Water Water Everywhere …

Irish Water

With weather like ours (apart from the past four months) one would not expect to be charged for water, but the truth of the matter is that water has to be channelled into the consumer’s dwelling, and it is the supply and maintenance of that channelling system (i.e. the water mains) that creates the cost, as opposed to the cost of water itself. If the Water Fairy could somehow magic water into our homes, life would be easier – unfortunately she cannot and so we must pay for the service, either by digging our own well or by paying others to get water to our homes.

This latest form of stealth tax is ostensibly to pay for the upgrade of our water supply network. Whether it will actually be used for that is another matter.

If you have sunk your own well and have a separate septic tank, it would seem that you are off the hook. The Water Services Acts apply to people on mains water and /or public sewage systems – at least as far as payment is concerned.

The introduction of water charges has caused a fair amount of commentary and also some acts of civil disobedience. Feelings are running high and a lot of things are being said, unfortunately a lot of them wrong or misconceived. I am concerned that people will do things on the back of bad advice that will hurt them later. People need to think carefully before doing things that might actually amount to a serious crime. It is one thing not agreeing with the law and giving out about it, but another thing actually breaking it. If you are determined to break the law, at least find out what it says before you decide to break it! Similarly, the right to protest peacefully is an important right that needs to be cherished and protected, but for any protest to be effective, you need to know what you are protesting about. Educate yourselves. Find out the facts rather than rely on somebody else’s version of the facts.

As always, this is not legal advice, but rather just some of my random thoughts on the matter. If you are thinking about doing anything to or with Irish Water, consult a solicitor first.

The original Water Services Act was in 2007, and attempted to bring some order and uniformity to the chaos that governed the water services at the time. The 2007 Act prohibited water charges. This was changed in 2013.

In 2013 the Water Services Act No. 6 of 2013 was passed. Section 4 of this Act established Irish Water/Uisce Éireann as a private company limited by shares, and a subsidiary of Bord Gáis Éireann. Section 5(4) stipulates that one share in the company shall be issued to Bord Gáis Éireann. The Minister for the Environment, Community and Local Government and the Minister for Finance hold the rest of the shares equally between them.

In other words, Irish Water is a wholly government-owned company, along the lines of EirGrid. It is not an ordinary private company like your average High Street trader. I don’t know why Irish Water are calling people ‘customers’ as that is just confusing – you are really service users. Similarly, it is doubtful whether the Sale of Goods and Supply of Services Act applies as Section 4(2) of that Act says that “(2) This Act does not affect any exemption from liability conferred by or under statute”. It seems to be an open question whether water supply is covered by consumer protection legislation as, despite this exclusion under the Sale of Goods Act, the Consumer Protection Act 2007 defines “consumer transaction” as “a promotion or supply of a product to a consumer”; and the definition of “product” means “goods or services” and the definition of “goods” means “real or personal property of any nature or description, and includes—(d) gas, electricity or water”. Consumer protection legislation is not my area of expertise but I would be surprised if the supply of services by a wholly government-owned company is subject to those laws.

The rest of Part 2 of the Act is dedicated to the administration of the company and other company law stuff.

Part 3 of the Act is entitled “Installation of Water Meters”.

This is quite a confusing part of the Act to read because nowhere in the 2013 Act does it actually say that Irish Water can install meters. However, Section 20 of the 2013 Act gives both Bord Gáis Éireann (BGE) and Irish Water the same powers as were available to a water services authority under the 2007 Act, where these powers are necessary to meet this objective. In this regard the 2013 Act specifically mentions section 32 of the 2007 Act which includes this:

“(f) the installation and maintenance of meters, or otherwise measuring the volume or rate of flow of water supplies or discharges to waste water works,”

What other powers have now been transferred to BGE and Irish Water?

Section 31 of the 2007 Act is an extremely long and detailed section entitled “Powers of a Water Services Authority” and Section 31(2) says:

“(2) Subject to regulations made under subsection (3), a water services authority may provide water services or supervise the provision of water services by other persons, in accordance with any prescribed standards, for domestic and non-domestic requirements in its functional area, taking full account of the following aspects of public policy, namely: …”, and then goes on to list various Regulations, both domestic and EU, relating to water usage and environmental protection. It is interesting that the ‘powers’ are discretionary, as in the authority “may” use them, unless the Minister orders them to use them. No surprises there.

Section 32 is another lengthy section setting out all the functions of the water authority and these are extensive, including buying property or obtaining wayleaves over private land, but also, as mentioned before, the installation of water meters. In this regard, the Act provides BGÉ and Irish Water with the necessary powers to “obtain information from households” in receipt of water services and “other third parties” for the purpose of “creating a customer database”. Whether this would include details of your PPS number is anybody’s guess – I simply do not know the answer to that one – it really depends on how the section is interpreted, but that certainly seems to be the intention.

Section 41 of the 2007 Act authorises the water services authority to install water pipes “through, across, over, under or along any public road, or place intended for a public road, or under or over any cellar or vault which may be under the pavement or carriageway of any public road”. I mention this particular provision because the 2013 Act expressly confers this power onto BGE and Irish Water. Please remember your property extends to the boundary drawn in the title deeds, it does not extend to the verge outside your property or to the middle of the road as someone on Facebook suggested! That is a public road / public property and Irish Water are empowered to dig there.

Finally, section 24 of the 2013 Act says that BGE or Irish Water “have all such powers as are necessary or expedient for the performance of its functions under this Act”, whilst Section 25 says they may “do all such things as may be necessary or expedient for the purposes of the performance by it of water services functions under any enactment passed after the passing of this Act”.

As if that wasn’t enough, a second Act was passed in 2013, namely the Water Services (No.2) Act  No. 50 of 2013.

Part 2 of this Act is concerned with the transfer of functions, property and staff to Irish Water, but Part 3 is the one that interests me as it deals with water charges, which is what caused all this trouble in the first place.

Section 21(1) of the 2013 (2) Act says:

“ Irish Water shall charge each customer for the provision by it of water services.”

The use of the word ‘shall’ is indicative of a mandatory or peremptory stipulation – in other words, the law says Irish Water must charge you. It is for this reason that I am doubtful about the current advice telling people to write “no consent, no contract” on the front of the pack and return it unopened. Irish Water is not entering into a consensual contract with you like that High Street trader – they are empowered to charge you for water, whether you like it or not. You can do it the easy way or the hard way. As mentioned before, the use of the word ‘customer’ is disingenuous as this is not your typical commercial transaction like ordering a DVD off Amazon – you are being charged for water whether you ask for it or not.

Section 21(6) of the 2013 (2) Act says that Irish Water can sue you in a court of law for outstanding monies like any other civil debt.

Sections 21(7) and 21(8) of the 2013 (2) Act are confusing as the former says your water can be cut off if you fail to pay after a certain period of time, but then the latter says that your water shall not be cut off simply because you have not paid your charges. What I think it means is that your water cannot be summarily disconnected as soon as you don’t pay, but that you must be given an (unspecified) period of time to pay before your water is cut off. In other words, persistent and prolonged failure to pay your water bill will eventually lead to disconnection.

Finally, I could not find an “Offences” section in either the 2007 Act or the 2013 Acts. This would seem to indicate that the question of removal and/or tampering with a water meter will be dealt with under the ordinary criminal law, probably the Criminal Damage Act of 1991.

(Thanks to The Journal for the image).

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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