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Water Resources Act 1991

1991 CHAPTER 57

An Act to consolidate enactments relating to the National Rivers Authority and the matters in relation to which it exercises functions, with amendments to give effect to recommendations of the Law Commission.

[25th July 1991]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Modifications etc. (not altering text)

C1Act: definition applied (1.12.1991) by Water Industry Act 1991 (c. 56, SIF 130), s. 219(1)

C2Act: definition applied (1.12.1991) by Land Drainage Act 1991 (c. 59, SIF 73:1), s. 72(1)

C3Act applied (16.3.1992) by Avon Weir Act 1992 (c. v), s. 12(1)

Act excluded (28.7.1995) by 1995 c. 25, s. 7(6) (with ss. 115, 117); S.I. 1995/1983, art. 2

Act modified (1.4.1996) by 1995 c. 25, s. 14(2)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Act applied (18.12.1996) by 1996 c. 61, s. 2, Sch. 2 para. 9(8)(c)

Act amended (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

C4Act: transfer of certain functions (1.7.1999) by 1999/672, art. 2, Sch. 1

Commencement Information

I1Act wholly in force at 1.12.1991 see s. 225(2).

Part IE+W+S PRELIMINARY

CHAPTER IE+W+S THE NATIONAL RIVERS AUTHORITY

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

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Amendments (Textual)

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

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Amendments (Textual)

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

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Amendments (Textual)

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

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Amendments (Textual)

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

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Amendments (Textual)

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

Advisory committeesE+W

F66. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

Flood defence committeesE+W

F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F1010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F1111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F1212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F1313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

F1414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W
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Amendments (Textual)

CHAPTER IIIE+W GENERAL DUTIES

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

(1)It shall be the duty of the [F15Agency], in exercising any of its 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 [F15Agency] 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 [F16the 1995 Act,]this Act, the M2Land Drainage Act 1991, the Water Industry Act 1991 or the M3Water Act 1989 in relation to, or to decisions of, the [F15Agency]; or

(b)any power which, but for any direction given by one of the Ministers, would fall to be exercised by the [F15Agency],

to take into account the duty imposed on the [F15Agency] by subsection (1) above.

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Amendments (Textual)

F15Word in s. 15 substituted (subject to the other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F16Words in s. 15(2)(a) substituted (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 130 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

F1716. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F1817. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F1918. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

F19Ss. 16-19 repealed (1.4.1996) by 1995 c. 25, s. 120, SCh. 22, para. 131, Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Part IIE+W Water Resources Management

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Modifications etc. (not altering text)

C5Pt. II: transfer of functions to the Environment Agency (1.4.1996) by 1995 c. 25, s. 2(1)(a)(i) (with ss. 115, 117); S.I. 1996/186, art. 3

CHAPTER IE+W General Management Functions

19 General management of resources by the [F20Agency.]E+W

(1)It shall be the duty of the [F21Agency ]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 M4Water Industry Act 1991 (general duty to maintain water supply system).

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Amendments (Textual)

F20Words in s. 19 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F21Words in s. 19 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

20 Water resources management schemes.E+W

(1)It shall be the duty of the [F22Agency] 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 [F22Agency] from time to time considers appropriate for the purpose of carrying out its functions under [F23section 6(2) of the 1995 Act].

(2)Without prejudice to the power of the [F22Agency] 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 [F22Agency] to the undertaker; and

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

(3)The [F22Agency] 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 M5Water Industry Act 1991 (enforcement orders) by the Secretary of State.

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Amendments (Textual)

F22Words in s. 20 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F23Words in s. 20(1) substituted (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 132 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

21 Minimum acceptable flows.E+W

(1)The [F24Agency] 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 [F24Agency] shall consult—

(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 [F25are wholly or partly 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, [F26the Secretary of State for Transport]; and

(f)any person authorised by a licence under Part I of the M6Electricity Act 1989 to generate electricity [F27who 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 [F24Agency] 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 [F28sections 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 [F24Agency], 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 [F24Agency], 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 [F24Agency] 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 [F24Agency] 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;

and in that subsection the reference to land drainage includes a reference to defence against water (including sea water), irrigation other than spray irrigation, warping and the provision of flood warning systems.

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Amendments (Textual)

F24Words in s. 21 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F25Words in s. 21(3)(e) inserted (26.1.1998) by S.I. 1997/2971, art. 6(1), Sch. paras. 18, 19(a)

F26Words in s. 21(3)(e) substituted (25.11.2002) by S.I. 2002/2626, art. 20, Sch. 2 para. 18(2)

F28Words in s. 21(4)(b) substituted (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 133(2) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

22 Directions to the [F29Agency] to consider minimum acceptable flow.E+W

(1)If the [F29Agency] 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 [F29Agency] 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 [F29Agency] 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.

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Amendments (Textual)

F29Words in s. 22 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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

(1)Where it appears to the [F30Agency], 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 [F30Agency] 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 [F30Agency] 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.

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Amendments (Textual)

F30Words in s. 23 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

chapter IIE+W ABSTRACTION AND IMPOUNDING

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Modifications etc. (not altering text)

C6Chapter II of Part II excluded (1.4.1996) by 1995 c. 25, s. 6(3) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

C7Chapter II of Part II modified (18.12.1996) by 1996 c. 61, s. 52, Sch. 15 Pt. III para. 11

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 [F31or 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 [F32Agency] 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—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)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 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.

