Legalize / United Kingdom / Northern Ireland / Act of the Northern Ireland Assembly

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

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,

(c) require the reservoir manager of a controlled reservoir or other person to notify the Department of any incident occurring at the reservoir and to provide the Department with a report on the incident,

(d) provide for a supervising engineer, an inspecting engineer or other person to determine whether an incident has occurred,

(e) require reservoir managers of controlled reservoirs, supervising engineers, inspecting engineers and any other person of a specified description to have regard to guidance issued by the Department,

(f) make provision as to the publishing of incident reports,

(g) confer powers of entry on any person duly authorised in writing by the Department in connection with its functions under the regulations,

(h) make provision as to offences,

(i) provide that any offence created is triable only summarily,

(j) provide for any offence created—

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

(ii) which is committed in relation to any other controlled reservoir to be punishable on conviction by a fine not exceeding level 4 on the standard scale,

(k) make provision in connection with ensuring remedial action is taken following an incident report, including provision amending this Act (other than this section) or applying this Act with modifications.

(3) If it appears to the Secretary of State that the publication of, or giving access to, any incident report or any information in or relating to an incident report would adversely affect national security, the Secretary of State may by notice served on the reservoir manager concerned and any other person who has prepared the incident report, direct the manager and (as appropriate) the other person—

(a) not to publish, or not to publish except as specified in the notice, the incident report, a copy of it or any information in or relating to it,

(b) not to permit access to the incident report, a copy of it or any information in or relating to it, except as specified in the notice.

(4) Notice under subsection (3) may also specify requirements as to the storage of the incident report and copies of it in the interests of national security.

(5) Where notice under subsection (3) states that this subsection applies to any of the information specified in the notice (“the specified information”), the person on whom the notice is served must not give to any other person any indication of the existence of the specified information.

(6) Any duty of a person under regulations made under subsection (1) to publish an incident report, a copy of such a report or any information in or relating to such a report does not apply to the extent that notice served on the person under subsection (3) requires the person not to do so.

(7) Before making regulations under subsection (1), the Department must consult—

(a) the reservoir managers of controlled reservoirs to which they consider the regulations will apply,

(b) the Institution of Civil Engineers,

Flood plans

57

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

(a) the preparation of flood plans for controlled reservoirs,

(b) such other matters in relation to such flood plans as it considers appropriate.

(2) A “flood plan” for a controlled reservoir is a plan setting out the action to be taken by the reservoir manager of the reservoir to which the plan relates in order to control or mitigate the effects of flooding likely to result from any escape of water from the reservoir.

(3) Regulations under subsection (1) may include provision—

(a) as regards who is to prepare a flood plan,

(b) requiring the preparation of flood plans for all controlled reservoirs, or controlled reservoirs of such categories or types as may be determined by the Department,

(c) allowing a single flood plan to be prepared in respect of 2 or more controlled reservoirs between which water does (or could) flow,

(d) specifying—

(i) the form in which a flood plan is to be prepared,

(ii) what is to be included in a flood plan,

(e) requiring the person preparing a flood plan to have regard to any guidance that may be issued by the Department as regards flood plans,

(f) requiring flood plans to be produced or submitted to the Department (whether or not for approval) by such time as either—

(i) the regulations specify, or

(ii) the Department may direct,

(g) as regards the approval of flood plans (whether by the Department, supervising engineers or inspecting engineers),

(h) as regards the review and updating of flood plans,

(i) as regards the publication or distribution of copies of—

(i) a list of controlled reservoirs in relation to which a flood plan must be prepared by virtue of the regulations,

(ii) flood plans,

(j) in connection with the testing of flood plans,

(k) in connection with the referral of matters to a referee,

(l) requiring the reservoir manager of the reservoir to which a flood plan relates, so far as it is reasonably practicable to do so, to take action set out in the plan relating to the reservoir in the event of an incident or emergency,

(m) providing that the Department may, in circumstances specified in the regulations, do anything that another person is required to do under the regulations and may recover the costs of doing so from the person,

(n) conferring powers of entry on any person duly authorised in writing by the Department in connection with its functions under the regulations,

(o) making provision in connection with paragraphs (k), (m) and (n) and subsection (4) amending this Act (other than this section) or applying this Act with modifications,

(p) as to offences,

(q) providing that any offence created is triable only summarily,

(r) providing for any offence created—

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

(ii) which is committed in relation to any other controlled reservoir to be punishable on conviction by a fine not exceeding level 4 on the standard scale.

(4) Regulations under subsection (1) containing provision entitling the Department to recover costs as referred to in subsection (3)(m) must provide for a right of appeal to the Water Appeals Commission against—

(a) the Department's decision to require the person to pay the costs,

(b) the Department's decision as to the amount of the costs.

(5) The Commission may confirm, quash or vary the decision.

(6) If it appears to the Secretary of State that the publication or distribution of, or giving access to, any flood plans or any information in or relating to flood plans would adversely affect national security, the Secretary of State may by notice served on each reservoir manager concerned and each other relevant person, direct the manager and other relevant person—

(a) not to publish, or not to publish except as specified in the notice, the flood plan, a copy of it or any information in or relating to it,

(b) not to distribute and not to permit access to the flood plan, a copy of it or any information in or relating to it, except as specified in the notice.

