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

Part Viii - Undertakers Powers and Works

105.This Part explains the undertaker’s powers to carry out works and enter premises in the fulfilment of its duties and responsibilities under this Order.

Chapter 1 – Undertaker’s powers (Articles 215234)

106.This Chapter provides the undertaker with powers in relation to abstraction and impounding water, land, pipe-laying, discharging water, compulsory works orders and entry to land.

Abstraction and impounding of water

107.Article 215 provides a water undertaker with abstraction and impounding powers for the purposes of carrying out its functions. Those powers are subject to regulations under Article 20 of the Water (NI) Order 1999 which provide for a licensing regime for water abstraction and impoundment.

Land

108.Where it has not been possible, through agreement, for the undertaker to acquire land or an easement or right over land that has been determined as essential to the fulfilment of its duties, it may apply to the Department for an order (vesting order) compulsorily acquiring it. The Department has power (Article 216) to make such a vesting order. Schedule 7 sets out the restrictions on this power including the need to attain a resolution of the Assembly in respect of certain pieces of land where objections to the acquisition have been made by the landowner.

109.Where the undertaker wishes to carry out engineering or building works or to discharge water into any inland water or underground strata but cannot do so through agreement with the landowner it may apply to the Department for a compulsory works order under Article 228 to carry out such engineering/ building works or to discharge water. The procedures and restrictions applying to such orders are set out in Schedule 9 which also makes provision for dealing with objections and compensation.

110.The Department’s consent is required prior to the disposal by the undertaker of any protected land (as defined in Article 2).

Power to Carry out Works

111.Article 218 enables the undertaker to make bye-laws for the protection and preservation of waterways and lands belonging to the company. The Department is required to confirm these bye-laws, ensure that they are published and that objections heard are under the procedure set out in Schedule 8.

112.This Chapter also sets out the undertaker’s powers in respect of laying pipes in streets (Article 219) and private land (Article 220); carrying out works for stopcocks (Article 224), meters (Article 223) and sewerage purposes (Article 221) and for dealing with foul water or pollution (Article 222). Powers in regard to private land are dealt with by the undertaker serving notice on the landowner (Articles 220, 222 & 223 (in certain circumstances only)) or by agreement between the undertaker and landowner (Articles 221 & 225).

113.Consent is required from relevant Departments for the undertaker to discharge water from pipes greater than 300mm into any available watercourse (Article 226), other than in emergency situations, for the purposes of its functions under the Order. Article 226 creates offences in this regard and sets out penalties for failure to take suitable measures to prevent damage.

Powers of Entry

114.Any person designated in writing by the undertaker may enter any premises for the purposes of carrying out water or sewerage works in the fulfilment of its functions under the Order as set out in Articles 229 to 233. Under these Articles the undertaker may carry out survey work in the search for water, investigate whether it is appropriate or practicable to carry out its relevant works and determine how its powers should be exercised.

115.Included in relevant works are; investigating contamination of water sources; the abstraction or impoundment of water for public supply; inspection examination or testing of meters; compliance with the water quality and fittings regulations to be made under article 114; taking and testing of sample of water, effluent, trade effluent or land and investigating compliance with hose pipe bans.

116.Provision is made in article 235 for the prosecution of people found to be entering any premises unlawfully i.e. without the specific written consent of the undertaker in respect of its functions under the Order.

117.Article 234 provides the Department with the power to make regulations in respect of sampling under articles 229 to 232.

Chapter II – Protection of Undertaker’s Works, apparatus etc. (Articles 236240)

118.This Chapter sets out offences and penalties in regard to intentional or reckless interference with the works, apparatus (including meters) or infrastructure of the undertaker.

119.Such offences include connection to the undertaker’s water or sewerage pipes without its consent or building over pipes without permission (Article 236). Interfering with or carrying out works which affect the operation of meters installed for the purpose of fixing charges (Article 237) is also an offence.

120.These Articles also set out the penalties (in the form of fines) for any such actions.

121.A person who intentionally obstructs any person authorised by the undertaker to carry out works in pursuit of its functions under the Order will also be guilty of an offence and will be liable to fines under Article 240.

Chapter III – Supplementary Provisions with respect to Undertaker’s Powers (Article 241-252)

122.Articles 241 sets out that pipes laid and wastewater treatment works constructed by the undertaker will vest in the undertaker unless otherwise agreed between the undertaker and the person with an interest in the pipe or wastewater treatment works. Water mains / service pipes and sewers / lateral drains / wastewater treatment works which are the subject of a declaration made under Chapter II of part IV of the Order also vest in the undertaker.

123.The undertaker’s works powers set out in the Order do not confer upon it power to carry out any works which directly or indirectly interfere with the works or property of another undertaking (airports, for example) protected by Schedule 10 to the Order without the consent of those undertakings. Schedule 10, paragraph 1(4) lists those undertakings protected in this manner. Certain undertakers, as set out in Article 246, may after giving suitable notice and on substituting an equivalent, alter the position of the undertaker’s sewers, drains, culverts or other pipes.

124.Equivalent provisions providing protection for the water and sewerage undertaker’s apparatus are set out in the legislation covering other undertakers.

125.Any complaints arising in the course of the undertaker fulfilling its functions under Article 220 or 222(2) (exercise of works powers on private land) are to be investigated by the Authority or the Consumer Council, as set out in Article 243. The undertaker is required to provide information and pay fines as the Authority requires.

126.The undertaker, as soon as possible after its appointment, is required to provide a code of practice on the exercise of its powers to carry out work on private land. Article 244 empowers the Department to approve the code of practice initially and subsequently to modify or withdraw approval.

127.The undertaker is obliged to carry out its works in a manner which will cause as little damage, detriment and inconvenience as possible and is required to make good or pay compensation for damage caused by it in pursuance of its functions under this Part. Guidelines for assessing compensation and rights of appeal are set out in Article 242.

128.In certain circumstances the undertaker may be obliged to alter or remove its pipes or apparatus within particular land where a notice has been served on it by any person having an estate in that land or in adjacent land. The undertaker may recover from the person serving the notice, any expenses incurred in the fulfilment of its obligation (Article 247).

129.The undertaker is entitled to remove and sell any materials taken from any premises when carrying out works or otherwise in pursuit of its functions under the Order which are not claimed by the owner before the end of 3 days after their removal. The undertaker must pay the proceeds of such sales to the owner after discounting the expenses incurred in the process. The undertaker is also entitled to all sewage discharged into its sewers and may process, sell or otherwise dispose of such sewage.

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