Pat Gallagher (Donegal South West, Fianna Fail)

As we are discussing amendments Nos. 28 and 170 together and as amendment No. 170 is the substantive amendment I will deal with it first.

The purpose of the new section introduced by amendment No. 170 is to prohibit building over another person's water pipes without the consent of the relevant water services authority. It applies to building over water mains, sewers, distribution systems, drains, service connections or related accessories. Building without or in contravention of a consent and failure to comply with a follow-up enforcement notice is an offence.

In addition to prosecution in respect of such an offence, a water services authority may seek enforcement via a High Court injunction. Alternatively, it may carry out remedial works itself in the first instance and recover its costs from the offending party. Remedial action may constitute anything from re-routing effective pipes to provision of alternative pipes, alternative access to demolition or alteration of related structures.

The provision is based generally on section 29(1) of the Public Health (Ireland) Act 1878 and section 51 of the Local Government (Sanitary Services) Act 1948, both of which are being repealed. The 1878 Act provides for penalties for unauthorised building over urban authority sewers together with related powers to alter, demolish or otherwise deal with such structures and recover any costs incurred. The 1948 Act extends these provisions to all public sewers and water mains.

Construction, generally, is subject to control under the Planning and Development Act 2000. However, certain exceptions and regulations under that Act enable small extensions below a specified floor area, such as sheds or extensions to the rear of a house under a specified area, to be built without recourse to specific planning authorisation procedures. In any event, individual planning permissions would not, necessarily, fully address the issue of building over another person's pipes. Building regulations under the Building Control Act 1990 provide only for the application of specified standards in the course of building, to protect pipes from being crushed by the weight of a building overhead. They do not provide for issues relating to protection of access or provision of alternative access to such pipes, which will vary from site to site depending on location and proximity to other structures. In the circumstances, the consent procedures of the 1887 Act are still necessary. Some modernisation of the provisions of the 1887 Act is envisaged to reflect present day water services practice.

The prohibition on building over pipes without consent applies additionally to pipes belonging to authorised water service providers, such as group water services schemes, and to persons acting on behalf of a water services authority or authorised water services provider in the public private partnership. Individual consumers are also protected against inappropriate building by third parties over pipes connecting them to their water services. I can give detailed information on the other subsections if the House requires them.

Amendment No. 28 is a technical amendment consequential on amendment No. 170. This provides that offences under the new section 103 connected to building over specified water pipes without the consent of a water services authority under the new section 103(1) or failure to comply with an enforcement notice under the new section 103(4) may be prosecuted summarily or on indictment.