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Amendments (Textual)

F31By S.I. 1996/593, reg. 3, Sch. 2 para. 8 it is provided that the words “or drought permit” be substituted (1.4.1996) for the words following “drought order”

F32Word in s. 24(1) substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

Marginal Citations

25 Restrictions on impounding.E+W

(1)Subject to the following provisions of this Chapter and to any drought order [F33or drought permit] under Chapter III of this Part, no person shall 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 unless -

(a)a licence under this Chapter granted by the [F34Agency] 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 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 requirements 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, 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.

(3)A person who is guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)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 M8Water 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 shall not apply to the construction or alteration 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 M9Water Act 1989 or Schedule 2 to the M10Water 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.

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Amendments (Textual)

F33By S.I. 1996/593, reg. 3, Sch. 2 para. 8 it is provided that the words “or drought permit” be substituted (1.4.1996) for the words following “drought order”

F34Word in s. 25(1) substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

Rights to abstract or impoundE+W

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

(1)The restriction on abstraction shall not apply to any transfer of water from one area of inland waters to another in the course of, or resulting 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)The restriction on impounding works shall not apply to the construction or alteration 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.

27 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 five cubic metres if it 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 five cubic metres is abstracted.

(2)The restriction on abstraction shall not apply to any abstraction of a quantity of water not exceeding twenty cubic metres if the abstraction—

(a)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; and

(b)is with the consent of the [F35Agency].

(3)The restriction on abstraction shall not apply to so much of any abstraction from any inland waters by or on behalf of an occupier of contiguous land as falls within subsection (4) below, unless the abstraction is such that the quantity of water abstracted from the inland waters by or on behalf of the occupier by virtue of this subsection exceeds twenty cubic metres, in aggregate, in any period of twenty-four hours.

(4)Subject to section 28 below, an abstraction of water falls within this subsection in so far as the water—

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

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

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

(ii)agricultural purposes other than spray irrigation.

(5)The restriction on abstraction shall not apply to the abstraction of water from underground strata, in so far as the water is abstracted by or on behalf of an individual as a supply of water for the domestic purposes of his household, unless the abstraction is such that the quantity of water abstracted from the strata by or on behalf of that individual by virtue of this subsection exceeds twenty cubic metres, in aggregate, in any period of twenty-four hours.

(6)For the purposes of this Chapter a person who is in a position to abstract water in such circumstances that, by virtue of subsection (3) or (5) above, the restriction on abstraction does not apply shall be taken to have a right to abstract water to the extent specified in that subsection.

(7)In the case of any abstraction of water from underground strata which falls within subsection (5) 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.

(8)In this section “contiguous land”, in relation to the abstraction of any water from inland waters, means land contiguous to those waters at the place where the abstraction is effected.

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Amendments (Textual)

F35Word in s. 27(2) substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C9S. 27(4) modified (18.5.1992) by S.I. 1992/1096, arts. 3, 4, Sch.

28 Curtailment of rights under section 27.E+W

(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 [F36Agency] 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 [F36Agency] 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 [F36Agency’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.

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Amendments (Textual)

F36Words in s. 28 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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.

(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) above) is necessary—

(a)to prevent interference with any mining, quarrying, engineering, building or other operations (whether underground or on the surface); or

(b)to prevent damage to works resulting from any such operations.

(3)Where—

(a)water is abstracted, in the course of any such operations as are mentioned in subsection (2) above, from any excavation into underground strata in a case in which the level of water in the underground strata depends wholly or mainly on water entering it from those strata; and

(b)the abstraction is necessary as mentioned in that subsection,

the exemption conferred by that subsection shall apply notwithstanding that the water is used for the purposes of the operations.

(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.

(5)In this section, “land drainage” includes the protection of land against erosion or encroachment by water, whether from inland waters or from the sea, and also includes warping and irrigation other than spray irrigation.

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

(1)Where any person—

(a)proposes to construct a well, borehole or other work which is to be used solely for the purpose of abstracting, to the extent necessary to prevent interference with the carrying out or operation of any underground works, water contained in underground strata; or

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

he shall, before he begins to construct or extend the work, give to the [F37Agency] a notice of his intention in the prescribed form.

(2)Where a notice under subsection (1) above is given to the [F37Agency] by any person, the [F37Agency] may (subject to section 31 below) by notice to that person require him, in connection with the construction, extension or use of the work to which that person’s notice relates, to take such reasonable measures for conserving water as are specified in the notice.

(3)The measures that may be specified in a notice under subsection (2) above shall be measures which, in the opinion of the [F37Agency], will not interfere with the protection of the underground works in question.

(4)Any person who contravenes subsection (1) above or fails to comply with a notice under subsection (2) above shall be guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

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Amendments (Textual)

F37Words in s. 30 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128, (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C10S. 30 restricted (18.12.1996) by 1996 c. 61, s. 52, Sch. 15 Pt. III para. 11

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

(1)The person on whom a notice under section 30(2) above (“a conservation notice") is served may, by notice to the Secretary of State, appeal to him against the conservation notice on either or both of the following grounds, that is to say—

(a)that the measures required by the conservation notice are not reasonable;

(b)that those measures would interfere with the protection of the underground works in question.

(2)Any notice of appeal against a conservation notice shall be served within such period (not being less than twenty-eight days from the date of service of the conservation notice) and in such manner as may be prescribed.

(3)Before determining an appeal against a conservation notice, the Secretary of State may, if he thinks fit-

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

(b)afford to the appellant and the [F38Agen cy] 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 appellant or the [F38Agency] to be heard with respect to the appeal.

