Local Government (Water Pollution)(Amendment) Act , 1990

1 Interpretation.

1.—(1) In this Act—

“the Act of 1959” means the Fisheries (Consolidation) Act, 1959;

“the Principal Act” means the Local Government (Water Pollution) Act, 1977.

(2) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment (including this Act).

2 Amendment of section 1 of Principal Act.

2.—Section 1 (1) of the Principal Act is hereby amended by the deletion of the definitions of “aquifer” and “sewer” and the insertion of the following definitions before the definition of “board of conservators”;

“‘aquifer’ means any stratum or combination of strata that stores or transmits groundwater;

‘combined drain’ means a drainage pipe, or a system of such pipes, that is not vested in or controlled by a sanitary authority and is used to convey trade effluent or other matter (other than storm water) from two or more premises to any waters or to a sewer;

‘fisheries region’ has the meaning assigned to it by the Fisheries Act, 1980, and includes the Foyle Area, within the meaning of the Foyle Fisheries Act, 1952;

‘regional board’ has the meaning assigned to it by the Fisheries Act, 1980, and includes the Foyle Fisheries Commission;

‘sewer’ means a sewer within the meaning of the Local Government (Sanitary Services) Acts, 1878 to 1964, that is vested in or controlled by a sanitary authority and includes a sewage treatment works, and a sewage disposal works, that is vested in or controlled by a sanitary authority;”.

3 Amendment of section 3 of Principal Act.

3.—(1) Section 3 of the Principal Act is hereby amended by—

(a) the substitution for subsection (3) of the following subsection—

“(3) It shall be a defence to a charge of committing an offence under this section for the accused to prove that he took all reasonable care to prevent the entry to waters to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that were suitable for the purpose of such prevention.”, and

(b) the substitution for paragraph (a) of subsection (5) of the following paragraphs—

“(a) (i) a discharge of a trade effluent or a sewage effluent which is made under and in accordance with a licence under section 4;

(ii) a discharge of a sewage effluent from a sewer: Provided that, where a standard applying to the effluent stands prescribed under section 26, the discharge complies with that standard;

(iii) a discharge of a trade effluent or sewage effluent to which regulations under section 4 (10) apply: Provided that, where a standard applying to the effluent stands prescribed under section 26, the discharge complies with that standard;

(aa) any entry authorised by or under an enactment specified in the Table to subsection (6);”.

(2) (a) The Minister may, after consultation with any other Minister of the Government who, having regard to his functions, he considers ought to be consulted, by regulations, restrict, attach conditions to, or repeal all or any of the exemptions specified in subsection (5) or (6) of section 3 of the Principal Act.

(b) Where it is proposed to make regulations under this subsection, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

(3) A reference in any enactment specified in the Table to section 3 of the Principal Act to the Act of 1959 shall be construed as including a reference to subsection (1) of that section.

4 Amendment of section 6 of Principal Act.

4.—Section 6 of the Principal Act is hereby amended by the insertion of the following subsections after subsection (2):

“(2A) Regulations under this section may make provision for—

(a) the payment to a local authority of a fee of such amount as may be specified in respect of an application to it for a licence under section 4, and

(b) the payment to An Bord Pleanála of a fee of such amount as may be specified in respect of an appeal to it under section 8,

and any such regulations may make provision for—

(i) the payment of fees of different amounts in respect of different classes of such applications and appeals as aforesaid,

(ii) exemption from the payment of fees provided for under paragraph (a) or (b) in such circumstances as may be specified,

(iii) the waiver, remission or refund (in whole or in part) of any such fees as aforesaid in such circumstances as may be specified, and

(iv) the manner in which such fees may be disposed of.

(2B) Where, pursuant to regulations under this section, a fee is payable to a local authority in respect of an application for a licence under section 4, the local authority shall not entertain the application unless the fee is received by the local authority.

(2C) Where, pursuant to regulations under this section, a fee is payable to An Bord Pleanála in respect of an appeal under section 8, the appeal shall not be entertained unless the fee is received by An Bord Pleanála before the expiration of the prescribed period referred to in subsection (1) of that section.

(2D) Where, pursuant to regulations under this section, a fee is payable to An Bord Pleanála in respect of an appeal under section 8 and the person by whom the fee is payable is neither the applicant for the licence to which the appeal relates nor the person or one of the persons who brought the appeal, An Bord Pleanála shall not entertain submissions or observations in relation to the appeal made by or on behalf of the person by whom the fee is payable unless the fee is received by An Bord Pleanála.

(2E) Where, pursuant to regulations under this section, a fee is payable to An Bord Pleanála in respect of a request for the oral hearing of an appeal, An Bord Pleanála shall not consider the request unless the fee is received by An Bord Pleanála.”.

