HL Deb 19 November 1974 vol 354 cc965-80

3.18 p.m.

THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (BARONESS BIRK)

My Lords, I beg to move that this Bill be now read a second time. Noble Lords will be aware that this is the same Bill which was introduced in the last Session by my late noble friend Lord Garnsworthy, whose work at the Department of Environment I so much admired. The Bill fell at the Dissolution.

It re-enacts and strengthens the Reservoirs (Safety Provisions) Act 1930, and I trust that the new Bill will be welcome. I am sure the whole House will be united in its wish to make effective provision for the safety of reservoirs and for the protection of the public and their property. I am particularly pleased to be associated with this Bill, as I was involved in the legislation on Health and Safety at Work with my noble friend Lord Hughes, which received the Royal Assent earlier this year. Both measures are concerned with improving safety.

Perhaps I may just sketch in the background. Legislation on safety of reservoirs in Great Britain was first introduced following two reservoir failures in 1925—one in Scotland, one in Wales—both of which caused fatalities. In Scotland five people were drowned near Skelmorlie when a reservoir overflowed during a storm and destroyed the dam. This was due to faulty design. In the Welsh disaster, in which 16 lives were lost when the dam collapsed, poor construction was to blame. So the Reservoirs (Safety Provisions) Act 1930 was enacted to prevent further tragedies of this kind. Happily, there have been no further disasters in the United Kingdom since the Act was passed, and here I think it only right to pay tribute to those responsible for the design, construction and maintenance of our reservoirs, for this long period of freedom from accidents.

However, this state of affairs has fortunately not caused complacency among British civil engineers. It is estimated that throughout the world there are 10,000 dams over 45 feet high. During the past 40 years, on average, one such dam has failed every 15 months claiming an average of 50 victims each. One of the worst cases occurred in 1963, at Vajont in Italy, when a landslide fell into a reservoir causing 40 million cubic metres of water to splash over the dam. Nearly 3,000 lives were lost. This ghastly tragedy and other reservoirs disasters abroad during the 1950s and early '60s led the Institution of Civil Engineers to produce their Report on Reservoir Safety in 1966 which made proposals for revision of the 1930 Act. We are, I am sure, grateful to the Institution for this report and the subsequent guidance they have given the Government. The proposals in the new Bill owe a great deal to this report and reflect the long experience which members of the Institution have had in operating the existing legislation.

The safety provisions of the 1930 Act apply to reservoirs which are designed to hold (or are capable of holding) more than 5 million gallons above the level of the adjoining land. The fundamental principle of that Act is that only a qualified civil engineer can provide the professional expertise required to ensure the safety of a reservoir structure. A qualified civil engineer, within the terms of the Act, is an engineer who has been appointed by the Secretary of State, on the advice of a special committee of the Institution, to one of a series of panels specially constituted for the purposes of the Act. Anyone wishing to construct or alter a reservoir of more than 5 million gallons capacity is required to engage a panel engineer and to act on his advice. Secondly, all existing reservoirs above that size have to be inspected at least every 10 years by a panel engineer: and, thirdly, the undertaker must carry out any recommendations made by the engineer, subject to a right of appeal to a referee.

These safety requirements in the 1930 Act have proved in practice to be both desirable and workable. But as the Institution's report shows, experience has brought to light gaps and weaknesses in the Act which could in certain circumstances result in a reservoir constituting a significant threat to public safety. A grave weakness is that there is no adequate provision for ensuring that the Act is complied with. All the Act provides is that a local authority whose area may be affected by an escape of water, or a private person resident in, or with an interest in, property in that area can bring an action in the courts against an undertaker who is failing in his responsibilities under the Act. However, no one has a positive duty here and, if an undertaker chose to behave irresponsibly and then remained unchallenged, a dangerous situation really could develop. Another weakness is that the Act makes no provision for continuous supervision of a reservoir between the 10 years statutory inspections. The undertaker need not have a qualified civil engineer near his reservoir from one inspection to the next. So a structure sound to begin with, exposed to the weather and subject to earth movements for 10 years could deteriorate markedly and even develop major faults in that time.

