Process of Voluntary adoption

241.     This paragraph sets out what happens where the duty of adoption does not apply to a drainage system, but the Approving Body nonetheless decides to adopt it. When doing so it must notify the relevant sewerage undertake and anyone who owns land on which the drainage system is located or from which the drainage system will drain water. The notification must specify the extent of the drainage system which is being adopted.

242.     The Approving Body must also include the drainage system in the local authority register which is established under Part 1 of the Bill, and designate any parts of the drainage systems which are on third party land and which are eligible to be designated under Schedule 1 of the Bill.

243.     The Minister can make regulations about the timing and manner in which notification, registration and designation are carried out. Any such regulations will be subject to the negative resolution procedure.

Appeals

244.     This paragraph requires the Minister to make regulations providing a right of appeal against decisions about applications for approval (including decisions about conditions), and decisions about the duty to adopt. The regulations must specify jurisdiction for appeals on the Minister, a court or tribunal, and make provision for the procedures and circumstances for appeal.

Building Act 1984

245.     This paragraph provides for changes to the Building Act 1984.

246.     Section 21 of the Building Act provides that when a developer deposits plans of a building or extension in accordance with Building Regulations, the local authority can direct that the building be connected to a sewer. This paragraph amends section 21 so as to provide that where the construction work requires approval under this Schedule, the power in section 21 will no longer apply.

247.     Section 59(1)(c) of the Building Act provides that where a cesspool, private sewer, drain or other specified types of drainage work which are provided for a building is in such a condition so as to be prejudicial to health or a nuisance, the local authority may require the owner of the building to carry out work on. This paragraph extends the power in this section so that it also applies to sustainable drainage systems (whether or not they are adopted) in the same way as it applies to cesspools, sewers, drains etc. Insofar as it relates to sustainable drainage systems, the power may be exercised by the Approving Body - under the Building Act the powers are only available to district councils, whereas Approving Bodies will generally be county councils.

248.     Finally, section 84(1) of the Building Act provides that if certain courts, yards or passages related to buildings so as to allow for the satisfactory drainage of its surface or subsoil to a proper outfall, the local authority may serve a notice requiring the owner of the buildings to carry out work to remedy the defect. This paragraph removes the words “to a proper outfall”. The effect of this amendment is that if the court, yard or passage is effectively drained, the local authority cannot serve a notice, irrespective of whether the drainage is via a proper outfall. This will allow drainage to take place via a sustainable drainage system as (for example) permeable paving might not be regarded as a proper outfall.

Clause 33: Reservoirs

249.     This clause introduces Schedule 4: Reservoirs. This Schedule makes various amendments to the Reservoirs Act 1975 so as to introduce a risk-based approach to reservoir safety in England and Wales reflecting the danger that reservoir failures might pose to human life. It provides the Environment Agency with enforcement powers to support this.

Schedule 4: Reservoirs

Introduction

250.     Paragraph 1 introduces the specific amendments to the Reservoirs Act 1975 in England and Wales. References below to the Minister are to the Secretary of State in relation to England and the Welsh Ministers in relation to Wales.

“Large raised reservoir”

251.     Paragraph 2 amends the definition of “large raised reservoir” for the purposes of the Reservoirs Act 1975. It inserts new section A1 before section 1 of the Reservoirs Act 1975 and removes section 1(1) to (3) from the Reservoirs Act 1975.

252.     The new definition of “large raised reservoir” is contained in new section A1(1) and provides that a large raised reservoir is (a) a large, raised structure designed or used for collecting and storing water; and (b) a large, raised lake or other area capable of storing water which was created or enlarged by artificial means. New section A1(1)(a) includes non-impounding, bunded reservoirs (reservoirs made up of an embankment which is filled from for example river or groundwater sources and rain). New section A1(1)(b) includes impounding reservoirs (formed by the construction of an embankment across a watercourse or lake).

253.     The terms “raised” and “large” are further defined in subsection (2) and (3) of new section A1. A “raised” structure or area will be “large” if it is capable of storing 10,000 cubic metres of water or more above the natural level of any part of the surrounding land. The volume may be amended by order by the Minister under subsection (7) of new section A1.

254.     Subsection (4) of new section A1 allows the Minister to make regulations specifying in more detail how the capacity of a large raised reservoir is to be calculated for the purposes of the Reservoirs Act 1975. This will enable the Minister to provide clarification to engineers and reservoir undertakers on how to calculate the volume capacity of a reservoir for the purposes of determining whether a structure or area falls within the new definition of large raised reservoir.

