Office of Public Sector Information
PART III continued II continued
(1) Any application for a licence under this Chapter shall be made in such manner as may be prescribed, and shall include such particulars, 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.
(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 planning authorities)—
(a) notice of any such application will be given to such one or more National Park planning authorities as may be determined in accordance with the regulations; and
(b) the matters to which the Authority 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 planning 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.
(5) In this section “National Park planning authority” means a local planning authority whose area consists of, or includes, the whole or any part of a National Park.
(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.
(2) In relation to abstractions from any inland waters, a person shall be entitled to make the application if, at the place (or, if more than one, at each of the places) at which the proposed abstractions are to be effected, either—
(a) he is the occupier of land contiguous to the inland waters; or
(b) he satisfies the Authority that he has, or at the time when the proposed licence is to take effect will have, a right of access to such land.
(3) In relation to abstractions from underground strata, a person shall be entitled to make the application if either—
(a) he is the occupier of land consisting of or comprising those underground strata; or
(b) the following two conditions are satisfied, that is to say—
(i) the case is one in which water contained in an excavation into underground strata is to be treated as water contained in those strata by virtue of the level of water in the excavation depending wholly or mainly on water entering it from those strata; and
(ii) that person satisfies the Authority that 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.
(4) Any reference in this section to a person who is the occupier of land of any description—
(a) includes a reference to a person who satisfies the Authority 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 occupy 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 Authority 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.
Where a licence under this Chapter is required by virtue of section 25 above for constructing or altering impounding works at a point in any inland waters, for the purpose of abstracting water from those waters at or near that point—
(a) an application may be made to the Authority for a combined licence under this Chapter to obstruct or impede the flow of those inland waters by means of impounding works at that point and to abstract the water; and
(b) the Authority shall have power (subject to the provisions of this Chapter as to procedure and as to the matters to be taken into account in dealing with applications for licences) to grant such a licence accordingly.
(1) The Authority shall not entertain an application for a licence under this Chapter to abstract water or to obstruct or impede the flow of any inland waters by means of impounding works or for a combined licence, unless the application is accompanied—
(a) by a copy of a notice in the prescribed form; and
(b) by the prescribed evidence that the necessary notices of the application have been given.
(2) Subject to subsection (3) below, the necessary notices of an application have been given for the purposes of subsection (1) above if—
(a) the notice mentioned in paragraph (a) of that subsection has been published—
(i) in the London Gazette; and
(ii) at least once in each of two successive weeks, in one or more newspapers (other than the London Gazette) circulating in the relevant locality;
and
(b) a copy of that notice has been served, not later than the date on which it was first published as mentioned in paragraph (a)(ii) above—
(i) on any navigation authority, harbour authority or conservancy authority having functions in relation to any inland waters at a proposed point of abstraction or impounding;
(ii) on the drainage board for any internal drainage district within which any such proposed point is situated; and
(iii) on any water undertaker within whose area any such proposed point is situated.
(3) Where 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, the giving of the necessary notices shall not for the purposes of subsection (1) above require the service of any copy of the notice mentioned in paragraph (a) of that subsection on any navigation authority, harbour authority, conservancy authority or drainage board.
(4) A notice for the purposes of the preceding provisions of this section, in addition to containing any other matters required to be contained in that notice, shall—
(a) name a place within the relevant locality where a copy of the application, and of any map, plan or other document submitted with it, will be open to inspection by the public, free of charge, at all reasonable hours during a period specified in the notice in accordance with subsection (5) below; and
(b) state that any person may make representations in writing to the Authority with respect to the application at any time before the end of that period.
(5) The period specified in a notice for the purposes of the preceding provisions of this section shall be a period which—
(a) begins not earlier than the date on which the notice is first published in a newspaper other than the London Gazette; and
(b) ends not less than twenty-eight days from that date and not less than twenty-five days from the date on which the notice is published in the London Gazette.
(6) Where—
(a) an application for a licence under this Chapter to abstract water is made to the Authority; and
(b) the application proposes that the quantity of water abstracted in pursuance of the licence should not in any period of twenty-four hours exceed, in aggregate, twenty cubic metres or any lesser amount specified in the application,
the Authority may dispense with the requirements imposed by virtue of the preceding provisions of this section if and to the extent that it appears to the Authority appropriate to do so.
(7) In this section—
“proposed point of abstraction or impounding”, in relation to any application for a licence under this Chapter, means a place where a licence, if granted in accordance with the application, would authorise water to be abstracted or, as the case may be, would authorise inland waters to be obstructed or impeded by means of impounding works; and
“relevant locality”, in relation to an application for a licence under this Act, means the locality in which any proposed point of abstraction or impounding is situated.
(1) The Authority shall not determine any application for a licence under this Chapter before the end of the period specified for the purposes of the application in accordance with section 37(5) above.
(2) Subject to the following provisions of this Chapter, on any application to the Authority for a licence under this Chapter, the Authority—
(a) may grant a licence containing such provisions as the Authority considers appropriate; or
(b) if, having regard to the provisions of this Chapter, the Authority considers it necessary or expedient to do so, may refuse to grant a licence.
(3) Without prejudice to section 39(1) below, the Authority, in dealing with any application for a licence under this Chapter, shall have regard to—
(a) any representations in writing relating to the application which are received by the Authority 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 Authority to be reasonable requirements.
(1) The Authority 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 Authority, are protected rights for the purposes of this Chapter.
(2) In a case where an application for a licence under this Chapter relates to abstraction from underground strata, the Authority, 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.
(3) For the purposes of this Chapter a right is a protected right if it is such a right as a person is taken to have by virtue of section 27(6) above or section 48(1) below; and any reference in this Chapter to the person entitled to such a right shall be construed accordingly.