We have, therefore, thought it right to build on the sound framework of the 1930 Act and improve it by making good the gaps. In preparing this Bill we have had to take account of various considerations. We have, naturally, been conscious throughout of the need to provide adequate protection for the public against reservoir failures. Yet at the same time we have considered very carefully the impact which new measures might have on the costs incurred by the owners of reservoirs and the claims made on skilled manpower. The provisions in the Bill, I believe, carefully reflect these considerations in a practical and balanced way.

My Lords, I turn now to the Bill itself. As I have already said, the Bill strengthens the existing legislation. I shall not, therefore, describe at length those provisions which remain as before, but I will concentrate on the points where the Bill proposes changes, which I believe to be improvements, in the existing legislation. The first and most important addition is the creation of enforcement powers to be exercised by local authorities; in England and Wales the authorities are the county councils and the GLC; in Scotland they are the new regional and island councils. All are referred to collectively in the Bill as the enforcement authorities. Their task is the administrative one of ensuring that undertakers comply with the requirements of the Bill, but in addition they are given reserve powers to act both where an undertaker is in default and, naturally, in an emergency. In such cases, however, the authority must act in accordance with the recommendations of a qualified civil engineer.

Clause 2 of the Bill provides for the enforcement authorities to keep a register of all reservoirs in their area with a capacity of more than 25,000 cubic metres (which is, of course, 5 million gallons rounded up); and this register will be open to public inspection—an important provision. Under the 1930 Act there is no formal provision which ensures that local authorities know of the existence of all reservoirs in their areas.

Clauses 20, 21 and 24 of the Bill ensure that the enforcement authorities receive from reservoir undertakers, and from reservoir engineers, the information which they require to keep the register and to carry out their enforcement responsibilities. Should an enforcement authority find that an undertaker is not complying with the Bill, there are powers allowing it to demand compliance. Clause 8 enables the enforcement authority, in a case where an undertaker has failed to appoint a qualified civil engineer for the construction or alteration of a reservoir, to serve a notice requiring such an engineer to be appointed. Clause 10 gives the enforcement authority similar powers to ensure that a reservoir is inspected as necessary by a qualified civil engineer or, following an inspection, to require the undertaker to carry out any safety measures recommended in the report of a statutory inspection. These powers are supplemented by reserve powers, which are available as a last resort.

If an undertaker ignores a notice from the enforcement authority, Clause 15 enables the authority to appoint an engineer itself, or to have the recommended measures carried out under the supervision of a qualified civil engineer, whom it has appointed, and to recoup the cost from the undertaker. Finally, in an emergency, Clause 16 gives the enforcement authority powers to take immediate action on the advice of a qualified civil engineer, if the undertaker is unwilling or unable to act promptly to protect people or property against an escape of water from a reservoir.

As well as giving these powers to the enforcement authorities, the Bill spells out the circumstances in which undertakers would be liable to prosecution. Under the 1930 Act the court may impose a maximum penalty of £500 for noncompliance. The Bill, however, makes specific infringements a criminal offence incurring, in the more serious cases a maximum fine of £400 on summary conviction or an unlimited fine on indictment. As your Lordships will appreciate, the unlimited fine is in accordance with the customary unfettered discretion of the higher courts in imposing fines. There are examples in the Oil in Navigable Waters Act 1971 and the Merchant Shipping Act 1970.

Another important facet of the Bill is that it strengthens the safeguards in the 1930 Act. There is no doubt that the most crucial period in a reservoir's life is the period after its completion and being filled with water. Then both the dam structure and the surrounding strata are subjected to heavy loadings and any design or construction deficiencies are highly likely to show up at this time. Consequently, Clause 7 provides for a minimum period of three years between the time when a newly constructed or altered reservoir is first filled with water and the time when the construction engineer gives his final certificate, so that there can be no possibility of a final certificate being granted before the behaviour of the filled reservoir has been studied over an adequate period. In addition, Clause 10 provides for the inspection of new reservoirs to be delayed no more than two years from the date of the final certificate.

A further new and important safeguard is the requirement in Clause 12 that all reservoirs should be under the continuous supervision of a qualified civil engineer between statutory inspections. It is true that reservoirs often have devices built into them to measures faults such as leakage or slippage, but it is essential that the information revealed by these mechanisms is interpreted by an expert engineer. No matter how many monitoring devices are available, there is no substitute for the trained human eye, which should be able to detect signs of danger not necessarily sufficiently apparent from routine measurements.

