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Reservoirs Act (Northern Ireland) 2015

Type Act of the Northern Ireland Assembly

Publication 2015-07-24

Last updated 2021-06-02

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

articles 1

Reform history JSON API

PART 1 — CONTROLLED RESERVOIRS, REGISTRATION AND RESERVOIR DESIGNATION

Controlled reservoirs

1

For the purposes of this Act, a controlled reservoir is any of the followingstructures or areas which is capable of holding 10,000 cubic metres or more of water above the natural level of any part of the surrounding land—

(a) a structure designed or used for collecting and storing water,

(b) a lake or other area created or enlarged by artificial means, the artificial creation or enlargement having been designed, or the lake or other area so created or enlarged being used, for collecting and storing water.

Structure or area which is to be treated as a controlled reservoir

2

(1) This section determines when a section 1(a) or (b) structure or area which is not a controlled reservoir is to be treated as a controlled reservoir for the purposes of this Act.

(2) Where both of the following apply—

(a) water does (or could) flow from a section 1(a) or (b) structure or area to any other section 1(a) or (b) structure or area, and

(b) any 2 or more such structures or areas (taken together) are capable of holding 10,000 cubic metres or more of water above the natural level of any part of the surrounding land,

each of the section 1(a) or (b) structures or areas is to be treated for the purposes of this Act as a controlled reservoir.

(3) The Department, having taken into account the matters mentioned in section 3, may by regulations provide that a section 1(a) or (b) structure or area which neither is a controlled reservoir, nor falls to be treated as a controlled reservoir under subsection (2), is to be treated for the purposes of this Act as a controlled reservoir.

(4) The Department must serve notice of the making of regulations under subsection (3) on the person who will, as at the date of the making of them, be the reservoir manager of any section 1(a) or (b) structure or area which will, by virtue of the regulations, be treated as a controlled reservoir for the purposes of this Act; and such notice must advise the person of—

(a) the requirement for the reservoir manager to register the controlled reservoir with the Department in accordance with sections 10 and 13,

(b) the period within which the reservoir manager must do so.

(5) In this section and section 3, a “section 1(a) or (b) structure or area” means a structure, lake or other area referred to in paragraph (a) or (b) of section 1.

Matters to be taken into account under section 2(3)

3

(1) The matters the Department is required by section 2(3) to take into account are—

(a) in so far as it is reasonably practicable to do so, as respects the section 1(a) or (b) structure or area alone or, where water does or could flow between it and any other section 1(a) or (b) structure or area, also any such other structure or area—

(i) the potential adverse consequences of an uncontrolled release of water from the structure or area,

(ii) the probability of an uncontrolled release of water from the structure or area,

(b) such other matters as the Department may, by regulations, provide.

(2) For the purposes of subsection (1)(a)(i), potential adverse consequences include the matters specified in paragraphs (a) and (b) of section 22(2) (for the purposes of reservoir designation).

(3) The issues the Department may take into account in assessing under subsection (1)(a) the potential adverse consequences or probability of an uncontrolled release of water from a section 1(a) or (b) structure or area include, as regards the structure or area, the issues specified in paragraphs (a) to (e) of section 22(3) and in regulations under section 23 (for the purposes of reservoir designation); and for that purpose the references in those paragraphs of section 22(3) to “the reservoir” are to be construed as references to the section 1(a) or (b) structure or area.

(4) Before making regulations under subsection (1)(b), the Department must consult the Institution of Civil Engineers and such other organisations or persons as it considers appropriate.

Controlled reservoirs: further provision

4

(1) The Department may by order substitute a different volume of water for the volume for the time being specified in sections 1, 2(2)(b), 41(3) and (5), 45(3)(a) and 49(3)(b).

(2) The Department may by regulations make provision for the purposes of sections 1, 2, 41, 45 and 49 as to—

(a) how the volume of water capable of being held above the natural level of the surrounding land is to be calculated,

(b) how “natural level” and “surrounding land” are to be construed.

(3) Before making an order under subsection (1) or regulations under subsection (2), the Department must consult—

(a) the Institution of Civil Engineers,

(b) such other organisations representing engineering or concerned with the practice of water and environmental management as it considers appropriate.

Controlled reservoirs: supplementary

5

(1) A controlled reservoir includes any basin, spillway, valve, dam, pumping station, weir, sluice, pipe and other thing which is integral to the functioning or operation of the reservoir.

(2) The following structures or areas are not a controlled reservoir (and are not to be taken into account in relation to what is to be treated as a controlled reservoir for the purposes of section 2(2) or (3))—

(a) a canal or other inland waterway,

(b) an embanked watercourse,

(d) a weir which does not serve a functional or operational purpose as regards a controlled reservoir,

(e) a structure or area of water which protects land from the sea,

(f) a pond within an extractive waste site or other waste facility,

(g) a sewage sludge lagoon or other waste water treatment lagoon,

(h) an ash, silt or sludge lagoon used for the purpose of a mine or power generation,

(i) a lagoon for the storage of chemical materials or their waste products,

(j) a slurry tank.

(3) The Department may by regulations make provision as to—

(a) what constitutes any of the structures or areas referred to in subsection (2),

(b) what other thing (if any) described in the regulations is not a controlled reservoir (and is not to be taken into account in relation to what is to be treated as a controlled reservoir for the purposes of section 2(2) or (3)).

Reservoir managers

6

(1) This section determines who is the reservoir manager of a controlled reservoir for the purposes of this Act.

(2) A water undertaker is the reservoir manager of a controlled reservoir, or any part of a controlled reservoir, which is managed or operated by it.

(3) A sewerage undertaker is the reservoir manager of a controlled reservoir which is managed or operated by it.

(4) Subsections (5) and (6) apply where—

(a) a water undertaker is not, by virtue of subsection (2), the reservoir manager of all or part of a controlled reservoir,

(b) a sewerage undertaker is not, by virtue of subsection (3), the reservoir manager of a controlled reservoir.

(5) Any person who manages or operates the reservoir or any part of it, but is not the owner of the reservoir (or the part), is the reservoir manager of the reservoir (or the part).

(6) The owner of any part of the reservoir for which no person is reservoir manager by virtue of subsection (5) is the reservoir manager of the part.

(7) In this section, a reference to managing or operating a reservoir is, in relation to a reservoir which is being constructed or restored to use (within the meaning of Part 3), to be read as referring to proposing to manage or operate the reservoir.

(8) For the avoidance of doubt the Department, in carrying out or maintaining any works or taking any other action in relation to a controlled reservoir (or any part of a controlled reservoir) by virtue of its powers under the Drainage (Northern Ireland) Order 1973, is not to be regarded as managing or operating the reservoir (or part).

Multiple reservoir managers: supplementary

7

(1) This section applies where by virtue of section 6 there is more than one reservoir manager of a controlled reservoir.

(2) The requirements of this Act apply in relation to each of the reservoir managers (whether or not they make a nomination under subsection (3)).

(3) Any of the reservoir managers (“the nominating manager”) may nominate another of the reservoir managers (“the nominee”) to do any of the following on behalf of the nominating manager—

(a) fulfil any requirements of this Act to which the nominating manager is subject and which are specified in the nomination,

(b) exercise any rights the nominating manager has under this Act and which are so specified.

(4) A nomination made under subsection (3) must in addition specify the name, postal address and telephone contact details of the nominee.

(5) The nominating manager must, not later than 28 days after the date of the nomination, give notice of the nomination and of what it contains to—

(a) the Department,

(b) each other reservoir manager of the controlled reservoir,

(c) any supervising engineer, inspecting engineer, other qualified engineer or construction engineer commissioned in relation to the reservoir (see Parts 2 and 3).

