PART 8

Miscellaneous

Chapter 1

Miscellaneous provisions concerning provision of water services

Laying of water mains, sewers, service connections and related cables and wires.

97 .— (1) (a) Where in the opinion of a water services authority it is considered necessary for the purpose of any of its functions to—

(i) place, construct, lay or connect, as may be appropriate, water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires on, into, through, under or over any land not forming part of a public road,

(ii) attach to or erect on a premises any bracket or other fixture required for the carrying or support of those water mains, sewers or service connections or any ancillary apparatus or related cables or wires, or

(iii) affix to or erect on any premises a notice referred to in subsection (2),

then it may, after giving 28 days notice of its intention to the owner and the occupier of that land or premises, as the case may be, indicating the position of the proposed installations referred to in subparagraph (i), and with the consent of the said owner and occupier, place, construct, lay or connect water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires, or attach to the premises such bracket, or notice referred to in subsection (2), or other fixture as indicated in the notice given under this subsection, and may, from time to time, inspect, repair, alter, renew or remove any of them.

(b) In paragraph (a) “position” includes any minor modification that is not of any material consequence which may be carried out in the course of installation.

(2) A water services authority may erect and maintain notices indicating the position of water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires referred to in subsection (1).

(3) Where a person to whom a notice under subsection (1) is addressed has not, within 28 days of the giving of such notice, indicated his or her consent, that person’s consent shall be deemed to have been withheld.

(4) (a) Where a person to whom a notice under subsection (1) is addressed has withheld his or her consent, or where his or her consent is deemed to be withheld under subsection (3), then, the water services authority which issued the notice may appeal to the Circuit Court.

(b) The Circuit Court in considering an appeal under this section may, by order—

(i) confirm the notice, with or without variation, or

(ii) set the notice aside,

but shall not determine any matter to which subsection (8) refers.

(5) Where the Circuit Court confirms, with or without variation, a notice under subsection (1), consent shall be treated as having been given for the purposes of subsection (1), with effect from the date of such confirmation.

(6) A water services authority may exercise all or any of the powers conferred on it by this section outside its functional area with the agreement of the water services authority in whose functional area the works are to be carried out.

(7) (a) A consent under this section may be registered, in the appropriate manner taking account of requirements to facilitate access from time to time for inspection, repair, alteration, renewal or removal of infrastructure to which the consent relates, by the relevant water services authority, in either the Land Registry or in the Registry of Deeds, as may be appropriate.

(b) The full cost of registering a consent under this subsection shall be borne by the water services authority which issued the related notice under subsection (1).

(8) (a) If, on a claim made to a water services authority, it is shown that, as a result of the action of the authority pursuant to this section in—

(i) placing, renewing or removing any water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires, referred to in subsection (1),

(ii) attaching any bracket or fixture, or

(iii) affixing any notice,

the value of an interest of any person in the land or structure existing at the time of the action of the water services authority is reduced, or that any person having an interest in the land or structure at that time has suffered damage by being disturbed in his or her enjoyment or use of the land or structure affected by the action of the water services authority, that person shall be entitled to claim compensation in the amount of the reduction in value or the amount of the damage, and such a claim shall be determined as if it were a claim for compensation under section 199 of the Act of 2000.

(b) The provisions of Chapter 1 of Part XII of the Act of 2000 shall in so far as they are relevant to this section, apply in relation to a claim for compensation under this subsection as if—

(i) references to a planning authority were references to a water services authority,

(ii) references to section 199 were references to this subsection,

(iii) the reference to section 182 was a reference to this section,

and subject to any other necessary modifications.

(9) An authorised person may enter on land for any purpose connected with this section and that entry shall be subject to the relevant provisions of section 252 of the Act of 2000 as if—

(a) it were an entry made under that section, and

(b) any reference in the said section to appropriate authority or local authority was a reference to a water services authority.

Alteration of sewers and pipelines by other persons.

