HL Deb 17 May 1991 vol 528 cc1885-90

12.51 p.m.

The Paymaster General (Lord Belstead) rose to move that the draft order laid before the House on 15th April be approved.

The noble Lord said: My Lords, the purpose of the draft Fisheries (Amendment) (Northern Ireland) Order is to amend the Fisheries Act (Northern Ireland) 1966, which I shall refer to as the 1966 Act, some of the equivalent provisions in the Foyle Fisheries Act (Northern Ireland) 1952, and one provision of the Diseases of Fish Act (Northern Ireland) 1967, to improve the development and protection of fisheries in Northern Ireland.

Article 4 expands and modifies procedures for developing derelict waters, that is to say, waters where it is impossible to establish or trace the owners of the fishing rights. The amount and quality of angling in Northern Ireland could be considerably increased if such waters were brought under effective control and management. The new provisions empower the Department of Agriculture to develop derelict waters or to authorise an approved developer to develop the waters in accordance with a scheme submitted to and approved by the department.

New procedures related to fish farming and the issue of fish culture licences are provided by Article 6 following representations made during the consultation period on the order that all applications for fish culture licences should be published and for mandatory public inquiries to hear objections to proposed fish farm developments. The article provides that these public inquiries will be held by the Water Appeals Commission for Northern Ireland.

The new procedures, which also apply to shellfish fishery licences and the new marine fish fishery licence introduced by this order, will enable those concerned about fish farming developments to make their views known and, I believe, effectively overcome the concerns of those who were, in the past, critical about the level of consultation taking place.

Article 11 deals with the restocking of polluted waters and the recovery of the costs for such work by the Fisheries Conservancy Board from the person convicted under the 1966 Act for causing the pollution. Any disputes about proposed levels of restocking or the cost to be recovered will be referred to arbitration.

Increased protection for migratory fish in the vicinity of dams and mills is provided by Articles 13, 15 and 16. Article 13 provides inter alia for additional situations in which dam owners may be required to install fish passes in dams built before 10th August 1842, which are currently largely exempt from this requirement. Mill sluices are required to be closed at weekends and when the mill is not in use; and Article 15 clarifies that these requirements also apply to disused mills. Such mills are increasingly being brought back into use for electricity generation which tends to be a continuous operation, and under the 1966 Act this is a good defence for not closing sluices. Under the new proposals this defence will be removed where in future the use of a mill is altered, such as for electricity generation. Article 16 reduces the spacings of gratings at the point where abstracted water returns to a river or lake, although it will not affect gratings in place before the commencement of the order.

Most of the remaining provisions of the order are aimed at providing improved protection for fisheries and the enforcement of fishery legislation.

The amendments to the existing legislation brought about by this order will play an important part in improving the development and protection of fisheries in Northern Ireland and easing public concern about consultations on fish farm developments. The order has been generally welcomed by local interests but where valid concerns were raised during the consultation period the Government have endeavoured to accommodate them as far as possible. I beg to move.

Moved, That the draft order laid before the House on 15th April be approved.—(Lord Belstead.)

Lord Prys-Davies

My Lords, I am grateful to the noble Lord, Lord Belstead, for explaining the provisions of the order. Most of the main issues touched upon by the order are very much in the mind of anyone who has a love of inland waters and wishes to see the public enjoying wider access to the rivers of the Province. After all, they are a part of the national heritage of Northern Ireland.

I am glad to see that the order has been well tested by consultations over the past two or three years. We often criticise the orders from the Northern Ireland Office because of inadequate consultation but that charge cannot be made of this order. As a result many concerns have been identified. We are pleased that the original draft was changed and modified in many respects in order to overcome many of the problems or fears expressed. It is right that we should express our gratitude to the department for having listened to what was said.

Nevertheless, I should like to ask for clarification on a few points and seek an explanation from the Minister about one or two missing provisions. I apologise for raising such details early on a Friday afternoon but, given the restrictions imposed by the Order in Council procedure, alas, this is the only opportunity that the Minister will have to enlighten us further. I have given him notice of about half a dozen questions which I want to ask.

