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Buachaill, Lawyer
Category: Republic of Ireland Law
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Experience:  Barrister 17 years experience
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The 2007 water services act provides at Section 95.— (1) that

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The 2007 water services act provides at Section 95.— (1) that A water services authority may by agreement take into public charge or acquire all or part of a waterworks or waste water works, or any rights connected to it, whether or not it is situated in its functional area, where not fewer than two thirds of those persons entitled to dispose of it agree to such transfer.

Can the Act be applied retrospectively allowing for a local authority to take ownership of community-based, community owned group water supply schemes constructed several years before the 2007 provisions were enacted, when the agreement of all members to such a takeover was a statutory requirement?

Members of older group water schemes, in particular those dating back to the mid nineties, had to provide a local contribution towards the development of such projects, and also secure a Department of the Environment grant, in some cases, co-funded by the EU, paid out to trustees, in order to obtain a household, business or farm connection to the supply. Through this, its believed local householders, farmers and others, as members, acquired rights of ownership in the schemes.

Has the case of Dublin City Council v. Fennell Supreme Court (2005) IESC 33 (2005)
Docket Number: 507/04 any relevance to the above?
1. At the outset, you need to realise that section 95 of the 2007 Act is a statutory amendment to the Articles of Association or memorandum of Agreement or charter, or trust document of any existing group water scheme in existence when it came into existence in 2007. Once the Act was passed, it affected all group or community based water schemes, and the pre-existing unanimity requirement was removed, even if it was provided for in the Group Water scheme charter. Accordingly, you need to realise firstly, that the pre-exsiting unanimity ceased to exist even for Community water schemes in existence at the time the 2007 Act was passed. Secondly, that it constituted a statutory amendment to all Group Water Schemes charters. So it would apply to your pre-2007 Community water scheme.
2. Dublin County Council v. Fennell is not directly in point as that case related to Article 8 which relates to the family & private life. An interest in a community water scheme is not a private or family right. It is in the nature of a property right. So far as both the Irish Constitution and the European Convention on Human Rigths is concerned, there can be no lawful taking of a property right without compensation. Accordingly, this would mean that under Articles 40(3) and 43 of the Constitution, which deal with property rights and under Article 1 of Protocol 1 of the European Convention on Human Rights, compensation must be paid to any members who have their property rights in the community Water Scheme removed by Section 95 of the 2007 Water Services Act. To this extent the provision of Section 95 are varied by the requirement to pay those members who do not assent to the taking over of the Community Water Scheme, compensation, for the statutory removal of their property rights.
3. So to conclude, you are entitled to seek compensation for the removal of your rights in the community Water Scheme if the two-thirds majority votes in favour of it.
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