(7) Notice under subsection (6) may also specify requirements as to the storage of the flood plan and copies of it in the interests of national security.

(8) Where notice under subsection (6) states that this subsection applies to any of the information specified in the notice (“the specified information”), the person on whom the notice is served must not give to any other person any indication of the existence of the specified information.

(9) For the purposes of subsection (6), a relevant person is a person (other than the Department)—

(a) who is required, by virtue of regulations under subsection (1), to prepare, review or update the flood plan, provide, produce or submit it or publish or distribute copies of it,

(b) who receives or may receive the flood plan or information in or relating to it.

(10) Any duty of a person under regulations made under subsection (1) to publish a flood plan, a copy of such a plan or any information in or relating to such a plan does not apply to the extent that notice served on the person under subsection (6) requires the person not to do so.

(11) Before making regulations under subsection (1), the Department must consult—

(a) the reservoir managers of reservoirs for which they consider a flood plan will require to be prepared under the regulations,

(b) the Institution of Civil Engineers,

Maintenance of records

58

(1) The reservoir manager of a controlled reservoir must maintain a record of relevant documents.

(2) The record must include all of the relevant documents. (Sections 37 and 38 make provision as regards other records to be maintained by the reservoir managers of high-consequence and medium-consequence reservoirs and associated offences.)

(3) Where the reservoir is a low-consequence reservoir, the record must in addition contain information about repairs to the reservoir in such form as the Department may by regulations require.

(4) The relevant documents are—

(a) any of the following which is given to the reservoir manager (or copied to the manager pursuant to section 70)—

(i) a safety report, safety measure certificate, preliminary certificate, construction certificate or final certificate,

(ii) a pre-commencement inspection report or an inspection report, interim inspection compliance certificate or inspection compliance certificate,

(iii) a notice under section 26(2)(a) or (g), recommendation under section 26(3) or statement under section 26(5) (by a supervising engineer),

(b) any flood plan currently applicable in respect of the reservoir which has been produced in respect of it in pursuance of regulations made under section 57.

Display of emergency response information

59

(1) The reservoir manager of a controlled reservoir must ensure that emergency response information is displayed at or near the reservoir.

(2) Emergency response information is such information about the reservoir and the reservoir manager as may be specified by regulations by the Department.

(3) The information that may be specified under subsection (2) includes in particular—

(a) the name of the reservoir (if any),

(b) any registration number in the controlled reservoirs register in respect of the reservoir,

(c) the reservoir manager's name and address and information for the purpose of enabling a person to contact the reservoir manager in the event of an emergency,

(d) where the reservoir is a high-consequence reservoir or medium-consequence reservoir, information for the purpose of enabling a person to contact the Department in the event of an emergency.

(4) The Department may by notice served on reservoir managers of controlled reservoirs give them directions to as to—

(a) the manner in which emergency response information is to be displayed,

(b) each location at which it is to be displayed.

(5) Directions under subsection (4) may be general or specific.

(6) The reservoir manager of a controlled reservoir must comply with any direction by the Department under subsection (4).

Offences under Part 4

60

(1) A person who fails, without reasonable excuse, to comply with any of the following requirements under this Part commits an offence—

(a) the requirements of a notice under subsection (3) of section 56 (publication etc. of incident reports and national security) or subsection (5) of that section in so far as subsection (5) applies in relation to the notice,

(b) the requirements of a notice under subsection (6) of section 57 (publication etc. of flood plans and national security) or subsection (8) of that section in so far as subsection (8) applies in relation to the notice,

(d) the requirements of section 59(1) or (6) (display of emergency response information).

(2) A person does not commit an offence under subsection (1) where the person fails to comply with the requirements referred to in paragraph (a) or (b) of that subsection in order to comply with any other duty imposed on the person by virtue of any of the following—

(a) the Environmental Information Regulations 2004,

(b) the Freedom of Information Act 2000,

(d) an order of a court of competent jurisdiction.

(3) A person 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 any other controlled reservoir is liable on summary conviction to a fine not exceeding level 4 on the standard scale.

PART 5 — DISPUTE REFERRAL

Referral to referee: directions in safety report or inspection report

61

(1) This section applies where—

(a) a safety report contains a direction by a construction engineer,

(b) an inspection report contains a direction by an inspecting engineer referred to in—

(i) section 35(4)(a)(ii) (to ensure taking of measure in interests of safety of reservoir),

(ii) section 35(4)(e) of that section (to ensure supervision by an inspecting engineer or other qualified engineer of taking of certain measures),

(iii) section 35(4)(f) of that section (to ensure monitoring by supervising engineer of taking of certain measures),

(c) an inspection report contains a recommendation by an inspecting engineer as to when the next inspection of the reservoir should take place.

(2) The reservoir manager to whom the report is given may challenge the direction, or recommendation, by referring it to a referee in accordance with regulations made under section 66(1).