(4)On an appeal against a conservation notice the Secretary of State may confirm, quash or vary the notice as he may consider appropriate.

(5)The decision of the Secretary of State on any appeal against a conservation notice shall be final.

(6)The Secretary of State may by regulations make provision as to the manner in which appeals against conservation notices 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.

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Amendments (Textual)

F38Words in s. 31 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 fire-fighting purposes (within the meaning of the M11Fire Services Act 1947); or

(b)for the purpose of testing apparatus used for 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 [F39Agency] and in compliance with any conditions imposed by the [F39Agency].

(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.

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Amendments (Textual)

F39Words in s. 32 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

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

(1)Any of the relevant authorities, after consultation with the other relevant authorities (if any), may apply to the Secretary of State for an order excepting any one or more sources of supply from the restriction on abstraction, on the grounds that that restriction is not needed in relation to that source of supply or, as the case may be, those sources of supply.

(2)An application under this section may be made in respect of—

(a)any one or more areas of inland waters specified in the application or any class of inland waters so specified; or

(b)any underground strata described in the application, whether by reference to their formation or their location in relation to the surface of the land or in relation to other strata subjacent to that surface or partly in one way and partly in another;

and an order may be made under this section accordingly.

(3)For the purposes of this section—

(a)the [F40Agency] is a relevant authority in relation to every source of supply; and

(b)a navigation authority, harbour authority or conservancy authority having functions in relation to any inland waters is a relevant authority in relation to those inland waters.

(4)If, in the case of any source of supply—

(a)it appears to the Secretary of State, after consultation with the [F40Agency], that the question whether the restriction on abstraction is needed in relation to that source of supply ought to be determined; but

(b)no application for an order under this section has been made,

the Secretary of State may direct the [F40Agency] to make an application under this section in respect to that source of supply.

(5)Schedule 6 to this Act shall have effect with respect to applications for orders under this section and with respect to the making of such orders; and the power to make any such order shall be exercisable by statutory instrument.

(6)On the coming into force of an order under this section—

(a)the restriction on abstraction and, in the case of any underground strata, the restriction imposed by subsection (2) of section 24 above shall cease to apply to any source of supply to which the order relates; and

(b)any licence granted under this Chapter which is for the time being in force shall cease to have effect in so far as it authorises abstraction from any such source of supply.

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Amendments (Textual)

F40Words in s. 33 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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, 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 F41. . . authorities)—

(a)notice of any such application will be given to such one or more National Park F41. . . authorities as may be determined in accordance with the regulations; and

(b)the matters to which the [F42Agen cy] 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 F41. . . 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.

F43(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F41Words in s. 34 repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

F42Words in s. 34 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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.

(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 [F44Agency] 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 [F44Agen cy] 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 [F44Agen cy] 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 [F44Agency] 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F44Words in s. 35 substituted (subject to other provisions of the amending Act) (1.4.1996) 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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

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 [F45Agency] 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 [F45Agency] 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F45Words in s. 36 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

37 Publication of application for licence.E+W

(1)The [F46Agency] 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 [F46Agency] 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 [F46Agency]; 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 [F46Agency] 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 [F46Agency] 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F46Words in s. 37 substituted (subject to other provisions of the amending Act) (1.4.1996) substituted by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Consideration of licence applicationsE+W

38 General consideration of applications.E+W

(1)The [F47Agency] 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 [F47Agency] for a licence under this Chapter, the [F47Agency]

(a)may grant a licence containing such provisions as the [F47Agency] considers appropriate; or

(b)if, having regard to the provisions of this Chapter, the [F47Agency] considers it necessary or expedient to do so, may refuse to grant a licence.

(3)Without prejudice to section 39(1) below, the [F47Agency], 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 [F47Agency] 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 [F47Agency] to be reasonable requirements.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F47Words in s. 38 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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

(1)The [F48Agency] 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 [F48Agency], 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 [F48Agency], 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 [F48Agency] 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F48Words in s. 39 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 [F49Agency], 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 [F49Agency], 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 [F49Agency] 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F49Words in s. 40 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 [F50Agency] requiring applications for licences under this Chapter to be referred to him, instead of being dealt with by the [F50Agency].

(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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F50Words in s. 41 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 [F51Agency] 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 [F51Agency] 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 [F51Agency], 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 [F51Agency] 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F51Words in s. 42 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 [F52Agency] 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 [F52Agency] on the application; or

(b)the [F52Agency] fails within the period specified in subsection (2) below to give to the applicant either—

(i)notice of the [F52Agency’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.

[F53(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 [F52Agency], 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 [F52Agency].

(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 [F52Agency] to serve a copy of the notice of appeal on each of the persons who made those representations.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F52Words in s. 43 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C11S. 43: power to delegate functions conferred (1.4.1996) by 1995 c. 25, s. 114(2)(v) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 [F54Agency], 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 [F54Agency] 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 [F54Agency] 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 [F54Agency], 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 [F54Agency], 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.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F54Words in s. 44 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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 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 F55. . . authorities)—

(a)notice of any appeal against the decision on such an application, will be served on any National Park F55. . . 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) F55. . . of section 34 above shall apply for the purposes of this section as they apply for the purposes of that section.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F55Words in s. 45 repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

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)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 [F56Agency], 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.

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Amendments (Textual)

F56Word in s. 46 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

47 Holders of licence.E+W

(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.

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, 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.

Succession to licencesE+W

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

(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 [F57Agency] 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 [F57Agency] in accordance with those provisions, the [F57Agency] 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.