(6) Where a nomination is duly made and notice of it is duly given—

(a) the Department may notify and consult the nominee in accordance with the nomination,

(b) any supervising engineer, inspecting engineer, other qualified engineer or construction engineer commissioned for the time being in relation to the reservoir may give any notice, report, certificate or other document (required by this Act to be given to the nominating manager) to the nominee in accordance with the nomination.

(7) In subsection (6)(b), reference to the “supervising engineer” is to be construed as including the nominated representative of the supervising engineer under section 26(7)(a) who is acting as such in the event of the supervising engineer being unavailable.

Duty of multiple reservoir managers to co-operate

8

(1) Where by virtue of section 6 there is more than one reservoir manager of a controlled reservoir, each of the reservoir managers must co-operate with any other reservoir manager of the reservoir (including a nominee under section 7) so far as is necessary to enable the reservoir manager concerned to comply with the requirements to which the manager is subject under this Act.

(2) A reservoir manager who fails to comply with subsection (1) commits an offence.

(3) A reservoir manager guilty of an offence under subsection (2) in relation to a controlled reservoir which is, at the time the offence is committed, a high-consequence reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) A reservoir manager guilty of an offence under that subsection in relation to any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Registration

Controlled reservoirs register

9

(1) The Department must establish and maintain a controlled reservoirs register.

(2) The controlled reservoirs register is a register containing (subject to subsection (4)), such information and documents in relation to each controlled reservoir as the Department may by regulations specify.

(3) The Department must make arrangements for the controlled reservoirs register (or a copy of it) to be available for inspection by any person at all reasonable times.

(4) If it appears to the Secretary of State that the inclusion of any information or document in the register would adversely affect national security, the Secretary of State may direct the Department not to include the information or document in the register.

Reservoir managers’ duty to register with the Department

10

(1) The reservoir manager of each controlled reservoir must register the reservoir with the Department in accordance with sections 11 to 13.

(2) A reservoir manager of a controlled reservoir registers the reservoir under subsection (1) by providing to the Department such information and documents as the Department may by regulations specify.

(3) Regulations under subsection (2) may, in particular, include provision as to—

(a) the further information or documents that a reservoir manager of a controlled reservoir must provide to the Department for the purpose of maintenance by it of the controlled reservoirs register,

(b) the time by which any such information or document must be provided.

Structures or areas which are controlled reservoirs on the relevant date

11

(1) Registration under section 10 of a structure or area which is a controlled reservoir on the relevant date must, subject to subsection (2), take place not later than 6 months after that date.

(2) The Department may, in relation to information or a document where it considers it appropriate to do so, extend the period of 6 months specified in subsection (1) to such other period as it may, by notice served on the reservoir manager, specify; and different periods may be specified in relation to different information or documents.

(3) In this section, and section 12, “the relevant date” means the date of commencement of section 10.

Structures or areas which become controlled reservoirs after the relevant date

12

(1) Registration under section 10 of a structure or area which becomes a controlled reservoir after the relevant date must, subject to subsection (2), take place not later than 28 days after the date on which a preliminary certificate is given in relation to it for the first time (see section 47).

(2) The Department may, in relation to information or a document where it considers it appropriate to do so, extend the period of 28 days specified in subsection (1) to such other period as it may, by notice served on the reservoir manager, specify; and different periods may be specified in relation to different information or documents.

Structures or areas which are the subject of regulations under section 2(3)

13

(1) Registration under section 10 of a structure or area which is to be treated as a controlled reservoir by virtue of regulations made under subsection (3) of section 2 must, subject to subsection (2), take place not later than 28 days after the day on which notice of the making of the regulations is served by the Department under subsection (4) of that section.

(2) The Department may, in relation to information or a document where it considers it appropriate to do so, extend the period of 28 days specified in subsection (1) to such other period as it may, by notice served on the reservoir manager, specify; and different periods may be specified in relation to different information or documents.

Fees: registration and administration

14

(1) The Department may by regulations make provision as to—

(a) payment to it by reservoir managers of controlled reservoirs of fees to cover costs reasonably incurred by it in relation to registration,

(b) payment to it of other reasonable annual or recurring fees in relation to the performance by it of its functions as respects the controlled reservoirs register and registration of controlled reservoirs in the register,

(2) In making regulations under subsection (1) the Department must have regard to the reasonable cost of the exercise of the functions in respect of which the fees are to be charged.

(3) Regulations under subsection (1) may include such other matters as the Department considers appropriate, including in particular provision specifying—

(a) the maximum amount of any fee,

(b) the circumstances in which any fee is payable,

(d) how fees may be collected and recovered.

Registration: supplementary

15

(1) Where a person ceases to be a reservoir manager of a controlled reservoir, the person must, not later than 28 days after ceasing to be such, give notice to the Department stating—

(a) that fact,

(b) the date on which the person ceased to be reservoir manager,

(c) the name of any person who has (or will) become a reservoir manager of the controlled reservoir in place of the person,

(d) such other information as the Department may specify.

(2) A person who becomes a reservoir manager of a controlled reservoir must, not later than 28 days after becoming reservoir manager, give notice to the Department stating—

(a) that fact,

(b) the date on which the person became reservoir manager,

(3) Where the Department receives notice under subsection (1) or (2), it must take such steps as it considers are reasonably required to inform the new reservoir manager, as soon as is reasonably practicable, of the duties of reservoir managers of controlled reservoirs under this Act.

Offences: registration

16

(1) Failure by a reservoir manager of a controlled reservoir to comply with any of the following requirements relating to registration is an offence—

(a) the requirements of section 10 (including those of regulations made under subsection (2) of that section) (registering controlled reservoir with Department in accordance with sections 11 to 13),

(b) the requirements of section 15(1) or (2) (notice of change of reservoir manager).

(2) A reservoir manager who, in relation to any requirement referred to in subsection (1), knowingly or recklessly gives any information or document which is false or misleading in a material respect commits an offence.

(3) A reservoir manager guilty of an offence under subsection (1) or (2) in relation to a controlled reservoir which is, at the time the offence is committed, a high-consequence reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) A reservoir manager guilty of an offence under either of those subsections in relation to any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(5) It is a defence to a charge in proceedings for an offence under subsection (1) that the person did not know and could not reasonably be expected to have known that the person was the reservoir manager of a controlled reservoir to whom the requirement concerned applied.

(6) References in this section to a reservoir manager or the reservoir manager are to be construed, in relation to an offence of failing to comply with the requirements of section 15(1), as including a person who has ceased to be a reservoir manager.

Reservoir designation

Giving a reservoir designation

17

(1) The Department must, as soon as is reasonably practicable after registering a controlled reservoir in the controlled reservoirs register, give the reservoir a reservoir designation.

(2) A reservoir designation is a designation of the controlled reservoir by the Department as one of the following categories—

(a) a high-consequence reservoir,

(b) a medium-consequence reservoir,

(3) In giving a reservoir designation, the Department must, in so far as it is reasonably practicable to do so, take into account the matters mentioned in section 22.

(4) The Department gives a controlled reservoir a reservoir designation by notice served on the reservoir manager of the reservoir—

(a) specifying the reservoir designation it has given the reservoir,

(b) specifying the reasons for its decision,

(d) giving information about the right under section 20 to apply for a review by the Department of its decision, the procedure for making such an application and the period within which an application may be made,

(e) specifying that the reservoir designation which is the subject of an application continues to have effect pending a decision being made in the review.

Periodic re-assessment of reservoir designations

18

(1) The Department must carry out periodic re-assessments of reservoir designations in accordance with this section.

(2) In carrying out a periodic re-assessment of a reservoir designation in accordance with this section the Department must, having taken into account the matters mentioned in section 22 in so far as it is reasonably practicable to do so, either—

(a) confirm the designation, or

(b) give the controlled reservoir a reservoir designation as one of the other categories referred to in paragraphs (a) to (c) of section 17(2) (for the purposes of this Act “a different designation”).