255.     Subsection (5) of the new section A1 enables the Minister to make regulations to provide for a structure which is designed or used for collecting and storing water or an area capable of storing water which was created or enlarged by artificial means to be treated as “large” by reason of its proximity to, or actual or potential communication with another such structure or area. The power will enable the Minister to specify those cases where an area or structure which is not capable of storing 10,000 cubic metres of water is nevertheless to be treated as a large raised reservoir because it is in a “cascade”. Such a structure or area may, for example, be capable of releasing 10,000 cubic metres of water or more if an upstream reservoir breaches or fails and may therefore pose the same danger as a large raised reservoir.

256.     Subsection (6) of the new section A1 requires the Minister to aim to ensure, when making these regulations, that such a structure or area is treated as “large” only if 10,000 more cubic metres of water might be released as a result of this proximity or communication.

257.     Subsection (8) allows the Minister to make regulations providing for specified things not to be treated as large raised reservoirs for the purposes of the Reservoirs Act 1975.

258.     Subsection (9) of the new section A1 defines a large raised reservoir further to include anything used or designed to contain the water or its flow.

259.     Orders made under subsection (7) and regulations made under subsection (8) of new section A1 are subject to the affirmative resolution procedure. Regulations made under subsections (4) and (5) are subject to the negative resolution procedure. See further paragraph 38 of Schedule 4.

260.     Paragraph 3 makes consequential amendments to the Reservoirs Act 1975.

Registration

261.     Paragraph 4 inserts additional provisions after section 2(2A) of the Reservoirs Act 1975. Section 2(2) requires the Environment Agency to establish and maintain a register of large raised reservoirs and a record of information about each.

262.     New section 2(2B) requires the undertaker to register a large raised reservoir with the Environment Agency. New section 2(2C) allows the Minister to make regulations about registration, including the information to be registered and the time by which information, or changes to it, must be registered.

263.     Paragraph 5 makes a consequential amendment to the Reservoirs Act 1975.

264.     Paragraph 6 inserts section 22(1)(A1) before section 22(1) of the Reservoirs Act 1975. Under new section 22(1)(A1) it is an offence to fail to comply with the requirements of new section 2(2B) or a requirement specified in regulations under new section 2(2C). New section 22(1)(A2) sets out the penalty for an offence under section 22(1)(A1).

265.     Regulations made under new section 2(2)(C) are subject to the negative resolution procedure (see further paragraph 38 of Schedule 4).

High-risk reservoirs

266.     Paragraphs 7 and 8 insert new sections 2A to 2E after section 2 of the Reservoirs Act 1975 and make consequential amendments.

267.     New section 2A(1) and (2) require the Environment Agency, as soon as reasonably practicable after a large raised reservoir has been registered under new section 2(2B), to consider whether it is to be designated as a “high-risk reservoir”. Where the Environment Agency proposes to designate a large raised reservoir as a high-risk reservoir, it must notify the undertaker of its provisional designation, including the reasons for this designation, and how and within what period representations to the Agency can be made.

268.     New section 2B(1) and (2) empowers the Environment Agency to designate a large raised reservoir as a high risk one by giving notice confirming a provisional designation.

269.     New section 2C sets out the criteria by reference to which the Environment Agency may determine that a large raised reservoir is a high-risk reservoir. Under subsection (1) of new section 2C the Agency may determine that a large raised reservoir is a high-risk reservoir if the Agency thinks that, in the event of an uncontrolled release of water from the reservoir, human life could be endangered unless the reservoir satisfies any conditions specified in regulations that may be made by the Minister. Subsection (2) of new section 2C gives an indication of the conditions that may be specified in regulations made under new section 2C(1)(b).

270.     The undertaker of a high-risk reservoir will be required to comply with sections 10, 11 and 12 of the Reservoirs Act 1975 (as amended).

271.     Where a large raised reservoir has not been designated as a high-risk reservoir following its registration, new section 2D requires the Environment Agency to carry out a review if it later thinks that it may be appropriate to designate the reservoir as a high-risk reservoir because, for example, development has taken place downstream or alterations to the reservoir have affected the reservoir’s inundation zone. The Environment Agency must also carry out a review if it thinks that the designation of a large raised reservoir as a high-risk reservoir may have ceased to be appropriate. The procedure that applies to the Agency’s determination following a review is the same as the procedure that applies when a large raised reservoir is first designated.

