Part IE+W+S PRELIMINARY

CHAPTER IE+W+S THE NATIONAL RIVERS AUTHORITY

F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

F33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

CHAPTER IIE+W COMMITTEES WITH FUNCTIONS IN RELATION TO THE AUTHORITY

Advisory committeesE+W

F66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Flood defence committeesE+W

F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F1414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

CHAPTER IIIE+W GENERAL DUTIES

15 General duties with respect to the water industry.E+W

(1)It shall be the duty of the Agency [F15and the NRBW], in exercising any of [F16their] powers under any enactment, to have particular regard to the duties imposed, by virtue of the provisions of Parts II to IV of the M1Water Industry Act 1991, on any water undertaker or sewerage undertaker which appears to the Agency [F17or the NRBW, as the case may be,] to be or to be likely to be affected by the exercise of the power in question.

(2)It shall be the duty of each of the Ministers, in exercising—

(a)any power conferred by virtue of [F18the 1995 Act,]this Act, the M2Land Drainage Act 1991, the Water Industry Act 1991[F19, the Water Act 1989 or the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903)] in relation to, or to decisions of, the Agency [F20or the NRBW]; or

(b)any power which, but for any direction given by one of the Ministers, would fall to be exercised by the Agency [F20or the NRBW],

to take into account the duty imposed on the Agency [F21and the NRBW] by subsection (1) above.

F2216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F2418. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

Part IIE+W Water Resources Management

CHAPTER IE+W General Management Functions

19 General management of resources by the [F25Agency.]E+W

(1)It shall be the duty of the [F26Agency ]to take all such action as it may from time to time consider, in accordance (if any have been given for the purposes of this section) with the directions of the Secretary of State, to be necessary or expedient for the purpose—

(a)of conserving, redistributing or otherwise augmenting water resources in England and Wales; and

(b)of securing the proper use of water resources in England and Wales.

(2)Nothing in this section shall be construed as relieving any water undertaker of the obligation to develop water resources for the purpose of performing any duty imposed on it by virtue of section 37 of the M3Water Industry Act 1991 (general duty to maintain water supply system).

20 Water resources management schemes.E+W

(1)It shall be the duty of the [F27appropriate agency] so far as reasonably practicable to enter into and maintain such arrangements with water undertakers for securing the proper management or operation of—

(a)the waters which are available to be used by water undertakers for the purposes of, or in connection with, the carrying out of their functions; and

(b)any reservoirs, apparatus or other works which belong to, are operated by or are otherwise under the control of water undertakers for the purposes of, or in connection with, the carrying out of their functions,

as the [F27appropriate agency] from time to time considers appropriate for the purpose of carrying out its functions under section 6(2) [F28or, as the case may be, section 6(2A)] of the 1995 Act.

(2)Without prejudice to the power of the [F27appropriate agency] and any water undertaker to include any such provision as may be agreed between them in arrangements under this section, such arrangements may—

(a)make provision by virtue of subsection (1)(a) above with respect to the construction or installation of any reservoirs, apparatus or other works which will be used by the undertaker in the carrying out of its functions;

(b)contain provision requiring payments to be made by the [F27appropriate agency] to the undertaker; and

(c)require the reference to and determination by the Secretary of State or the [F29Water Services Regulation Authority ] of questions arising under the arrangements.

(3)The [F27appropriate agency] shall send a copy of any arrangements entered into by it under this section to the Secretary of State; and the obligations of a water undertaker by virtue of any such arrangements shall be enforceable under section 18 of the M4Water Industry Act 1991 (enforcement orders) by the Secretary of State.

[F3020AWater resources management schemes: other abstractorsE+W

(1)The [F31appropriate agency] may enter into and maintain such arrangements with holders of abstraction licences other than water undertakers for securing the proper management or operation of—

(a)the waters from which they have the right by virtue of their licences to abstract water; and

(b)any reservoirs, apparatus or other works which are used for the purposes of or in connection with their abstractions and which belong to them, are operated by them or are otherwise under their control,

as the [F31appropriate agency] from time to time considers appropriate for the purpose of carrying out its functions under section 6(2) [F32or, as the case may be, section 6(2A)] of the 1995 Act.

(2)Without prejudice to the power of the [F31appropriate agency] and any holder of an abstraction licence to include any such provision as may be agreed between them in arrangements under this section, such arrangements may—

(a)make provision by virtue of subsection (1)(a) above with respect to the construction or installation of any reservoirs, apparatus or other works which the holder of the licence will use for the purposes of or in connection with his abstraction;

(b)contain provision requiring payments to be made by the [F31appropriate agency] to the holder of the licence; and

(c)require the reference to and determination by the Secretary of State or the Water Services Regulation Authority of questions arising under the arrangements.

(3)The [F31appropriate agency] shall send a copy of any arrangements entered into by it under this section to the Secretary of State.

(4)In this section, references to abstraction licences are to licences under Chapter 2 of this Part to abstract water.]

[F3320BWater resources management schemes: referral to Secretary of StateE+W

(1)This section applies where—

(a)the [F34appropriate agency] has sought to enter into arrangements acceptable to it under section 20 or 20A above, but is satisfied that the other party is unwilling to enter into such arrangements or to do so on terms appearing to the [F34appropriate agency] to be reasonable; or

(b)having entered into such arrangements, the [F34appropriate agency] has sought to renew or vary them but is satisfied that the other party is unwilling to do so or to do so on terms appearing to the [F34appropriate agency] to be reasonable.

(2)Where this section applies, the [F34appropriate agency] may refer to the Secretary of State the question (as the case may be)—

(a)whether such arrangements should be entered into, and if so, on what terms; or

(b)whether the arrangements should be renewed or varied (as the case may be), and if so, on what terms.

(3)If the Secretary of State determines that arrangements should be entered into or (as the case may be) renewed or varied, such arrangements on the terms determined by the Secretary of State shall be enforceable—

(a)by civil proceedings by the Secretary of State for an injunction or for any other appropriate relief; and

(b)where the other party is a water undertaker, also under section 18 of the Water Industry Act 1991 (enforcement orders) by the Secretary of State.

(4)The functions of the Secretary of State under subsection (2) above shall be treated for the purposes of section 114 of the 1995 Act (delegation or reference of appeals) as if they were functions to which paragraph (a) of subsection (1) of that section applied.]

[F3520CProposals for bulk supply arrangementsE+W

(1)In the circumstances mentioned in subsection (2) below, the [F36appropriate agency] may, in carrying out its functions under section 6(2) [F37or, as the case may be, section 6(2A)] of the 1995 Act, propose to a qualifying person (within the meaning of section 40 of the Water Industry Act 1991) that he make an application under that section for a bulk supply of water from a water undertaker.

(2)The circumstances referred to in subsection (1) above are that it appears to the [F36appropriate agency] that such a bulk supply is necessary in order to secure the proper use of water resources.

(3)The [F36appropriate agency] shall not make such a proposal without first consulting the Water Services Regulation Authority.

(4)The [F36appropriate agency] may include in its proposal the period for which, and terms and conditions on which, the [F36appropriate agency] considers it appropriate that the bulk supply should be given.]

21 Minimum acceptable flows.E+W

(1)The [F38appropriate agency] may, if it thinks it appropriate to do so, submit a draft statement to the Secretary of State containing, in relation to any inland waters that are not discrete waters—

(a)provision for determining the minimum acceptable flow for those waters; or

(b)where any provision for determining such a flow is for the time being in force in relation to those waters, provision for amending that provision or for replacing it with different provision for determining the minimum acceptable flow for those waters.

(2)The provision contained in any statement for determining the minimum acceptable flow for any inland waters shall, in relation to the inland waters to which it relates, set out—

(a)the control points at which the flow in the waters is to be measured;

(b)the method of measurement which is to be used at each control point; and

(c)the flow which is to be the minimum acceptable flow at each control point or, where appropriate, the flows which are to be the minimum acceptable flows at each such point for the different times or periods specified in the statement.

(3)Before preparing so much of any draft statement under this section as relates to any particular inland waters, the [F38appropriate agency] shall consult—

[F39(za)if those waters are in Wales and there are related inland waters in England, the Agency;

(zb)if those waters are in England and there are related inland waters in Wales, the NRBW;]

(a)any water undertaker having the right to abstract water from those waters;

(b)any other water undertaker having the right to abstract water from any related underground strata;

(c)the drainage board for any internal drainage district from which water is discharged into those waters or in which any part of those waters is situated;

(d)any navigation authority, harbour authorityor conservancy authority having functions in relation to those waters or any related inland waters;

(e)if those waters are F40... situated in Wales (or in an area of the sea adjoining either the coast of Wales or an area of sea forming part of Wales) and they or any related inland waters are tidal waters in relation to which there is no such navigation authority, harbour authority or conservancy authority, [F41the Secretary of State for Transport]; and

(f)any person authorised by a licence under Part I of the M5Electricity Act 1989 to generate electricity [F42who has a right to abstract water from those waters].