(3) A periodic re-assessment of the reservoir designation of a controlled reservoir must be carried out at the following times—

(a) at any time the Department considers the designation may have ceased to be appropriate,

(b) in any event, not later than 10 years from whichever is the latest of the following—

(i) the date on which notice of the designation was served under section 17(4),

(ii) the date on which notice of the decision in a periodic re-assessment of the designation was served under subsection (4),

(iii) the date on which notice of the decision in a review in respect of the designation was served under section 20(6),

(iv) the date on which notice of the decision in an appeal in respect of the designation was given under section 21.

(4) The Department confirms the designation, or gives the controlled reservoir a different designation, by notice served on the reservoir manager of the reservoir—

(a) specifying whether it confirms the designation or gives the reservoir a different designation,

(b) where it gives the reservoir a different designation, specifying the different designation and the date on which it takes effect,

(d) giving information about the right under section 20 to apply for a review by the Department of its decision, the procedure for making such an application and the period within which an application may be made,

(e) specifying that the reservoir designation which is the subject of an application continues to have effect pending a decision being made in the review.

Date on which reservoir designation given under section 17 or given as different designation under section 18 takes effect

19

(1) A reservoir designation—

(a) given under section 17,

(b) given as a different designation on a periodic re-assessment under section 18,

subject to subsections (2) and (3), takes effect on the day after the date on which notice of the designation is served by the Department on the reservoir manager under the section concerned.

(2) Where a reservoir designation is given under section 17 in relation to a controlled reservoir which is being constructed or restored to use (within the meaning of Part 3), the designation takes effect on the day after the date of the final certificate in respect of those works. (Section 49 makes provision about final certificates.)

(3) Where a reservoir designation is given (as a different designation) under section 18 in relation to a controlled reservoir which is subject to alteration for the purpose of increasing or decreasing the capacity of the reservoir, the different designation takes effect on the day after the date of the final certificate in respect of those works.

Review by Department of its decision under section 17 or 18

20

(1) A reservoir manager of a controlled reservoir on whom notice is served under section 17(4) or 18(4) may apply to the Department for a review by it of its decision under section 17 or 18.

(2) An application must be made in writing before the end of the period of 90 days beginning with the date on which the notice was served.

(3) In considering an application under this section, the Department—

(a) may commission to make recommendations to it about the reservoir designation either (or both)—

(i) an engineer who is a member of a panel of reservoir engineers established under section 102 who may (by virtue of an order under that section) be commissioned under this section in relation to the reservoir,

(ii) such other person as the Department considers appropriate,

(b) must take into account—

(i) a recommendation by an engineer or other person commissioned by it under paragraph (a),

(ii) in so far as it is reasonably practicable to do so, the matters mentioned in section 22,

(iii) any representations made to it by or on behalf of the reservoir manager in relation to the application.

(4) A reservoir designation in respect of which an application is made under this section continues to have effect pending a decision being made in the review.

(5) Where as a result of the review the Department gives the controlled reservoir a different designation, the designation which is the subject of the review ceases to have effect from the date on which the Department gives its decision; and the different designation takes effect on the day after the date on which notice is served under subsection (6).

(6) The Department must notify the reservoir manager of its decision in the review by serving on the reservoir manager notice—

(a) specifying whether it confirms the designation or gives the reservoir a different designation,

(b) where it gives the reservoir a different designation, specifying the different designation and the date on which it takes effect,

(d) giving information about the right of appeal under section 21 against its decision, the procedure for making an appeal and the period within which an appeal may be made,

(e) specifying that the designation which is the subject of an appeal continues to have effect pending a decision being made in the appeal.

(7) The Department may by regulations make further provision in relation to applications and reviews under this section.

Appeal against Department’s decision in a review under section 20

21

(1) A reservoir manager of a controlled reservoir on whom notice of the Department's decision in a review under section 20 is served may appeal to the Water Appeals Commission against the decision on one or more of the grounds mentioned in subsection (3).

(2) Any such appeal must be made in writing before the end of the period of 60 days beginning with the date on which the notice under section 20(6) was served.

(3) The grounds referred to in subsection (1) are that—

(a) the decision was based on an error of fact,

(b) the decision was wrong in law,

(4) The Commission may confirm the reservoir designation or give the reservoir a different designation.

(5) A decision in an appeal under this section must take into account—

(a) in so far as it is reasonably practicable to do so, the matters mentioned in section 22,

(b) any representations made in relation to the appeal by or on behalf of—

(i) the reservoir manager,

(ii) the Department.

(6) A reservoir designation in respect of which an appeal is made under this section continues to have effect pending a decision being made in the appeal.

(7) Where the decision in the appeal is that the controlled reservoir is given a different designation, the designation which is the subject of the appeal ceases to have effect from the date on which the appeal is determined; and the different designation takes effect on the day after the date on which notice is given under subsection (8).

(8) Notice by the Commission to the reservoir manager and the Department of the Commission's decision in the appeal must specify—

(a) whether the Commission confirms the reservoir designation or gives the reservoir a different designation,

(b) where the Commission gives the reservoir a different designation, the different designation and the date on which it takes effect,

Matters to be taken into account under sections 17(3), 18(2), 20(3)(b)(ii) and 21(5)(a)

22

(1) The matters required by sections 17(3), 18(2), 20(3)(b)(ii) and 21(5)(a) to be taken into account in so far as it is reasonably practicable to do so, are—

(a) the potential adverse consequences of an uncontrolled release of water from the controlled reservoir,

(b) the probability of such a release.

(2) The potential adverse consequences of an uncontrolled release of water from a controlled reservoir include—

(a) potential damage to any of the following—

(i) human life or human health (as the Department considers appropriate in the circumstances),

(ii) the environment,

(iii) economic activity,

(iv) cultural heritage,

(b) such other potential damage as the Department considers relevant.

(3) Issues that may be taken into account in assessing under subsection (1) the potential adverse consequences or probability of an uncontrolled release of water from a controlled reservoir include any of the following—

(a) the purpose for which the reservoir is (or is to be) used,

(b) the materials used to construct the reservoir,

(d) the age and condition of the reservoir and how it has been maintained,

(e) such other issues as the Department considers relevant.

Matters to be taken into account under sections 17(3), 18(2), 20(3)(b)(ii) and 21(5)(a): further provision

23

(1) The Department may by regulations make further provision about the matters that are to be taken into account under sections 17(3), 18(2), 20(3)(b)(ii) and 21(5)(a).

(2) Without prejudice to the generality of subsection (1), the regulations may—

(a) make further provision in relation to the matters in section 22(1),

(b) in particular, when the Department is satisfied that an appropriate methodology exists for assessing the probability of an uncontrolled release of water from a controlled reservoir, include provision as regards the methodology that is to be taken into account in assessing such probability,

(c) amend references in this Act to “reservoir designation”, “high-consequence reservoir”, “medium-consequence reservoir” and “low-consequence reservoir” in pursuance of the regulations,

(d) include adaptations for the purposes of section 3(3).

(3) Before making regulations under subsection (1), the Department must consult the Institution of Civil Engineers and such other organisations or persons as it considers appropriate.

High-consequence reservoirs, medium-consequence reservoirs and low-consequence reservoirs: further provision

24

References in this Act to a “high-consequence reservoir”, “medium-consequence reservoir” or “low-consequence reservoir” are references to a controlled reservoir designated as such for the time being under section 17, 18, 20 or 21.

PART 2 — REQUIREMENTS FOR HIGH-CONSEQUENCE AND MEDIUM-CONSEQUENCE RESERVOIRS

Supervision by supervising engineer

Supervision requirement and commissioning of supervising engineer etc.