(3) Where a referral is made under subsection (2), the direction or recommendation is suspended until the reference has been determined or withdrawn.

Referral to referee: requirements in preliminary certificate or final certificate

62

(1) The reservoir manager to whom a preliminary certificate or final certificate is given may challenge any of the matters mentioned in subsection (2) by referring it to a referee in accordance with regulations made under section 66(1).

(2) The matters are—

(a) the level of water specified in the preliminary certificate in accordance with section 47(2)(a),

(b) any requirement specified in the preliminary certificate in accordance with section 47(2)(c) (manner of increasing or decreasing level of water),

(c) any recommendation contained in the final certificate in accordance with section 49(2)(b) (as to when next inspection of reservoir should take place),

(d) any matter specified in the final certificate in accordance with section 49(2)(c) (monitoring of matters by supervising engineer),

(e) any requirement imposed in the final certificate in accordance with section 49(7)(a) or (c) (maximum level and manner of increasing or decreasing level of water).

(3) Where a referral is made under subsection (1), the matter referred is suspended until the reference has been determined or withdrawn.

Commissioning of referee

63

(1) The referee must be an engineer commissioned under this section either—

(a) by agreement between the reservoir manager and the relevant engineer, or

(b) where no agreement is reached, by the Institution of Civil Engineers.

(2) An engineer may be commissioned as a referee 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 (3) from being commissioned under this section in relation to the reservoir concerned.

(3) An engineer is disqualified from being commissioned under this section in relation to the reservoir if the engineer—

(a) is, or has previously been, an employee of any person who is, or has previously been, a reservoir manager of the reservoir,

(b) has previously been an inspecting engineer or a construction engineer in relation to the reservoir,

(c) is connected (as a partner, employer, employee or fellow employee in a civil engineering business) with a person who has previously been an inspecting engineer or a construction engineer in relation to the reservoir.

(4) In this section and sections 64 and 65, “the relevant engineer” means the inspecting engineer or construction engineer who gave the direction or recommended, specified or imposed the matter which is the subject of the referral.

Powers of referee: referral under section 61(2)

64

(1) This section applies where a referral is made under section 61(2).

(2) The referee may make such modifications (if any) as the referee considers appropriate to the direction or recommendation.

(3) Where the referee makes any such modification, the referee—

(a) must modify the report which contains the direction or recommendation,

(b) where the report is a safety report, must make any necessary modification to any safety measure certificate given in relation to the report,

(c) where the report is an inspection report and the referral was made in respect of a direction in it as to ensuring the taking of a measure in the interests of the safety of the reservoir, must make any necessary modification to any interim inspection compliance certificate given in relation to the report.

(4) The referee must take the steps mentioned in subsection (5) not later than 28 days after making a decision under subsection (2).

(5) The steps are—

(a) to give the reservoir manager and the relevant engineer a certificate (a “referral certificate”) stating—

(i) whether the referee has modified the report,

(ii) any modification made,

(b) where the referee has modified the report or any safety measure certificate or interim inspection compliance certificate, to give the reservoir manager and the relevant engineer a copy of the modified report and any such modified certificate,

(c) to give the Department a copy of the referral certificate and any modified report and any such modified safety measure certificate or interim inspection compliance certificate.

(6) A direction, recommendation, report, safety measure certificate or interim inspection compliance certificate modified under this section has effect as so modified.

(7) In subsection (3)(b) and (c), “any necessary modification” means any modification the referee considers is necessary in relation to any measure specified in the certificate as a measure yet to be taken.

Powers of referee: referral under section 62(1)

65

(1) This section applies where a referral is made under section 62(1).

(2) The referee may make such modifications (if any) as the referee considers appropriate to the matter referred.

(3) Where the referee makes any such modification, the referee must modify the certificate which contains the matter.

(4) The referee must take the steps mentioned in subsection (5) not later than 28 days after making a decision under subsection (2).

(5) The steps are—

(a) to give the reservoir manager and the relevant engineer a certificate (a “referral certificate”) stating—

(i) whether the referee has modified the certificate,

(ii) any modification made,

(b) where the referee has modified the certificate, to give the reservoir manager and the relevant engineer a copy of the modified certificate,

(c) to give the Department a copy of the referral certificate and any modified preliminary certificate or final certificate.

(6) A preliminary certificate or final certificate modified under this section has effect as so modified.

Procedure etc.

66

(1) Regulations by the Department may make provision as to—

(a) the time within which a referee may be commissioned under section 63,

(b) the time within which a request to the Institution of Civil Engineers for the commissioning of a referee under that section may be made,

(d) the procedure in a referral before a referee,

(e) the costs of the investigation and proceedings (including the remuneration of the referee).

(2) Subject to the provisions of regulations under subsection (1), the costs of any investigation and proceedings (including the remuneration of the referee) are to be paid by the reservoir manager who makes the referral.