The 1930 Act made no provision for the abandonment of a reservoir, so Clauses 13 and 14 of this Bill set out alternative procedures which ensure that the safety of the public is not put at risk. Under Clause 13 an undertaker who wishes to alter a reservoir to reduce its capacity to 25,000 cubic metres or less must engage a qualified civil engineer for the purpose. Provided the engineer certifies that the necessary alterations have been satisfactorily executed, the reservoir is removed from the register and no longer subject to the requirements of the Bill. Under Clause 14 an undertaker who wishes to abandon the use of a reservoir by emptying it must also engage a qualified civil engineer. If the engineer recommends the carrying out of alterations Clause 13 then applies.

Another change proposed by the Bill lies in the appointment provisions for qualified civil engineers. At present a qualified civil engineer's appointment is for life. So he can be removed by Ministers only if, after consultation with the Committee of the Institution of Civil Engineers, they consider him unfit to remain on the panel; for example, due to age or incompetence. Clause 4 of the Bill provides that appointments be for a fixed term of five years, to enable Ministers to review regularly in consultation with the Committee of the Institution the fitness of candidates for reappointment.

My Lords, I have gone through the main provisions of the Bill and spelt out the main changes proposed by the Government. It is clear that reservoir construction and supervision is a highly technical subject, but this Bill does not concern itself with the details of civil engineering. What it does is to provide the necessary and, I hope, efficient legislative framework within which those who are best fitted to decide on technical matters—that is, the qualified engineers—can operate. Yet at the same time the Bill does nothing which would obstruct vital technological innovation—progress for which our engineers rightly have a worldwide reputation. My Lords, I beg to move that this Bill be now read a second time.

Moved, That the Bill be now read 2a.—(Baroness Birk.)

3.34 p.m.

BARONESS YOUNG

My Lords, this being my first opportunity to do so, I should like to congratulate the noble Baroness, Lady Birk, on her new appointment to the Department of the Environment. I am sure that she will find it a most interesting Department in which to work, and I hope very much she will enjoy it as much as I did, for the environment is of such importance and has a lasting impact on our lives. I know that she will be well served by the Department on the many matters on which she will have to speak in this House.

Turning now to the Bill before us, may I thank the noble Baroness, Lady Birk. too, for her explanation of the Bill. If I might just make a general comment, I can think of no more appropriate Bill to consider at this moment, since I believe we have had the wettest autumn on record—at any rate since 1960, if not since records were kept. I should like to thank the noble Baroness for letting me have the notes on the clauses. As they did not reach me until fairly late this morning, I am sure she will forgive me if I have not understood this largely technical Bill as well as I should like to do. No one could quarrel with the principle behind this Bill; it is entirely concerned with safety of reservoirs, both in their construction and in their subsequent maintenance. It is, as I understand it, based on the Act of 1930 which is to be repealed, and on the more recent Report of 1966 on reservoir safety.

The noble Baroness has explained the purpose of the Bill clearly and, as we on this side of the House support it, I do not intend to take up the time of the House by commenting in detail on all the clauses. There are, however, one or two matters that I should like to raise. The first matter arises on the definition given in Clause 1(2) which, as I understand it, extends the definition of a reservoir to include a lake or loch which is artificially made, although there is no intention to use the water in it as a reservoir. Thus someone who has made a lake for recreation or amenity purposes, or simply because the lake enhances the landscape, will be brought within the scope of this Bill. Furthermore, any lake of more than 25,000 cubic metres—which is not a very large lake—will now be defined as a reservoir. I believe that this goes beyond the provisions of the Water Act, and it means the lake will be subject to all the regular inspections under Clause 10, and the monitoring and supervision under Clause 11 of the Bill. The details of the lake or loch would be set out in a public register open for inspection. Members of the public would, if they so wished, be able to bring a prosecution concerning a private lake.

This I can understand, because the reason for introducing this Bill is the real fear of possible damage caused by a flood from a lake or reservoir, and of course the even worse possibility of a landslip. As I said earlier, there can be no dispute at all about the principle behind this Bill. But as the Bill extends the definition of a reservoir to include lakes and lochs not normally covered by that definition, I should like the noble Baroness to let me know whether there is to be any publicity about it. As I understand the provision in one of the later clauses, local authorities must be notified within nine months of the passing of this Bill about any such lakes, and it is therefore necessary that anybody who might need to have information should be able to obtain it.

