SIMON
FACT
SHEET NUMBER 11
RESERVOIRS
1. INTRODUCTION
For over 70 years legislation has been in place to
ensure that reservoirs are properly maintained to avoid potentially disastrous
floods if they collapse. The
Reservoirs Act 1975 is the most recent Act. In October 2004, the Environment Agency
became the body responsible for enforcing legal obligations for reservoirs.
2. WHAT IS A RESERVOIR?
For the purpose of the Act a reservoir is one that is
capable of holding more than 25,000 cubic metres of
water above ground level.
3. WHO IS RESPONSIBLE?
An Undertaker as defined by the Act is responsible
for reservoir safety. Section 1 (4)
of the Act defines an Undertaker as including water companies, but also
reservoir users such as sailing clubs or angling clubs. If the reservoir is not controlled by a
water company, then, if the reservoir is used for “an undertaking”
the person who carries on that undertaking is an Undertaker for the purposes of
the Act. The effect of this is that
a user of a reservoir may be liable before the actual owner.
This means that an angling club that enjoys fishing
rights by lease or licence may be an Undertaker for
the purposes of the Act. If for
example the reservoir is not used any more for water supply purposes an angling
club may become the only Undertaker even if it does not own the reservoir.
Even if other parties are involved in the reservoir
there can be more than one Undertaker, so you may not be off the hook.
4. WHAT RESPONSIBILITIES DOES AN UNDERTAKER
HAVE?
First an Undertaker must appoint a Supervising
Engineer at all times. Every ten
years the Undertaker must arrange for an inspection by an independent Qualified
Civil Engineer. That engineer can
order works to be carried out being “measures to be taken in the
interests of safety”. As
Undertaker you will be responsible for carrying out these works. Undertakers have to keep a proper record
of water levels and ensure that there is proper monitoring of the reservoir.
5. HOW IS THIS ENFORCED?
The Environment Agency is now responsible for all
qualifying reservoirs. Now that
just one body is responsible, regulation is likely to be more effective and
rigorous.
The Agency have default powers so that if an
Undertaker fails to satisfy its responsibilities, it can take the necessary
steps itself including carrying out any works recommended by an Inspecting
Engineer and send the bill to the Undertaker.
As well as this breach of obligations by an
Undertaker in the Act it is a criminal offence punishable by a fine of up to
£5000 and up to two years imprisonment.
6. WHAT
SHOULD I DO?
If you have any doubt whether a
water you are interested in is a reservoir within the Act, contact the
Agency to check.
If it is a reservoir you need to ensure, so far as
possible that you are not an Undertaker, or, if you are there is someone else
who will take up primary responsibility, and who will indemnify you if you do
incur loss yourself. Thus for
example if the reservoir is still owned by a water company you will need a legal
obligation to be included in the lease or other document to ensure they are
responsible and you are protected.
In all cases you need to be satisfied that any
promise by the person who grants you the rights is worth the paper it is
written on. It might also be worth
considering whether to form a limited company to hold the fishing rights, so as
to limit liability if things went w
Finally it will be essential to insure against
liability to third parties as a result of any failure of the reservoir or to
make sure that someone else has done so.
However this insurance will not cover the cost of maintaining the
reservoir.
7. CAN I GET HELP?
There are some opportunities to get public funding to
help comply with the Reservoir Act responsibilities. These may be available if a significant
number of people benefit from the fishing rights and, possibly, access rights
as well.
8. BEWARE!
All of the above indicates that you should be
extremely careful before you take on fishing rights on a reservoir.
·
Take legal
advice as to whether you will be an Undertaker for Reservoir Act purposes.
·
If you are take
advice to make sure that your potential liabilities are limited as far as
possible.
·
Take out
insurance to protect you against any possible liabilities to third parties.
·
Take advice from
an engineer if you are worried about the state of the reservoir or do not know
what state it is in.
Back to Home Page: anglinglaw.html
Please note that this fact sheet is
intended to give general guidance on the stated area of law. We cannot
accept any responsibility for the consequences of relying on this fact sheet in
relation to particular circumstances of which we are not aware.
Simon Jackson
Solicitors
The Office
Tyn Celyn
Llansilin
Oswestry
SY10 7JW
Tel: 01691 791439
Fax: 01691 791583
e-mail. srbj@btconnect.com