PART 6 — CIVIL ENFORCEMENT, EMERGENCY POWERS AND FURTHER OFFENCES

Enforcement of commissioning of engineers

Enforcement notice: commissioning of engineers

67

(1) This section applies in relation to a controlled reservoir where it appears to the Department that—

(a) the reservoir manager is required by section 25(2) to commission a supervising engineer, but no supervising engineer is for the time being commissioned,

(b) the reservoir manager is required by section 34(1) to commission an inspecting engineer, but no inspecting engineer is for the time being commissioned,

(c) the reservoir manager is required by section 43(2)(a) to commission a construction engineer, but no construction engineer is for the time being commissioned.

(2) The Department may by notice (“the notice”) served on the reservoir manager of the reservoir require the manager—

(a) to commission the relevant engineer before the end of the period of 28 days beginning with the day on which the notice is given (unless the reservoir manager has already commissioned the relevant engineer),

(b) before the expiry of such period as is specified in the notice, to give notice to the Department of the commissioning (whether it was made before or after the notice was given).

(3) In subsection (2)(a) and sections 69 and 70, “the relevant engineer” is a supervising engineer, an inspecting engineer or (as appropriate) a construction engineer.

Offence: failure to comply with notice under section 67(2)

68

(1) Failure to comply with the requirements of a notice by the Department under the following sections is an offence—

(a) section 67(2)(a) (requirement to commission supervising engineer, inspecting engineer or construction engineer),

(b) section 67(2)(b) (notice to Department of commissioning).

(2) A reservoir manager guilty of an offence under subsection (1)(a) or (b) 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.

Commissioning of engineer by Department

69

(1) The Department may commission a relevant engineer where—

(a) it has by notice under section 67(2) required a reservoir manager to do so,

(b) the reservoir manager has failed to do so.

(2) Any commissioning of a relevant engineer under this section is to be treated for the purposes of this Act as if the commissioning were by the reservoir manager under section 25(2), 34(1) or 43(2)(a).

(3) The commissioning of a relevant engineer under this section—

(a) has no effect if the reservoir manager has already commissioned a relevant engineer,

(b) terminates with effect from the date of the subsequent commissioning of a relevant engineer by the reservoir manager.

(4) If the Department considers it appropriate to do so, it may by notice served on the reservoir manager require the manager to pay the Department such amount of the costs reasonably incurred by it in pursuance of the exercise of its powers under this section as is specified in the notice.

(5) Subject to section 76, the reservoir manager must pay the amount of any costs so incurred and specified in such notice.

Commissioning by the Department: engineers’ reports, certificates, recommendations etc.

70

Where the Department commissions a relevant engineer under section69, the following are to be given to the Department (instead of being given to the reservoir manager) and copied to the reservoir manager, not later than 28 days after being given to the Department—

(a) where the relevant engineer is a supervising engineer, any notice under section 26(2)(a) or (g), recommendation under section 26(3) or statement under section 26(5) by the supervising engineer,

(b) where the relevant engineer is an inspecting engineer, any inspection report, interim inspection compliance certificate or inspection compliance certificate by the inspecting engineer,

(c) where the relevant engineer is a construction engineer, any safety report, safety measure certificate, preliminary certificate, construction certificate or final certificate by the construction engineer.

Enforcement of taking of safety measures

Enforcement notice: safety measures

71

(1) This section applies in relation to a controlled reservoir where it appears to the Department that the reservoir manager has failed to comply with—

(a) the manager's duty under section 36(1) (to ensure compliance with a direction in an inspection report or a pre-commencement safety recommendation),

(b) the manager's duty under section 46(1) (to ensure compliance with a direction in a safety report).

(2) The Department may by notice served on the reservoir manager require the manager to comply with the duty before the end of the period specified in the notice.

(3) The Department must consult an engineer commissioned by it under this section about the period to be specified in the notice.

(4) An engineer may be commissioned under this section, or section 73, 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 or section 73 in relation to the reservoir.

(5) Notice under subsection (2) must—

(a) specify the measure that the Department requires to be taken,

(b) state the Department's reasons for considering that this section applies,

(6) If the Department considers it appropriate to do so, it may by notice served on the reservoir manager require the manager to pay the Department such amount of the costs reasonably incurred by it in connection with consultation under this section as is specified in the notice.

(7) Subject to section 76, the reservoir manager must pay the amount of any costs so incurred and specified in such notice.

Offence: failure to comply with notice under section 71(2)

72

(1) Failure to comply with a notice by the Department under section 71(2) is an offence.

(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.

Department arranging taking of safety measures

Department’s power to arrange taking of safety measures

73

(1) This section applies where the Department has by notice under section 71(2) required a reservoir manager to take a measure and the reservoir manager has failed to do so.

(2) The Department may arrange for the taking of the measure under the supervision of an engineer commissioned by it under this section.

(3) Where the engineer is satisfied that the measure has been taken, the engineer must give a certificate to that effect to the Department.

(4) A certificate given under subsection (3) in respect of a measure which is the subject of a direction referred to in section 35(4)(a)(ii) (direction in inspection report to ensure taking of measure in interests of safety of reservoir), or in respect of a pre-commencement safety recommendation, has effect as if it were an interim inspection compliance certificate or (as appropriate) an inspection compliance certificate.