25

(1) A high-consequence or medium-consequence reservoir must, at all times, be under the supervision of a supervising engineer.

(2) The reservoir manager of a high-consequence or medium-consequence reservoir must, not later than 6 months after the date on which the designation of the reservoir as such takes effect (see sections 19, 20(5) and 21(7)), commission a supervising engineer.

(3) A “supervising engineer” is an engineer duly commissioned under subsection (2) to supervise the reservoir, at all times, in accordance with section 26.

(4) A reservoir manager who commissions a supervising engineer in accordance with subsection (2) must, not later than 28 days after the commissioning, give notice of it to the Department.

(5) An engineer may be commissioned as a supervising engineer if the engineer is a member of a panel of reservoir engineers established under section 102 who may (by virtue of an order under that section) be commissioned under this section as a supervising engineer in relation to the reservoir.

Duties etc. in relation to supervision

26

(1) The supervising engineer must supervise the reservoir, at all times, in accordance with this Act.

(2) The supervising engineer must—

(a) give notice to the reservoir manager of anything that the engineer considers might affect the safety of the reservoir,

(b) monitor compliance by the reservoir manager—

(i) subject to section 61, with any direction in the latest inspection report by virtue of section 35(4)(a) as regards any measure that should be taken in the interests of the safety of the reservoir which is a measure for its maintenance (see section 35(4)(f)),

(ii) with any recommendation in a pre-commencement inspection report for the time being applicable to the reservoir (see section 33(1)) as to a measure that should be taken for its maintenance,

(i) any matter specified by virtue of section 35(4)(g) in the latest inspection report as a matter that the inspecting engineer recommends should be monitored by the supervising engineer until the next inspection of the reservoir,

(ii) any matter specified in a pre-commencement inspection report for the time being applicable to the reservoir as a matter that should be watched by a civil engineer until the next inspection of the reservoir (and which does not fall within paragraph (b)(ii)),

(d) monitor any matter specified in a safety report as a matter the construction engineer giving the report recommends should be monitored by the supervising engineer until a final certificate is issued in respect of relevant works (see section 45(1)(c)),

(e) monitor compliance by the reservoir manager with the requirements of—

(i) any preliminary certificate for the time being applicable to the reservoir (see section 47),

(ii) any final certificate for the time being applicable to the reservoir (see section 49),

(f) monitor any matter specified in any such final certificate as a matter that should be monitored by the supervising engineer until the first or next inspection of the reservoir,

(g) give notice to the reservoir manager and the Department of any failure to comply with—

(i) a direction or recommendation referred to in paragraph (b),

(ii) a safety report for the time being applicable to the reservoir,

(iii) a preliminary certificate for the time being applicable to the reservoir,

(h) give notice to the reservoir manager and the Department of any failure to comply with any requirement of a final certificate for the time being applicable to the reservoir,

(i) supervise (or ensure that a nominated representative of the engineer supervises) any proposed draw-down in respect of the reservoir,

(j) monitor compliance by the reservoir manager with the requirements of section 37 (recording of water levels etc. and record keeping),

(k) undertake, in accordance with the latest inspection report, any additional visit that may be recommended in the report by virtue of section 35(4)(i).

(3) If the supervising engineer considers at any time that the reservoir should be inspected in accordance with section 35, the engineer must—

(a) give the reservoir manager a written recommendation to that effect specifying when the inspection should take place,

(b) not later than 28 days after giving the written recommendation, give the Department a copy of it.

(4) The supervising engineer—

(a) may by written direction require the reservoir manager to carry out a visual inspection of the reservoir at intervals specified by the engineer for the purpose of identifying anything that might affect the safety of the reservoir,

(b) must give a copy of any direction given under paragraph (a) to the Department.

(5) The supervising engineer must give the reservoir manager, at least every 12 months, a written statement of—

(a) the steps taken by the engineer in relation to the matters referred to in subsection (2)(a) to (h) and (j) and (k),

(b) any measure taken by the reservoir manager in the interests of the safety of the reservoir or otherwise to maintain the reservoir,

(d) any direction by the supervising engineer under subsection (4)(a).

(6) The supervising engineer must, not later than 28 days after giving a written statement under subsection (5), give the Department a copy of the statement.

(7) The supervising engineer must—

(a) give the reservoir manager information for the purpose of enabling the manager to contact the engineer (or in the event of the supervising engineer being unavailable, a nominated representative of the engineer),

(b) not later than 28 days after giving the reservoir manager such information, give the information to the Department.

(8) Where the reservoir is the subject of a pre-commencement inspection report and inspection of it is not yet due under section 31, the reservoir manager must give the supervising engineer a copy of—

(a) the report,

(b) any pre-commencement inspection report certificate (see section 35(3)),

(c) where the reservoir manager is unable to give a copy of a pre-commencement inspection report certificate, any other document dated before the relevant date which the reservoir manager considers relevant to the taking of a pre-commencement safety recommendation (see section 34(3)).

(9) In this section—

(a) “draw-down” means any intentional reduction in the water level except where done in accordance with the routine operation of the reservoir,

(b) references to “the reservoir manager” are references to the reservoir manager of the reservoir which is being supervised in accordance with this section,

(10) In this section and sections 27 to 31, 35 and 37, references to “the supervising engineer” are references to the engineer duly commissioned for the time being as such under section 25 in relation to the reservoir and are to be construed as including a nominated representative of the supervising engineer under subsection (7)(a) who is acting as such in the event of the supervising engineer being unavailable.

Regulations as to visits by supervising engineer

27

(1) The Department may by regulations make provision—

(a) for there to be a standard frequency of visits that must be made by a supervising engineer to a high-consequence or medium-consequence reservoir,

(b) for the standard frequency to be different according to whether or not the Department considers that a high-consequence or medium-consequence reservoir is of an acceptable standard as regards how it is being maintained,

(c) for the Department to decide whether it considers that a high-consequence or medium-consequence reservoir is of an acceptable standard as regards how it is being maintained, taking account (as appropriate) of the following—

(i) whether or not a pre-commencement inspection report contains a pre-commencement safety recommendation,

(ii) whether or not an inspection report specifies any measure that should be taken in the interests of the safety of the reservoir or any other matter that the inspecting engineer recommends should be monitored by the supervising engineer until the next inspection of the reservoir,

(iii) any inspection compliance certificate,

(iv) any written statement by the supervising engineer under section 26(5) currently applicable and copied to the Department by virtue of section 26(6).

(2) Regulations making provision referred to in subsection (1)(c) must—

(a) require the Department to notify the reservoir manager of a high-consequence or medium-consequence reservoir of its decision as to whether or not it considers that the reservoir is of an acceptable standard as regards how it is being maintained and accordingly the standard frequency of visits that must be made to it by the supervising engineer,

(b) provide that the reservoir manager may appeal to the Water Appeals Commission against the decision specified in the notice,

(d) provide that the decision in respect of which an appeal is made continues to have effect pending a decision being made in the appeal.

(3) In subsection (1)(c)(ii), “the inspecting engineer” has the same meaning as in sections 35 and 36 (see section 35(6)(a)).

Visual inspection directed under section 26(4)(a): further provision

28

(1) The reservoir manager must comply with any direction under section 26(4)(a).

(2) The reservoir manager must—

(a) maintain a written record of each visual inspection carried out in pursuance of a direction under section 26(4)(a),

(b) make the record available on request to the supervising engineer,

(c) give notice to the supervising engineer and the Department of anything identified during any such visual inspection which might affect the safety of the reservoir.

(3) Notice under subsection (2)(c) must be given as soon as is reasonably practicable after the visual inspection during which the thing was identified.