98 .— (1) Subject to subsection (2), any person authorised (however expressed) by any Act or instrument made under an Act to—

(a) navigate or use any river, canal, dock, harbour or river-basin, or

(b) charge a toll for such use,

may take up, divert or alter the level of any pipe which is—

(i) constructed by or vested in a water services authority or an authorised provider of water services, or a person providing water services jointly with or on behalf of a water services authority or an authorised provider of water services, and

(ii) passing under or interfering with such river, canal, dock, harbour or river-basin or any towing path thereof,

and, subject to complying with any statutory or contractual requirement and the giving of any due notice to any person concerned, the person so authorised may do all such things as may be necessary for carrying into effect such taking up, diversion or alteration.

(2) Any work carried out by a person pursuant to subsection (1) shall be at his or her own expense, and shall be subject to his or her substituting other equally effective pipes.

(3) Any person intending to carry out work under subsection (1) shall consult with the persons referred to in that subsection and the water services authority in whose functional area the relevant pipes or accessories are situated before commencing the work, and shall agree with those persons and the water services authority as to what constitutes an “equally effective” substitution for the purposes of subsection (2) in that instance.

(4) Unresolved matters arising from consultations under subsection (3) may, at the sole discretion of the person intending to carry out the work, be referred to an agreed arbitrator or an arbitrator appointed by the President of the High Court, and any decision of that arbitrator taken at proceedings held in accordance with the Arbitration Acts 1954 to 1998 as to what constitutes “equally effective” for the purposes of subsection (2) in that instance shall be binding.

Policy directions by Minister.

99 .— (1) The Minister may, whenever he or she thinks proper, give general directions in writing to a water services authority as to policy in relation to the performance by the water services authority of its functions under this Act.

(2) In performing its functions under this Act, each water services authority concerned shall comply with any directions given to it by the Minister under this section.

(3) Where applicable the Board shall also comply with policy directions under subsection (1).

(4) Whenever the Minister gives a direction under this section, he or she shall—

(a) as soon as may be cause a copy of the direction to be laid before each House of the Oireachtas,

(b) cause a copy of the direction to be transmitted to each water services authority concerned, and

(c) cause to be published in Iris Oifigiúil a notice of the giving of the direction.

(5) (a) A notice under subsection (4)(c) shall specify where a copy of the direction concerned may be viewed or obtained.

(b) The Minister may charge a fee (if any) for providing a copy of a direction under this subsection but any such fee shall not be greater than the costs incurred in making copies available.

Emergency Orders.

100.— (1) The Minister may, for the purposes of preventing risk to public health and safety or the environment, make an order suspending or amending for a stated period any obligation placed by this Act on a water services authority or other person specified in the order.

(2) An order under this section may contain such consequential provisions arising from the suspension or amendment of the obligation under this Act as the Minister considers necessary.

(3) Where an order is proposed to be made under subsection (1), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

Non-application of certain statutes.

101.— A provision in any statute or Act, other than an Act of the Oireachtas, which remains in operation after enactment of this Act shall no longer have any force of law where it—

(a) conflicts with, or could conflict with,

(b) provides for a purpose or purposes the same as or similar to any purpose or purposes of, or

(c) interferes with or could interfere with,

the performance of a function under this Act or with any regulations, standards, codes of practice, guidelines, requests or directions made or issued under this Act.

Enabling power.

102 .— (1) Subject to section 36 (18), any statute or other Act, other than this Act, which requires a water services authority to provide water services outside of its functional area shall be construed as enabling rather than directive.

(2) Where as a consequence of subsection (1), a water services authority ceases to provide water services in the functional area of another water services authority, responsibility under any relevant agreement to supply water services in that functional area entered into by that water services authority, shall transfer to the water services authority in whose functional area the services are provided.

(3) The Minister may make regulations for the purpose of this section that may—

(a) provide for financial adjustments between water services authorities where one water services authority takes over responsibility for the provision of water services in its functional area from the other arising from this section or section 31 (7),

(b) provide for payment by or to any water services authority affected by a take-over of responsibility for water services, or for any financial arrangements which may be necessary arising from this section or section 31 (7).