(5) A certificate given under subsection (3) in respect of a direction in a safety report as to a measure referred to in section 45(1)(a) (measure in interests of safety of reservoir) has effect as if it were a safety measure certificate.

(6) If the Department considers it appropriate to do so, it may by notice served on the reservoir manager require the manager to pay the Department such amount of the costs reasonably incurred by it in making arrangements under this section as is specified in the notice.

(7) Subject to section 76, the reservoir manager must pay the amount of any costs so incurred and specified in such notice.

Conviction of certain offences involving safety matters: further remedies

Offence under section 39(1) or 53(1)(a): further remedies

74

(1) This section applies where a reservoir manager is convicted of an offence under—

(a) section 39(1) (failure to ensure compliance with direction in inspection report or pre-commencement safety recommendation),

(b) section 53(1)(a) (failure to comply with direction in safety report).

(2) The court may, in addition to or instead of imposing any penalty that may be imposed under section 39(2) or 53(2) order the reservoir manager to take such steps as may be specified in the order, before the expiry of such period as is so specified—

(a) to secure compliance with the direction or recommendation concerned,

(b) to secure the remedying or mitigating of the effects of the failure to comply with the direction or recommendation.

(3) The court may—

(a) on an application made before the end of the period specified under subsection (2), by order extend the period to such extended period as is specified in the order,

(b) on an application made before the end of the extended period, by order further extend the period to such further extended period as is specified in the order,

(c) by order grant further extensions of the latest period specified by it by order under paragraph (b), on an application made before the end of the latest period.

Department's powers in emergency

Emergency powers

75

(1) This section applies where it appears to the Department that immediate action is needed to protect persons or property against an escape of water from a controlled reservoir (whether or not the reservoir is in use).

(2) The Department may take any measures that it considers necessary—

(a) to remove or reduce the risk to persons or property,

(b) to mitigate the effect of an escape of water.

(3) The Department must—

(a) commission an engineer to make recommendations about any measures to be taken under this section,

(b) arrange for the measures to be taken under the supervision of the commissioned engineer.

(4) An engineer may be commissioned under this section 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 in relation to the reservoir.

(5) The Department must serve notice on the reservoir manager of the measures to be taken under this section.

(6) Notice under subsection (5)—

(a) must be served as soon as is reasonably practicable (which may be after any works have begun), but

(b) is not required if the Department is unable after reasonable enquiry to ascertain the name and address of the reservoir manager and the works have commenced.

(7) If the Department considers it appropriate to do so, it may by notice served on the reservoir manager require the manager to pay the Department such amount of the costs reasonably incurred by it in relation to the exercise of its powers under this section as is specified in the notice.

(8) Subject to section 76, the reservoir manager must pay the Department the amount of any costs so incurred and specified in such notice.

Recovery of costs under section 69, 71, 73 or 75: appeal

76

(1) A reservoir manager required by virtue of notice served by the Department under section 69(4), 71(6), 73(6) or 75(7) to pay the Department's costs referred to in the section may appeal to the Water Appeals Commission against—

(a) the Department's decision to require the manager to pay the costs,

(b) the Department's decision as to the amount of the costs.

(2) The Commission may confirm, quash or vary the decision.

Stop notices

77

(1) The Department may by regulations make provision as to the serving by it of stop notices on reservoir managers of controlled reservoirs.

(2) Before making regulations under subsection (1), the Department must consult in accordance with section 90.

(3) A stop notice is a notice prohibiting a reservoir manager of a controlled reservoir from doing any of the following until the manager has taken the steps specified in the notice—

(a) carrying on an activity specified in the notice,

(b) permitting the carrying on by another of an activity so specified.

(4) Regulations under subsection (1) may confer power to serve a stop notice only in relation to a case where either—

(a) the reservoir manager is carrying on the activity, or the activity is being carried on by another with the permission of the manager, and the Department reasonably considers that the activity as so carried on either—

(i) presents a risk to the safety of the reservoir that may result in an uncontrolled release of water from it, or

(ii) involves or is likely to involve the commission of an offence under this Act,

(b) the Department considers that the reservoir manager is likely to carry on, or permit the carrying on of, the activity and that the activity as likely to be so carried on either—

(i) will present a risk to the safety of the reservoir that may result in an uncontrolled release of water from it, or

(ii) will involve, or is likely to involve, the commission of an offence under this Act.

(5) Where the regulations confer power to serve a stop notice in a case where the Department reasonably considers as is specified in subsection (4)(a)(i) or (b)(i) (risk to safety)—

(a) the Department must, before it exercises the power—

(i) at its own expense commission 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) take into account any recommendation made by the engineer about the stop notice,

(b) the steps specified in any such stop notice (in pursuance of subsection (3)) must be steps to remove or reduce the risk referred to in subsection (4)(a)(i) or (b)(i).

(6) For the purposes of this section, permission includes acquiescence; and references to “permitting” and “permit” are to be construed accordingly.

Stop notices: content and procedure

78

(1) Regulations made under section 77(1) must secure the results in subsection (2) in a case where a stop notice is served.