The second point on this clause is simply a matter for clarification. I understand that a line has been drawn between the Mines and Quarries (Tips) Act 1969 and this Bill, so there will be no overlapping of safety codes. What, then, is the position of an artificial lake created from an old quarry? I saw a number of these when I was a Minister, and I am certain the number will increase as old quarries are used for recreational purposes. Where does the responsibility for safety lie? Is it under the Mines and Quarries (Tips) Act or under this Bill?

Regarding new duties conferred upon local authorities, under Clause 2 this Bill confers new duties on county councils in England and Wales, the Greater London Council and regional and island councils in Scotland, as they are to be the enforcement authorities. While I do not wish to detract from the work of local government—far from it—I always understood that the Water Act 1973 established ten regional water authorities to be responsible for the whole of the water cycle. The provision of public water supplies, which had long been the responsibility of a great many local authorities, was taken away and given to water boards. Now again local government are being given new powers in relation to the safety of reservoirs, and under this Bill the local authorities must keep a register of reservoirs and must enforce the provisions of the Bill, both on the construction of new reservoirs and in the carrying out of regular inspections. What I want to be quite clear about is that there will not be any new difficulties arising on these new duties, and I should like to know what has been the reaction of regional water authorities to these proposed new duties in this Bill and whether they are quite happy about them.

So far as the local authorities themselves are concerned, I find it difficult to believe that there will not need to be any increase in staff. I have read the short paragraph in the Explanatory and Financial Memorandum which suggests that the manpower requirement will be insignificant. Of course, everyone hopes and expects that enforcement action on the safety of reservoirs will be infrequent. Nevertheless, how can anyone in local government know that the work of construction has been properly done, or indeed carry out an inspection, unless they have someone qualified to judge? And on such a technical matter as this will that person not have to have of necessity the same qualifications as are set out in Clause 4 for the panel of engineers who will design and construct reservoirs? It seems unlikely that local authorities with their present duties would have such staff, and they will therefore need to employ some extra specialists.

This leads me in turn to the cost. I note that any cost that falls on local authorities will be eligible for rate support grant. This of course is welcome, but it will not cover the full cost, and the extra cost will come at a time when local authorities are having the greatest financial difficulties in maintaining the standards of the services they provide at present, let alone taking on any new responsibilities. I cannot help wondering why it was decided to use local authorities in this way. I assume that there has been full consultation with the local authority associations on this matter, and I should be glad to know what their views are.

My Lords, I conclude as I began. We on this side of the House support the principle of this Bill and welcome it. We appreciate the necessity for the improvement of the safety of reservoirs—an improvement which is all the more: urgent as I believe that water will be used not only for reservoirs but also for recreational and amenity purposes increasingly in the coming years. I have asked the noble Baroness a number of questions. I shall understand if she is not able to answer all of them today and perhaps she will write to me on those other points I have raised before we reach the next stage of the Bill. But I would assure her that the principle of the Bill has the support of us on this side of the House.

3.43 p.m.

LORD STOW HILL

My Lords, may I at the outset associate myself with the welcome extended by the noble Baroness, Lady Young, to my noble friend Lady Birk on her new responsibilities. She has begun by a most adequate discharge of them, for which I am sure we are all grateful to her. At the outset may I also express the pleasure with which I listened to the tribute she paid to the work of the late Lord Garnsworthy. The House will agree that he was a loyal friend and servant of this House. I was privileged to work closely with him on many Bills. He was a personal friend of a great many of us over many years.

I cannot pretend to be an expert on reservoirs. The only reason that I venture to make a brief intervention in this debate is that I received a communication from the British Waterways Board suggesting that I might raise one or two points with which they feel concerned. The Bill—a very useful Bill as has been said—is one which clearly will need further examination in Committee on its detailed aspects. However, the Board raised with me one question which they feel—and I agree with them—goes rather more to the root of the Bill and is one which should be raised on Second Reading. It relates to the definition of a reservoir. The noble Baroness, Lady Young, has already asked a number of questions with regard to the scope of that definition. This was the question which was raised with me. As the Bill is worded at the moment could it not be said to extend to the artificial pound of a canal? The artificial pound of a canal is that part of the canal between weirs and lock-gates which has the result of impounding water and raising it above the level of the land surrounding the canal. I am told that in the case of a number of canals the amount of water which might be so impounded would considerably exceed the 25,000 cubic metres referred to in the terms of the Bill.