Nominated representative under section 26(7)(a): further provision

29

A nominated representative of the supervising engineer under section26(7)(a)—

(a) must be eligible to be commissioned as a supervising engineer for the reservoir,

(b) while acting as the nominated representative of the engineer in the event of the supervising engineer being unavailable, has the powers of and is subject to the obligations of the supervising engineer.

Inspections etc. by inspecting engineer

Inspection timing: general requirements

30

(1) Subject to subsection (2) and sections 31 and 32, the reservoir manager of a high-consequence or medium-consequence reservoir must secure that it is inspected by an inspecting engineer before the end of the period of one year beginning with the date on which the designation of the reservoir as such takes effect (see sections 19, 20(5) and 21(7)).

(2) Subsection (1) does not apply where the controlled reservoir was, immediately before the designation of it as a medium-consequence reservoir took effect, designated as a high-consequence reservoir.

(3) The reservoir manager of a high-consequence or medium-consequence reservoir must secure that it is inspected by an inspecting engineer at each of the following times—

(a) at any time recommended by the supervising engineer by virtue of section 26(3),

(b) subject to section 61, at any time recommended in an inspection report under section 35 (in accordance with section 35(4)(h)).

(4) The reservoir manager of a high-consequence reservoir must in any event secure that it is inspected by an inspecting engineer before the end of the period of 10 years beginning with the date of the latest inspection.

(5) An “inspecting engineer” is an engineer duly commissioned under section 34 to inspect a high-consequence or medium-consequence reservoir when required by this section or section 31 or 32 or to supervise the taking of a measure referred to in section 34(1)(b).

Inspection timing: reservoir subject to pre-commencement inspection report

31

(1) Subject to subsection (5) and section 32, section 30(1) does not apply where—

(a) a high-consequence or medium-consequence reservoir is the subject of a pre-commencement inspection report (see section 33(1)),

(b) the Department is satisfied that—

(i) the report contains a recommendation as to when (or by when) the next inspection of the reservoir should take place,

(ii) the recommended next inspection would be due after the relevant date and within a period not exceeding 10 years from the date of the inspection to which the report relates.

(2) Where section 30(1) does not apply by virtue of subsection (1), the reservoir manager must secure that the reservoir is inspected by an inspecting engineer at the time, after the relevant date, recommended in the report for the next inspection of the reservoir.

(3) Subject to subsection (5) and section 32, section 30(1) does not apply where—

(a) a high-consequence or medium-consequence reservoir is the subject of a pre-commencement inspection report,

(b) the Department is satisfied that the report does not contain a recommendation as to when (or by when) the next inspection of the reservoir should take place.

(4) Where section 30(1) does not apply by virtue of subsection (3), the reservoir manager must secure that the reservoir is inspected by an inspecting engineer before the end of the period of 10 years beginning with the date of the inspection which is the subject of the report.

(5) Where the supervising engineer recommends by virtue of section 26(3) that the reservoir should be inspected at a time which is earlier than is required by subsection (2) or (4), the inspection which is due by virtue of that subsection is not required.

(6) In this section, and sections 33 and 35, “the relevant date” means the date on which the designation of the controlled reservoir concerned as a high-consequence or medium-consequence reservoir takes effect.

Inspection timing: other qualifications

32

(1) Where a construction engineer is required by section 43 to be commissioned to supervise relevant works for the purpose of a high-consequence or medium-consequence reservoir being discontinued or abandoned (within the meaning of Part 3) (see sections 41 and 42), any inspection which at the date of the commissioning is due by virtue of section 30 or 31 is not required.

(2) Where a construction engineer is required by section 43 to be commissioned to supervise relevant works for the purpose of a high-consequence or medium-consequence reservoir being constructed or subject to alteration (but not for the purpose of it being discontinued or abandoned) (within the meaning of Part 3)—

(a) any inspection which at the date of the commissioning is due by virtue of section 30 or 31 is not required,

(b) the reservoir manager must secure instead that the reservoir is inspected by an inspecting engineer either—

(i) before the end of the period of 2 years beginning with the date of the final certificate for the relevant works, or

(ii) at such earlier time as may be recommended in the final certificate (in accordance with section 49(2)(b)).

Pre-commencement inspection report

33

(1) A “pre-commencement inspection report” is a document, provided to the Department by the reservoir manager of a high-consequence or medium-consequence reservoir and in respect of which the Department is satisfied as to the following matters—

(a) that it was prepared by a civil engineer who, at the time of the inspection to which it relates and throughout the preparation and completion of the document, was a member of such panel of civil engineers constituted under section 4(1) of the 1975 Act as the Department considers appropriate,

(b) that it was prepared sufficiently in accordance with criteria that would have fallen to be applied in relation to an inspection under section 10 of that Act of a reservoir that was subject to that section,

(c) that it is about an inspection of the reservoir which was carried out before the relevant date, but not more than 8 years before that date.

(2) The Department must, as soon as is reasonably practicable after receiving a document under subsection (1) and, where it considers it appropriate to do so after consulting an engineer commissioned by it under this subsection, decide whether or not it is satisfied that the document is a pre-commencement inspection report.

(3) An engineer may be commissioned under subsection (2) if the engineer—

(a) is a member of a panel of reservoir engineers established under section 102 who may (by virtue of an order under that section) be commissioned under this section in relation to the reservoir,

(b) is not disqualified by virtue of subsection (4) from being so commissioned in relation to the reservoir.

(4) An engineer is disqualified from being commissioned under subsection (2) in relation to a high-consequence or medium-consequence reservoir if the engineer—

(a) is an employee of any person who is a reservoir manager of the reservoir,

(b) prepared the document provided in pursuance of subsection (1).

(5) The Department must serve on the reservoir manager notice—

(a) specifying its decision under subsection (2),

(b) where its decision is that the document is not a pre-commencement inspection report, specifying the reasons for the decision,

(c) giving information about the right under Schedule 1 to apply for a review by the Department of its decision under subsection (2), the procedure for making such an application and the period within which an application may be made.

(6) Schedule 1 makes provision in relation to review of a decision under subsection (2).

Commissioning of inspecting engineer etc.

34

(1) The reservoir manager of a high-consequence or medium-consequence reservoir must commission an inspecting engineer—

(a) to inspect the reservoir when inspection of it is required by section 30, 31 or 32,

(b) to supervise the taking of any measure as mentioned in section 35(4)(e) or the taking of a pre-commencement safety recommendation.

(2) The reservoir manager must, not later than 28 days after the commissioning, give notice of it to the Department.

(3) A “pre-commencement safety recommendation” is a recommendation in a pre-commencement inspection report as to a measure the civil engineer who prepared the report considered to be required in the interests of the safety of the reservoir.

(4) An engineer may be commissioned as an inspecting engineer if the engineer—

(a) is a member of a panel of reservoir engineers established under section 102 who may (by virtue of an order under that section) be commissioned under this section as an inspecting engineer in relation to the reservoir,

(b) is not disqualified by virtue of subsection (5) from being so commissioned in relation to the reservoir.

(5) An engineer is disqualified from being commissioned as an inspecting engineer in relation to a high-consequence or medium-consequence reservoir if the engineer—

(a) is an employee of any person who is a reservoir manager of the reservoir,

(b) has previously been a construction engineer in relation to the reservoir.

Duties etc. in relation to inspection

35

(1) An inspecting engineer must—

(a) inspect the reservoir,

(b) give the reservoir manager, not later than 6 months after the completion of the inspection, an inspection report prepared in accordance with this section.

(2) The reservoir manager must give the inspecting engineer a copy of—

(a) the latest report (if any),

(b) any pre-commencement inspection report certificate, interim inspection compliance certificate or inspection compliance certificate for the time being applicable to the reservoir,

(3) A “pre-commencement inspection report certificate” is a certificate—

(a) stating that a measure recommended in the pre-commencement report as a measure that should be taken in the interests of the safety of the reservoir has been taken,

(b) signed and issued before the relevant date by a civil engineer who, at the time of signing, was a member of such panel of civil engineers constituted under section 4(1) of the 1975 Act as the Department considers appropriate.