(4) Notwithstanding any statute or other Act, or any agreement, which was in force on the commencement of this Act, whereby there is specified the amount of the charge which may be made by a water services authority for the provision of water services (including as the case may be a stipulation that services be provided free of charge) or an amount which such charge is not to exceed, a water services authority may make a charge which exceeds the amount so specified (or as the case may be introduce such charge), and any charge made by virtue of this subsection shall for all purposes be deemed to have been duly made under the enactment or agreement.

(5) Nothing in subsection (4) shall be construed as enabling a water services authority to charge for water services provided to a household for domestic purposes.

Determination by the Board of fees for certain appeals.

103.— (1) Subject to the approval of the Minister, the Board may determine fees in relation to appeals to it under section 66 , and under section 8 of the Act of 1977, as amended, and requests for oral hearings, and may provide for the payment of different fees in relation to different classes or descriptions of appeals, for exemption from the payment of fees in specified circumstances and for the waiver, remission or refund in whole or in part of fees in specified circumstances.

(2) The Board shall review the fees determined under subsection (1) from time to time, but at least every 3 years, having regard to any change in the consumer price index since the determination of the fees for the time being in force, and may amend the fees to reflect the results of that review, without the necessity of the Minister's approval under subsection (1).

(3) For the purposes of this section, “change in the consumer price index” means the difference between the All Items Consumer Price Index Number last published by the Central Statistics Office before the date of determination under this section and the said number last published before the date of review under subsection (2), expressed as a percentage of the last-mentioned number.

(4) Where the Board determines or amends fees in accordance with this section, it shall give notice of the fees in at least one newspaper circulating in the State, not less than 8 weeks before the fees come into effect.

(5) Fees determined in accordance with regulations under the Act of 1977, as amended, shall continue to be payable to the Board in accordance with those regulations until such time as the Board determines fees in accordance with this section.

(6) Where a fee is payable to the Board in respect of an appeal to it or a request for an oral hearing of an appeal under section 66 , or under section 8 of the Act of 1977, as amended, the Board shall not entertain or consider the said appeal or request until the fee is received by the Board, and where a period is prescribed for the making of such an appeal, unless the fee is received by the Board before the expiration of that period.

Building over pipes.

104 .— (1) A person shall not, except with the consent of a relevant water services authority and following an application for the purposes of this section to that authority, erect or commence to erect, or cause to be so erected, any structure—

(a) over, or

(b) so close to as to cause a risk to, or interfere with, the structural integrity of or access to,

a sewer, drain, water main, distribution system, service connection or related accessories which are owned, controlled or used by another person.

(2) The obligation in subsection (1) shall apply notwithstanding any provision in any other enactment in relation to control of development, building standards or practices, or any related exemptions.

(3) A relevant water services authority may grant a consent under subsection (1) where it is satisfied that—

(a) adequate access to the pipes and related accessories affected will remain available for maintenance or renewal purposes,

(b) human health and the environment are adequately protected, and

(c) the structural integrity of the pipes and related accessories affected, and access to water services through them, will not be adversely affected,

and it may include in a consent such conditions as it considers necessary for these purposes.

(4) Where a structure to which this section applies is commenced or erected without a consent under subsection (1), or in contravention of such a consent, a relevant water services authority may by notice to the person who erected or commenced to erect the structure or caused it to be erected, or to any other person who for the time being owns the structure, direct that remedial action be taken within a specified period, including—

(a) provision of such alternative sewers, drains, water mains, distribution systems, service connections or accessories as it may specify,

(b) re-routing around the structure of such pipes as may be affected,

(c) provision of alternative or additional access to such pipes as may be affected,

(d) demolition or alteration of the structure, or

(e) incidental and related requirements.

(5) A relevant water services authority shall have a right of action for relief by way of injunction or declaration from the High Court against any person, to restrain any non-compliance, or direct any compliance with a requirement of a notice issued by the authority under subsection (4), and the Court may grant such order as it sees fit, in such manner as to achieve the purposes set out in subsection (3), including an order requiring provision of alternative pipes or related access, re-routing of pipes, or removal or alteration of a related structure within a specified period.