In paragraph (3) (e) on page 4, I wonder whether the notice of claim to fishing rights should not be a notice in writing. It is a small point and I have no doubt that any wise claimant would ensure that he delivered written notice of his claim. Nonetheless I was surprised to see that there was no reference to the need for a written notice. The Minister will, perhaps, refer me to the Interpretation Act.

Secondly, the phrase "vexatious, frivolous or insubstantial" which is used on two occasions in the order is very wide. Is it too wide to be acceptable? I should be interested to know how the word "insubstantial" will be interpreted in the context of the order.

Thirdly, I should have thought it wise to have given the department the power to acquire an easement. It is given a power to acquire an estate in land but it may well require an easement—an easement of way or an easement of drainage. I notice that that is missing from the order.

Fourthly, will the Minister confirm that a scheme of development under Article 4 cannot be amended after it has been published or, if it may be amended, that it will be republished in accordance with the procedure set out in the order. I should be grateful if the Minister would confirm the position.

Fifthly, again under Article 4, the department and the approved developer will pay compensation to the owner of the fishing rights in the circumstances that are spelt out in the article. However, why will the department be liable to pay compensation only from the date on which it began to undertake the development while the approved developer will have to pay compensation from the date on which the development was authorised? Will the Minister tell the House what is the justification for that anomaly? I notice that the compensation will be equal to the value of any development of the waters for angling. That is the technical phrase. Will the Minister tell the House whether that is a well-tried and well-tested formula in Northern Ireland?

Sixthly—this is more than a point of technical detail—should there not be a requirement that a notice of application for a fish culture licence should be published in a newspaper circulating in the vicinity of the proposed fish farm? In his opening speech the Minister referred to the fears and concerns expressed about fish farms. I should have thought that the notice should surely be published in at least one newspaper circulating in the area. That seems to be missing and I am a little surprised about that.

I come to my final two questions. The draft order makes no reference to compensation payable by the person who pollutes the waters where the owner or occupier of adjoining land suffers loss or damage as a result of the pollution incident. The Minister will no doubt tell me, "Well, he has his right at common law"; but will he confirm that the riparian owner, or the owner or occupier of the adjoining land who has suffered loss, has a speedy and cheap remedy against the person who has caused the pollution? On the question of pollution, perhaps I may also ask whether it is intended that the scheme of development will also address the question of litter on river banks.

Finally, there is considerable concern in Northern Ireland that the essential character of a river or parts of a river may be changed by the removal of substantial amounts of sand and gravel from the river bed for commercial purposes. That issue has been raised with me by one or two people from Northern Ireland. The sand and gravel has been accumulating on the river bed for generations and its removal in huge quantities for commercial purposes might affect the river and the fish life as that part of the river becomes deeper and no more than a slow-moving pond. Has that concern been addressed, or will it be addressed in the future?

I have no more questions for the Minister, but I shall listen with great interest to his response. Meanwhile, on behalf of these Benches, we welcome the order and thank the department for having listened so carefully to the fears that were expressed when the draft order was published.

Lord Belstead

My Lords, I am grateful to the noble Lord, Lord Prys-Davies, for his reception of the order. I agree with his opening remarks about the value of the order as regards its effect on fishing in Northern Ireland. I thank him also for his recognition that the consultation period was a meaningful period which has led to some considerable changes in the order. He asked a series of questions of which he gave me notice. I should like to thank him for that extremely helpful approach because some of the questions are of a detailed nature, but each is important and relevant.

The noble Lord's first question relates to the duty of the Department of Agriculture in Northern Ireland to publish in a local paper —the Belfast Gazette —before undertaking or authorising the development of any waters. He asked whether the notice of claim to fishing rights in paragraph 3(e) on page 4 should be a notice in writing. I can assure him that the published notice will make clear that a notice in writing is required from a claimant. If the noble Lord will forgive me for saying so, I do not think that that will mean redrafting the order because we are not talking about an assurance for someone. This is a sensible piece of administration for the claimants. The noble Lord has hit the nail on the head. That is what will be done. I hope that my assurance on the Floor of the House is good enough on that point.