(2) The results are that—

(a) the stop notice must include information as to the matters specified in subsection (3),

(b) the reservoir manager on whom the notice is served may appeal to the Water Appeals Commission against the decision to serve it,

(c) where, after serving the stop notice, the Department is satisfied that the manager has taken the steps specified in the notice, the Department must give a certificate to that effect (a “completion certificate”),

(d) the stop notice ceases to have effect on the giving of a completion certificate,

(e) the reservoir manager on whom the stop notice is served may at any time apply for a completion certificate,

(f) the Department must make a decision as to whether to give a completion certificate before the end of the period of 14 days beginning with the day on which the application for the certificate is made,

(g) the reservoir manager on whom the stop notice is served may appeal to the Water Appeals Commission against a decision not to give a completion certificate,

(h) a stop notice in respect of which an appeal referred to in paragraph (b) or (g) is made continues to have effect pending a decision being made in the appeal.

(3) The matters referred to in subsection (2)(a) are—

(a) the grounds for serving the stop notice,

(b) rights of appeal,

(4) Provision pursuant to subsection (2)(b) must—

(a) secure that the grounds on which a reservoir manager may appeal against a decision of the Department to serve a stop notice include that—

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

(ii) the decision was wrong in law,

(iii) the decision was unreasonable,

(iv) any step specified in the notice is unreasonable,

(b) secure that the Commission may confirm, quash or vary the decision.

(5) Provision pursuant to subsection (2)(g) must—

(a) secure that the grounds on which a reservoir manager may appeal against a decision of the Department not to give a completion certificate include that—

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

(ii) the decision was wrong in law,

(iii) the decision was unreasonable,

(b) secure that the Commission may confirm or quash the decision.

Stop notices: compensation

79

Provision under section 77(1)—

(a) must include provision for the Department to compensate the reservoir manager for loss suffered as the result of the serving of the stop notice,

(b) may provide for compensation only—

(i) in cases specified by the regulations,

(ii) in relation to descriptions of loss so specified,

(c) must secure that the reservoir manager on whom the stop notice is served may appeal to the Water Appeals Commission against the following—

(i) a decision of the Department not to award compensation,

(ii) a decision of the Department as to the amount of the compensation,

(d) must secure that the Commission may confirm, quash or vary the decision.

Stop notices: enforcement

80

(1) Regulations under section 77(1) may provide that, where a reservoir manager on whom a stop notice is served does not comply with it, the manager commits an offence and is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding £20,000, or to both,

(b) on conviction on indictment—

(i) for a first such offence, to imprisonment for a term not exceeding 12 months, or to a fine, or to both,

(ii) for any subsequent such offence, to imprisonment for a term not exceeding 2 years, or to a fine, or to both.

(2) Regulations made under section 77(1) must provide that it is a defence to a charge in proceedings for an offence created by the regulations for the person to show both—

(a) that the failure to comply with the stop notice was as a result of either 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.

Other civil enforcement measures

Enforcement undertakings

81

(1) The Department may by regulations make provision—

(a) as to the acceptance by it of an enforcement undertaking from a reservoir manager of a controlled reservoir in a case where the Department has reasonable grounds to suspect that the manager has committed an offence under this Act,

(b) for the acceptance by it of the undertaking to have the required consequences of acceptance (see subsection (5)).

(2) Before making regulations under subsection (1), the Department must consult in accordance with section 90.

(3) An “enforcement undertaking” is a written undertaking to take such action as may be specified in the undertaking before the end of such period as may be so specified.

(4) The action specified in an enforcement undertaking must be one or more of the following—

(a) action to secure that the offence does not continue or recur,

(b) action to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed,

(d) such other action as may be described in the regulations.

(5) The “required consequences of acceptance” are that, unless the reservoir manager from whom the undertaking is accepted has failed to comply with the undertaking or any part of it—

(a) the reservoir manager may not at any time be convicted of the offence in respect of the act or omission to which the undertaking relates,

(b) the Department may not impose on the manager any fixed monetary penalty in respect of the act or omission which it would otherwise have power to impose by virtue of section 83(1),

(c) the Department may not impose on the manager any variable monetary penalty in respect of the act or omission which it would otherwise have power to impose by virtue of section 86(1).

Regulations as to enforcement undertakings: further provision

82

Regulations under section 81(1) may in particular include provision—

(a) as to the procedure for entering into an undertaking,

(b) as to the terms and conditions of an undertaking,

(d) as to the variation of an undertaking,

(e) as to the circumstances in which a reservoir manager may be regarded as having complied with an undertaking,

(f) as to the monitoring by the Department of compliance with an undertaking,

(g) as to the certification by the Department that an undertaking has been complied with,

(h) allowing an application for a review by the Department against refusal by it to give such certification,

(i) as to a right of appeal to the Water Appeals Commission against a decision in a review,

(j) for the grounds of any such appeal to include that—

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

(ii) the decision was wrong in law,

(iii) the decision was unreasonable,

(k) for the Commission to have power to confirm or quash the decision,

(l) conferring powers of entry on any person duly authorised in writing by the Department in connection with its functions under the regulations,