272.     New section 2E requires Ministers to make regulations providing a right of appeal against designations made under new section 2B and associated procedures. Under subsection (3) of new section 2E a designation is suspended pending the outcome of the appeal.

Panels of Engineers

273.     Paragraph 9 adds new subsections (10) and (11) to section 4 of the Reservoirs Act 1975 to enable the Secretary of State and Welsh Ministers jointly to establish one or more panels of engineers. Engineers on the panel(s) would be appointed to act as construction, inspecting or supervising engineers for the purposes of the Act.

Construction and alteration

274.     Paragraphs 10 and 11 amend section 6 of the Reservoirs Act 1975 which deals with the construction or enlargement of large raised reservoirs.

275.     Subparagraphs (2) to (5) amend section 6 of the Reservoirs Act 1975 so that it also applies to alterations to a large raised reservoir to decrease its capacity. Paragraph 10 makes various consequential amendments to sections 7, 8 and 10 arising from this amendment.

276.     Subparagraph (6) adds new subsections 6A and 6B to section 6 of the Reservoirs Act 1975. New subsection 6A provides that section 13 of the Reservoirs Act 1975 applies to alterations or proposed alterations to decrease the capacity of a large raised reservoir so that it is incapable of holding 10,000 cubic metres of water above the natural level of the surrounding land. New subsection 6B allows the Minister by order to substitute a different volume of water for the volume specified in subsection 6A in line with changes to the volume capacity specified in new section A1(3). An order made under new section 6(6B) is subject to the affirmative resolution procedure (see further paragraph 38 of Schedule 4).

277.     Paragraph 11(6) amends section 8(3) of the Reservoirs Act 1975 (powers of the enforcement authority in the event of non-compliance with the requirements as to construction or alteration of large raised reservoirs) to require the undertaker to carry out any recommendations an appointed engineer sees fit to make in the interests of safety within the periods specified in the engineer’s report. The engineer’s report must specify the period within which each recommendation contained in the report must be carried out.

High-risk reservoirs: inspections

278.     Paragraph 12 amends section 10 of the Reservoirs Act 1975 (inspections).

279.     Subparagraph (2) amends section 10(1) of the Reservoirs Act 1975 so that the requirement on undertakers to have any large raised reservoir inspected is amended to apply the requirement to undertakers of high risk reservoirs only. Regulations made under section 10(2) (as amended) are subject to the affirmative resolution procedure.

280.     Subparagraph (3) amends section 10(2) of the Reservoirs Act 1975 to allow the Minister to make regulations about the times at which a high-risk reservoir must be inspected.

281.     Subparagraph (4) amends section 10(3) of the Reservoirs Act 1975 to allow the inspecting engineer to make any recommendations he sees fit as to (a) the timing of the next inspection (b) the maintenance of the reservoir, and (c) any measures required in the interests of safety and the period in which those measures must be taken. Subparagraph (8) amends section 10(6) of the Reservoirs Act 1975 to require undertakers to carry out any recommendations as to measures required in the interests of safety made by the inspecting engineer within the period specified in the engineer’s report. The engineer’s report must specify the period within which any measure required in the interests of safety must be carried out. Subparagraph (6) amends section 10(5) of the Reservoirs Act 1975 to require the inspecting engineer to include in the certificate he is required to give under section 10(5) any recommendations as to the maintenance of the reservoir included in the engineer’s report. Subparagraph (7) adds a new subsection 10(5A) and requires the undertaker to comply with any recommendation made by an inspecting engineer under section 10(3)(b) of the Reservoirs Act 1975 (as amended) as to the maintenance of the reservoir.

282.     Subparagraph (5) inserts a new subsection after section 10(3) of the Reservoirs Act 1975 to require an inspecting engineer to notify the Environment Agency if he has not provided a report before the end of the period of 6 months beginning with the date of completion of the inspection of the reservoir and to provide a written statement of the reasons.

283.     Subparagraph (9) inserts into section 10 of the Reservoirs Act 1975 subsection (6A) which requires an inspecting engineer to include in his report a statement as to whether all of the safety measures recommended in the previous inspection report have been taken. Where they have not, the inspecting engineer must either include in the report recommendations to take any safety measure that has not yet been taken or an explanation of why it is no longer required.