(4) The inspection report—

(a) must—

(i) specify any measure the inspecting engineer considers should be taken in the interests of the safety of the reservoir (including any such measure for the maintenance of the reservoir),

(ii) direct the reservoir manager to ensure that the measure is taken,

(b) may—

(i) specify any matter that the inspecting engineer considers relevant to the maintenance of the reservoir (but in relation to which the engineer does not specify a measure (as to safety) under paragraph (a)),

(ii) include any recommendation as regards the matter,

(d) if any measure specified in the latest report has not been taken and the measure is not specified in the inspection report, must specify why the engineer considers the measure should no longer be taken,

(e) must direct the reservoir manager to ensure that any measure which both—

(i) is specified in the inspection report as a measure that should be taken in the interests of the safety of the reservoir, and

(ii) is not a measure for its maintenance,

is taken under the supervision of the inspecting engineer or, where permitted (by section 36(2)(a)) the other qualified engineer, and within the period of time specified in the inspection report,

(f) must direct the reservoir manager to ensure that any measure which both—

(i) is specified in the inspection report as a measure that should be taken in the interests of the safety of the reservoir, and

(ii) is a measure for its maintenance,

is monitored by the supervising engineer,

(g) must specify any other matter that the inspecting engineer recommends should be monitored by the supervising engineer until the next inspection,

(h) must specify when the inspecting engineer recommends the next inspection of the reservoir should take place,

(i) if the inspecting engineer considers that the supervising engineer should visit the reservoir more frequently than is required of the supervising engineer by virtue of regulations made under section 27(1), must specify at what intervals, when, or in what circumstances, any additional visit should take place.

(5) An inspecting engineer must, not later than 28 days after giving an inspection report under this section, give a copy of it to—

(a) the Department,

(b) the supervising engineer (if a different person).

(6) In this section and section 36—

(a) references to “the inspecting engineer” are references to the engineer duly commissioned for the time being as such under section 34 in relation to the reservoir,

(b) references to “the latest report” are references to the inspection report of the latest inspection (if any) of the reservoir carried out under this section or the pre-commencement inspection report (if any) in relation to the reservoir (whichever is the later),

(c) references to “the reservoir manager” are references to the reservoir manager of the reservoir which is being inspected.

(7) In this Act, references to “the other qualified engineer”, “any other qualified engineer” or “other qualified engineer” are references to any engineer duly commissioned for the time being as such under section 36(2)(a) in relation to the reservoir; and references to “other qualified engineers” are to be construed accordingly.

Inspection reports: compliance

36

(1) The reservoir manager must ensure that the following are complied with—

(a) (subject to section 61) any direction in an inspection report given to the manager under section 35,

(b) any pre-commencement safety recommendation.

(2) The reservoir manager—

(a) may commission any other qualified engineer (being a person eligible to be commissioned as an inspecting engineer for the reservoir) to supervise the taking of—

(i) any measure specified in the inspection report prepared in accordance with section 35 as a measure that should be taken in the interests of the safety of the reservoir and which is not a measure for its maintenance,

(ii) any pre-commencement safety recommendation.

(b) must, as soon as is reasonably practicable after such commissioning, give notice of it to the Department.

(3) Not later than 28 days after being satisfied that a measure which is directed (or recommended) as mentioned in subsection (1)has been taken—

(a) the inspecting engineer, or

(b) in relation to any such measure which the other qualified engineer is (and may be) commissioned to supervise, the other qualified engineer,

must give to the reservoir manager an interim inspection compliance certificate.

(4) An interim inspection compliance certificate must specify—

(a) the inspection report (or pre-commencement inspection report) to which it relates,

(b) the measure taken,

(5) The inspecting engineer or (as appropriate) the other qualified engineer must, not later than 28 days after being satisfied that all of the measures directed in the inspection report (or all pre-commencement safety recommendations) have been taken, give the reservoir manager an inspection compliance certificate.

(6) The engineer giving an inspection compliance certificate must take an interim compliance certificate given by another engineer under this Act or a pre-commencement inspection report certificate a copy of which is given to the engineer under section 35(2), to be conclusive of the measure specified in it (as a measure taken) as having been taken.

(7) An inspection compliance certificate must specify—

(a) the inspection report (or pre-commencement inspection report) to which it relates,

(b) that all of the measures directed in the inspection report (or all pre-commencement safety recommendations) have been taken.

(8) The inspecting engineer or (as appropriate) the other qualified engineer must, not later than 28 days after giving the reservoir manager an interim inspection compliance certificate or an inspection compliance certificate under this section, give the Department a copy of it.

Record keeping etc.

Recording of water levels etc. and record keeping

37

(1) The reservoir manager of a high-consequence or medium-consequence reservoir must maintain a record of the following matters in respect of the reservoir (“the recorded matters”) in accordance with this section—

(a) water levels and depth of water in the reservoir, including the flow of water over any waste weir or overflow,

(b) any leakage,

(d) any settlement of walls or other works,

(e) such other matters as the Department may by regulations specify.

(2) The Department may by regulations make provision as to—

(a) the form of the record to be maintained,

(b) the information to be included in relation to the recorded matters.

(3) A supervising engineer, an inspecting engineer or a construction engineer commissioned in relation to the reservoir may give directions to the reservoir manager as to—

(a) the manner in which the information referred to in subsection (2)(b) is to be recorded,

(b) the intervals at which the record is to be updated.

(4) The reservoir manager must comply with any directions under subsection (3).

(5) A copy of a direction given under subsection (3) must be given by the engineer concerned to the Department.

(6) The reservoir manager must install and maintain such instruments as may be necessary to provide the information to be recorded in relation to the recorded matters.

(Sections 58 and 60 make further provision in relation to records (to be maintained by the reservoir managers of all controlled reservoirs) and associated offences.)

Offences: supervision, inspection, record keeping

38

(1) Failure by a reservoir manager of a high-consequence or medium-consequence reservoir to comply with any of the following requirements under this Part is an offence—

(a) the requirements of section 25(2) (commissioning of supervising engineer),

(b) the requirements of section 28(1) (compliance with direction of supervising engineer under section 26(4)(a) as to carrying out of visual inspection of reservoir),

(d) the requirements of section 28(2)(c) (notice to supervising engineer and Department of anything that might affect the safety of the reservoir identified during visual inspection directed under section 26(4)(a)),

(e) the requirements of section 30, 31, 32 or 34(1)(a) or (b) (securing required inspections and supervision by inspecting engineer and commissioning of inspecting engineer),

(f) the requirements of section 37 (including those of regulations under subsection (2) of that section) (recording of water levels and other matters).

(2) A reservoir manager of a high-consequence or medium-consequence reservoir who fails, without reasonable excuse, to comply with any of the following requirements under this Part commits an offence—

(a) the requirements of section 25(4) (notice to Department of commissioning of supervising engineer),

(b) the requirements of section 26(8)(a) or (b) (giving supervising engineer copy of pre-commencement inspection report and any pre-commencement inspection report certificate),

(d) the requirements of section 35(2) (giving inspecting engineer copy of latest report, any pre-commencement inspection report certificate, interim inspection compliance certificate, inspection compliance certificate and final certificate),

(e) the requirements of section 36(2)(b) (notice to Department of commissioning of any other qualified engineer).

(3) A reservoir manager guilty of an offence under subsection (1) or (2)—

(a) in relation to a controlled reservoir which is, at the time the offence is committed, a high-consequence reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale,

(b) in relation to a controlled reservoir which is, at the time the offence is committed, a medium-consequence reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Offence in connection with inspection: failure to secure compliance with safety direction or recommendation

39

(1) Failure by a reservoir manager of a high-consequence or medium-consequence reservoir without lawful excuse to comply with the requirements of section 36(1) (ensuring compliance with direction in inspection report or pre-commencement safety recommendation as to taking of measure) is an offence.