I can well understand that it is said that everybody knows what a reservoir is when he sees it, just as it has been said that everybody knows an elephant when he sees it, and there is not much point in defining an elephant as a large animal with a trunk and two tusks. But, with great respect to the draftsman of the Bill, in my submission it is not so clear that the pound of a canal to which I have referred could not come within the scope of the word "reservoir". The definition of the word "reservoir" which appears both in the 1930 Act and in this Bill does not, I submit, make clear that a pound of a canal is not within its scope. I believe I am right in thinking that the Government do not intend that a pound should be included. However, they cannot control the interpretation that a court might put upon the word "reservoir" in its context in the Bill, should the matter come before a court.

A court, after all, might be called upon to decide whether in any given case, where, for example, water escaped from the pound of a canal and caused damage to property and possibly even loss of life, a right of damages might not lie against the Board. It is therefore a matter of considerable concern to them. They tell me that if they are to be responsible for the pounds of canals their responsibility in terms of both finance and staff would be very considerably enlarged. For example, in the Macclesfield and Upper Peak Forest Canals there is, so I am told, a pound of some 22 miles in length. They feel that they would not be able to make available the necessary number of qualified civil engineers to do the work of construction, inspection and supervision for which the Bill provides and that it would be necessary for them to receive some further subvention in terms of money and to assemble more staff. It is difficult, of course, to find the necessary number of qualified civil engineers for that purpose.

All I am venturing to suggest at this stage is that I hope that my noble friend will be able to say that she will between now and the Committee stage of the Bill carefully consider with her advisers the language which appears in the Bill in order, if possible, to find some way of making it perfectly clear that the Government's intention to exclude canals is, in fact, carried out by the language of the Bill. I should have thought that possibly a simple way round it might be a simple exclusion in terms: the exclusion of canals, artificial water courses, and so on. However, that is a matter which could be considered and I should be content if when she replies to the debate my noble friend would be so good as to say that she will consider this matter between now and the Committee stage of the Bill. It is of considerable importance to the Board and that is why I have thought it right to raise it on Second Reading.

3.49 p.m.

BARONESS BIRK

My Lords, may I first thank the noble Baroness, Lady Young, and my noble and learned friend Lord Stow Hill for their kind remarks to me personally. When the noble Baroness says she found herself lost in the technical detail I must say that in that respect I found myself in the same reservoir. As both the noble Lords raised the question of the definition of a "reservoir" I will try to deal with this point in a little more detail as it is extremely important and basic. As noble Lords are aware, the Bill defines a reservoir as "a reservoir for water as such", so as to make it clear—this is the point which was raised by the noble Baroness—that a mine or quarry lagoon within the meaning of the Mines and Quarries (Tips) Act 1969 is outside the scope of the Bill. This should remove doubts which have arisen regarding the possibility of an overlap between the safety codes of the two Acts of 1930 and 1969. The 1930 Act applies to large reservoirs. This Bill uses the expression "large raised reservoir". That is to make it quite clear that the size of a reservoir is not the sole test of the application of the Bill. A reservoir must also retain water above the level of any adjacent ground in order for the Bill to apply.

I think the noble Baroness raised the point of ornamental lakes; if she did not do so, I expected her to do so, so I shall answer the point! This is a quite interesting and important provision, because there has been some discussion over the question of ornamental lakes, and the Government take the view that the wording used, which is: … any place where water is artificially retained to form or enlarge a lake or loch, whether or not use is intended to be made of the water, … applies to ornamental lakes. Their owners have complied with the requirements of the 1930 Act and we do not foresee any reason why they should not comply with the requirements of this Act. Nevertheless, the Government are advised that the word "reservoir" does not include an ornamental lake if the nature and purpose of it is entirely different from a reservoir; this point has not yet, of course, been tested in the courts. However, in view of the legal advice which we have received, we have included this specific provision in the Bill. If I may turn to the point of my noble friend——

BARONESS YOUNG

My Lords, I apologise for interrupting the noble Baroness, but perhaps she might get this point clear. I did not mention the words "ornamental lake", although I used the expression that, "a lake is put there to enhance the landscape". Therefore I meant the same kind of thing as this. As I read Clause 1(2), it says: … whether or not use is or is intended to be made of the water. Presumably, therefore, the definition applies to an ornamental lake which is simply an ornamental lake and is not raised, as is a raised reservoir, but is over a given capacity. Therefore it comes within the Act. Is that correct?

