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Explanatory Memorandum to Water and Sewerage Services (Northern Ireland) Order 2006

Part Xi - Amendments to the Water Order

142.This Part sets out a number of modifications to the environmental regulatory functions exercised by DOE under the Water (Northern Ireland) Order 1999 (the 1999 Order). These amendments bring the 1999 Order partly into line with similar legislation in Great Britain and provide an updated environmental regulatory regime for water and sewerage services in Northern Ireland and include repeal of the current Article 9 of the 1999 Order, the substitution of the current Article 7 and the insertion of new Articles numbered 7A and 7B.

143.Article 280 reorganises the principal water pollution offences contained in Articles 7 and 9 of the 1999 Order into a new and substituted Article 7. This revised Article restates the water pollution offences currently provided under Articles 7 (1) (a) and 7 (1) b of the 1999 Order relating to the discharge or deposit into water of poisonous, noxious or polluting matter. In addition, the revised Article 7 absorbs the offence of discharging trade or sewage effluent currently provided under Article 9(1) of the 1999 Order, extending the ambit of this provision to include discharges of trade or sewage effluent from land, through a pipe, into the sea outside the seaward limits of any waterway.

144.Article 280 also lists the exceptions to the principal water pollution offences. A new Article 7A(1) extends the ambit of the defence in relation to the discharge of trade or sewage effluent from a vessel although this is limited to the associated pollution offences now provided at Articles 7(2) and 7(6). Article 7A(2) provides a defence to the principal pollution offences where the discharge or deposit of any effluent or other matter is made in an emergency, and all reasonable steps are taken to minimize its extent and polluting effects. Article 7A(3) provides a defence where a person discharges or deposits any effluent or other matter under and in accordance with an extended list of consents, licences and the like, or under other prescribed statutory provisions. Article 7A(4) extends the ambit of Schedule 1 to the 1999 Order to include the transfer of discharge consents. Article 7A(5) contains the penalties available for contravening the conditions of a discharge consent. Article 7A(8) updates the wording, previously contained in Article 10(3) of the 1999 Order, so that it is clear that drains are constructed and laid by the Department.

145.Article 280 inserts an Article 7B, which provides for discharges into and from public sewers. This is required to accommodate the specific legal responsibilities to receive discharges that will be placed upon the sewerage undertaker elsewhere in the proposed Water and Sewerage Services (NI) Order 2006. Specifically,  Article 7B(1) provides that a person shall not be guilty of a pollution offence under the revised Article 7 in respect of discharges made into the sewers or waste water treatment works vested in a sewerage undertaker if the undertaker is bound to receive the discharge unconditionally or subject to conditions that were observed. Article 7B(2) provides an exception to the pollution of offence under the revised Article 7 of the 1999 Order where a sewerage undertaker breaches the terms of a discharge consent as a consequence of illegal discharge to sewer by a third party which the undertaker was practically unable to prevent. This, therefore, addresses situations where discharges by others into public sewers are either unconsented, and therefore not subject to agreements, or made in breach of consent or agreement conditions. Article 7(B)(3) and (4) provide for the possibility of replacement appointees as to part of a sewerage undertaker’s licensed area, and allocate liability for any resulting pollution as between the respective undertakers.

146.It is also recognised that a substantial proportion of waste water treatment will be provided by means of Public Private Partnership (PPP) arrangements.  These arrangements raise considerable complications for the apportionment of liability in respect of the water pollution offence set out in the (revised) Article 7 of the 99 Order, and the operation of the defences provided for in (new) Article 7B. Article 7 assumes a vertically integrated sewage treatment process, under which the undertaker is responsible for the whole process and can reasonably expect to be liable for the resulting discharge of treated effluent. The defences and exceptions provided for in (new) Article 7B operate on this basis. However, in the case of PPP arrangements, the undertaker will still be responsible for issuing trade effluent consents, but will essentially be acting as a mere conduit for discharges into a treatment works for which a different person, the PPP contractor, will hold the discharge consent as operator. The PPP scenario therefore raises issues regarding the appropriate allocation of liability for final discharges into the water environment between the customer, the undertaker and the PPP Contractor which would require considerable and detailed amendment of the provisions at (new) Article 7 B.  As such detailed provisions would be difficult to follow and, given that transparency on this issue is essential, not least for the benefit of the environmental regulator (DOE) tasked with implementing  the water pollution provisions, the apportionment of liability in such PPP scenarios is to be addressed by means of subordinate legislation. Article 280 accordingly provides the Department with power to develop regulations to determine liability in respect of the water pollution offences under the Water (NI) Order 1999 between persons in respect of any discharge from or into any public sewer or any wastewater treatment works.

