Pat Gallagher (Donegal South West, Fianna Fail)

The intention of these amendments is similar to the earlier proposal to amend section 53 by inserting a reference to wastage of water to a material extent. It can be reasonably expected that in considering whether an offence has been committed under section 54(1) and (2), a court will not find against the owner of a premises in circumstances where the event for which they have been prosecuted happened because of circumstances beyond his or her control, such as damage by a third party or an act of God.

The main objective of the section is to ensure that subsequent to the discovery of a problem with a distribution system in a particular premises, sufficient powers are available to ensure that remedial action is taken. An owner is, therefore, obliged to carry out necessary remedial works as directed by a water services authority, unless the authority decides to carry it out itself, regardless of whether the owner can be blamed for the cause of the inadequacy in the system in the first instance. Qualification of this by the insertion of reference to steps that are reasonably within the control of the owner could undermine the effectiveness of this provision. An owner might argue, for example, that because he or she could not undertake the necessary remedial works, that obligation could not be applied to him or her. As currently provided for in the Bill, the duties ofcare in subsections (1) and (2) are stated in absolute terms. The intention behind this approach is to leave it to the wisdom of the court to decide whether they can reasonably be applied in given circumstances. This is a reasonable approach.