(4)In determining the flow to be specified in relation to any inland waters under subsection (2)(c) above, the [F38appropriate agency] shall have regard—

(a)to the flow of water in the inland waters from time to time;

(b)in the light of its duties under [F43sections 6(1), 7 and 8 of the 1995 Act], to the character of the inland waters and their surroundings; and

(c)to any water quality objectives established under Chapter I of Part III of this Act in relation to the inland waters or any other inland waters which may be affected by the flow in the inland waters in question.

(5)The flow specified in relation to any inland waters under subsection (2)(c) above shall be not less than the minimum which, in the opinion of the [F38appropriate agency], is needed for safeguarding the public health and for meeting (in respect of both quantity and quality of water)—

(a)the requirements of existing lawful uses of the inland waters, whether for agriculture, industry, water supply or other purposes; and

(b)the requirements, in relation to both those waters and other inland waters whose flow may be affected by changes in the flow of those waters, of navigation, fisheries or land drainage.

(6)The provisions of Schedule 5 to this Act shall have effect with respect to draft statements under this section and with respect to the approval of statements submitted as draft statements.

(7)The approval under Schedule 5 to this Act of a draft statement under this section shall bring into force, on the date specified in that approval, so much of that statement, as approved, as contains provision for determining, amending or replacing the minimum acceptable flow for any inland waters.

(8)For the purposes of subsection (3) above—

(a)underground strata are related underground strata in relation to any inland waters if—

(i)a water undertaker has a right to abstract water from the strata; and

(ii)it appears to the [F38appropriate agency], having regard to the extent to which the level of water in the strata depends on the flow of those waters, that the exercise of that right may be substantially affected by so much of the draft statement in question as relates to those waters;

(b)inland waters are related inland waters in relation to any other inland waters, where it appears to the [F38appropriate agency] that changes in the flow of the other waters may affect the flow of the first-mentioned inland waters.

(9)For the purposes of subsection (5) above the [F38appropriate agency] shall be entitled (but shall not be bound) to treat as lawful any existing use of any inland waters unless—

(a)by a decision given in any legal proceedings, it has been held to be unlawful; and

(b)that decision has not been quashed or reversed;

F44... .

[F45(10)In subsection (5) above, the reference to land drainage includes—

(a)defence against water (including sea water), irrigation (other than spray irrigation), warping and the carrying on, for any purpose, of any other practice which involves management of the level of water in a watercourse; and

(b)the provision of flood warning systems.]

22 Directions to the [F46appropriate agency] to consider minimum acceptable flow.E+W

(1)If the [F46appropriate agency] is directed by the Secretary of State to consider whether the minimum acceptable flow for any particular inland waters ought to be determined or reviewed, the [F46appropriate agency] shall consider that matter as soon as reasonably practicable after being directed to do so.

(2)After considering any matter under subsection (1) above the [F46appropriate agency] shall submit to the Secretary of State with respect to the inland waters in question either—

(a)such a draft statement as is mentioned in subsection (1) of section 21 above; or

(b)a draft statement that no minimum acceptable flow ought to be determined for those waters or, as the case may require, that the minimum acceptable flow for those waters does not need to be changed.

and subsections (6) and (7) of that section shall apply in relation to a draft statement under this subsection as they apply in relation to a draft statement under that section.

(3)Without prejudice to the generality of paragraph 4 of Schedule 5 to this Act, the power of the Secretary of State under that paragraph to alter a draft statement before approving it shall include power to substitute a statement containing or amending any such provision as is mentioned in subsection (2) of section 21 above for such a draft statement as is mentioned in subsection (2)(b) of this section.

23 Minimum acceptable level or volume of inland waters.E+W

(1)Where it appears to the [F47appropriate agency], in the case of any particular inland waters, that it would be appropriate to measure the level or the volume (either instead of or in addition to the flow) the [F47appropriate agency] may determine that sections 21 and 22 above shall apply in relation to those inland waters as if any reference to the flow were or, as the case may be, included a reference to the level or to the volume.

(2)Where the [F47appropriate agency] makes a determination under subsection (1) above with respect to any inland waters, any draft statement prepared for the purposes of section 21 or 22 above, in so far as it relates to those waters, shall state—

(a)whether the level or the volume is to be measured; and

(b)whether it is to be measured instead of, or in addition to, the flow.

(3)Chapter II of this Part shall apply in relation to any inland waters with respect to which a determination has been made under subsection (1) above as if any reference in that Chapter to the flow were, or (as the case may be) included, a reference to the level or, as the case may be, the volume.

Chapter IIE+W ABSTRACTION AND IMPOUNDING

Restrictions on abstraction and impoundingE+W

24 Restrictions on abstraction.E+W

(1)Subject to the following provisions of this Chapter and to any drought order [F48or drought permit] under Chapter III of this Part, no person shall—

(a)abstract water from any source of supply; or

(b)cause or permit any other person so to abstract any water,

except in pursuance of a licence under this Chapter granted by the [F47appropriate agency] and in accordance with the provisions of that licence.

(2)Where by virtue of subsection (1) above the abstraction of water contained in any underground strata is prohibited except in pursuance of a licence under this Chapter, no person shall begin, or cause or permit any other person to begin—

(a)to construct any well, borehole or other work by which water may be abstracted from those strata;

(b)to extend any such well, borehole or other work; or

(c)to instal or modify any machinery or apparatus by which additional quantities of water may be abstracted from those strata by means of a well, borehole or other work,

unless the conditions specified in subsection (3) below are satisfied.

(3)The conditions mentioned in subsection (2) above are—

(a)that the abstraction of the water or, as the case may be, of the additional quantities of water is authorised by a licence under this Chapter; and

(b)that—

(i)the well, borehole or work, as constructed or extended; or

(ii)the machinery or apparatus, as installed or modified,

fulfils the requirements of that licence as to the means by which water is authorised to be abstracted.

(4)A person shall be guilty of an offence if—

(a)he contravenes subsection (1) or (2) above; or

(b)he is for the purposes of this section the holder of a licence under this Chapter and, in circumstances not constituting such a contravention, does not comply with a condition or requirement imposed by the provisions, as for the time being in force, of that licence.

(5)A person who is guilty of an offence under this section shall be liable [F49on summary conviction, or on conviction on indictment, to a fine].

(6)The restrictions imposed by this section shall have effect notwithstanding anything in any enactment contained in any Act passed before the passing of the M6Water Resources Act 1963 on 31st July 1963 or in any statutory provision made or issued, whether before or after the passing of that Act, by virtue of such an enactment.

[F5024AAbstraction licencesE+W

(1)Each licence to abstract water shall be of one of the following three types—

(a)a licence to abstract water from one source of supply over a period of twenty-eight days or more for any purpose (a “full licence”);

(b)a licence to abstract water from one source of supply over a period of twenty-eight days or more for the purpose of—

(i)transferring water to another source of supply; or

(ii)transferring water to the same source of supply, but at another point, in the course of dewatering activities in connection with mining, quarrying, engineering, building or other operations (whether underground or on the surface),

in either case without intervening use (a “transfer licence”);

(c)a licence to abstract water from one source of supply over a period of less than twenty-eight days (a “temporary licence”).

(2)In this Act, a reference (however expressed) to a licence to abstract water is to be taken as a reference to all types of licence, unless it is clear that a different meaning is intended.]

25 Restrictions on impounding.E+W

[F51(1)Subject to the following provisions of this Chapter and to any drought order or drought permit under Chapter 3 of this Part, no person shall—

(a)begin, or cause or permit any other person to begin, to construct or alter any impounding works at any point in any inland waters which are not discrete waters; or

(b)cause or permit the flow of any inland waters which are not discrete waters to be obstructed or impeded at any point by means of impounding works,

unless (in either case) the conditions mentioned in subsection (1A) below are satisfied.

(1A)The conditions are—

(a)a licence under this Chapter granted by the [F52appropriate agency] to obstruct or impede the flow of those inland waters at that point by means of impounding works is in force;

(b)the impounding works will not (or, as the case may be, do not) obstruct or impede the flow of the inland waters except to the extent, and in the manner, authorised by the licence; and

(c)any other conditions or requirements imposed by the provisions, as for the time being in force, of the licence (whether as to the provision of compensation water or otherwise) are complied with.]

(2)A person shall be guilty of an offence if—

(a)he contravenes subsection (1) above; or

(b)he is for the purposes of this section the holder of a licence under this Chapter and F53... does not comply with a condition or requirement imposed by the provisions, as for the time being in force, of that licence.

(3)A person who is guilty of an offence under this section shall be liable [F54on summary conviction, or on conviction on indictment, to a fine].

(4)Subject to subsection (5) below, the restrictions imposed by this section shall have effect notwithstanding anything in any enactment contained in any Act passed before the passing of the M7Water Resources Act 1963 on 31st July 1963 or in any statutory provision made or issued, whether before or after the passing of that Act, by virtue of such an enactment.