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Amendments (Textual)

F57Words in s. 49 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

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

(1)The Secretary of State may by regulations make provision, in relation to [F58cases in which the holder of a licence under this Chapter to abstract water (“the prior holder”) is the occupier of the whole or part 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")], 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 [F59Agency] in accordance with those provisions, the [F59Agency] 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.

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Amendments (Textual)

F58Words in s. 50(1) substituted (retrospective to 1.12.1991) by 1995 c. 25, ss. 120(1), 125(3), Sch. 22 para. 135 (with ss. 7(6), 115, 117)

F59Word in s. 50 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modification of licencesE+W

51 Modification on application of licence holder.E+W

(1)The holder of a licence under this Chapter may apply to the [F60Agency] to revoke the licence and, on any such application, the [F60Agency] shall revoke the licence accordingly.

(2)The holder of a licence under this Chapter may apply to the [F60Agency] to vary the licence.

(3)Subject to subsection (4) below, the provisions of sections 37 to 44 above shall apply (with the necessary modifications) to applications under subsection (2) above, and to the variation of licences in pursuance of such applications, as they apply to applications for, and the grant of, licences under this Chapter.

(4)Where the variation proposed in an application under subsection (2) above is limited to reducing the quantity of water authorised to be abstracted in pursuance of the licence during one or more periods—

(a)sections 37 and 38(1) above shall not apply by virtue of subsection (3) above; and

(b)sections 43 and 44 above, as applied by that subsection, shall have effect as if subsection (5) of section 43 and paragraph (a) of section 44(3) were omitted.

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Amendments (Textual)

F60Words in s. 51 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

52 Proposals for modification at instance of the [F61Agency] or Secretary of State.E+W

(1)Where it appears to the [F61Agency] that a licence under this Chapter should be revoked or varied, the [F61Agency] may formulate proposals for revoking or varying the licence.

(2)Where—

(a)it appears to the Secretary of State (either in consequence of representations made to the Secretary of State or otherwise) that a licence under this Chapter ought to be reviewed; but

(b)no proposals for revoking or varying the licence have been formulated by the [F61Agency] under subsection (1) above,

the Secretary of State may, as he may consider appropriate in the circumstances, give the [F61Agency] a direction under subsection (3) below.

(3)A direction under this subsection may—

(a)direct the [F61Agency] to formulate proposals for revoking the licence in question; or

(b)direct the [F61Agency] to formulate proposals for varying that licence in such manner as may be specified in the direction.

(4)Notice in the prescribed form of any proposals formulated under this section with respect to any licence shall—

(a)be served on the holder of the licence; and

(b)be published in the London Gazette and, at least once in each of two successive weeks, in one or more newspapers (other than the London Gazette) circulating in the relevant locality.

(5)If—

(a)a licence with respect to which any proposals are formulated under this section relates to any inland waters; and

(b)the proposals provide for variation of that licence,

a copy of the notice for the purposes of subsection (4) above shall, not later than the date on which it is first published otherwise than in the London Gazette, be served on any navigation authority, harbour authority or conservancy authority having functions in relation to those waters at a place where the licence, if varied in accordance with the proposals, would authorise water to be abstracted or impounded.

(6)A notice for the purposes of subsection (4) above, in addition to any other matters required to be contained in that notice, shall—

(a)name a place within the relevant locality where a copy of the proposals, and of any map, plan or other document prepared in connection with them, 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 (7) below; and

(b)state that, at any time before the end of that period—

(i)the holder of the licence may give notice in writing to the [F61Agency] objecting to the proposals; and

(ii)any other person may make representations in writing to the [F61Agency] with respect to the proposals.

(7)The period specified in a notice for the purposes of subsection (6) above 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.

(8)In this section “the relevant locality” means the locality in which the place or places where the licence authorises water to be abstracted or impounded is or are situated.

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Amendments (Textual)

F61Words in s. 52 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

53 Modification in pursuance of proposals under section 52.E+W

(1)Subject to the following provisions of this section, where the [F62Agency] has formulated any proposals under section 52 above with respect to any licence under this Chapter, it may—

(a)if the proposals are for the revocation of the licence, revoke the licence; and

(b)if the proposals are proposals for varying the licence, vary the licence in accordance with those proposals or, with the consent of the holder of the licence, in any other way.

(2)The [F62Agency] shall not proceed with any proposals formulated under section 52 above before the end of the period specified, in accordance with subsection (7) of that section, for the purposes in relation to those proposals of subsection (6) of that section.

(3)If no notice under subsection (4) below is given to the [F62Agency] before the end of the period mentioned in subsection (2) above, the [F62Agency] may proceed with the proposals.

(4)If the holder of the licence gives notice to the [F62Agency] objecting to the proposals before the end of the period mentioned in subsection (2) above, the [F62Agency] shall refer the proposals to the Secretary of State, with a copy of the notice of objection.

(5)Where the [F62Agency] proceeds with any proposals under subsection (3) above and the proposals are proposals for varying the licence, the provisions of sections 38(3), 39(1) and (2) and 40 above shall apply (with the necessary modifications) to any action of the [F62Agency] in proceeding with the proposals as they apply to the action of the [F62Agency] in dealing with an application for a licence.