Supplementary Transitional Provisions

147.One of water reform’s policy objectives is to introduce the water and sewerage undertaker in Northern Ireland to the normal, environmental regulatory regime, provided by the 1999 Order, as quickly as possible. The practical effect of these enforcement provisions will be considerably increased in respect of any offences committed by the limited liability company, which will become the first licensed water and sewerage undertaker in Northern Ireland upon the Transfer Date (1 April 2007). This GoCo, and in certain circumstances, any director, manager and officer will be liable to prosecution. However, it is not considered reasonable that GoCo should assume the full risks of prosecution immediately in respect of pollution offences arising as a result of the poor condition of the inherited infrastructure. Thus, a limited and time-bound due diligence defence against prosecution will be provided to the GoCo and its directors, managers and officers in respect of water pollution offences attributable solely to the dilapidation of the waste water infrastructure inherited on 1 April 2007.  It will expire on 31 December 2008 when an extensive waste water treatment building programme is due to be completed.  As a transitional issue this will be dealt with under regulations made by Department under Article 306 of the Order.

Other Provisions

148.Article 281 extends the provisions of the current Article 10(1) of the 1999 Order so that additionally a discharge or deposit made in accordance with a discharge consent shall not constitute an offence under or a contravention of section 41 of the Foyle Fisheries Act (NI) 1952 or regulations under Articles 14 or 36 of the 1999 Order.

149.Article 282 extends the ambit of Article 11(1) (a) of the 1999 Order to include a power to make a scheme that specifies or determines the charges required to be paid in respect of the transfer of a discharge consent to another person.

150.Article 283 extends the references to flora and fauna in Articles 16(1) (b) (iii) and 17(2)(b)(iii) of the 1999 Order (anti-pollution works) so as to incorporate any flora or fauna that are dependent on the aquatic environment of the waters.

151.Article 284 places duties on DOE, water undertakers and third parties in relation to the provision of specified information. It is an offence by a third party to refuse or fail to permit DOE to inspect its records. The duties of a water undertaker under this Article are enforceable under Article 30 of the Water and Sewerage Services (NI) Order 2006.

152.Article 285 places restrictions on DOE in relation to the disclosure of information, subject to specified exceptions, without the consent of the individual, or person carrying on the business in question.

153.Article 286 limits the extent to which civil liability applies, given that Part II of the 1999 Order is intended to set out a comprehensive system for pollution control.

154.Article 287 extends criminal liability to prosecution to a third party where the commission of a water pollution offence is due to the act or default of that third party, irrespective of whether proceedings are taken against a first-named person.

155.Article 288 binds the Crown in relation to the provisions of Part II of the 1999 Order, and any regulations or orders made under that same Part. The Crown is exempt from criminal liability, but DOE may apply to the High Court to have any act or omission that constitutes a contravention of Part II declared unlawful. The Secretary of State can certify, in the interests of national security, that any powers of entry to Crown land should not be exercisable in relation to the land specified.

156.Article 289 extends the matters that the Department of Agriculture and Rural Development (DARD) should take into account in exercising its functions under the 1999 Order to the duties imposed on water and sewerage undertakers under the proposed Order.

157.Article 290 inserts a new paragraph in Schedule 1 to the 1999 Order. It places a duty on DOE to give notice to persons who may be prescribed or directed to be consulted in relation to discharge consent applications. DOE has a power to exempt any class of application or exclude any class of information from this requirement. Any representations must be received by DOE within a specified time, and must be considered before a determination is made.

158.Article 290 also amends the transfer of consent provisions contained in paragraph (8) of Schedule 1 to the 1999 Order. The intended transferor and transferee must give joint notice to DOE of the proposed transfer; the notice should specify the date on which the transfer is to take effect; and DOE should amend the consent, and serve notice on the transferor and transferee that the amendment has been made, within a specified time.

159.Article 291 makes minor amendments to a number of definitions currently contained in the 1999 Order, so that they are consistent with those in the Order. It also amends paragraph (1) of Schedule 6 to the 1999 Order, so that where DOE and DARD acting jointly propose to adopt a water management programme, those Departments should, before publication of a notice to that effect, consult all water undertakers.

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