(5)Subject to subsection (6) below, the restriction on impounding works [F55shall not apply in respect of any impounding works], if—

(a)the construction or alteration of those works; or

(b)the obstruction or impeding of the flow of the inland waters resulting from the construction or alteration of the works,

is authorised (in whatsoever terms, and whether expressly or by implication) by virtue of any such statutory provision as at the coming into force of this Act was an alternative statutory provision for the purposes of section 36(2) of the Water Resources Act 1963.

(6)The provisions of this Chapter shall have effect in accordance with subsection (7) below where by virtue of any such provision as is mentioned in subsection (5) above and is for the time being in force—

(a)any water undertaker or sewerage undertaker to which rights under that provision have been transferred in accordance with a scheme under Schedule 2 to the M8Water Act 1989 or Schedule 2 to the M9Water Industry Act 1991; or

(b)any other person,

is authorised (in whatsoever terms, and whether expressly or by implication) to obstruct or impede the flow of any inland waters by means of impounding works (whether those works have already been constructed or not).

(7)Where subsection (6) above applies, the provisions of this Chapter shall have effect (with the necessary modifications), where the reference is to the revocation or variation of a licence under this Chapter, as if—

(a)any reference in those provisions to a licence under this Chapter included a reference to the authorisation mentioned in that subsection; and

(b)any reference to the holder of such a licence included a reference to the undertaker or other person so mentioned.

(8)In this Chapter “impounding works” means either of the following, that is to say—

(a)any dam, weir or other works in any inland waters by which water may be impounded;

(b)any works for diverting the flow of any inland waters in connection with the construction or alteration of any dam, weir or other works falling within paragraph (a) above.

[F56(9)In relation to impounding works, references to alteration include the removal or partial removal of those works, and cognate expressions shall be construed accordingly.]

[F5725AEnforcement noticesE+W

(1)Subject to the following provisions of this section, where it appears to the [F58appropriate agency] that a person is—

(a)in breach of section 24(1) or (2) or section 25(1) above; or

(b)for the purposes of section 24 or 25 above a holder of a licence under this Chapter and has not complied with a condition or requirement imposed by the provisions, as for the time being in force, of that licence,

the [F58appropriate agency] shall be entitled to serve an enforcement notice on him if the condition in subsection (2) below is satisfied.

(2)The condition is that it appears to the [F58appropriate agency] that the breach or failure to comply is causing or is likely to cause significant damage to the environment.

(3)An enforcement notice is a notice requiring the person on whom it is served—

(a)to cease his breach of section 24(1) or (2) or section 25(1) above, or to comply with the condition or requirement in question; and

(b)to carry out any works or operations specified in the notice.

(4)The works or operations which may be specified are works or operations which it appears to the [F58appropriate agency] are appropriate for the purpose of remedying or mitigating the effects of the breach or failure to comply, and may include—

(a)works or operations for the purpose, so far as it is reasonably practicable to do so, of restoring any affected waters, including any flora and fauna dependent on them, to their state immediately before the breach or failure to comply; and

(b)in the case of a breach of section 25(1) above, the removal of any unauthorised impounding works or the reversal of any unauthorised alteration to impounding works.

(5)An enforcement notice must specify the periods within which the person on whom it is served must do each of the things specified in the notice.

(6)Before serving an enforcement notice on any person, the [F58appropriate agency] shall take reasonable steps to consult that person about the works or operations which are to be specified in the notice.

(7)The Secretary of State may by regulations make provision for or in connection with—

(a)the form or content of enforcement notices;

(b)requirements for consultation, before the service of an enforcement notice, with persons other than the person upon whom the notice is to be served;

(c)steps to be taken for the purposes of any consultation required under subsection (6) above or regulations made by virtue of paragraph (b) above;

(d)any other steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of an enforcement notice.

(8)An enforcement notice is not invalid, or invalidly served, merely because of a failure to comply with subsection (6) above or with regulations made by virtue of subsection (7)(b) above.

(9)The Secretary of State may, if he thinks fit in relation to any person, give directions to the [F58appropriate agency] as to whether or how it should exercise its powers under this section.

(10)In proceedings for any offence under section 24 or 25 above against a person upon whom an enforcement notice has been served, the following are not to be taken as evidence that he has committed the offence—

(a)the fact that an enforcement notice has been served on him;

(b)the fact that he does not appeal against it;

(c)the fact that on an appeal against it the notice is confirmed (whether with or without modifications).

25BRights of entry and appealsE+W

Sections 161B and 161C below (including any power to make regulations) shall apply in relation to enforcement notices as they apply in relation to works notices under section 161A below.

25CConsequences of not complying with an enforcement noticeE+W

(1)If a person on whom the [F59appropriate agency] serves an enforcement notice fails to comply with any of its requirements, he shall be guilty of an offence.

(2)A person who commits an offence under subsection (1) above shall be liable [F60on summary conviction, or on conviction on indictment, to a fine].

(3)If a person on whom an enforcement notice has been served fails to comply with any of its requirements, the [F59appropriate agency] may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by the [F59appropriate agency] in doing it.

(4)If the [F59appropriate agency] is of the opinion that proceedings for an offence under subsection (1) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of an enforcement notice, the [F59appropriate agency] may take proceedings in the High Court for the purpose of securing compliance with the notice.]

Rights to abstract or impoundE+W

[F6126 Rights of navigation, harbour and conservancy authorities.E+W

(1)Subject to subsection (2) below, the restriction on abstraction shall not apply to any transfer, without intervening use, of water from inland waters described in the first column of the Table below to inland waters described in the corresponding entry in the second column, if the transfer is in the course of, or results from, any operations carried out by a navigation authority, harbour authority or conservancy authority in the carrying out of their functions as such an authority.

(2)Subsection (1) above shall not apply to a transfer of water from a water system to any inland waters outside that water system in order to—

(a)empty a dry dock; or

(b)introduce into those inland waters all or part of a quantity of water to be abstracted from any connected inland waters in pursuance of a licence to do so granted under this Chapter.

(3)The restriction on impounding works shall not apply to—

(a)the construction or alteration of impounding works; or

(b)the obstruction or impeding of inland waters by means of impounding works,

in the course of the performance by a navigation authority, harbour authority or conservancy authority of their functions as such an authority, unless the construction, alteration, obstruction or impeding affects any inland waters in relation to which the authority does not have functions.

(4)In this section, references to—

(a)an authority’s water system are to a water system in relation to which the authority has functions;

(b)an authority’s supply reservoir are to a reservoir—

(i)belonging to a navigation authority;

(ii)used for the purposes of supplying that navigation authority’s water system; and

(iii)which does not discharge to any inland waters other than that water system.

(5)For the purposes of this section, “water system” means the canals, the harbours, or the canals and harbours constituting the system in question—

(a)together with the locks, docks, balancing reservoirs, weirs and other works associated with the system (other than any supply reservoir as described in subsection (4)(b) above); but

(b)excluding any part of the system which consists of a navigable river or part of one.]

[F6227 Rights to abstract small quantities.E+W

(1)The restriction on abstraction shall not apply to any abstraction of a quantity of water not exceeding twenty cubic metres in any period of twenty-four hours, if the abstraction does not form part of a continuous operation, or of a series of operations, by which a quantity of water which, in aggregate, is more than twenty cubic metres is abstracted during the period.

(2)In the case of any abstraction of water from underground strata which falls within subsection (1) above, the restriction imposed by section 24(2) above shall not apply—

(a)to the construction or extension of any well, borehole or other work; or

(b)to the installation or modification of machinery or other apparatus,

if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.

(3)Where a person is authorised by a licence under this Chapter to carry on a particular abstraction operation (or series of operations), this section does not permit him to carry it on beyond the authorisation conferred by the licence.

27AVariation of small quantity thresholdE+W

(1)The Secretary of State may by order made by statutory instrument provide that section 27(1) above is to have effect in relation to—

(a)a geographical area; or

(b)a class of inland waters; or

(c)a class of underground strata; or

(d)a class of inland waters or of underground strata within a geographical area,

(in each case as specified in the order) as if for “twenty cubic metres” there were substituted another quantity specified in the order.

(2)The Secretary of State shall not make such an order except upon the application of the [F63appropriate agency]; but he may direct the [F63appropriate agency] to make such an application.

(3)Such an order may—

(a)make different provision in relation to the different paragraphs in subsection (1) above; and

(b)make different provision for different areas, waters or underground strata.

(4)Schedule 6 to this Act shall have effect with respect to applications for orders under subsection (1) above and with respect to the making of such orders.

(5)An order under subsection (1) above which specifies a greater quantity than the one which previously had effect in relation to the area, waters or strata in question may make provision for a licence to abstract water granted under this Chapter—

(a)which is for the time being in force; but

(b)which by virtue of the order has become wholly or partly unnecessary,

to cease to have effect, or to cease to have effect to the extent specified in the order.