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Amendments (Textual)

F62Words in s. 53 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

54 Reference of modification proposals to the Secretary of State.E+W

(1)Where any proposals of the [F63Agency] with respect to a licence are referred to the Secretary of State in accordance with subsection (4) of section 53 above, the Secretary of State shall consider—

(a)the proposals;

(b)the objection of the holder of the licence; and

(c)any representations in writing relating to the proposals which were received by the [F63Agency] before the end of the period mentioned in subsection (2) of that section,

and, subject to subsection (2) below, shall determine (according to whether the proposals are for the revocation or variation of the licence) the question whether the licence should be revoked or the question whether it should be varied as mentioned in subsection (1)(b) of that section.

(2)Before determining under this section whether a licence should be revoked or varied in a case in which proposals have been formulated under section 52 above, the Secretary of State may, if he thinks fit—

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

(b)afford to the holder of the licence and the [F63Agency] 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 holder of the licence or the [F63Agency] to be heard with respect to the proposals.

(3)In determining under this section whether a licence should be varied and, if so, what directions should be given under subsection (5) below, the Secretary of State shall consider whether any such direction would require such a variation of the 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 is given, are protected rights for the purposes of this Chapter.

(4)The provisions of sections 39(2) and 40 above shall apply in relation to any proposals referred to the Secretary of State in accordance with section 53(4) above as if in those provisions—

(a)any reference to the [F63Agency] were a reference to the Secretary of State;

(b)any reference to the application were a reference to the proposals; and

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

(5)Where the decision of the Secretary of State on a reference in accordance with section 53(4) above is that the licence in question should be revoked or varied, the decision shall include a direction to the [F63Agency] to revoke the licence or, as the case may be, to vary it so as to contain such provisions as may be specified in the direction.

(6)A decision of the Secretary of State under this section with respect to any proposals shall be final.

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Amendments (Textual)

F63Words in s. 54 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

55 Application for modification of licence by owner of fishing rights.E+W

(1)Subject to the following provisions of this section and to Schedule 7 to this Act, where a licence under this Chapter authorises abstraction from any inland waters in respect of which no minimum acceptable flow has been determined under Chapter I of this Part, any person who is the owner of fishing rights in respect of those inland waters may apply to the Secretary of State for the revocation or variation of the licence.

(2)No application shall be made under this section in respect of any licence except at a time after the end of the period of one year beginning with the date on which the licence was granted but before a minimum acceptable flow has been determined in relation to the waters in question.

(3)Any application under this section made by a person as owner of fishing rights in respect of any inland waters shall be made on the grounds that, in his capacity as owner of those rights, he has sustained loss or damage which is directly attributable to the abstraction of water in pursuance of the licence in question and either—

(a)he is not entitled to a protected right for the purposes of this Chapter in respect of those inland waters; or

(b)the loss or damage which he has sustained in his capacity as owner of those rights is not attributable to any such breach of statutory duty as is mentioned in subsection (2) or (3) of section 60 below or is in addition to any loss or damage attributable to any such breach.

(4)Where an application is made under this section in respect of any licence, the applicant shall serve notice in the prescribed form on the [F64Agency] and on the holder of the licence, stating that each of them is entitled, at any time before the end of the period of twenty-eight days beginning with the date of service of the notice, to make representations in writing to the Secretary of State with respect to the application.

(5)In this section and section 56 below “fishing rights”, in relation to any inland waters, means any right (whether it is an exclusive right or a right in common with one or more other persons) to fish in those waters, where the right in question—

(a)constitutes or is included in an interest in land; or

(b)is exercisable by virtue of an exclusive licence granted for valuable consideration;

and any reference to an owner of fishing rights is a reference to the person for the time being entitled to those rights.

(6)In this section any reference to a right included in an interest in land is a reference to a right which is exercisable only by virtue of, and as a right incidental to, the ownership of that interest.

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Amendments (Textual)

F64Word in s. 55 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

56 Determination of application under section 55.E+W

(1)The Secretary of State, in determining any application under section 55 above in respect of any licence, shall take into account any representations in writing received by him, within the period mentioned in subsection (4) of that section, from the [F65Agency] or from the holder of the licence.

(2)Before determining on an application under section 55 above whether a licence should be revoked or varied the Secretary of State may, if he thinks fit—

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

(b)afford to the applicant, the holder of the licence and the [F65Agency] 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, the holder of the licence or the [F65Agency] to be heard with respect to the proposals.

(3)Subject to subsections (4) and (5) below, on an application under section 55 above in respect of any licence, the Secretary of State shall not determine that the licence shall be revoked or varied unless—

(a)the grounds of the application, as mentioned in subsection (3) of that section, are established to his satisfaction; and

(b)he is satisfied that the extent of the loss or damage which the applicant has sustained, as mentioned in that subsection, is such as to justify the revocation or variation of the licence.

(4)On an application under section 55 above in respect of any licence, the Secretary of State shall not determine that the licence shall be revoked or varied if he is satisfied that the fact that the abstraction of water in pursuance of the licence caused the loss or damage which the applicant has sustained, as mentioned in subsection (3) of that section, was wholly or mainly attributable to exceptional shortage of rain or to an accident or other unforeseen act or event not caused by, and outside the control of, the [F65Agency].

(5)Where the Secretary of State determines, on an application under section 55 above, that a licence shall be varied, the variation shall be limited to that which, in the opinion of the Secretary of State, is requisite having regard to the loss or damage which the applicant has sustained as mentioned in subsection (3) of that section.

(6)Where the decision of the Secretary of State on an application under section 55 above in respect of any licence is that the licence should be revoked or varied, the decision shall include a direction to the [F65Agency] to revoke the licence or, as the case may be, to vary it so as to contain such provisions as may be specified in the direction.

