The sweeping hosepipe ban implemented 10 days ago by Northern Ireland’s state-owned water company does not have legal authority, it has been revealed.
NI Water has purported to have powers within GB legislation which do not apply to Northern Ireland to impose a far-reaching ban on everything from washing windows to cleaning paths and filling swimming pools if a hose is used.
However, the legislation in Northern Ireland - which has not been updated in line with GB and now in the absence of an Assembly can only be altered by Parliament – only allows a ban on two activities: watering a garden and washing a private car.
That had been the case across the entire UK until 2010. However, at that point Parliament decided that there were too many loopholes in the existing law and extended the powers available.
A Parliamentary research briefing at the time made clear that under the law still in force in Northern Ireland “companies can only ban or restrict the use of hosepipes when they are used to water private gardens or clean private vehicles – but not when they are used for other purposes such as for filling swimming pools or to clean patios”.
However, for reasons which are not yet clear NI Water used the precise list of prohibited activities from the new GB law.
The situation is particularly significant because NI Water has made clear that breaching the ban could lead to not only a £1,000 fine but a criminal record.
And the ‘offence’ is prosecutable by NI Water, rather than by the police.
NI Water is one of many public sector organisations in Northern Ireland currently operating in an accountability vacuum, with no Stormont minister to oversee the work of the company for the last 18 months.
The publicly owned utility set out the terms of the hosepipe ban in full page newspaper adverts on June 30.
The layout and language of the public notice gave the appearance of an extract from legislation. However, the words are not from legislation and appear to just have been written by NI Water staff.
It set out nine purposes for using a hosepipe which as well as watering a garden or washing a car included:
- Drawing water, using a hosepipe, for domestic recreational use.
- Filling or maintaining a domestic swimming or paddling pool using a hosepipe.
- Cleaning a private leisure boat using a hosepipe.
- Cleaning walls or windows of domestic premises using a hosepipe.
- Cleaning paths or patios of domestic or other non-commercial premises using a hosepipe.
In large red type at the bottom of the notice, it said that any person who contravenes the provisions of the notice “may be guilty of an offence and be liable, on summary conviction, to a fine not exceeding level three on the standard scale”.
The notice said that the ban was being imposed under Article 116 of the The Water and Sewerage Services (Northern Ireland) Order 2006.
However, that does not contain the wide-ranging powers which NI Water is exercising. Those are instead found in the Flood and Water Management Act 2010. The only two provisions not lifted from that legislation are a ban on filling an ornamental fountain or cleaning “other artificial surfaces”.
When asked about the situation, NI Water said it was “content that the prohibitions contained within the hosepipe ban notice are in line with Article 116”.
It said that because the 2006 Order provides a definition of “private motor car” which includes any vehicle drawn by a private motor car, that included boats – even though some boats cannot be towed by cars – and said that Article 116 does not include a definition of “private garden”.
In a statement, it said: “NI Water has interpreted ‘private gardens’ broadly to include walls and windows backing or fronting on to a garden, paddling pools or swimming pools in a garden and patios within a garden.”
However, in the public notice there is no mention of ‘walls fronting on to gardens’ – the prohibition is absolute, even if there isn’t a blade of grass within a mile of the wall or window in question.
When asked to clarify if washing walls or any of the other ‘banned’ activities are entirely legal if not connected to a garden, NI Water did not directly answer the question. East Belfast MP Gavin Robinson expressed concern at NI Water’s actions.
He said: “They are achieving what they hoped to achieve – but they are doing it by threatening people in a way that wouldn’t succeed if prosecutions were taken.
“NI Water should be very up front with water users. People understand the need to conserve water at a time when we are experiencing such a dry spell.
“But they should be fair, and potentially loosen some of the severe guidance they have given – particularly if there is no legal basis for it.”
Mr Robinson said that the public had responded responsibly to the request to conserve water and usage had been significantly reduced.
However, he said there was a danger that NI Water could “lose the confidence of the public” if it is attempting to act beyond its legal powers.
Mr Robinson also urged NI Water to clarify when it intends to lift the ban entirely. NI Water also did not place notices in newspapers to warn that the ban was to be put in place prior to it coming into force – despite that being a clear legal requirement.
Article 116 of The Water and Sewerage Services (Northern Ireland) Order 2006 states that a water company planning to restrict the use of water must give advance notice in a specific manner. The law says the water provider “shall, before it comes into force, give public notice of it, and of the date on which it will come into force, in two or more newspapers circulating in the locality affected by the prohibition or restriction”.
However, NI Water placed full page advertisements in the Belfast Telegraph and The Irish News on June 30 – the day after the ban took effect announcing that the ban was already in place.
The adverts stated: “This restriction will [sic] come into effect from 18:00 on the 29th day of June 2018”.
When initially asked if it accepted that it had broken the law in that regard, NI Water did not address the question. However, when pressed on the issue it insisted that it had not broken the law and that “our lawyers believe that the Order has been interpreted correctly”.
It said that the proposal to introduce a ban was “carried in digital formats in a number of newspapers ... in advance of the ban coming into force”. When asked for further details, NI Water clarified that “the initial notice was by means of press release and not by paid for advert” and said that online newspaper reports of the press release “met the requirements of Article 116”.
A spokeswoman said: “NI Water is content that we have satisfied the clear terms of the legislation.