(6)An order under subsection (1) above may include provision for or in relation to the payment by the [F63appropriate agency] of compensation, in cases specified in the order, to a person who—

(a)immediately before the making of an order under subsection (1) above, had been in a position to carry out an abstraction to which, by virtue of section 27(1) above, the restriction on abstraction did not apply;

(b)following the making of that order, requires a licence under this Chapter in order to carry out that abstraction; and

(c)has suffered loss or damage as a result of his having been—

(i)refused such a licence in respect of that abstraction; or

(ii)granted such a licence, but in respect of an abstraction of more limited extent than the one he had been in a position to carry out.

(7)Paragraphs (e) and (f) of section 219(2) below apply in relation to orders under subsection (1) above as they apply to regulations made under this Act.

(8)A statutory instrument containing an order under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

28 Curtailment of rights under section 27.E+W

[F64(1)The provisions of this section shall have effect where a person (“the occupier") is entitled, by virtue of subsection (6) of section 27 above, to a protected right for the purposes of this Chapter by reason of his being the occupier of such a holding as is mentioned in subsection (4) of that section in relation to an abstraction falling within that subsection (“the holding").

(2)If it appears to the [F65Agency] that the occupier is entitled, as against other occupiers of land contiguous to the inland waters in question, to abstract water from those waters for use on part of the holding (“the relevant part"), but is not so entitled to abstract water for use on other parts of the holding—

(a)the [F65Agency] may serve on him a notice specifying the relevant part of the holding; and

(b)subject to the following provisions of this section, the notice shall have effect so as to require subsections (3) and (4) of section 27 above to be construed in relation to the holding as if the references in subsection (4) to use on the holding were references to use on the part of the holding specified in the notice.

(3)Where a notice is served under subsection (2) above and the occupier objects to the notice on the grounds—

(a)that he is entitled, as against other occupiers of land contiguous to the inland waters in question, to abstract water from those waters for use on every part of the holding; or

(b)that he is so entitled to abstract water for use on a larger part of the holding than that specified in the notice,

he may, within such period (not being less than twenty-eight days from the date of service of the notice) and in such manner as may be prescribed, appeal to the court against the notice.

(4)On any appeal under subsection (3) above, the court shall determine the matter in dispute and, in accordance with its decision, confirm, quash or vary the [F65Agency’s] notice and—

(a)where the court quashes a notice served under subsection (2) above, paragraph (b) of that subsection shall not have effect; and

(b)where the court varies such a notice, that paragraph shall have effect, but with the substitution, for the reference to the part of the holding specified in the notice, of a reference to the part specified in the notice as varied by the court.

(5)In this section—

• “the court” means the county court for the district in which the holding, or the part of the holding which is contiguous to the inland waters in question, is situated; and

• “entitled” (except in subsection (1) above) means entitled apart from this Chapter or any other statutory provision.]

29 Rights to abstract for drainage purposes etc.E+W

(1)The restriction on abstraction shall not apply to any abstraction of water from a source of supply in the course of, or resulting from, any operations for purposes of land drainage.

[F66(1A)The restriction on abstraction shall not apply to any abstraction of water from inland waters within the district of an internal drainage board if—

(a)the abstraction is carried out by or on behalf of that board in connection with its functions;

(b)the water abstracted is transferred to another area of inland waters within the board’s district without intervening use; and

(c)the sole or main purpose of the transfer is to augment that other area of inland waters.]

[F67(2)The restriction on abstraction shall not apply to any abstraction of water from a source of supply in so far as the abstraction (where it does not fall within subsection (1) or (1A) above) is an emergency abstraction and the person abstracting the water complies with subsection (2B) below.

(2A)An abstraction of water is an emergency abstraction if, in the opinion of the abstractor, an emergency has arisen which makes the abstraction necessary to prevent immediate danger of interference with any mining, quarrying, engineering, building or other operations (whether underground or on the surface) or, in relation to such operations, to prevent an immediate risk—

(a)to a human being of death, personal injury or harm to health;

(b)of serious damage to works resulting from any such operations; or

(c)of serious damage to the environment.

(2B)In the case of any emergency abstraction, the person abstracting the water shall before the end of the period of five days beginning with the date on which the abstraction started give notice to the appropriate agency of—

(a)the abstraction and of the source of supply in question; and

(b)the reasons for the abstractor’s opinion that an emergency had arisen and that the abstraction was necessary.

(2C)The appropriate agency may give notice to the person referred to in subsection (2B) above that in the appropriate agency's opinion an emergency had not arisen, or that the abstraction is not, or is no longer, necessary for any of the reasons set out in subsection (2A) above; and, if the appropriate agency does so, the restriction on abstraction shall apply to the abstraction from the time when the notice is served (and, if applicable, the restriction imposed by section 24(2) above shall apply accordingly).]

F68(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In the case of any abstraction of water from underground strata which falls within subsection (1) or (2) above, the restriction imposed by section 24(2) above shall not apply—

(a)to the construction or extension of any well, borehole or other work; or

(b)to the installation or modification of machinery or other apparatus,

if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.

[F69(5)In this section, “land drainage”—

(a)includes the protection of land against erosion or encroachment by water, whether from inland waters or from the sea; but

(b)does not include warping, irrigation (including spray irrigation), or transferring water from one source of supply to another (whether with or without intervening use) solely or mainly in order to augment the latter.]

F7030 Notices with respect to borings not requiring licences.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7131 Appeals against conservation notices under section 30.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32 Miscellaneous rights to abstract.E+W

(1)The restriction on abstraction shall not apply to any abstraction by machinery or apparatus installed on a vessel, where the water is abstracted for use on that, or any other, vessel.

(2)The restriction on abstraction and the other restrictions imposed by section 24 above shall not apply to the doing of anything—

(a)for [F72extinguishing fires or protecting life and property in the event of fire]; or

(b)for the purpose of testing apparatus used for [F73either of] those purposes or of training or practice in the use of such apparatus.

(3)The restriction on abstraction and the other restrictions imposed by section 24 above shall not apply—

(a)to any abstraction of water;

(b)to the construction or extension of any well, borehole or other work; or

(c)to the installation or modification of machinery or other apparatus,

if the abstraction, construction, extension, installation or modification is for any of the purposes specified in subsection (4) below and takes place with the consent of the [F74appropriate agency] and in compliance with any conditions imposed by the [F74appropriate agency].

(4)The purposes mentioned in subsection (3) above are—

(a)the purpose of ascertaining the presence of water in any underground strata or the quality or quantity of any such water; and

(b)the purpose of ascertaining the effect of abstracting water from the well, borehole or other work in question on the abstraction of water from, or the level of water in, any other well, borehole or other work or any inland waters.

F7533 Power to provide for further rights to abstract.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F7633APower to provide for further exemptionsE+W

(1)The Secretary of State may make regulations providing for further cases in which—

(a)the restriction on abstraction (and, in the case of abstractions from underground strata, the other restrictions imposed by section 24 above); or

(b)the restriction on impounding works,

shall not apply; and in this section such a case is referred to as an “exemption”.

(2)The regulations may, in particular, make provision, in relation to an exemption—

(a)for the exemption to apply only for a prescribed period;

(b)for the exemption not to apply unless prescribed conditions are satisfied, or continue to be satisfied;

(c)for the [F77appropriate agency] to be notified, or its consent obtained—

(i)before any particular abstraction operation or series of such operations begins; or

(ii)in connection with such an operation or series of operations relating to the abstraction of water in underground strata, before any other thing which is mentioned in section 24(2) above is done; or

(iii)before any impounding works are constructed or altered,

in reliance on the exemption.

(3)The regulations may provide for an exemption to apply generally or to relate to—

(a)a prescribed geographical area;

(b)a prescribed source of supply (in the case of an exemption from the restriction on abstraction or the other restrictions imposed by section 24 above); or

(c)prescribed inland waters (in the case of an exemption from the restriction on impounding works).

(4)Subject to subsection (5) below, if regulations under this section provide for an exemption falling within subsection (1)(a) above, the regulations shall—

(a)if appropriate, make provision for the exemption not to permit a person who is authorised by a licence under this Chapter to carry on an abstraction operation (or series of operations) to carry it on beyond the authorisation conferred by the licence; and

(b)make provision as to whether or not, in relation to any abstraction, the exemption provided for by the regulations is to be counted cumulatively with any other exemption which a person has by virtue of this section or section 27 above.

(5)The regulations may make provision for a licence granted under this Chapter and which is for the time being in force to cease to have effect, or to cease to have effect to the extent specified in the regulations, if it authorises an activity which falls to any extent within the exemption provided for by the regulations.]

Applications for a licenceE+W

34 Regulations with respect to applications.E+W

(1)Any application for a licence under this Chapter shall be made in such manner as may be prescribed, and shall include such particulars, [F78be accompanied by such reports, ] and be verified by such evidence, as may be prescribed.

(2)The Secretary of State may by regulations make provision as to the manner in which applications for the grant of licences under this Chapter are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such applications or decisions on such applications [F79, and provision for making such applications available for public inspection.]