(7)A decision of the Secretary of State on an application under section 55 above shall be final.

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Amendments (Textual)

F65Words in s. 56 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

57 Emergency variation of licences for spray irrigation purposes.E+W

(1)This section applies where at any time—

(a)one or more licences under this Chapter are in force in relation to a source of supply authorising water abstracted in pursuance of the licences to be used for the purpose of spray irrigation, or for that purpose together with other purposes; and

(b)by reason of exceptional shortage of rain or other emergency, it appears to the [F66Agency] that it is necessary to impose a temporary restriction on the abstraction of water for use for that purpose.

(2)Subject to subsections (3) and (4) below, where this section applies the [F66Agency] may serve a notice on the holder of any of the licences reducing, during such period as may be specified in the notice, the quantity of water authorised to be abstracted in pursuance of the licence from the source of supply for use for the purpose of spray irrigation; and, in relation to that period, the licence shall have effect accordingly subject to that reduction.

(3)The [F66Agency] shall not serve a notice under this section in respect of abstraction of water from underground strata unless it appears to the [F66Agency] that such abstraction is likely to affect the flow, level or volume of any inland waters which are neither discrete waters nor inland waters comprised in an order under section 33 above.

(4)In the exercise of the power conferred by this section in a case where there are two or more licences under this Chapter in force authorising abstraction from the same source of supply either at the same point or at points which, in the opinion of the [F66Agency], are not far distant from each other—

(a)the [F66Agency] shall not serve a notice under this section on the holder of one of the licences unless a like notice is served on the holders of the other licences in respect of the same period; and

(b)the reductions imposed by the notices on the holders of the licences shall be so calculated as to represent, as nearly as appears to the [F66Agency] to be practicable, the same proportion of the quantity of water authorised by the licences (apart from the notices) to be abstracted for use for the purpose of spray irrigation.

(5)The provisions of this section shall have effect without prejudice to the exercise of any power conferred by sections 51 to 54 above.

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Amendments (Textual)

F66Words in s. 57 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C12S. 57 modified (18.5.1992) by S.I. 1992/1096, art. 4

C13S. 57(1)(2)(4) modified (18.5.1992) by S.I. 1992/1096, arts. 3, 4, Sch.

F6758
  • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

59 Regulations with respect to modification applications.E+W

(1)The Secretary of State may by regulations make provision as to the manner in which applications for the 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 applications or decisions on any such applications.

(2)Subsection (1) above 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.

Remedies and compensation in respect of infringement of protected rights etc.E+W

60 Liability of the [F68Agency] for derogation from protected right.E+W

(1)A breach of the duty imposed by subsection (1) of section 39 above (including that duty as applied by section 51(3) or 53(5) above) shall neither invalidate the grant or variation of a licence nor be enforceable by any criminal proceedings, by prohibition or injunction or by action against any person other than the [F68Agency].

(2)Instead, the duty referred to in subsection (1) above shall be enforceable, at the suit of any person entitled to a protected right for the purposes of this Chapter, by an action against the [F68Agency] for damages for breach of statutory duty.

(3)Where under any provision of this Chapter, the [F68Agency] is directed by the Secretary of State to grant or vary a licence, and the licence, as granted or varied in compliance with the direction, authorises derogation from protected rights, then—

(a)the grant or variation of the licence shall, as between the [F68Agency] and the person entitled to those rights, have effect as a breach on the part of the [F68Agency] of a statutory duty not to authorise derogation from those rights; and

(b)subsection (2) above shall apply in relation to that statutory duty as it applies in relation to the duty imposed by section 39(1) above.

(4)Subsection (3) above shall be without prejudice to the duty of the [F68Agency], to comply with the direction in question, but that duty shall not afford any defence in an action brought by virtue of paragraph (b) of that subsection.

(5)In any action brought against the [F68Agency] in pursuance of this section it shall be a defence for the [F68Agency] to show that the fact, as the case may be—

(a)that the abstraction of water authorised by the licence, as granted or varied by the [F68Agency], derogated from the plaintiff’s protected right; or

(b)that the obstruction or impeding of the flow of the inland waters authorised by the licence, as so granted or varied, derogated from the plaintiff’s protected right,

was wholly or mainly attributable to exceptional shortage of rain or to an accident or other unforeseen act or event not caused by, and outside the control of, the [F68Agency].

(6)This section has effect subject to the provision made by Schedule 7 to this Act.

(7)In this section any reference to authorising a derogation from protected rights is a reference to 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 rights which, at the time of the authorisation, are protected rights for the purposes of this Chapter.

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Amendments (Textual)

F68Words in s. 60 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

61 Compensation where licence modified on direction of the Secretary of State.E+W

(1)Where a licence is revoked or varied in pursuance of a direction under section 54 or 55 above and it is shown that the holder of the licence—

(a)has incurred expenditure in carrying out work which is rendered abortive by the revocation or variation; or

(b)has otherwise sustained loss or damage which is directly attributable to the revocation or variation,

the [F69Agency] shall pay him compensation in respect of that expenditure, loss or damage.

(2)For the purposes of this section, any expenditure incurred in the preparation of plans for the purposes of any work, or upon other similar matters preparatory to any work, shall be taken to be included in the expenditure incurred in carrying out that work.

(3)Subject to subsection (2) above and to Schedule 7 to this Act, no compensation shall be paid under this section—

(a)in respect of any work carried out before the grant of the licence which is revoked or varied; or

(b)in respect of any other loss or damage arising out of anything done or omitted to be done before the grant of that licence.