(m) in a case where a reservoir manager has given inaccurate, misleading or incomplete information in relation to the undertaking, for the manager to be regarded as not having complied with it,

(n) in a case where a reservoir manager has complied partly but not fully with an undertaking, for the part-compliance to be taken into account in the imposition on the manager of any criminal or other sanction,

(o) extending any period within which criminal proceedings may be instituted against a reservoir manager in respect of the offence in the event of breach of an undertaking or any part of it,

(p) as to the creation of offences,

(q) for any offence created to be triable only summarily,

(r) for any offence created—

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

(ii) which is committed in relation to any other controlled reservoir to be punishable on conviction by a fine not exceeding level 4 on the standard scale,

(s) for any defences to a charge in proceedings for such an offence to include in particular a defence for the person to show both—

(i) that the failure to comply with the requirement concerned was as a result of either 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

(ii) that the person took all practicable steps to prevent an uncontrolled release of water from the reservoir, took all practicable steps as soon as was reasonably practicable to rectify the failure and provided particulars of the failure to the Department as soon as practicable after the failure arose.

Fixed monetary penalties

83

(1) The Department may by regulations make provision about the imposition by it of fixed monetary penalties on reservoir managers of controlled reservoirs in relation to offences under this Act.

(2) Before making regulations under subsection (1), the Department must consult in accordance with section 90.

(3) A “fixed monetary penalty” is a requirement to pay to the Department a penalty of a specified amount (with payment attracting the results mentioned in paragraphs (a) and (b) of section 85(2)).

(4) Regulations made under subsection (1) must provide that—

(a) a fixed monetary penalty may be imposed only where the Department is satisfied beyond reasonable doubt that a reservoir manager has committed an offence under this Act,

(b) a fixed monetary penalty is to be imposed by notice served on the reservoir manager concerned,

(c) the amount of the penalty which may be imposed in relation to an offence may not exceed the maximum amount of the fine that may be imposed on summary conviction for the offence.

(5) For the purposes of this section, and section 84, “specified” means specified in regulations made under subsection (1).

Fixed monetary penalties: procedure etc.

84

(1) Regulations made under section 83(1) must secure the results mentioned in subsection (2).

(2) The results are that—

(a) where the Department proposes to impose a fixed monetary penalty on a reservoir manager, it must serve on the manager a notice of what is proposed (a “notice of intent”) which complies with subsection (3),

(b) the notice of intent must also offer the manager the opportunity to discharge the manager's liability for the fixed monetary penalty by payment of a specified sum (which must be less than or equal to the amount of the penalty),

(i) the manager may make written representations and objections to the Department in relation to the proposed imposition of the fixed monetary penalty,

(ii) the Department must at the end of the period for making representations and objections decide whether to impose the fixed monetary penalty,

(d) where the Department decides to impose the fixed monetary penalty, the notice imposing it (“the final notice”) must be served on the reservoir manager and comply with subsection (5),

(e) the reservoir manager on whom a fixed monetary penalty is imposed may appeal to the Water Appeals Commission against the decision to impose it.

(3) To comply with this subsection, the notice of intent must include information as to—

(a) the grounds for the proposal to impose the fixed monetary penalty,

(b) how payment to discharge the liability for a fixed monetary penalty may be made,

(d) the right to make written representations and objections,

(e) the circumstances in which the Department may not impose the fixed monetary penalty,

(f) the period within which liability for the fixed monetary penalty may be discharged, which must not exceed the period of 28 days beginning with the day on which the notice of intent was served,

(g) the period within which representations and objections may be made, which must not exceed that period of 28 days.

(4) Provision to secure the result referred to in subsection (2)(c)(ii)—

(a) must secure that the Department may not decide to impose a fixed monetary penalty on a reservoir manager where it is satisfied that the manager would not, by reason of any defence, be liable to be convicted of the offence in relation to which it was imposed,

(b) may include provision for other circumstances in which the Department may not decide to impose a fixed monetary penalty.

(5) To comply with this subsection, the final notice must include information as to—

(a) the grounds for imposing the penalty,

(b) how payment may be made,

(d) any early payment discounts or late payment penalties,

(e) rights of appeal, including the grounds of appeal, the procedure for making an appeal and the period within which an appeal may be made,

(f) the consequences of non-payment.

(6) Provision to secure the result in subsection (2)(e) must—

(a) secure that the grounds on which a reservoir manager may appeal against a decision of the Department include that—

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

(ii) the decision was wrong in law,

(iii) the decision was unreasonable,

(b) secure that the Commission may confirm or quash the decision.

(7) Regulations under section 83(1) may provide that, where a fixed monetary penalty remains unpaid after the expiry of the period for payment of the penalty, it is recoverable as if it were payable under a court order.

Fixed monetary penalties: criminal proceedings and conviction etc.

85

(1) Regulations made under section 83(1) must secure that, in a case where a notice of intent referred to in section 84(2)(a) is served on a reservoir manager—

(a) no criminal proceedings for the offence to which the notice relates may be instituted against the manager in respect of the act or omission to which the notice relates before the end of the period in which the manager may discharge liability for the fixed monetary penalty pursuant to section 84(2)(b),

(b) the Department may not, before the end of that period, serve a stop notice or impose a variable monetary penalty on the manager in respect of that act or omission,

(i) the manager may not at any time be convicted of the offence in respect of that act or omission,

(ii) the Department may not serve a stop notice on the manager in respect of the act or omission.