(3)Without prejudice to the generality of subsection (2) above, provision shall be made by regulations under this section for securing that, in such circumstances as may be prescribed (being circumstances in which it appears to the Secretary of State that applications for licences under this Chapter would be of special concern to National Park F80. . . authorities)—

(a)notice of any such application will be given to such one or more National Park F80. . . authorities as may be determined in accordance with the regulations; and

(b)the matters to which the [F77appropriate agency] or, as the case may be, the Secretary of State is to have regard in dealing with the application will include any representations made by any such National Park F80. . . authority within such period and in such manner as may be prescribed.

(4)The preceding provisions of this section shall have effect subject to any express provision contained in, or having effect by virtue of, any other enactment contained in this Chapter; and any regulations made under this section shall have effect subject to any such express provision.

F81(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35 Restrictions on persons who may make applications for abstraction licences.E+W

(1)No application for a licence under this Chapter to abstract water shall be entertained unless it is made by a person entitled to make the application in accordance with the following provisions of this section.

[F82(2)In relation to abstractions from any inland waters, a person shall be entitled to make the application if, as respects the place (or, if more than one, as respects each of the places) at which the proposed abstractions are to be effected, he satisfies the [F77appropriate agency] that—

(a)he has, or at the time when the proposed licence is to take effect will have, a right of access to land contiguous to the inland waters at that place (or those places); and

(b)he will continue to have such a right for the period of at least one year beginning with the date on which the proposed licence is to take effect, or until it is to expire (if sooner).

(3)In relation to abstractions from underground strata, a person shall be entitled to make the application if he satisfies the [F77appropriate agency] that—

(a)he has, or at the time when the proposed licence is to take effect will have, a right of access to land consisting of or comprising those underground strata; and

(b)he will continue to have such a right for the period of at least one year beginning with the date on which the proposed licence is to take effect, or until it is to expire (if sooner).

(3A)The [F77appropriate agency] may, in particular, take evidence of a person’s occupation of land to be evidence of his right of access to it.]

(4)Any reference in this section to a person who [F83will have a right of access to] land of any description—

(a)includes a reference to a person who satisfies the [F77appropriate agency] that he has entered into negotiations for the acquisition of an interest in land of that description such that, if the interest is acquired by him, he will be entitled to [F84a right of access to ] that land; and

(b)without prejudice to the application of paragraph (a) above to a person who is or can be authorised to acquire land compulsorily, also includes any person who satisfies the [F77appropriate agency] that by virtue of any enactment, the compulsory acquisition by that person of land of that description either has been authorised or can be authorised and has been initiated.

(5)In subsection (4) above the reference to initiating the compulsory acquisition of land by a person is a reference to—

(a)the submission to the relevant Minister of a draft of an order which, if made by that Minister in the form of the draft, will authorise that person to acquire that land compulsorily, with or without other land; or

(b)the submission to the relevant Minister of an order which, if confirmed by that Minister as submitted will authorise that person to acquire that land compulsorily, with or without other land.

(6)In subsection (5) above “the relevant Minister”, in relation to the compulsory acquisition of land by any person, means the Minister who, in accordance with the enactment mentioned in subsection (4)(b) above, is empowered to authorise that person to acquire land compulsorily.

F8536 Application for combined abstraction and impounding licence.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8636AApplications: types of abstraction licenceE+W

(1)The [F77appropriate agency] may decide that—

(a)an application for a full licence, a transfer licence or a temporary licence ought to be for one of the other types of licence;

(b)a number of applications for licences (of any type or types) to abstract water from a particular source of supply ought to be treated as an application for a single such licence (of any type);

(c)an application for a single licence (of any type) to abstract water from a particular source of supply ought to be treated as a number of applications for such licences (of any type or types); or

(d)any such application as is referred to above ought to be accompanied by an application for revocation of an existing licence to abstract water.

(2)The [F77appropriate agency] may arrive at the decision referred to in paragraph (a), (b), (c) or (d) of subsection (1) above on the basis of its assessment of any one or more of the following—

(a)the likely effect of the abstraction (or abstractions) for which the applicant has applied for a licence (or licences);

(b)the likely effect of that abstraction (or those abstractions) taken together with abstractions under any other licence held by the applicant, or abstractions which would be authorised under any other licence for which the applicant has applied;

(c)any other prescribed matter.

(3)If the [F77appropriate agency] does so decide, it shall serve a notice of its decision on the applicant; and, subject to subsections (4) to (8) below, shall deal with the application (or applications) accordingly (which, if the [F77appropriate agency] made the decision referred to in paragraph (d) of subsection (1) above in relation to any application (or applications), means not publishing any notice under section 37 below, or taking any further step in connection with the application (or applications), until the application for revocation has been received).

(4)The applicant may by notice appeal to the Secretary of State against the decision, and shall serve a copy of any such notice on the [F77appropriate agency].

(5)That notice, and the copy of it, shall be served in such manner and within such period as may be prescribed.

(6)If the [F77appropriate agency] serves a notice under subsection (3) above, it shall not publish any notice under section 37 below, or take any further step in connection with the application (or applications), before—

(a)the end of the period within which notice of an appeal may be served on the Secretary of State; or

(b)if notice of an appeal is so served, the appeal has been determined.

(7)The Secretary of State—

(a)may allow or dismiss the appeal, or vary any part of the decision of the [F77appropriate agency], whether the appeal relates to that part of the decision or not; and

(b)shall direct the [F77appropriate agency] to deal with the application, or applications, accordingly (which, if the [F77appropriate agency's] decision was made under paragraph (d) of subsection (1) above in relation to any such application, and that decision is upheld, may mean not publishing any notice under section 37 below, or taking any further step in connection with the application, until the application for revocation has been received).

(8)Subsections (2) and (7) of section 44 below apply in relation to an appeal under this section as they apply in relation to an appeal under section 43 below.

(9)This section is subject to section 114 of the 1995 Act (delegation or reference of appeals).]

[F8737 Publication of application for licence.E+W

(1)The [F77appropriate agency] shall publish a notice of an application for—

(a)a full licence or a transfer licence; or

(b)a licence under this Chapter to obstruct or impede the flow of any inland waters by means of impounding works,

in the prescribed way or (if no way is prescribed) in a way calculated to bring the application to the attention of persons who in the [F77appropriate agency's] view are likely to be affected by the licence.

(2)Not later than the date on which that notice is first published, the [F77appropriate agency] shall also serve a copy of it on the persons referred to in subsection (3) below (except the applicant, if the applicant is one of those persons).

(3)Those persons are—

(a)any water undertaker within whose area any proposed point of abstraction or impounding is situated;

(b)any navigation authority, harbour authority or conservancy authority having functions in relation to any inland waters at any such proposed point; and

(c)the drainage board for any internal drainage district within which any such proposed point is situated,

but paragraphs (b) and (c) above do not apply if the licence applied for is exclusively for the abstraction of water from a source of supply that does not form part of any inland waters.

(4)A notice for the purposes of the preceding provisions of this section shall—

(a)be in the prescribed form and shall include any prescribed matters; and

(b)state that any person may make representations in writing to the [F77appropriate agency] with respect to the application at any time before the end of a period specified in the notice.

(5)The period referred to in subsection (4)(b) above—

(a)begins on the date the notice referred to in subsection (1) above is first published as mentioned there; and

(b)shall not end before the end of the period of twenty-eight days beginning with that date.

(6)The Secretary of State may make regulations providing for—

(a)the requirements of subsection (2) above, or of both subsections (1) and (2) above, not to apply in prescribed cases;

(b)notices of applications to exclude prescribed classes of information, either generally or as respects prescribed classes of application.

(7)In this section, “proposed point of abstraction or impounding”, in relation to an application for a licence referred to in subsection (1) above, means a place where a licence, if granted in accordance with the application, would authorise—

(a)water to be abstracted; or

(b)the flow of inland waters to be obstructed or impeded by means of impounding works,

(as the case may be).

(8)This section is subject to section 37A below.]

[F8837APower to dispense with publication requirementsE+W

The Secretary of State may by regulations make provision for—

(a)enabling the [F77appropriate agency]; or

(b)him, in the case of applications referred to him in accordance with section 41 below,

to direct or determine that the requirements of subsections (1) and (2) of section 37 above may in any case (except where the [F77appropriate agency] is the applicant) be dispensed with, if in that case it appears to the [F77appropriate agency] (or, as the case may be, the Secretary of State) to be appropriate to do so.]

Consideration of licence applicationsE+W

38 General consideration of applications.E+W

(1)The [F77appropriate agency] shall not determine any application for a licence under this Chapter before the end of the period specified [F89in the notice referred to in section 37(4)(b)] above.

[F90(1A)An application shall be determined in two stages in accordance with subsections (1B) and (1C) below if it is an application for a full licence or a transfer licence which, if granted—

(a)would take effect immediately after the expiry of an existing licence of the same type (the “existing licence”) and be held by the same person as the holder of that licence; but

(b)would in any other respect be different from the existing licence in a way which, if the existing licence were to continue without expiring, would require an application to be made under section 51(2) below for a variation of the licence.