(6) It shall be a defence to a prosecution for a contravention of subsection (1), that all reasonable inquiry was made to ascertain the existence of any relevant pipe or related accessory before a structure to which this section refers was erected, or commenced to be erected, over it.

(7) Without prejudice to subsection (5), and whether or not a prosecution has been taken under this section, where a person on whom a notice is served under subsection (4) fails to carry out the required remedial action within the period specified in that notice or to complete any works specified in an injunction of the High Court under subsection (5), the water services authority which issued the notice, or a person authorised on its behalf, may enter the relevant land, carry out the remedial action or complete the specified works, and recover the cost from the person who fails to comply with the notice or injunction.

(8) A water services authority may charge a fee to an applicant for a consent under this section in respect of the estimated cost of processing the application, including the cost of related investigation and inspection costs, and such fee shall be recoverable from the person making the application.

(9) A water services authority may recover any costs incurred by it in connection with the exercise of its functions under subsection (4) from the person to whom the notice under that subsection is addressed.

(10) For the purposes of this section, “relevant water services authority” means the water services authority in whose functional area a structure referred to is erected or to be erected.

(11) Regulations under section 18 may provide for—

(a) the form of an application for a consent under subsection (1),

(b) the information to be provided with any such application,

(c) the time limits relating to such application, including time limits relating to—

(i) consideration of such an application, and

(ii) notification of a decision on such an application.

(12) A person who contravenes subsection (1) or who fails to comply with a notice under subsection (4) commits an offence.

Power to make and fix charges for non-domestic water services.

105 .— (1) A water services authority shall not charge for water supplied to or discharged by—

(a) a household, which is used by that household for domestic purposes, or

(b) a person, other than another water services authority, providing water services to a household for domestic purposes.

(2) Subject to subsections (1) and (4), and any regulations under section 106 , a water services authority shall charge for all costs associated with the provision of water services provided, whether within or outside its functional area, by it or a person providing water services jointly with it or on its behalf.

(3) Subject to any regulations under section 106 , a charge under subsection (2) may be fixed from time to time by the water services authority, by reference to one or more of the following:

(a) the quantity of water supplied;

(b) the volume and strength of waste water discharged to a sewer;

(c) the purpose for which water supplied is used;

(d) such other criteria as may be prescribed.

(4) (a) A water services authority may, subject to such criteria as may be specified or direction as may be made by the Minister for such purposes, if the authority is satisfied that it is appropriate to so do on grounds of personal hardship or quality of water supplied, waive a charge made under this section.

(b) Where a charge is waived under paragraph (a), the liability of a person to pay such charge and any obligation on the water services authority by whom the waiver was made to collect such charge shall cease.

(c) In this subsection “ charge ” includes portion of a charge.

(5) (a) A charge under this section shall be paid by and recoverable from the person to whom the water services concerned are provided.

(b) For the purposes of this section and subject to paragraph (c), where a premises to which water services are provided is let, then the occupier of the premises to which water services are provided shall be deemed to be the person to whom the water services are provided, unless the occupier concerned proves to the contrary.

(c) Where after reasonable inquiry, a water services authority cannot establish the identity of the occupier of a premises to which water services are provided, then the owner of the premises shall be deemed to be the person to whom the water services are provided, unless the owner proves that the water services are provided to another specified person.

(d) In this subsection, a reference to a premises which is let includes a reference to a part of such premises which is sublet.

(6) A water services authority may appoint an agent to collect water services charges on its behalf, and that person shall be deemed to be an authorised person for the purposes of this section, and references in this section to a water services authority shall be construed, where appropriate, as including such agent.

(7) Where a charge under this section is calculated by reference to the quantity of water supplied or waste water discharged, then the water services authority, or person providing water services jointly with it or on its behalf, may—

(a) supply the water by measure, in which case a meter shall be used to measure the quantity of the supply, or

(b) measure the discharge, in which case the waste water discharge shall be discharged via a meter,

and Part 5 shall apply to the metering of such supply or discharge.