(2) Regulations made under section 83(1) must also secure that, in a case where a fixed monetary penalty is imposed on a reservoir manager—

(a) the manager may not at any time be convicted of the offence in respect of the act or omission giving rise to the penalty,

(b) the Department may not serve a stop notice or impose a variable monetary penalty on the manager in respect of the act or omission giving rise to the penalty.

Variable monetary penalties

86

(1) The Department may by regulations make provision about the imposition by it of variable monetary penalties on reservoir managers of controlled reservoirs in relation to offences under this Act.

(2) Before making regulations under subsection (1), the Department must consult in accordance with section 90.

(3) A “variable monetary penalty” is a requirement to pay to the Department a penalty of such amount as it may in each case determine (but not exceeding the maximum fine for which a person convicted of the offence concerned may be made liable on summary conviction).

(4) Regulations made under subsection (1)—

(a) must provide that variable monetary penalties—

(i) may be imposed only where the Department is satisfied beyond reasonable doubt that a reservoir manager has committed an offence under this Act,

(ii) may not be imposed on a reservoir manager on more than one occasion in relation to the same act or omission,

(iii) are to be imposed by notice served on the reservoir manager concerned,

(b) may provide that variable monetary penalties may be imposed in addition to any requirement referred to in section 67(2) or 71(2).

Variable monetary penalties: procedure etc.

87

(1) Regulations made under section 86(1) must secure the results mentioned in subsection (2).

(2) The results are that—

(a) where the Department proposes to impose a variable monetary penalty on a reservoir manager, it must serve on the manager a notice of what is proposed (a “notice of intent”) which complies with subsection (3),

(b) the reservoir manager may make written representations and objections to the Department in relation to the proposed imposition,

(c) after the end of the period for making such representations and objections, the Department must decide whether to impose the variable monetary penalty (with or without modifications),

(d) where the Department decides to impose a variable monetary penalty, the notice (the “final notice”) must be served on the reservoir manager and comply with subsection (6),

(e) the reservoir manager on whom a variable monetary penalty is imposed may appeal to the Water Appeals Commission against the decision to impose it.

(3) To comply with this subsection, the notice of intent must include information as to—

(a) the grounds for the proposal to impose the variable monetary penalty,

(b) the right to make representations and objections,

(d) the period within which representations and objections may be made, which must not exceed the period of 28 days beginning with the day on which the notice of intent was served.

(4) Provision to secure the result in subsection (2)(c)—

(a) must secure that the Department may not decide to impose a variable monetary penalty on a reservoir manager where it is satisfied that the manager would not, by reason of any defence, be liable to be convicted of the offence in relation to which it was imposed,

(b) may include provision for other circumstances in which the Department may not decide to impose a variable monetary penalty.

(5) Provision to secure the result in subsection (2)(c) must also include provision for—

(a) the reservoir manager on whom the notice of intent is served to be able to offer a written undertaking as to action to be taken by the manager (including the payment of a sum of money) to benefit any person affected by the offence,

(b) the Department to be able to accept or reject such an undertaking,

(6) To comply with this subsection, the final notice must include information as to—

(a) the grounds for imposing the variable monetary penalty,

(b) how payment may be made,

(d) any early payment discounts or late payment penalties,

(e) rights of appeal, including the grounds of appeal, the procedure for making an appeal and the period within which an appeal may be made,

(f) the consequences of non-payment.

(7) Provision to secure the result in subsection (2)(e) must—

(a) secure that the grounds on which a reservoir manager may appeal against a decision of the Department include that—

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

(ii) the decision was wrong in law,

(iii) the amount of the variable monetary penalty was unreasonable,

(iv) the decision was unreasonable for any other reason,

(b) secure that the Commission may confirm or quash the decision.

(8) Regulations under section 86(1) may provide that, where a variable monetary penalty remains unpaid after the expiry of the period for payment of the penalty, it is recoverable as if it were payable under a court order.

Variable monetary penalties: criminal proceedings and conviction

88

(1) Regulations made under section 86(1) must secure the result mentioned in subsection (2) where—

(a) a variable monetary penalty is imposed on a reservoir manager,

(b) an undertaking referred to in section 87(5) is accepted from a reservoir manager (whether or not a variable monetary penalty is also imposed).

(2) The result is that the reservoir manager may not at any time be convicted of the offence in respect of the act or omission giving rise to the variable monetary penalty or undertaking, except where the following applies—

(a) an undertaking referred to in section 87(5) is accepted from the manager,

(b) the manager fails to comply with the undertaking.

(3) Regulations under section 86(1) may, for the purposes of the circumstances referred to in paragraphs (a) and (b) of subsection (2), extend any period within which criminal proceedings may be instituted against the reservoir manager.

Undertaking referred to in section 87(5): enforcement

89

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