed by the MinistryF37 . . . so as to cause any obstruction, hindrance or delay to such construction; or

(e) obstructs the flow of water to, through or from any works[F37 vested in the Department for the purposes of this Order] in such manner as to prevent or hinder the efficient operation of those works, or to cause flooding of such works or any land drained thereby;

shall be guilty of an offence.

(2) Any person guilty of an offence under paragraph (1) shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding[F39 level 3 on the standard scale], or to both, and, in the case of a continuing offence, to an additional fine not exceeding £5 for every day during which the offence continues.

F37 1984 NI 2

F38 1977 NI 4

F39 1984 NI 3

Entry on and inspection of land, etc. N.I.

37.  For the purposes of enabling the Ministry to exercise any function conferred on it by this Order, or otherwise for the purpose of carrying the provisions of this Order into effect, any person authorised in that behalf by the Ministry may, on production (if so required) of his authority, enter on and inspect any land and make any survey in connection therewith.

Limitation of liability for flooding, etc. N.I.

38.—(1) Subject to paragraph (2), nothing contained in this Order shall be construed so as to render the Ministry liable for any damage which may happen to any land or other property through or by the accidental overflowing of any watercourse or through or by the breaking, collapse or failure of any bank, embankment, dam, sluice or other work which has been constructed, maintained, repaired or regulated by the Ministry under the provisions of this Order.

(2) Where any damage mentioned in paragraph (1) has been caused by the negligent construction or repair of any embankment, dam or sluice so mentioned, any person who suffers loss from that damage may obtain reasonable compensation therefor from the Ministry, and, in assessing compensation under this paragraph, regard shall be had to any remedial works which the Ministry may have carried out, or agreed to carry out, in order to make good the damage.

Protection for officers of Ministry N.I.

39.  An action shall not lie at law or in equity against the Ministry or any of its officers or servants in respect of any act, matter or thing in respect of which compensation is payable, or protection is provided, by virtue of any provision of this Order.

Protection of fisheries N.I.

40.—(1) Subject to paragraph (8), where the Ministry, in the exercise of its powers under this Order, carries out any work in relation to a watercourse, the Ministry shall provide such protection for any fishery that may be affected by the carrying out of the work or operations incidental thereto as may be agreed on between the Ministry and the owner of the fishery, or in default of agreement as may be determined by an arbitrator to be agreed on by the parties, or, in default of such agreement, to be appointed by the Lord Chief Justice, by all or any of the following means—

(a) the construction and maintenance in the watercourse of a fish pass for the free and uninterrupted passage of fish both up and down the watercourse;

(b) the provision of a hatchery, pool or weir;

(c) the provision of groynes;

(d) the replacement of stones and gravel;

(e) the replanting of trees;

(f) defraying any reasonable additional expenses incurred by the owner of the fishery by reason of the carrying out of any such work or operations.

(2) The Ministry may pay such sum as may be agreed on to defray the expenses which may be incurred by the owner of any fishery in providing any protection for such fishery which the Ministry may be required to make under paragraph (1).

(3) In lieu of proceeding under the foregoing provisions of this Article, the Ministry and the owner of any fishery to which those provisions are applicable may enter into and carry into effect an agreement for the purchase or taking on lease by the Ministry of such fishery, or any fishing rights therein, at such price or rent as may, in default of agreement, be determined by an arbitrator to be agreed on or appointed in like manner as for the purposes of paragraph (1).

Para. (4) rep. by 1996 c. 23

(5) Where the Ministry, in exercise of its powers under this Order, widens or diverts any part of a watercourse of which the bed and soil is vested in the owner or owners of a several fishery in the watercourse, the bed and soil of the watercourse, as so widened or diverted, shall vest by virtue of this Order in that owner or those owners in like manner and for the same purposes as the bed and soil first-mentioned were vested in that owner or those owners.

(6) In assessing the amount of any compensation payable by the Ministry under Article 17 or 18 with respect to a fishery, regard shall be had to any protection provided for the fishery or any sums paid by the Ministry under this Article.

(7) In this Article, “owner” includes any lessee or fishery conservators, or any body charged by any statutory provision with the conservation, protection or improvement of any fishery, or the management of any property in connection with such fishery.

(8) This Article shall not apply to any work carried out by the Ministry in pursuance of an agreement under Article 25.

Valid from 01/04/2007

[F40 Protection for water and sewerage undertakers N.I.

40A.— (1) Nothing in this Order shall confer power on any person, except with the consent of a water or sewerage undertaker, to do anything which, whether directly or indirectly, so interferes or will so interfere—

(a) with works or property vested in or under the control of that undertaker; or

(b) with the use of any such works or property,

as to affect injuriously those works or that property or the carrying out of the functions of that undertaker.

(2) A consent for the purposes of sub-paragraph (1) may be given subject to reasonable conditions but shall not be unreasonably withheld.

(3) Any dispute—

(a) as to whether anything done or proposed to be done interferes or will interfere as mentioned in sub-paragraph (1);

(b) as to whether any consent for the purposes of this paragraph is being unreasonably withheld; or

(c) as to whether any condition subject to which any such consent has been given was reasonable,

may be referred by either party to the dispute to the Commission.]

F40 Art. 40A inserted (1.4.2007) by Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21)), arts. 1(2), 308(1), Sch. 12 para. 10(3) (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. 1 Pt. II (subject to art. 3, Sch. 2)

Special provisions relating to Erne drainage and navigation N.I.

41.  The provisions of Schedule 7 shall have effect in relation to—

(a) the drainage of Upper and Lower Lough Erne and of the portion of the River Erne which is in Northern Ireland;

(b) the dredging and maintenance of channels in those loughs and that river, and the tributaries thereof;

(c) the use by vessels of those loughs and that river, and the tributaries thereof; and

(d) the other matters specified in that Schedule.

Financial provisions N.I.

42.—(1) Any expenses incurred by the Ministry under this Order, and any contributions or grants paid by the Ministry under this Order, not being expenses or sums chargeable or charged to the Erne Development Account under paragraph 11(3) of Schedule 7, may be defrayed out of money hereafter appropriated for the purpose of meeting such expenditure.

(2) Any sum received by the Ministry under Article 17(3), 25, 27[F41 , 28 or 34A], or under paragraph 7 of Schedule 5 or paragraph 5, 6 or 8 of Schedule 6F42 . . . , shall be appropriated in aid of the expenses incurred by the Ministry under this Order or in the payment of any contributions or grants under this Order.

F41 2005 NI 8

F42 1999 NI 6

Art.43, with Schedule 8, effects amendments

Transitional and saving provisions N.I.

44.  The transitional and saving provisions specified in Schedule 9 shall have effect for the purposes of this Order.

Art.45, with Schedule 10, effects repeals