(8) For the purposes of this section, in the absence of evidence to the contrary or of an agreement otherwise entered into between a water services authority and a person to whom water services are provided, the quantity of waste water discharged from a premises may be deemed to equal the quantity of water supplied to that premises.

(9) (a) A charge under this section for water services to be provided otherwise than by measure shall—

(i) be payable in respect of any year to the water services authority in 2 equal instalments on or before the 1st day of January and the 1st day of July of that year, or in such other manner as the water services authority to whom the charge is payable shall determine, and

(ii) in default of being paid within 2 months after becoming payable, be recoverable as a simple contract debt in any court of competent jurisdiction.

(b) A charge under this section for water services supplied by measure shall—

(i) be payable on demand to the water services authority, and

(ii) in default of being so paid, be recoverable as a simple contract debt in any court of competent jurisdiction.

(10) A water services authority, or a person providing water services jointly with it or on its behalf and having received authority from the water services authority, may discontinue or restrict a related supply of water to a person where a charge under this section for water services provided to that person remains wholly or partly unpaid on the expiration of 2 months after becoming payable, and—

(a) the cost of the discontinuance shall be recoverable in any proceedings for the recovery of the charge,

(b) the cost of re-connection shall be payable by the person liable for the charge.

(11) Without prejudice to subsection (1), where water services provided by a water services authority, or jointly with it or on its behalf, constitute, or may constitute, services to a household for domestic purposes and other purposes, the water services authority may make such estimation as it considers reasonable of the proportion of those services which is used for domestic purposes, and may have regard to any such estimation in determining whether, and on what basis, to make a charge for provision of water services under this section.

(12) Any reference in this Act to provision of water services for domestic purposes shall be construed as a reference to provision of water services for day to day domestic requirements including drinking, washing and sanitation, but exclusive of water services used for—

(a) agriculture or horticulture,

(b) any trade, industry or business,

(c) any purpose incidental to a household or private garden (including washing a private vehicle) if the water is drawn otherwise than from a tap inside the household or if a hosepipe or similar apparatus is used,

(d) central heating other than central heating of a household,

(e) apparatus depending while in use upon a supply of continuously running water, not being an apparatus used solely for heating water.

(13) In this section—

“ household ” means a building or part of a building used by a person as his or her place of private residence (whether as his or her principal place of such residence or not) and includes accommodation provided in such a residence to one or more students to enable them to pursue their studies on a fulltime basis but does not include any part of a building used for the provision, for the purposes of reward, with a view to profit or otherwise in the course of business, of accommodation, including self-catering accommodation, (other than accommodation provided in a place of private residence aforesaid to one or more students for the purposes aforesaid) unless the person to whom the accommodation is so provided uses the accommodation as his or her principal place of private residence;

“ water services ” includes abstraction or impoundment of water for supply.

Regulations for the purpose of section 105 .

106 .— (1) The Minister may make regulations for the purpose of section 105 .

(2) Without prejudice to the generality of subsection (1), regulations under this section may provide for all or any of the following:

(a) varied rates of unit charges to be applied in proportion to the volume of water supplied or the volume or strength of waste water discharged;

(b) fixing a minimum or maximum limit for charges;

(c) criteria for the achievement of full cost recovery;

(d) criteria for the allocation of charges among tenants in multi-occupancy premises;

(e) criteria for estimating elements of a charge subject to their subsequent adjustment, if necessary, and consequent offset from or addition to a future charge;

(f) criteria for the apportionment of the costs of water services provided to a household as between domestic and other purposes;

(g) criteria for deciding what level of provision may reasonably be regarded as necessary for the domestic purposes of a household;

(h) certification or provision of proof by a specified person that a particular premises is used as his or her principal place of residence;

(i) measures necessary to verify the volume of intake of water supply or the volume or strength of waste water discharges;

(j) procedures to be followed in relation to collection of charges under section 105 , including the appointment of an agent to collect such charges;

(k) the design and layout of related forms.