5 Amendment of section 7 of Principal Act.

5.—Section 7 of the Principal Act is hereby amended by—

(a) the substitution for subsections (2) and (3) of the following subsections:

“(2) Notwithstanding any other provision of this Act or any condition in a licence under section 4, any such licence may be reviewed at any time by the local authority that granted it if—

(a) the local authority has reasonable grounds for believing that the discharge authorised by the licence is or is likely to be injurious to public health or renders or is likely to render the waters concerned unfit for use for domestic, commercial, industrial, fishery (including fish-farming), agricultural or recreational uses,

(b) there has been a material change in the nature or volume of the discharge,

(c) there has been a material change in relation to the waters to which the discharge is made,

(d) further information has become available since the date of the granting of the licence relating to polluting matter present in the discharge concerned or relating to the effects of such matter, or

(e) the licensee applies to the local authority concerned to review the licence.

(2A) Notwithstanding any other provision of this Act or any condition in a licence under section 4, where regulations are in force under section 26 such a licence relating to an effluent or waters to which the regulations apply shall be reviewed by the local authority that granted it—

(a) in case it was in force before the commencement of the regulations, as soon as may be after such commencement and thereafter at such intervals as may be specified in the regulations, and

(b) in any other case, at such intervals as may be specified in the regulations.

(3) Upon completion of a review under this section, a local authority may amend or delete any condition of the licence or attach conditions or additional conditions to the licence or revoke the licence; and if the local authority proposes to exercise a power aforesaid, it shall do so as soon as may be after the completion of the relevant review under this section.”,

(b) the insertion in subsection (4) after paragraph (b) of the following paragraph:

“(c) Without prejudice to the generality of paragraph (a), regulations under this subsection may also make provision in relation to any of the following matters:

(i) the payment to local authorities of fees of such amounts as may be specified in the regulations in relation to reviews of licences,

(ii) the payment of fees of different amounts in respect of different classes of such reviews as aforesaid,

(iii) exemption from the payment of such fees in such circumstances as may be specified,

(iv) the waiver, remission or refund (in whole or in part) of such fees in such circumstances as may be specified, and

(v) the manner in which such fees may be disposed of.”,

and

(c) the insertion after subsection (4) of the following subsection:

“(5) Where, pursuant to regulations under this section, a fee is payable to a local authority, the local authority shall not conduct the review in relation to which it is payable until the receipt thereof by the local authority.”.

6 Appeals in relation to sections 4 and 7 of Principal Act.

6.—(1) The following section shall be substituted for section 8 of the Principal Act:

“8.—(1) (a) A person may, before the expiration of such period as may be prescribed, appeal to An Bord Pleanála in relation to—

(i) the grant, refusal to grant or revocation of a licence under section 4,

(ii) the attachment of conditions or additional conditions to such a licence, or

(iii) the amendment or deletion of any condition attached to such a licence,

by a local authority.

(b) An act of a local authority referred to in paragraph (a) shall have effect—

(i) in case an appeal is not brought against it, upon the expiration of the period referred to in paragraph (a),

(ii) in case an appeal is brought against it and the final determination of the appeal does not set the act aside, in accordance with such final determination,

(iii) in case an appeal or appeals is or are brought against it and the appeal or appeals is or are withdrawn—

(I) if the period referred to in paragraph (a) has expired, upon such withdrawal, and

(II) if the period aforesaid has not expired, upon its expiry.

(2) An Bord Pleanála, after consideration of an appeal under this section, shall (as it thinks proper) allow or refuse the appeal and may give any direction consequent on its decision that it considers appropriate to the local authority concerned (including a direction that a specified condition be attached to the licence concerned or be amended or deleted) and a local authority shall comply with any such direction.”.

(2) Appeals brought under section 8 of the Principal Act and not finally determined upon the commencement of this section shall be continued and determined as if so brought after such commencement.

7 Powers of courts, local authorities and regional boards in relation to the mitigation and remedying of effects of pollution.

7.—The following section shall be substituted for section 10 of the Principal Act:

“10.—(1) (a) Where, on application by any person to the appropriate court, whether or not the person has an interest in the waters concerned, that court is satisfied that another person—

(i) is causing or permitting, or has caused or permitted, polluting matter to enter waters and the entry is or was not one to which section 3 (5) applies and is or was not under and in accordance with a licence under section 171 of the Act of 1959, or

(ii) is discharging or causing or permitting to be discharged, or has discharged or caused or permitted to be discharged, trade effluent or sewage effluent to waters and the discharge is or was not one to which subsection (2) of section 4 applies and is or was not under and in accordance with a licence under that section or the said section 171,

that court may make an order directing that other person to do one or more of the following, that is to say:

(I) to terminate the entry or discharge within such period as may be specified in the order, or

(II) to mitigate or remedy any effects of the entry or discharge concerned in such manner and within such period as may be specified in the order, or

(III) to pay to the applicant or such other person as may be specified in the order a specified amount to defray all or part of any costs incurred by the applicant or that other person in investigating, mitigating or remedying the effects of the entry or discharge concerned.