(4)No compensation shall be payable under this section in respect of a licence to abstract water, if it is shown that no water was abstracted in pursuance of the licence during the period of seven years ending with the date on which notice of the proposals for revoking or varying the licence was served on the holder of the licence.

(5)Any question of disputed compensation under this section shall be referred to and determined by the Lands Tribunal; and in relation to the determination of any such compensation the provisions of sections 2 and 4 of the M12Land Compensation Act 1961 shall apply, subject to any necessary modifications.

(6)For the purpose of assessing any compensation under this section, in so far as that compensation is in respect of loss or damage consisting of depreciation of the value of an interest in land, the rules set out in section 5 of the Land Compensation Act 1961 shall, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(7)Where the interest in land, in respect of which any compensation falls to be assessed in accordance with subsection (6) above, is subject to a mortgage—

(a)the compensation shall be assessed as if the interest were not subject to the mortgage;

(b)a claim for the compensation may be made by any mortgagee of the interest, but without prejudice to the making of a claim by the person entitled to the interest;

(c)no such compensation shall be payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage);

(d)any such compensation which is payable in respect of the interest which is subject to the mortgage shall be paid to the mortgagee or, if there is more than one mortgagee, to the first mortgagee, and shall in either case be applied by him as if it were proceeds of sale.

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Amendments (Textual)

F69Word in s. 61 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

62 Compensation for owner of fishing rights applying under section 55.E+W

(1)Where a licence is revoked or varied on an application under section 55 above, the applicant shall be entitled to compensation from the [F70Agency] in respect of the loss or damage which he has sustained as mentioned in subsection (3) of that section.

(2)Where, on an application under section 55 above for the revocation or variation of a licence, the Secretary of State determines—

(a)that the grounds of the application (as mentioned in subsection (3) of that section) have been established to his satisfaction; but

(b)that the licence shall not be revoked or varied in pursuance of that application,

he shall certify accordingly for the purposes of the following provisions of this section.

(3)Unless within the period of six months from the date on which a certificate under subsection (2) above is granted either—

(a)notice to treat for the acquisition of the fishing rights of the applicant, or of an interest in land which includes those rights, has been served by the [F70Agency]; or

(b)an offer has been made by the [F70Agency] to the owner of those rights to acquire them on compulsory purchase terms or, where the rights subsist only as rights included in an interest in land, to acquire that interest on such terms,

the owner of the fishing rights shall be entitled to compensation from the [F70Agency].

(4)The amount of the compensation payable under subsection (3) above in respect of any fishing rights shall be the amount by which—

(a)the value of those rights; or

(b)where they subsist only as rights included in an interest in land, the value of that interest,

is depreciated by the operation of section 48(2) above in relation to the licence to which the application related.

(5)Any question of disputed compensation under this section shall be referred to and determined by the Lands Tribunal; and in relation to the determination of any such compensation the provisions of sections 2 and 4 of the M13Land Compensation Act 1961 shall apply, subject to any necessary modifications.

(6)For the purposes of this section a right or interest is acquired on compulsory purchase terms if it is acquired on terms that the price payable shall be equal to and shall, in default of agreement, be determined in like manner as the compensation which would be payable in respect thereof if the right or interest were acquired compulsorily by the [F70Agency].

(7)Where—

(a)the Secretary of State, on an application under section 55 above, determines that the licence to which the application relates shall not be revoked or varied and grants a certificate under subsection (2) above; and

(b)notice to treat for the acquisition of the fishing rights to which the application related, or of an interest in land in which those rights are included, has been served by the [F70Agency] within the period of six months from the date on which that certificate is granted,

then, for the purpose of assessing compensation in respect of any compulsory acquisition in pursuance of that notice to treat, no account shall be taken of any depreciation of the value of the fishing rights, or of the interest in question, which is applicable to the operation, in relation to that licence, of section 48(2) above.

(8)Subsections (5) and (6) of section 55 above shall apply for construing references in this section to fishing rights or to rights included in an interest in land as they have effect for construing such references in that section.

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Amendments (Textual)

F70Words in s. 62 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

63 Secretary of State to indemnify [F71Agency] in certain cases.E+W

(1)Where—

(a)the [F71Agency] is liable under section 60 above to pay damages to any person in consequence of the grant or variation of a licence in compliance with a direction given by the Secretary of State; and

(b)the [F71Agency] pay to that person any sum in satisfaction of that liability,

then, whether an action for recovery of those damages has been brought or not, the Secretary of State may, if he thinks fit, pay to the [F71Agency] the whole or such part as he considers appropriate of the relevant amount.

(2)If—

(a)proposals for revoking or varying the licence, in a case falling within subsection (1) above, are formulated by the [F71Agency], or an application with respect to any licence is made under section 55 above;

(b)in consequence of those proposals or that application, the licence is revoked or varied; and

(c)compensation in respect of the revocation or variation is payable by the [F71Agency] under section 61 above,

the Secretary of State may, if he thinks fit, pay to the [F71Agency] the whole or such part as he considers appropriate of the relevant amount.

(3)Where—

(a)the Secretary of State determines under section 55 above—

(i)that a licence granted in compliance with a direction given by the Secretary of State shall be revoked or varied; or

(ii)that a licence shall not be revoked or varied;

and

(b)in consequence of that determination, compensation is payable by the [F71Agency] under section 62 above,

the Secretary of State may, if he thinks fit, pay to the [F71Agency] the whole or such part as he considers appropriate of the relevant amount.