The noble Lord raised an interesting point about the phrase, vexatious, frivolous or insubstantial appearing first in subsection 6 on page 5. He asked how the word "insubstantial" should be interpreted. We have not attempted in interpretation to define the term "insubstantial", which obviously means that we shall be wary about objections which have no substance in them. However, I should like to assure the noble Lord that it is not intended to use the term in order to dismiss objections lightly. To prove that that is a genuine reply I point out that, as the noble Lord knows, a good deal of care has gone into the order in providing for objections to be made.

The noble Lord's third question refers to the occasion when the Department of Agriculture undertakes the development of any waters for angling. He asked whether, with regard to subsection (11) on page 6, it would not be wise for the department to have been provided with the right to acquire an easement as well as an estate in land. The answer is already in the order. Again, the noble Lord is right. Where the department owns fishing rights, it already has the right to acquire easements under Section 2(3) of the principal Act. The noble Lord will find that in Article 8(1) of the order, which provides that the department may do all of the things that it is empowered to do under Section 2(3) in respect of developing derelict waters.

The noble Lord's fourth question related to whether, under subsection 4.3, the department can amend the scheme of development after it has been published and, if amended or made subject to new conditions after publication, whether it will mean republication. The answer is yes. Any significant change from the published scheme would require republication before approval could be granted.

The noble Lord's fifth question related to subsection (4) on pages 8 and 9. He asked why the department will pay compensation to an owner of fishing rights from the date on which the department began to undertake the development while the approved developer will pay from the date on which the development was authorised. That is apparently an anomaly. An approved developer will enter into possession of a fishery under the order from the date on which the development is authorised, but the department's occupancy would commence from the date on which it began to undertake the development.

The noble Lord's sixth question asked whether there is a well-tried and well-understood formula for assessing the value of any development of the waters for angling, pursuant to subsection 4(8) (b). There is no standard formula of assessment. We are talking here about having to go to the Lands Tribunal if the occupier wants to become involved. He would need to produce evidence to the Lands Tribunal of the value of his development works while in occupancy of the fishery.

The noble Lord's seventh question related to whether there should be a requirement for a notice of application for a fish culture to be published in a newspaper circulating in the vicinity of the proposed fish farm. That is perhaps one of the most important questions that he has asked because, as he well knows, a great deal of objection and concern was expressed about the establishment of fish farms in Northern Ireland from the point of view of the need for consultation. That is provided for here. Hence the noble Lord's question. However, I should point out to him that the grant of fish culture licences can be of concern to a wider area than the immediate vicinity. It may be necessary to publish the notice in newspapers which have a wider circulation. I can assure the noble Lord that the department will ensure that it is also published in at least one newspaper circulating in the vicinity of the proposed fish farm. We take the matter very seriously indeed. I hope that that undertaking will suffice.

In his penultimate question the noble Lord asked whether we are satisfied that when the owner-occupier of adjoining land, or the riparian owner, suffers special damage when a river is polluted he can achieve a satisfactory remedy against the person guilty of the act of pollution. Again, that is important territory. So far as concerns that article, the order addresses only the question of making good depleted fish stocks following a pollution incident. Any other damage would continue to be dealt with through negotiations between parties or by civil action.

The noble Lord asked about litter on fish banks. That is being addressed separately by legislation promoted by the Department of the Environment. Finally, the noble Lord asked me why the order does not attempt to control the abstraction of sand and gravel from river beds for commercial purposes. Under Section 48 of the principal Act it is an offence to injure or disturb any spawning bed. The wider aspects of gravel removal would, we believe, be inappropriate to this order and would probably have to be addressed in the context of drainage legislation.

I hope that those answers to the noble Lord's questions will be sufficient. I thank the noble Lord for the great care that he has taken and for the kindness that he showed me in giving notice of the questions that he would ask.

On Question, Motion agreed to.