284.     Paragraphs 13 and 14 contain various consequential amendments to the Reservoirs Act 1975 resulting from the new provision allowing an inspecting engineer to make recommendations as to the maintenance of the reservoir.

285.     Paragraph 15 inserts subsections (1AA) and (1AB) after section 22(1A) of the Reservoirs Act 1975 (criminal liability). Under new section 22(1AA), it is an offence to fail to comply with the requirements of section 10(5A) (as amended). The penalty for this offence is set out in new subsection 22(1)(1AB).

High-risk reservoirs: monitoring and supervision

286.     Paragraphs 16 and 17 amend sections 11 and 12 of the Reservoirs Act 1975 (monitoring and supervision). Sections 11 and 12, as amended, apply to high-risk reservoirs only.

287.     Paragraph 17(3) inserts subsections (2A) and (2B) after section 12(2) of the Reservoirs Act 1975. New subsections 12(2A) and (2B) require the supervising engineer to provide the undertaker with a statement of any steps taken to maintain the reservoir in accordance with the recommendations of the inspecting engineer under new section 10(3)(b) at least once every 12 months.

288.     Paragraph 17(5) adds subsections (6) to (8) to the end of section 12 of the Reservoirs Act 1975. New section 12(6) gives the supervising engineer the power to direct the undertaker to carry out a visual inspection of the reservoir at specified intervals for the purpose of identifying anything that might affect the safety of the reservoir. These provisions will enable supervising engineers to set out how undertakers can keep a look out for potential problems, such as growing leaks or embankment subsidence which if caught early can avoid worse problems, including emergency situations, developing later on. New section 12(7) requires the undertaker to notify the supervising engineer of each visual inspection that is carried out and anything noticed in the course of it. New section 12(8) allows the Minister to issue guidance to supervising engineers about supervision in accordance with section 12 of the Reservoirs Act 1975 (as amended).

289.     Paragraph 19 inserts subsections (1AC) and (1AD) into section 22(1) of the Reservoirs Act 1975 (criminal liability). Under new section 22(1AC), it is an offence, without reasonable excuse, to fail to comply with the requirements of new section 12(6) or 12(7). New section 22(1)(1AD) sets out the penalty for this offence.

Flood plans

290.     Paragraphs 20 and 21 amend section 12A of the Reservoirs Act 1975.

291.     Paragraphs 20(2) and (3) amend the definition of a flood plan in section 12A(1) of the Reservoirs Act 1975 to provide that a flood plan must also give information about the areas that may be flooded in the event of an uncontrolled escape of water and describe the action the undertaker would take in order to prevent an uncontrolled escape of water. Paragraph 21 inserts section 12AA which defines the procedures to be followed where an undertaker is directed to prepare a flood plan, including certification, review, revision, testing and implementation of a flood plan. The undertaker must prepare a flood plan in consultation with the appointed engineer and the engineer must certify that it meets the requirements of section 12A(2)(a) and (b). Paragraph 22 amends section 19 to allow the undertaker to challenge a failure by the appointed engineer to issue a certificate under new section 12AA(3).

292.     Paragraph 24 inserts subsection (1AE) into section 22 of the Reservoirs Act 1975 (criminal liability). New section 22(1AE) makes it an offence to fail to comply with the requirements of new section 12AA(4), (5), (6) or (7) and sets out the penalties for these offences.

Discontinuance

293.     Paragraph 25 amends section 13 of the Reservoirs Act 1975.

294.     Paragraph 25(2) amends section 13(1) of the Reservoirs Act 1975 to substitute for “more than 25,000” the figure “10,000” to reflect the new definition of large raised reservoir (see paragraph 2 of Schedule 4).

295.     Paragraph 25(3) inserts new subsections (1A) to (1E) after section 13(1) of the Reservoirs Act 1975. These provisions allow a qualified civil engineer to issue an interim certificate if he thinks that the level of water in the reservoir should be reduced before the alteration is completed and requires the undertaker to ensure that the reservoir does not contain water except in accordance with the interim certificate.

296.     Paragraph 25(5) adds at the end of section 13 of the Reservoirs Act 1975 new subsections (4) and (5). New section 13(4) allows the Minister by order to substitute a different volume of water for that specified in section 13(1) and 13(3) in line with changes made to the volume capacity specified in new section A1. New section 13(5) allows the Environment Agency to serve a notice requiring the undertaker to appoint a qualified civil engineer where it appears to the Agency that such an engineer has not been employed as required by section 13(1) of the Reservoirs Act 1975. Paragraph 26 makes consequential amendments to sections 15 and 22(1)(b) (criminal liability) of the Reservoirs Act 1975.