(b) In this subsection ‘appropriate court’, in relation to an application under paragraph (a) means—

(i) in case the estimated cost of complying with the order to which the application relates does not exceed £2,500, the District Court,

(ii) in case the estimated cost aforesaid does not exceed £15,000, the Circuit Court, and

(iii) in any case, the High Court.

(c) (i) If, in relation to an application under this section to the District Court, that court becomes of opinion during the hearing of the application that the estimated cost aforesaid will exceed £2,500, it may, if it so thinks fit, transfer the application to the Circuit Court or the High Court, whichever it considers appropriate having regard to the estimated cost aforesaid.

(ii) If, in relation to an application under this section to the Circuit Court, that court becomes of opinion during the hearing of the application that the estimated cost aforesaid will exceed £15,000, it may, if it so thinks fit, by order transfer the application to the High Court.

(iii) This paragraph is without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an application under this section in relation to which it was, at the time of the making of the application, the appropriate court.

(d) An application under this section shall be brought in a summary manner.

(e) A court may, if it so thinks fit, make such interim or interlocutory order as it considers appropriate in proceedings under this section and, where an application is transferred under paragraph (c), the court to which it is transferred shall be deemed to have made any order made under this paragraph by the court from which it is so transferred in the proceedings in relation to the application.

(2) Without prejudice to any power of a court to enforce orders made by it, a person who does not comply with an order under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or imprisonment for a term not exceeding 6 months or both.

(3) (a) An order shall not be made by a court under this section unless the person named in the order has been given an opportunity of being heard by the court in the proceedings relating to the application for the order.

(b) The court concerned may make such order as to the costs of the parties to or persons heard by the court in proceedings relating to an application for an order under this section as it considers appropriate.

(4) (a) Where a person does not comply with an order under subsection (1), the local authority, or the regional board, in whose functional area the waters concerned are situated, may take any steps specified in the order to mitigate or remedy the effects of the entry or discharge concerned.

(b) The amount of any expenditure incurred by a local authority or regional board in relation to steps taken by it under paragraph (a) shall be a simple contract debt owed by the person in respect of whom the order under subsection (1) was made to the authority or board, as the case may be, and may be recovered by it from the person as a simple contract debt in any court of competent jurisdiction.

(5) A local authority may serve on a person who is—

(a) causing or permitting polluting matter to enter waters and the entry is not one to which section 3 (5) applies and is not under and in accordance with a licence under section 171 of the Act of 1959, or

(b) causing or permitting trade effluent or sewage effluent to be discharged to waters and the discharge is not one to which section 4 (2) applies, and is not under and in accordance with a licence under that section or under the said section 171,

a notice in writing requiring the cesser of the entry or discharge concerned within such period as may be specified in the notice and requiring the mitigation or remedying of any effects of such entry or discharge in such manner and within such period as may be specified in the notice.

(6) Where a person does not comply with a notice under subsection (5), the local authority concerned may take any steps it considers necessary to terminate the entry or discharge concerned and to mitigate or remedy any effects thereof and the amount of any expenditure incurred by it in relation to any such steps shall be a simple contract debt owed by the person to it and may be recovered by it from the person as a simple contract debt in any court of competent jurisdiction.

(7) (a) An application under subsection (1) to the District Court shall be made to the justice of the District Court for the District Court district in which the waters concerned or the land or other premises from which the entry or discharge concerned takes place, is situated.

(b) An application under subsection (1) to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the waters concerned or the land or other premises from which the entry or discharge concerned takes place, is situated.

(8) Without prejudice to the generality of subsections (1) and (5), an order under subsection (1) or a notice under subsection (5) may require—

(a) the replacement of fish stocks,

(b) the restoration of spawning grounds,

(c) the taking of measures to prevent the continuance of the entry or discharge to which the order or notice relates,

(d) the removal of polluting matter from waters,

(e) the treatment of affected waters so as to mitigate or remedy the effects of the entry or discharge concerned,

(f) the making of alternative arrangements for the supply of water for domestic, commercial, industrial, fishery (including fish-farming), agricultural or recreational purposes or the payment of a specified amount to the sanitary authority or other person concerned to defray all or part of the costs of such arrangements,

(g) the making good of any damage to plant or equipment or to any water abstraction or treatment works and any consequential losses incurred by any person by reason of the entry of polluting matter into waters.