(2) A reservoir manager guilty of an offence under subsection (1)—

(a) in relation to a controlled reservoir which is, at the time the offence is committed, a high- consequence reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale,

(b) in relation to a controlled reservoir which is, at the time the offence is committed, a medium-consequence reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(3) Section 74 makes provision as to further remedies available on conviction of an offence referred to in subsection (1).

Defences: offence under section 39(1)

40

It is a defence to a charge in proceedings under section39(1) for the person to show both—

(a) that the failure to comply with the requirement concerned was as a result of an event which could not reasonably have been foreseen or any natural cause or force majeure which was exceptional and could not reasonably have been foreseen, and

(b) that the person—

(i) took all practicable steps to prevent an uncontrolled release of water from the reservoir,

(ii) took all practicable steps as soon as was reasonably practicable to rectify the failure,

(iii) provided particulars of the failure to the Department as soon as practicable after the failure arose.

PART 3 — CONSTRUCTION OR ALTERATION OF CONTROLLED RESERVOIRS

Construction or alteration

Application of Part 3 etc.

41

(1) This Part applies where a controlled reservoir is to be constructed or subject to alteration.

(2) Subsections (3) to (7) have effect for the purposes of this Part.

(3) Any work for the purpose of restoring an existing structure or area (which has previously at any time been capable of holding 10,000 cubic metres or more of water above the natural level of any part of the surrounding land) so that it is capable of so holding such amount of water is to be treated as construction of a controlled reservoir.

(4) Alteration of a controlled reservoir includes—

(a) any work for the purpose of increasing or decreasing the capacity of a controlled reservoir,

(b) any other work in relation to a controlled reservoir (including work which the Department is satisfied might affect its safety) which the Department may by regulations specify.

(5) Alteration of a controlled reservoir amounts to discontinuance of a controlled reservoir where the alteration is for the purpose of making the reservoir incapable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land (but still capable of holding water above the natural level of any part of that land).

(6) Alteration of a controlled reservoir amounts to abandonment of a controlled reservoir where the alteration is for the purpose of making the reservoir incapable of filling with water above the natural level of any part of the surrounding land.

(7) Any reference to—

(a) a controlled reservoir being constructed or subject to alteration is to be construed in accordance with this section,

(b) a controlled reservoir being restored to use is to be construed as a reference to a controlled reservoir being constructed as mentioned in subsection (3),

(c) a controlled reservoir being discontinued is to be construed as a reference to a controlled reservoir being subject to an alteration for the purpose referred to in subsection (5),

(d) a controlled reservoir being abandoned is to be construed as a reference to a controlled reservoir being subject to an alteration for the purpose referred to in subsection (6).

Meaning of “relevant works” for purposes of Act

42

Any reference in this Act to “relevant works” is a reference to any workscarried out for the purpose of the construction or alteration of a controlled reservoir.

Supervision by construction engineer

Notice to Department and commissioning of construction engineer

43

(1) The reservoir manager of a controlled reservoir which is to be subject to relevant works must, not later than 28 days before the proposed relevant works begin, give notice to the Department of the proposed works.

(2) The reservoir manager must, not later than 28 days before the proposed relevant works begin—

(a) commission a construction engineer,

(b) give notice to the Department of the commissioning.

(3) A “construction engineer” is an engineer duly commissioned under this section to supervise the relevant works and the safety of the reservoir until a copy of the final certificate issued in respect of the works is given to the Department in accordance with section 49(8).

(4) An engineer may be commissioned as a construction engineer if the engineer—

(a) is a member of a panel of reservoir engineers established under section 102 who may (by virtue of an order under that section) be commissioned under this section in relation to the reservoir,

(b) is not disqualified by virtue of subsection (5) from being commissioned as a construction engineer in relation to the reservoir.

(5) An engineer is disqualified from being commissioned as a construction engineer in relation to the reservoir if the engineer—

(a) is an employee of any person who is a reservoir manager of the reservoir,

(b) has previously been an inspecting engineer in relation to the reservoir.

(6) In sections 44 to 51—

(a) references to “the construction engineer” are references to the engineer duly commissioned for the time being as such under this section in respect of the relevant works,

(b) references to “the reservoir manager” are references to the reservoir manager of the controlled reservoir which is the subject of the relevant works.

Supervision of relevant works and reservoir safety by construction engineer

44

(1) The construction engineer must supervise the relevant works and the safety of the controlled reservoir in accordance with this section until a copy of the final certificate issued in respect of the works is given to the Department in accordance with section 49(8).

(2) The engineer must—

(a) inspect the reservoir,

(b) design any construction or alteration,

(d) give the reservoir manager such further safety reports prepared in accordance with that section as the engineer considers appropriate.

(3) A safety report—

(a) given under subsection (2)(c) must be given as soon as is reasonably practicable after the construction engineer is commissioned,

(b) given under subsection (2)(d) must be given as soon as is reasonably practicable after the construction engineer considers it appropriate to give the report.

(4) A construction engineer must, not later than 28 days after giving a safety report under this section, give the Department a copy of it.

Safety report

45

(1) A safety report must—

(a) specify any measure the construction engineer considers is necessary in the interests of the safety of the controlled reservoir,

(b) direct the reservoir manager to ensure that any measure specified in the report is taken under the supervision of the construction engineer and within the period of time specified in the report,

(c) where the reservoir manager is required to commission a supervising engineer, specify any matter that the construction engineer considers should be monitored by the supervising engineer until a final certificate is issued in respect of the relevant works,

(d) include such other matters as the Department may by regulations specify.

(2) Where a controlled reservoir—

(a) is being constructed or restored to use,

(b) is subject to alteration other than for the purposes of discontinuance or abandonment,

the measures must include in particular any measures the construction engineer considers should be taken before the reservoir may safely be used for the collection and storage of water.

(3) Where a controlled reservoir is being discontinued, the measures must include in particular any measures the construction engineer considers are necessary to secure both—

(a) that the resulting structure or area is incapable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land, and

(b) since the resulting structure or area will still be capable of holding water above that natural level, that it may safely be used for the collection and storage of water.

(4) Where a controlled reservoir is being abandoned, the measures must include in particular any measures the construction engineer considers are necessary to secure that the reservoir is incapable of filling with water above the natural level of any part of the surrounding land.

Safety report: compliance

46

(1) The reservoir manager of a controlled reservoir must (subject to section 61) ensure that any direction in a safety report given to the manager under section 44 is complied with.

(2) The construction engineer must, not later than 28 days after being satisfied that each measure directed in the safety report has been taken, give the reservoir manager a safety measure certificate.

(3) A safety measure certificate must specify—

(a) the safety report to which it relates,

(b) the measure taken,

(d) any measure that the construction engineer considers need no longer be taken.

(4) A construction engineer must, not later than 28 days after giving a safety measure certificate under subsection (2), give the Department a copy of it.

Preliminary certificate

47

(1) Where the construction engineer is satisfied that the reservoir may safely be filled (wholly or partially) with water or that the level of water should be reduced, the engineer must, as soon as is reasonably practicable after being so satisfied, give the reservoir manager a preliminary certificate.

(2) A preliminary certificate must—

(a) specify a level (the “specified level”) that water in the reservoir must not exceed,

(b) require the reservoir manager to ensure that the level of water does not exceed the specified level,

(c) specify any requirement the engineer considers is appropriate as to the manner in which the level of water in the reservoir may be increased or decreased.

(3) A construction engineer must, not later than 28 days after giving a preliminary certificate, give the Department a copy of it.