(1B)So far as the application relates to any such difference as is mentioned in subsection (1A)(b) above, it shall first be treated for determination purposes as if it were an application for a variation under section 51(2) below (but as if the existing licence were to continue without expiring).

(1C)If the result of that would have been the grant of the application for variation of the licence, the application referred to in subsection (1) above shall be treated as one for a licence with that variation, and its determination concluded accordingly; and otherwise its determination shall be concluded as if it were an application for a licence with no such variation.]

(2)Subject to the following provisions of this Chapter, on any application to the [F77appropriate agency] for a licence under this Chapter, the [F77appropriate agency]—

(a)may grant a licence containing such provisions as the [F77appropriate agency] considers appropriate; or

(b)if, having regard to the provisions of this Chapter, the [F77appropriate agency] considers it necessary or expedient to do so, may refuse to grant a licence.

(3)Without prejudice to section 39(1) below, the [F77appropriate agency], in dealing with any application for a licence under this Chapter, shall have regard to [F91all the relevant circumstances, including any duty imposed by or under any enactment on bodies having functions in relation to inland waters (for example, navigation authorities and internal drainage boards), and shall have regard in particular to]—

(a)any representations in writing relating to the application which are received by the [F77appropriate agency] before the end of the period mentioned in subsection (1) above; and

(b)the requirements of the applicant, in so far as they appear to the [F77appropriate agency] to be reasonable requirements.

[F92 and may have regard to any failure on the part of the applicant to make an application under section 40 of the Water Industry Act 1991 pursuant to a proposal made by the [F77appropriate agency] under section 20C above.]

[F93(4)Subsection (1) above, and paragraph (a) of subsection (3) above, do not apply if in relation to the application in question the requirements of section 37(1) above do not apply by virtue of section 37(6)(a) above or have been dispensed with by virtue of section 37A above.]

39 Obligation to have regard to existing rights and privileges.E+W

(1)[F94Subject to subsection (1A) below,] the [F77appropriate agency] shall not, except with the consent of the person entitled to the rights, grant a licence so authorising—

(a)the abstraction of water; or

(b)the flow of any inland waters to be obstructed or impeded by means of impounding works,

as to derogate from any rights which, at the time when the application is determined by the [F77appropriate agency], are protected rights for the purposes of this Chapter.

[F95(1A)Subsection (1) above does not apply when—

(a)the application to be determined is one which does not fall within subsection (1A) of section 38 above only because paragraph (b) of that subsection is not satisfied; or

(b)the determination of an application is being concluded in accordance with subsection (1C) of that section.]

(2)In a case where an application for a licence under this Chapter relates to abstraction from underground strata, the [F77appropriate agency], in dealing with the application, shall have regard to the requirements of existing lawful uses of water abstracted from those strata, whether for agriculture, industry, water supply or other purposes.

F96(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any reference in this Chapter, in relation to the abstraction of water or obstructing or impeding the flow of any inland waters by means of impounding works, to derogating from a right which is a protected right for the purposes of this Chapter is a reference to, as the case may be—

(a)abstracting water; or

(b)so obstructing or impeding the flow of any such waters,

in such a way, or to such an extent, as to prevent the person entitled to that right from abstracting water to the extent mentioned in [F97(as the case may be) section 39A(2) or (7), 48(1) or 59C(10) below or section 102(3) of the Water Act 2003, or in a provision made in an order by virtue of section 10(5)(b) of that Act, in each case subject to any limitations mentioned there].

(5)For the purposes of subsection (2) above the [F77appropriate agency] shall be entitled (but shall not be bound) to treat as lawful any existing use of water from underground strata unless—

(a)by a decision given in any legal proceedings, it has been held to be unlawful; and

(b)that decision has not been quashed or reversed.

[F9839AProtected rights for the purposes of this ChapterE+W

(1)For the purposes of this Chapter, a right is a protected right if—

(a)it is such a right as a person who is the holder of a full licence is taken to have by virtue of section 48(1) below;

(b)it is such a right as a person is taken to have by virtue of subsection (2) below;

(c)it is such a right as a person continues to be taken to have by virtue of subsection (7) below;

(d)it is such a right as a person is taken to have by virtue of subsection (10) of section 59C below;

(e)it is such a right as a person continues to be taken to have by virtue of a provision made under subsection (5)(b) of section 10 of the Water Act 2003 in an order made under that section; or

(f)it is such a right as a person continues to be taken to have by virtue of section 102(3) of that Act.

(2)A person who is in a position to carry out an abstraction of a quantity of water which—

(a)by virtue of section 27(1) above is not subject to the restriction on abstraction; and

(b)also falls within subsection (4) or (5) below,

shall be taken, for the purposes of this Chapter, to have a right to do so in respect of the maximum quantity mentioned in subsection (3) below.

(3)The maximum quantity is the lower of the following—

(a)twenty cubic metres;

(b)if, by virtue of an order under section 27A(1) above, section 27(1) above has, or has ever had, effect in relation to the source of supply and point of abstraction in question as if it referred to a quantity lower than twenty cubic metres, that lower quantity (or, if more than one, the lowest of them).

(4)An abstraction falls within this subsection if it is an abstraction from inland waters carried out by or on behalf of an occupier of land contiguous to those waters at the place where the abstraction is effected (“contiguous land”), and—

(a)the water is abstracted for use on a holding consisting of the contiguous land with or without other land held with that land; and

(b)it is abstracted for use on that holding for either or both of the following purposes—

(i)the domestic purposes of the occupier’s household;

(ii)agricultural purposes other than spray irrigation.

(5)An abstraction falls within this subsection if it is an abstraction from underground strata and the water is abstracted by or on behalf of an individual as a supply of water for the domestic purposes of his household.

(6)Subsection (2) above shall not apply to a person in respect of an abstraction which that person is, or was at any time, taken to have a right to carry out by virtue of any provision mentioned in paragraph (a), (c), (d), (e) or (f) of subsection (1) above.

(7)Subject to subsection (8) below, a person who was the holder of a full licence which has ceased to have effect (or has ceased in part to have effect) by virtue of—

(a)any provision made by virtue of section 27A(5) above in an order made under section 27A(1) above; or

(b)any provision made by virtue of section 33A(5) above in regulations made under section 33A above,

and who was taken in consequence of that licence (or that part of the licence) to have a right to abstract water by virtue of section 48(1) below shall continue to be taken to have that right for the purposes of this Chapter.

(8)For the purposes of this Chapter, the person who was the holder of the licence in question (“the old licence”) shall cease to continue to be taken to have a right, by virtue of subsection (7) above, to abstract water if—

(a)during a period mentioned in subsection (9) below he does not carry out any such abstraction as would have been authorised by the old licence if it had still been in force; or

(b)following a further order under section 27A(1) above or further regulations under section 33A above, he is granted another full licence in respect of abstraction from the same point as that authorised by the old licence.

(9)The period referred to in subsection (8)(a) above is—

(a)four years; or

(b)if the abstractions authorised under the old licence were abstractions planned to be carried out at intervals of more than four years, or abstractions for emergency purposes only, such longer period as the [F77appropriate agency] may determine on the application of the holder of the old licence.

(10)In subsections (8) and (9) above, references to the old licence, in the case of a licence which ceased to have effect only to the extent specified in the order or regulations referred to in subsection (7) above, are to the part of the licence which ceased to have effect.

(11)Any reference in this Chapter to the person entitled to a protected right shall be construed in accordance with this section.

(12)This section is subject to any provision made by virtue of subsection (3) of section 39B below, and to subsections (4) and (5) of that section.]

[F9939BRegister of certain protected rightsE+W

(1)The Secretary of State may by regulations make provision for and in connection with the establishment, and for the keeping and maintenance by the [F77appropriate agency], of one or more registers of protected rights which arise otherwise than by virtue of a licence under this Chapter to abstract water.

(2)The regulations may, in particular, provide for—

(a)a register to relate to a prescribed geographical area, or for different sections of a register to relate to different geographical areas (whether prescribed or not);

(b)the inclusion of protected rights which arise other than by virtue of any provision of this Act;

(c)the form and contents of the register, and its inspection by members of the public;

(d)the procedure for applying for a protected right to be included in the register, including any information which is to accompany the application;

(e)cases in which it is the duty of the [F77appropriate agency] to include a protected right in the register without an application for inclusion having been made.

(3)The Secretary of State may by order designate any geographical area in respect of which a register, or a section of a register, relates as an area of compulsory registration.

(4)If he does so, a protected right in that area which is not registered shall not have effect as a protected right for any purpose of this Act (other than that of registering it) for so long as it is not registered.

(5)Subsection (4) above does not apply in relation to any protected right until after the expiry of the period of two years beginning with the date on which the order under subsection (3) above was made, or such longer period as may be specified in the order.

(6)An order under subsection (3) above may be made only on the application of the [F77appropriate agency]; but the Secretary of State may direct the [F77appropriate agency] to make such an application.

(7)Schedule 6 to this Act shall have effect with respect to applications for orders under subsection (3) above and with respect to the making of such orders.