297.     An order made under new section 13(4) is subject to the affirmative resolution procedure.

Abandonment

298.     Paragraphs 27 to 28 amend section 14 of the Reservoirs Act 1975.

299.     Paragraph 27(2) amends section 14(2) of the Reservoirs Act 1975 to require the undertakers of a large raised reservoir who are proposing to abandon the use of their reservoir to carry out any recommendations as to measures to be taken in the interests of safety made by the appointed engineer within the period specified in the report.

300.     Paragraph 27(3) adds section 14(6), which allows the Ministers to make regulations providing for what is and is not to be treated as abandonment of use and bringing back a large raised reservoir into use as a reservoir for the purpose of the Act.

301.     Regulations made under new section 14(6) are subject to the negative resolution procedure.

Appeals

302.     Paragraph 30 inserts section 19A to the Reservoirs Act 1975. Under sections 8(1), 9(7) , 10(7), 12(4), 13(5) and 14(4), the Environment Agency may serve an enforcement notice on the undertakers of a large raised reservoir requiring them to appoint an engineer where it appears to the Agency that the undertakers have not appointed one as required. Under sections 8(3A), 9(7), 10(7) and 14(4), the Agency may also serve an enforcement notice on the undertakers of a large raised reservoir where it appears to the Agency that the undertakers have not carried out any recommendation of an engineer as to measures in the interests of safety. Section 19A requires Ministers to make regulations to provide a right of appeal against the requirements in these enforcement notices. Regulations must define which person or body has jurisdiction and procedural matters.

Directions of engineers

303.     Paragraph 31 amends section 20(1) of the Reservoirs Act 1975 to include directions made by an engineer under the Act in the list of forms that may be prescribed (see also paragraph 21).

Assessment of reports and statements

304.     Paragraph 32 inserts section 20A after section 20 of the Reservoirs Act 1975. This will allow Ministers to make regulations for the assessment of the quality of reports and written statements prepared by inspecting and supervising engineers (new section 20A(1)), including for the assessment to be made by a committee of members of the Institution of Civil Engineers (new section 20A(2)). Regulations may set out the criteria and procedures for assessment. The provision will provide a basis on which improvements to, and a greater consistency in, engineers’ reports etc can be achieved and will help to identify where prescribed forms or guidance needs to be revised.

305.     Regulations made under new section 20A(1) are subject to the negative resolution procedure.

Information and reports

306.     Paragraph 33 inserts sections 21A and 21B after section 21 of the Reservoirs Act 1975.

307.     New section 21A (power to require information) allows the Environment Agency by notice to require an undertaker to provide specified information for the purposes of carrying out its functions under the Reservoirs Act 1975.

308.     New section 21B (reports) allows the Minister to make regulations to require a specified person to report to the Environment Agency on any incident of a specified kind which affected or could have affected the safety of a large raised reservoir. This will enable the Minister to specify the kinds of incident that should be reported to the Environment Agency for collating and dissemination to reservoir undertakers and panel engineers. The intention is that such concerns should be disseminated to undertakers and the profession so that all can learn from individual incidents and if necessary technical guidance issued.

309.     Paragraph 34 inserts subsection (4A) to (4C) after section 22(4) of the Reservoirs Act 1975 (criminal liability) to make it an offence to fail to comply with a requirement of a notice under new section 21(A) or to make a report under regulations made under new section 21(B).

310.     Regulations made under new section 21B(1) above are subject to the negative resolution procedure.

Enforcement: supplementary

311.     Paragraph 35 amends section 22(1) of the Reservoirs Act 1975 (criminal liability) by removing the references in that section to “by the wilful default of the undertakers” and “unless there is reasonable excuse for the default or failure” to make the offences strict liability offences.

312.     Paragraph 36 inserts new section 22C after section 22B of the Reservoirs Act 1975 (criminal liability). Under new section 22C, the undertaker must pay to the Environment Agency the amount of expenses reasonably incurred by the Agency in connection with the consultation of an engineer when exercising its enforcement powers under sections 8 (construction and enlargement), 9 (re-use of abandoned reservoirs), 10 (inspection) and 14 (abandonment) of the Reservoirs Act 1975.