Office of Public Sector Information
PART 1 continued
(1) The appropriate authority may by order revoke—
(a) any order made under section 33 of the WRA (power to provide for further rights to abstract),
(b) any order made under any local or private Act which provides for any exception from—
(i) the restriction on abstraction (within the meaning of Chapter 2 of Part 2 of the WRA), or
(ii) that restriction and the one imposed by section 24(2) of the WRA,
or for an exception which has the effect of such an exception.
(2) An order of a kind referred to in paragraph (a) or (b) of subsection (1) is referred to below in this section as an “exception order”.
(3) In this section, “the appropriate authority” means—
(a) in relation to the revocation of an exception order which relates to inland waters or underground strata which are wholly in England, the Secretary of State,
(b) in relation to the revocation of an exception order which relates to inland waters or underground strata which are wholly in Wales, the Assembly,
(c) in relation to the revocation of an exception order which relates to inland waters or underground strata which are partly in England and partly in Wales—
(i) the Secretary of State, in relation to the English part,
(ii) the Assembly, in relation to the Welsh part,
and references in this section (however expressed) to the revocation of an exception order are to be construed accordingly.
(4) Subject to subsection (3)(c), an order under this section may revoke the exception order either wholly, or only in relation to—
(a) any one or more areas of inland waters specified in the order under this section or any class of inland waters so specified, or
(b) any underground strata described in the order under this section in any way mentioned in section 33(2)(b) of the WRA or any other way.
(5) An order under this section may make provision, subject to any conditions or limitations specified in the order—
(a) for the restriction on abstraction (and, in the case of abstractions from underground strata, the other restrictions in section 24 of the WRA) to continue not to apply to an abstraction despite the revocation of the exception order,
(b) for a person to continue to be taken to have a right to abstract water, for the purposes of Chapter 2 of Part 2 of the WRA, to the same extent he was taken to do so under the exception order,
(c) for the payment by the Agency of compensation, in cases specified in the order, to any person who suffers loss or damage as a result of the revocation of the exception order.
(6) If an order under this section provides as mentioned in subsection (5)(a), the order must also say whether or not the exemption so provided for is to be counted cumulatively with any other exemption which a person has by virtue of section 27 or 33A of the WRA.
(7) If an order made under subsection (1)(b) revokes the exception order wholly, or wholly so far as it is not already revoked, the order under subsection (1)(b) may also repeal so much of the local or private Act as constitutes the power to make the exception order.
(8) The procedure provided for by section 33 of and Schedule 6 to the WRA, or (as the case may be) any corresponding procedure provided for by the local or private Act in question, does not apply in relation to an order under this section.
(9) The power of the Assembly to make an order by virtue of subsection (3)(b) or (c)(ii) of this section is to be treated as if it were a relevant transferred environmental function for the purposes of paragraph 6 of Schedule 3 to the Government of Wales Act 1998 (c. 38) (intervention in case of functions relating to water).
(10) No order may be made under this section before the coming into force of section 6 of this Act.
(11) Section 33 of the WRA shall cease to have effect; but (subject to the provisions of this section) any order under section 33 of the WRA which was in force immediately before its repeal shall continue in force despite the repeal.
(12) In this section, “inland waters” and “underground strata” have the meanings given in section 221(1) of the WRA.
(1) Section 35 of the WRA (restrictions upon who may apply for abstraction licences) is amended as follows.
(2) For subsections (2) and (3) there is substituted—
“(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 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 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 Agency may, in particular, take evidence of a person’s occupation of land to be evidence of his right of access to it.”
(3) In subsection (4)—
(a) for “is the occupier of” there is substituted “will have a right of access to”, and
(b) in paragraph (a), for “occupy” there is substituted “a right of access to”.
Section 36 of the WRA (combined abstraction and impounding licences) shall cease to have effect.
(1) After section 36 of the WRA there is inserted—
(1) The 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 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 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 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 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 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 Agency, whether the appeal relates to that part of the decision or not; and
(b) shall direct the Agency to deal with the application, or applications, accordingly (which, if the 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).”