BARONESS BIRK

My Lords, as I understand it, that is correct because the point about "raised" is that it gives another extension to the definition. It is not only a question of the size; it applies also if it is raised. If, therefore, it is one or the other, or both, it will still apply. However, when we come to the point of my noble and learned friend Lord Stow Hill and when it comes to legal matters, I would rather that we were arguing in unison than that I had to answer his points. The word "reservoir" means, "something which is constructed for the storage of water". Therefore it does not include a canal which is designed as a means of transport. We take the view that a canal is no more a reservoir than is an embanked river. Therefore I can give the noble Lord an assurance that canals are not covered by the Bill any more than they are covered by the 1930 Act. However, the Bill would apply, as does the 1930 Act, to reservoirs used in canal operations.

Having said that, I am very much aware of my noble friend's concern and I can undertake that we shall look again very carefully at this particular point of the definition of a reservoir and take into account what he has stressed so far as canals are concerned, and the canal pound, and I hope that before we return for the Committee stage of the Bill we shall have managed to resolve the apparent differences between us. I do not think I had better go further than that, otherwise I shall get myself into legal depths.

My Lords, on the other points raised by the noble Baroness, Lady Young, she was kind enough to say that if I did not give her all the answers to-day I might write to her. If, therefore, I leave any of her points out I shall go through Hansard and make sure that she receives an answer in writing. The point about publicity is a valid one and I shall certainly take it up within the Department and let her know what plans have already been arranged for it. So far as the enforcement authorities are concerned, I can assure the noble Baroness that the local authorities were consulted about this matter and agreed to it. One of the main reasons for enforcement by local authorities is that when it comes to the question of safety it is far better for the local authorities to be responsible. People have easier access to them; they know where they are. Also it would be wrong, in our view, to have a water authority responsible for the safety of something for which it is concerned rather than the relevant local authority. However, she can rest assured about the question of consultation because this has taken place.

So far as her points regarding extra staff, manpower and cost are concerned, we do not expect that local authorities would have to take on any extra staff in order to carry out their enforcement functions, except in those cases—there are not many of them; South Yorkshire is an example, and there is an area in Scotland which is similar—where there are a large number of reservoirs within their boundaries. Even in such cases one or two extra clerical staff should be sufficient. In the rare case of a local authority having to exercise its reserve or emergency powers—which I described when I was introducing the Bill—the Bill requires the undertakers to reimburse any expenses reasonably incurred by the authority. In addition to that point, if the noble Baroness will look at Clause 2(7) she will see that this provides that rate support grant will be payable for any increase in expenditure by local authorities attributable to the Bill.

My Lords, I have given examples of the way in which the Bill preserves the framework of the 1930 Act. As I have said, the keynote of it is continuity. What is being proposed here is continuity, with additions and improvements. May I say finally to the House that this is not a safety measure hastily put together in the aftermath of a disaster but rather the outcome of a thorough review of the working of existing legislation and also a recognition that, despite the fortunate fact that there have been no disasters here since 1930, we are 44 years on and we feel that it is time that we stepped ahead and precluded, so far as one possibly can, any disaster happening in the future. Although, therefore, I am not suggesting for a moment that there is any cause for alarm, the consequences of a failure could be so disastrous that I am sure noble Lords will agree with me that we should take no chances and that it would be wise to introduce whatever further precautions are recommended by expert opinion which do not place any unreasonable burdens (and I do not think that this Bill does) on reservoir undertakers or, indeed, on local authorities. I hope, therefore, that your Lordships will join with me in speeding the Bill through this House.

On Question. Bill read 2a and committed to a Committee of the Whole House.