(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 section 27(6) above or, as the case may be, section 48(1) below.
(5) For the purposes of subsection (2) above the Authority 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.
(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 Authority, 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 Authority, 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 Authority that the proposed abstraction is likely to affect the flow, level or volume of any inland waters which are neither discrete waters nor waters comprised in an order under section 33 above,
subsection (2) or, as the case may be, subsection (3) above shall apply as if the application related to abstraction from those waters.
(1) The Secretary of State may give directions to the Authority requiring applications for licences under this Chapter to be referred to him, instead of being dealt with by the Authority.
(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.
(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 Authority 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 Authority 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 Authority, except the references in sections 37(4)(b) and (6)(a) 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) 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.
(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 Authority 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.
(1) Where an application has been made to the Authority 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 Authority on the application; or
(b) the Authority fails within the period specified in subsection (2) below to give to the applicant either—
(i) notice of the Authority’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.
(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 Authority, 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 Authority.
(5) Where any representations in writing with respect to an application were made within the period specified for the purposes of the application in accordance with section 37(5) above, the Secretary of State shall, before determining an appeal under this section in respect of the application, require the Authority to serve a copy of the notice of appeal on each of the persons who made those representations.
(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 Authority, 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 Authority 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 Authority 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) 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.
(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 Authority, 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 Authority, 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.
(1) The Secretary of State may by regulations make provision as to the manner in which appeals against decisions 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 planning authorities)—
(a) notice of any appeal against the decision on such an application, will be served on any National Park planning 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.
(3) Subsections (4) and (5) of section 34 above shall apply for the purposes of this section as they apply for the purposes of that section.
(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) Every licence under this Chapter to abstract water shall 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.
(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.
(4) Every licence under this Chapter to abstract water, except a licence granted to the Authority, to a water undertaker or sewerage undertaker or to any person (not being a water undertaker) who proposes to abstract the water for the purpose of supplying it to others shall also specify the land on which, and 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 whether the licence is to remain in force until revoked or is to expire at a time specified in the licence.
(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 or by different means.
(1) Every licence under this Chapter to abstract water shall specify the person to whom the licence is granted.
(2) The person to whom a licence under this Chapter is granted to abstract water or to obstruct or impede any inland waters and, in the case of a licence to obstruct or impede any inland waters, no other person is the holder of the licence for the purposes of this Act.
(3) This section has effect subject to sections 49, 50 and 67 below and to any power under this Chapter to vary licences.
(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, 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.
(1) This section applies to a case where the holder of a licence under this Chapter to abstract water (“the prior holder”) is the occupier of the whole of the land specified in the licence as the land on which water abstracted in pursuance of the licence is to be used (“the relevant land”).
(2) If—
(a) the prior holder dies or, by reason of any other act or event, ceases to be the occupier of the whole of the relevant land and does not continue to be the occupier of any part of that land; and
(b) either immediately after the death of the prior holder or the occurrence of that other act or event or subsequently, another person (“the successor”) becomes the occupier of the whole of the relevant land,
the prior holder shall cease (if he would not otherwise do so) to be the holder of the licence and the successor shall become the holder of the licence.
(3) Where the successor becomes the holder of a licence under subsection (2) above, he shall cease to be the holder of the licence at the end of the period of fifteen months beginning with the date on which he became the occupier of the relevant land unless before the end of that period he has given to the Authority notice of the change in the occupation of the relevant land.
(4) Where any person who becomes the holder of a licence by virtue of the provisions of this section gives notice to the Authority in accordance with those provisions, the Authority shall vary the licence accordingly.
(5) Where, by virtue of the provisions of this section, any person ceases to be the holder of a licence in such circumstances that no other person thereupon becomes the holder of it, the licence shall cease to have effect.
(6) The preceding provisions of this section shall have effect without prejudice to any power to revoke or vary licences under this Chapter or to the powers conferred by section 50 below.
(1) The Secretary of State may by regulations make provision, in relation to cases to which section 49 above applies, for conferring succession rights, in such circumstances as may be specified in the regulations, on a person who becomes the occupier of part of the relevant land after—
(a) the death of the prior holder; or
(b) the occurrence of any other act or event whereby the prior holder ceases to be the occupier of the relevant land or of part of that land.
(2) For the purposes of subsection (1) above succession rights are—
(a) a right to become the holder of the licence, subject to provisions corresponding to subsection (3) of section 49 above; or
(b) a right to apply for, and to the grant of, a new licence containing provisions (as to quantities of water and otherwise) determined, in accordance with the regulations made by the Secretary of State, by reference to the provisions of the original licence.
(3) The Secretary of State may by regulations make provision for conferring on the prior holder, where he—
(a) continues to be the occupier of part of the relevant land; but
(b) ceases to be the occupier of another part of that land,
a right, in such circumstances as may be specified in the regulations, to apply for, and to the grant of, a new licence containing such provisions as are mentioned in subsection (2)(b) above.
(4) Regulations under this section may provide that the provisions of this Chapter shall have effect in relation—
(a) to an application for a licence made by virtue of the regulations; or
(b) to a person entitled to make such an application,
subject to such modifications as may be specified in the regulations.
(5) Where any person who becomes the holder of a licence by virtue of the provisions of any regulations under this section gives notice to the Authority in accordance with those provisions, the Authority shall vary the licence accordingly.
(6) Where, by virtue of the provisions of any regulations under this section, any person ceases to be the holder of a licence in such circumstances that no other person thereupon becomes the holder of it, the licence shall cease to have effect.
(7) The preceding provisions of this section shall have effect without prejudice to the exercise of any power to revoke or vary licences under this Chapter.
Water Resources Act 1991