(2) In section 41 of the WRA (Secretary of State’s power to call in applications), after subsection (2) there is added—
“(3) An application may not be referred to the Secretary of State under this section—
(a) if in relation to the application the 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 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.”
(3) In section 45 of the WRA (regulations with respect to appeals)—
(a) in subsection (1), after “against decisions” there is inserted “of the Agency under section 36A above or”,
(b) after subsection (2) there is inserted—
“(2A) Subsection (2) above does not apply in relation to appeals against decisions of the Agency under section 36A above.”
(4) In section 114 of the Environment Act 1995 (c. 25) (power of Secretary of State to delegate or refer in connection with appeals), in subsection (2)(a)(v), after “section” there is inserted “36A,”.
(1) For section 37 of the WRA (publication of application for licence) there is substituted—
(1) The 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 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 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 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.”
(2) After section 37 of the WRA there is inserted—
The Secretary of State may by regulations make provision for—
(a) enabling the 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 Agency is the applicant) be dispensed with, if in that case it appears to the Agency (or, as the case may be, the Secretary of State) to be appropriate to do so.”
(3) The WRA is further amended as follows—
(a) in section 38 (general consideration of applications)—
(i) in subsection (1), for “for the purposes of the application in accordance with section 37(5)” there is substituted “in the notice referred to in section 37(4)(b)”,
(ii) after subsection (3) there is added—
“(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.”,
(b) in section 42 (consideration of called-in applications), in subsection (3)(a), for “37(4)(b) and (6)(a)” there is substituted “37”,
(c) in section 43 (appeals to Secretary of State), in subsection (5), for “for the purposes of the application in accordance with section 37(5)” there is substituted “in any such notice as is referred to in section 37(4)(b)”,
(d) in section 66 (inland waters owned or managed by British Waterways Board), in sub-paragraph (ii) of subsection (2)(c), for the words from “subsection (1)” to the end of that sub-paragraph there is substituted “paragraphs (b) and (c), and the succeeding words, of subsection (3) of that section were omitted.”
(1) Section 38 of the WRA (general consideration of licence applications) is amended as follows.
(2) After subsection (1) there is inserted—
“(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.”
(3) In subsection (3), after “regard to” there is inserted “all 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”.
(1) Section 39 of the WRA (obligation to have regard to existing rights and privileges) is amended as provided in subsections (2) to (5).
(2) In subsection (1), at the beginning there is inserted “Subject to subsection (1A) below,”.
(3) After subsection (1) there is inserted—
“(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.”
(4) Subsection (3) is omitted.
(5) In subsection (4), for “section 27(6) above or, as the case may be, section 48(1) below” there is substituted “(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”.
(6) In section 42 of the WRA (consideration of called-in applications)—
(a) in subsection (4), at the beginning there is inserted “Subject to subsection (4A) below,”, and
(b) after subsection (4) there is inserted—
“(4A) Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.”
(7) In section 44 of the WRA (determination of appeals)—
(a) in subsection (4), at the beginning there is inserted “Subject to subsection (4A) below,”, and
(b) after subsection (4) there is inserted—
“(4A) Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.”
(1) After section 39 of the WRA there is inserted—
(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 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.”
(2) In section 72 of the WRA (interpretation of Chapter 2), in the entry for “protected right” in subsection (1), for “section 39(3)” there is substituted “section 39A”.
After section 39A of the WRA (inserted by section 17) there is inserted—
(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 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 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 Agency; but the Secretary of State may direct the 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.”
(1) Section 46 of the WRA (form and contents of licences) is amended as provided in subsections (2) to (5).
(2) In subsection (2), for the words before paragraph (a) there is substituted “Every full licence under this Chapter shall, and any other licence under this Chapter to abstract water may, make—”.
(3) After subsection (2) there is inserted—
“(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.”
(4) For subsections (4) and (5) there is substituted—
“(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.”
(5) In subsection (7), for “or by different means” there is substituted “, by different means or for different purposes”.
(6) In section 47 of the WRA (holders of licence), in subsection (1), the words “to abstract water” are omitted.
Water Act 2003