(8)The power to make orders under this section shall be exercisable by statutory instrument; and a statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)Paragraphs (d) to (f) of section 219(2) below apply in relation to orders under this section as they apply to regulations made under this Act.]

40 Obligation to take river flow etc. into account.E+W

(1)Without prejudice to sections 38(3) and 39(1) above, subsection (2) or, as the case may be, subsection (3) below shall apply where any application for a licence under this Chapter relates to abstraction from any inland waters or to obstructing or impeding the flow of any inland waters by means of impounding works.

(2)If, in the case of such an application as is mentioned in subsection (1) above, the application is made at a time when no minimum acceptable flow for the inland waters in question has been determined under Chapter I of this Part, the [F77appropriate agency], in dealing with the application, shall have regard to the considerations by reference to which, in accordance with section 21(4) and (5) above, a minimum acceptable flow for those waters would fall to be determined.

(3)If, in the case of such an application as is mentioned in subsection (1) above, the application is made at a time after a minimum acceptable flow for the waters in question has been determined under Chapter I of this Part, the [F77appropriate agency], in dealing with the application, shall have regard to the need to secure or, as the case may be, secure in relation to the different times or periods for which the flow is determined—

(a)that the flow at any control point will not be reduced below the minimum acceptable flow at that point; or

(b)if it is already less than that minimum acceptable flow, that the flow at any control point will not be further reduced below the minimum acceptable flow at that point.

(4)Without prejudice to sections 38(3) and 39(1) above, where—

(a)an application for a licence under this Chapter relates to abstraction from underground strata; and

(b)it appears to the [F77appropriate agency] that the proposed abstraction is likely to affect the flow, level or volume of any inland waters which are [F100not discrete waters],

subsection (2) or, as the case may be, subsection (3) above shall apply as if the application related to abstraction from those waters.

Call-in of applicationsE+W

41 Secretary of State’s power to call in applicationsE+W

(1)The Secretary of State may give directions to the [F77appropriate agency] requiring applications for licences under this Chapter to be referred to him, instead of being dealt with by the [F77appropriate agency].

(2)A direction under this section—

(a)may relate either to a particular application or to applications of a class specified in the direction; and

(b)may except from the operation of the direction such classes of applications as may be specified in the direction in such circumstances as may be so specified.

[F101(3)An application may not be referred to the Secretary of State under this section—

(a)if in relation to the application the [F77appropriate agency] is still considering whether to make any such decision as is referred to in subsection (1) of section 36A above, or if it has made such a decision but has not yet served the notice referred to in subsection (3) of that section; or

(b)where the [F77appropriate agency] has served a notice on the applicant under subsection (3) of that section, until the period for appealing under that section has expired or (if the applicant appeals) the appeal has been determined.]

42 Consideration of called-in applications.E+W

(1)Subject to the following provisions of this section and to section 46 below, the Secretary of State, on considering a called-in application—

(a)may determine that a licence shall be granted containing such provisions as he considers appropriate; or

(b)if, having regard to the provisions of this Act, he considers it necessary or expedient to do so, may determine that no licence shall be granted.

(2)Before determining a called-in application, the Secretary of State may, if he thinks fit-

(a)cause a local inquiry to be held; or

(b)afford to the applicant and the [F77appropriate agency] an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose;

and the Secretary of State shall act as mentioned in paragraph (a) or (b) above if a request is made by the applicant or the [F77appropriate agency] to be heard with respect to the application.

(3)The provisions of sections 37, 38(1) and (3), 39(2) and 40 above shall apply in relation to any called-in application as if—

(a)any reference in those provisions to the [F77appropriate agency], except the references in sections [F10237 ] and 38(3)(a), were a reference to the Secretary of State; and

(b)any reference to section 39(1) above were a reference to subsection (4) below.

(4)[F103Subject to subsection (4A) below,] in determining any called-in application and, in particular, in determining what (if any) direction to give under subsection (5) below, the Secretary of State shall consider whether any such direction would require the grant of a licence which would so authorise—

(a)the abstraction of water; or

(b)the flow of any inland waters to be obstructed or impeded by means of impounding works,

as to derogate from rights which, at the time when the direction in question is given, are protected rights for the purposes of this Chapter.

[F104(4A)Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.]

(5)Where the decision of the Secretary of State on a called-in application is that a licence is to be granted, the decision shall include a direction to the [F77appropriate agency] to grant a licence containing such provisions as may be specified in the direction.

(6)The decision of the Secretary of State on any called-in application shall be final.

(7)In this section “called-in application” means an application referred to the Secretary of State in accordance with directions under section 41 above.

Appeals with respect to decisions on licence applicationsE+W

43 Appeals to the Secretary of State.E+W

(1)Where an application has been made to the [F77appropriate agency] for a licence under this Chapter, the applicant may by notice appeal to the Secretary of State if—

(a)the applicant is dissatisfied with the decision of the [F77appropriate agency] on the application; or

(b)the [F77appropriate agency] fails within the period specified in subsection (2) below to give to the applicant either—

(i)notice of the [F77appropriate agency's] decision on the application; or

(ii)notice that the application has been referred to the Secretary of State in accordance with any direction under section 41 above.

[F105(1A)This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).]

(2)The period mentioned in subsection (1)(b) above is—

(a)except in a case falling within paragraph (b) below, such period as may be prescribed; and

(b)where an extended period is at any time agreed in writing between the applicant and the [F77appropriate agency], the extended period.

(3)A notice of appeal under this section shall be served—

(a)in such manner as may be prescribed; and

(b)within such period as may be prescribed, being a period of not less than twenty-eight days from, as the case may be—

(i)the date on which the decision to which it relates was notified to the applicant; or

(ii)the end of the period which, by virtue of subsection (2) above, is applicable for the purposes of subsection (1)(b) above.

(4)Where a notice is served under this section in respect of any application, the applicant shall, within the period prescribed for the purposes of subsection (3)(b) above, serve a copy of the notice on the [F77appropriate agency].

(5)Where any representations in writing with respect to an application were made within the period specified [F106in any such notice as is referred to in section 37(4)(b)] above, the Secretary of State shall, before determining an appeal under this section in respect of the application, require the [F77appropriate agency] to serve a copy of the notice of appeal on each of the persons who made those representations.

44 Determination of appeals.E+W

(1)Subject to the following provisions of this Chapter, where an appeal is brought under section 43 above, the Secretary of State—

(a)may allow or dismiss the appeal or reverse or vary any part of the decision of the [F77appropriate agency], whether the appeal relates to that part of the decision or not; and

(b)may deal with the application as if it had been made to him in the first instance;

and for the purposes of this section an appeal by virtue of section 43(1)(b) above shall be taken to be an appeal against a refusal of the application.

(2)Before determining an appeal under section 43 above, the Secretary of State may, if he thinks fit—

(a)cause a local inquiry to be held; or

(b)afford to the applicant and the [F77appropriate agency] an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose;

and the Secretary of State shall act as mentioned in paragraph (a) or (b) above if a request is made by the applicant or the [F77appropriate agency] to be heard with respect to the appeal.

(3)The Secretary of State, in determining an appeal under section 43 above, shall take into account—

(a)any further representations in writing received by him, within the prescribed period, from the persons mentioned in section 43(5) above; and

(b)the requirements of the applicant, in so far as they appear to the Secretary of State to be reasonable requirements.

(4)[F107Subject to subsection (4A) below,] in determining any appeal under section 43 above and, in particular, in determining what (if any) direction to give under subsection (6) below, the Secretary of State shall consider whether any such direction would require such a grant or variation of a licence as would so authorise—

(a)the abstraction of water; or

(b)the flow of any inland waters to be obstructed or impeded by means of impounding works,

as to derogate from rights which, at the time when the direction in question is given, are protected rights for the purposes of this Chapter.

[F108(4A)Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.]

(5)The provisions of sections 39(2) and 40 above shall apply in relation to any appeal under section 43 above as if—

(a)any reference in those provisions to the [F77appropriate agency], were a reference to the Secretary of State; and

(b)the references to sections 38(3) and 39(1) above were references to subsections (3) and (4) above.

(6)Where the decision on an appeal under section 43 above is that a licence is to be granted or to be varied or revoked, the decision shall include a direction to the [F77appropriate agency], as the case may be—

(a)to grant a licence containing such provisions as may be specified in the direction;

(b)to vary the licence so as to contain such provisions as may be so specified; or

(c)to revoke the licence.

(7)The decision of the Secretary of State on any appeal under section 43 above shall be final.

45 Regulations with respect to appeals.E+W

(1)The Secretary of State may by regulations make provision as to the manner in which appeals against decisions [F109of the [F77appropriate agency] under section 36A above or ] on applications for the grant, revocation or variation of licences under this Chapter are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such appeals or decisions on any such appeals.