(4) A subsequent preliminary certificate applicable to the reservoir replaces any previous preliminary certificate applicable to the reservoir in respect of the relevant works.

(5) A preliminary certificate ceases to have effect on the issue of the final certificate applicable to the reservoir in respect of those works.

Construction certificate

48

(1) The construction engineer must give the reservoir manager a construction certificate as soon as is reasonably practicable after being satisfied that the relevant works have been completed to a satisfactory standard.

(2) The construction certificate must in any event be issued not later than the final certificate in respect of the relevant works.

(3) A construction certificate must—

(a) include an annex containing detailed drawings and descriptions giving full information about the relevant works, including the dimensions, water levels and details of the geological strata or deposits encountered in bore holes, trial holes or excavations made in connection with the works,

(b) include such other information as the Department may by regulations specify,

(c) certify that the relevant works have been executed satisfactorily in accordance with the drawings and descriptions included in the annex to the certificate.

(4) The construction engineer must, not later than 28 days after giving a construction certificate, give the Department a copy of it (including any annex to it).

Final certificate

49

(1) Where the relevant works have involved the controlled reservoir being constructed or subject to alteration but not discontinued or abandoned, the construction engineer must give the reservoir manager a final certificate not later than 28 days after being satisfied that the reservoir is sound and satisfactory and may safely be used for the collection and storage of water.

(2) A final certificate given under subsection (1)—

(a) must state that the engineer considers the reservoir is sound and satisfactory and may safely be used for the collection and storage of water,

(b) where the reservoir is a high-consequence or medium-consequence reservoir and the construction engineer considers that there should be an early inspection of the reservoir, must state when the engineer recommends the inspection should take place,

(c) where the reservoir is a high-consequence or medium-consequence reservoir, must specify any matter the construction engineer considers should be monitored, until the first or next inspection of the reservoir under this Act, by the supervising engineer for the time being commissioned in relation to the reservoir under section 25,

(d) must impose the requirements mentioned in subsection (7).

(3) Where the relevant works have involved the controlled reservoir being discontinued, the construction engineer must give the reservoir manager a final certificate, not later than 28 days after being satisfied—

(a) that the discontinuance has been safely completed,

(b) that the resulting structure or area is incapable of holding 10,000 cubic metres of water above the natural level of any part of the surrounding land,

(c) that the resulting structure or area is sound and satisfactory and may safely be used for the collection and storage of water.

(4) A final certificate given under subsection (3)must—

(a) state that the construction engineer is satisfied as to the matters referred to in paragraphs (a) to (c) of that subsection,

(b) impose the requirements mentioned in subsection (7).

(5) Where the relevant works have involved the controlled reservoir being abandoned, the construction engineer must give the reservoir manager a final certificate, not later than 28 days after being satisfied—

(a) that the abandonment has been safely completed,

(b) that the resulting structure or area is incapable of filling with water above the natural level of any part of the surrounding land.

(6) A final certificate issued under subsection (5) must state that the engineer is satisfied as to the matters referred to in paragraphs (a) and (b) of that subsection.

(7) The requirements referred to in subsection (2)(d) and (4)(b) are—

(a) that water in the reservoir must not exceed a level specified in the certificate (the “specified level”),

(b) that the reservoir manager must ensure that the level of water does not exceed the specified level,

(c) any requirements the construction engineer considers appropriate as to the manner in which the level of water in the reservoir may be increased or decreased.

(8) The construction engineer must, not later than 28 days after issuing a final certificate, give the Department a copy of the certificate.

(9) If a final certificate is not issued by the end of the period of 5 years beginning with the date of the first preliminary certificate, the construction engineer must—

(a) not later than 28 days after the expiry of the 5 year period, give the reservoir manager a written statement of the reasons,

(b) at intervals of not more than 12 months thereafter until the final certificate is issued, give the reservoir manager subsequent written statements of the reasons,

Preliminary and final certificates: compliance

50

The reservoir manager of a controlled reservoir must (subject to section62) ensure that the requirements of any preliminary certificate or final certificate for the time being applicable to the reservoir are complied with.

Termination of supervision by construction engineer

51

The obligation of the reservoir manager to commission a constructionengineer to supervise the relevant works and the safety of the controlled reservoir terminates when the construction engineer gives a copy of the final certificate issued by the engineer in respect of the works to the Department in accordance with section 49(8).

Offences: construction or alteration

52

(1) Failure by a reservoir manager of a controlled reservoir to comply with the requirements in section 43(2)(a) (commissioning of construction engineer) is an offence.

(2) A reservoir manager of a controlled reservoir who fails, without reasonable excuse, to comply with any of the following requirements under this Part commits an offence—

(a) the requirements in section 43(1) (notice to the Department of proposed relevant works),

(b) the requirements in section 43(2)(b) (notice to Department of commissioning of construction engineer).

(3) A reservoir manager guilty of an offence under subsection (1) or (2)—

(a) in relation to a controlled reservoir which is, at the time the offence is committed, a high-consequence reservoir is liable on summary conviction to a fine not exceeding level 5 on the standard scale,

(b) in relation to any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Offences: failure to comply with safety direction in safety report, preliminary certificate or final certificate

53

(1) Failure by a reservoir manager of a controlled reservoir without lawful excuse to comply with any of the following requirements under this Part is an offence—

(a) the requirements in section 46(1) (ensuring compliance with direction in safety report as to taking of safety measure),

(b) the requirements in section 50 (ensuring compliance with preliminary certificate or final certificate).

(2) A reservoir manager guilty of an offence under subsection (1) is liable—

(a) on conviction on indictment to imprisonment for a term not exceeding 2 years, or to a fine, or to both,

(b) on summary conviction to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.

(3) Section 74 makes provision as to further remedies available on conviction of an offence referred to in subsection (1)(a).

Defences: offences under section 53(1)

54

It is a defence to a charge in proceedings under section53(1) for the person to show both—

(a) that the failure to comply with the requirements concerned was as a result of an accident which could not reasonably have been foreseen or natural cause or force majeure which was exceptional and could not reasonably have been foreseen, and

(b) that the person—

(i) took all practicable steps to prevent an uncontrolled release of water from the reservoir,

(ii) took all practicable steps as soon as was reasonably practicable to rectify the failure,

(iii) provided particulars of the failure to the Department as soon as practicable after the failure arose.

Relevant works underway at commencement

Controlled reservoirs subject to relevant works on the commencement date

55

(1) This section applies in relation to a controlled reservoir which is, on the commencement date, subject to relevant works.

(2) This Part, and sections 67 to 69 (in Part 6), apply on and after the commencement date in relation to any such controlled reservoir subject to the following modifications—

(a) notice to the Department under section 43(1) of the relevant works must be given not later than 28 days after the commencement date,

(b) a construction engineer must be commissioned under section 43(2)(a) not later than 28 days after the commencement date,

(c) notice to the Department under section 43(2)(b) of the commissioning must be given not later than 28 days after the commissioning.

(3) The Department may, in relation to any such controlled reservoir where it considers it appropriate to do so, extend the period of 28 days specified in subsection (2)(a) and (b) to such other period as it may, by notice served on the reservoir manager, specify.

(4) In this section, “the commencement date” means the date of commencement of section 43.

PART 4 — CONTROLLED RESERVOIRS: OTHER REQUIREMENTS

Incident reporting

56

(1) The Department may by regulations make provision for the reporting to it of incidents occurring at controlled reservoirs which meet criteria specified in, or otherwise determined in accordance with, the regulations.

(2) The regulations may, in particular—

(a) provide that the Department or another person—

(i) may specify the criteria,

(ii) is to determine whether a controlled reservoir meets the criteria,

(b) define what constitutes an incident by reference to circumstances which adversely affect the safety of a controlled reservoir,

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