Commentary on Sections Part 6 – Civil enforcement, emergency powers and further offences Section 97 - Compensation
This section sets out the circumstances where the Department must pay compensation to landowners or occupiers of land and/or undertake reinstatement of land where the Department has exercised the right to enter land under section 93 and there is consequential damage to the land or disturbance of the right to occupy. Subsection (2) describes the scenarios which would render the Department liable to pay compensation to persons other than reservoir managers, who meet the criteria in subsection (3). Subsections (4) and (6) provide for compensation to be payable for damage to land occupied by reservoir managers provided they are not disqualified under Subsection (5). Reservoir managers are disqualified from claiming compensation in two scenarios. The first is where entry was for the purpose of enforcing the taking of safety measures (under section 73). The second is where it was for the purpose of exercising the Department’s emergency powers (under section 75) and the reservoir manager had not taken all practicable steps to prevent an escape of water from the reservoir. Subsection (7) permits the Department to enter into agreement to reinstate land instead of compensation or a combination of the partial reinstatement of land and compensation payment.
Where the reservoir manager is disqualified from claiming compensation subsection (8) enables the Department, if it considers it appropriate, to recover the amount of compensation paid to a third party, and/or costs incurred, from the disqualified reservoir manager. Subsection (10) provides that any dispute regarding compensation under this section or costs incurred by the Department in relation to compensation or an agreement to reinstate (wholly or partially) is to be determined by the Lands Tribunal.