(2)Without prejudice to the generality of subsection (1) above, provision shall be made by regulations under this section for securing that, in prescribed circumstances (being circumstances in which it appears to the Secretary of State that applications for licences under this Chapter would be of special concern to National Park F110. . . authorities)—

(a)notice of any appeal against the decision on such an application, will be served on any National Park F110. . . authority who made representations falling within paragraph (b) of section 34(3) above; and

(b)the Secretary of State, in determining the appeal, will take account of any further representations made by such an authority within such period and in such manner as may be prescribed.

[F111(2A)Subsection (2) above does not apply in relation to appeals against decisions of the [F77appropriate agency] under section 36A above.]

(3)Subsections (4) F110. . . of section 34 above shall apply for the purposes of this section as they apply for the purposes of that section.

Form, contents and effect of licencesE+W

46 Form and contents of licences.E+W

(1)The Secretary of State may by regulations make provision as to the form of licences under this Chapter or of any class of such licences; but any regulations under this subsection shall have effect subject to the following provisions of this section and to any other express provision contained in, or having effect by virtue of, any other enactment contained in this Chapter.

(2)[F112Every full licence under this Chapter shall, and any other licence under this Chapter to abstract water may, make— ]

(a)provision as to the quantity of water authorised to be abstracted in pursuance of the licence from the source of supply to which the licence relates during a period or periods specified in the licence, including provision as to the way in which that quantity is to be measured or assessed for the purposes of this Chapter; and

(b)provision for determining, by measurement or assessment, what quantity of water is to be taken to have been abstracted during any such period by the holder of the licence from the source of supply to which the licence relates.

[F113(2A)For the purposes of section 61(4A) below—

(a)every full licence under this Chapter which is for a term exceeding twelve years shall; and

(b)any transfer licence under this Chapter which is for a term exceeding twelve years may,

specify a minimum value for the quantity referred to in subsection (2)(a) above.]

(3)Every licence under this Chapter to abstract water shall indicate the means by which water is authorised to be abstracted in pursuance of the licence, by reference either to specified works, machinery or apparatus or to works, machinery or apparatus fulfilling specified requirements.

[F114(4)Every licence under this Chapter to abstract water shall also specify the purposes for which water abstracted in pursuance of the licence is to be used.

(5)Every licence under this Chapter to abstract water shall state—

(a)the date on which it takes effect; and

(b)the date on which it expires.

(5A)Every licence under this Chapter to obstruct or impede any inland waters shall remain in force until revoked.]

(6)Different provision may be made by the same licence with respect to any one or more of the following matters, that is to say—

(a)the abstraction of water during different periods;

(b)the abstraction of water from the same source of supply but at different points or by different means;

(c)the abstraction of water for use for different purposes;

and any such provision as is mentioned in subsection (2) above may be made separately in relation to each of the matters for which (in accordance with this subsection) different provision is made in the licence.

(7)Nothing in subsection (6) above shall be construed as preventing two or more licences from being granted to the same person to be held concurrently in respect of the same source of supply, if the licences authorise the abstraction of water at different points [F115, by different means or for different purposes ] .

[F11646ALimited extension of abstraction licence validityE+W

(1)If the condition in subsection (2) below is met, a full licence or a transfer licence whose term exceeded twelve months but whose expiry date (“the expiry date”) has passed shall be treated for all the purposes of this Act as not expiring until the date mentioned in subsection (4) below.

(2)The condition is that the [F117appropriate agency] receives, not later than the beginning of the period of three months ending on the expiry date (or such later date before the expiry date as the [F117appropriate agency] agrees), a valid application for a new licence—

(a)for abstraction from the same point as the abstraction licensed by the expiring licence;

(b)whose holder would be the same as the holder of the expiring licence; and

(c)which would take effect immediately after the expiry date.

(3)For the purposes of subsection (2) above, a “valid” application is one which complies with all the requirements of this Act in relation to the making of applications for licences of the type in question.

(4)The date referred to in subsection (1) above is whichever is the later of—

(a)if a new licence is granted (whether or not on the terms applied for), the date on which it takes effect;

(b)otherwise—

(i)except where the Secretary of State calls in an application under section 41 above, the expiry of the period for appealing under section 43 above, or if an appeal is brought, the date of its withdrawal; or

(ii)where the Secretary of State decides (under section 42 or 44 above) that no licence is to be granted, the date on which that decision is notified to the applicant.]

47 Holders of licence.E+W

(1)Every licence under this Chapter F118... shall specify the person to whom the licence is granted.

[F119(2)The person to whom a licence under this Chapter is granted to abstract water or to obstruct or impede any inland waters is the holder of the licence for the purposes of this Act, subject to sections 59A to 59C and 67 below.]

F120(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

48 General effect of licence.E+W

(1)For the purposes of this Chapter a person who is for the time being the holder of a licence under this Chapter to abstract water shall be taken to have a right to abstract water to the extent authorised by the licence and in accordance with the provisions contained in it.

(2)In any action brought against a person in respect of the abstraction of water from a source of supply [F121(other than an abstraction in respect of which a claim could be brought under section 48A below, in which case that section shall apply)], it shall be a defence, subject to paragraph 2 of Schedule 7 to this Act, for him to prove—

(a)that the water was abstracted in pursuance of a licence under this Chapter; and

(b)that the provisions of the licence were complied with.

(3)In any action brought against a person in respect of any obstruction or impeding of the flow of any inland waters at any point by means of impounding works, it shall be a defence for him to prove—

(a)that the flow was so obstructed or impeded in pursuance of a licence under this Chapter;

(b)that the obstructing or impeding was in the manner specified in that licence and to an extent not exceeding the extent so specified; and

(c)that the other requirements of the licence (if any) were complied with.

(4)Nothing in subsection (2) or (3) above shall exonerate a person from any action for negligence or breach of contract.

[F12248ACivil remedies for loss or damage due to water abstractionE+W

(1)Subject to subsection (7) below and to section 79 (including that section as applied by section 79A(9)) below, a person who abstracts water from any inland waters or underground strata (an “abstractor”) shall not by that abstraction cause loss or damage to another person.

(2)A person who suffers such loss or damage (a “relevant person”) may bring a claim against the abstractor.

(3)Such a claim shall be treated as one in tort for breach of statutory duty.

(4)In proceedings in respect of a claim under this section, the court may not grant an injunction against the abstractor if that would risk interrupting the supply of water to the public, or would put public health or safety at risk.

(5)Except as provided in this section, no claim may be made in civil proceedings by a person (whether or not a relevant person) against an abstractor in respect of loss or damage caused by his abstraction of water.

(6)Nothing in this section prevents or affects a claim for negligence or breach of contract.

(7)This section does not apply, and no claim may be brought under this section, where the loss or damage is caused by an abstractor acting in pursuance of a licence under this Chapter and is loss or damage—

(a)in respect of which a person is entitled to bring a claim under section 60 below (or would be so entitled if there were a breach of the duty referred to in that section);

(b)in respect of which a person would have been entitled to bring a claim under section 60 below but for an express provision (including, for example, section 39(1A) above and section 59C(6) below) disapplying that duty; or

(c)constituting grounds on which a person is entitled to apply to the Secretary of State under section 55 below (or would be so entitled but for subsection (2) of that section) for the revocation or variation of that licence,

but without prejudice to the application of section 48 above.]

Succession to licencesE+W

F12349 Succession to licences to abstract where person ceases to occupy the relevant land.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12450 Succession where person becomes occupier of part of the relevant land.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification of licencesE+W

51 Modification on application of licence holder.E+W

(1)The holder of a licence under this Chapter [F125to abstract water] may apply to the [F126appropriate agency] to revoke the licence and, on any such application, the [F126appropriate agency] shall revoke the licence accordingly.

[F127(1A)The holder of a licence under this Chapter to obstruct or impede the flow of inland waters (an “impounding licence”) may apply to the [F126appropriate agency] to revoke the licence and, on any such application, the [F126appropriate agency] may revoke the licence accordingly.

(1B)The [F126appropriate agency] may require conditions to be met to its satisfaction before revocation of the impounding licence takes effect, and those conditions may in particular include conditions—

(a)requiring the removal of all or part of the impounding works;

(b)as to the restoration of the site of the impounding works to a state which is satisfactory to the [F126appropriate agency];

(c)relating to the inland waters the flow of which is obstructed or impeded by means of the impounding works.

(1C)The person making an application under subsection (1A) above (“the applicant”) may by notice appeal to the Secretary of State if—

(a)he is dissatisfied with the decision of the [F126appropriate agency] as to—

(i)whether his licence may be revoked; or

(ii)any conditions imposed by virtue of subsection (1B) above; or

(b)the [F126appropriate agency] fails to give notice of its decision to the applicant within the prescribed period or within such extended period as may be agreed in writing between the [F126appropriate agency] and the applicant.

(1D)The Secretary of State may by regulations make provision with respect to—

(a)the manner in which notices of appeal under subsection (1C) above shall be served;

(b)the period within which such notices shall be served;

(c)the procedure on any such appeal.

(1E)Where an appeal is brought under subsection (1C) above, the Secretary of State may—