(4)In this section “the relevant amount” means—

(a)for the purposes of subsection (1) above, the amount of the sum paid by the [F71Agency] and, if an action has been brought against the [F71Agency] in respect of the liability mentioned in that subsection, the amount of any costs reasonably incurred by the [F71Agency] in connection with the action (including any costs of the plaintiff which the [F71Agency] was required to pay); and

(b)for the purposes of subsections (2) and (3) above, the amount of the compensation and, if any question relating to that compensation is referred to the Lands Tribunal, the amount of any costs reasonably incurred by the [F71Agency] in connection with that reference (including any costs of the claimant which the [F71Agency] is required to pay).

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Amendments (Textual)

F71Words in s. 63 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Supplemental provisions of Chapter IIE+W

64 Abstracting and impounding by the [F72Agency].E+W

(1)The provisions of this Chapter shall have effect—

(a)in relation to the abstraction of water by the [F72Agency] from sources of supply; and

(b)in relation to the construction or alteration by the [F72Agency] of impounding works,

subject to such exceptions and modifications as may be prescribed.

(2)Regulations under this section may, in particular, provide for securing—

(a)that any licence required by the [F72Agency] in relation to the matters mentioned in subsection (1) above shall be granted (or be deemed to be granted) by the Secretary of State, and not be granted by the [F72Agency];

(b)that, in such cases and subject to such conditions as may be prescribed, any licence so required by the [F72Agency] shall be deemed to be granted by the Secretary of State unless the Secretary of State requires an application for the licence to be made to him by the [F72Agency]; and

(c)that where a licence is deemed to be granted as mentioned in paragraph (b) above, the [F72Agency] shall give such notice of that fact as may be prescribed.

(3)Without prejudice to the preceding provisions of this section, section 52 above shall not apply in relation to any licence which by virtue of any regulations under this section is granted or deemed to have been granted by the Secretary of State, except in accordance with regulations under this section.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F72Words in s. 64 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

65 Licences of right.E+W

Schedule 7 to this Act shall have effect for the purposes of giving effect to provisions conferring an entitlement to licences under this Chapter and with respect to licences granted in pursuance of that entitlement or the entitlement conferred by section 33 of the M14Water Resources Act 1963 or paragraph 30 or 31 of Schedule 26 to the M15Water Act 1989.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

66 Inland waters owned or managed by British Waterways Board.E+W

(1)This section applies to all inland waters owned or managed by the British Waterways Board (“the Board"), except any such inland waters to which the Secretary of State may by order made by statutory instrument direct that this section shall not apply.

(2)In respect of abstraction from any inland waters to which this section applies—

(a)no person other than the Board or a person authorised for the purpose by the Board may be given a consent for the purposes of section 27(2) above;

(b)no person other than the Board shall be entitled to apply for a licence under this Chapter;

(c)in relation to any application by the Board for a licence under this Chapter—

(i)section 35 above shall not apply; and

(ii)section 37 above shall apply as if subsection (1) of that section did not 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.

(3)Before making an order under subsection (1) above, the Secretary of State shall consult the Board and the [F73Agency].

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Amendments (Textual)

F73Word in s. 66 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

67 Ecclesiastical property.E+W

(1)Where the relevant land belongs to a benefice—

(a)an application for a licence under this Chapter may be made by the Church Commissioners if the benefice is for the time being vacant; and

(b)any reference in this Chapter to the applicant for a licence shall be construed—

(i)in relation to any time when the benefice in question is vacant, as a reference to the Church Commissioners; and

(ii)in relation to any time when there is an incumbent of the benefice, as a reference to that incumbent.

(2)Where the relevant land belongs to a benefice, any licence under this Chapter shall provide that (notwithstanding anything in the preceding provisions of this Chapter) whoever is for the time being the incumbent of the benefice shall be the holder of the licence.

(3)Where a licence under this Chapter provides as mentioned in subsection (2) above—

(a)the licence shall not be required to specify the person to whom the licence is granted; and

(b)the licence shall be deemed to be held by the Church Commissioners at any time when the benefice in question is vacant.

(4)So much of any compensation falling to be paid under this Chapter as is payable—

(a)in respect of damage to land which is ecclesiastical property and to the owner of the fee simple in the land; or

(b)in respect of depreciation of the value of the fee simple in land which is ecclesiastical property,

shall be paid (where the fee simple is vested in any person other than the Church Commissioners) to them, instead of to the person in whom the fee simple is vested.

(5)Any sums paid under subsection (4) above to the Church Commissioners with reference to any land shall—

(a)if the land is not consecrated, be applied by them for the purposes for which the proceeds of a sale by agreement of the fee simple in the land would be applicable under any enactment or Measure authorising such a sale or disposing of the proceeds of such a sale; and

(b)if the land is consecrated, be applied by them in such manner as they may determine.

(6)Where—

(a)the Church Commissioners are required, by virtue of subsection (3)(b) above, to pay any fee or other charge in respect of a licence under this Chapter; and

(b)any moneys are then payable by the Commissioners to the incumbent of the benefice in question or subsequently become so payable,

the Commissioners shall be entitled to retain out of those moneys an amount not exceeding the amount of that fee or other charge.

(7)Where under any provision of this Chapter a document is required to be served on an owner of land and the land is ecclesiastical property, a copy of the document shall be served on the Church Commissioners.

(8)In this section —

  • benefice” means an ecclesiastical benefice of the Church of England;

  • ecclesiastical property” means land which—

    (a)

    belongs to a benefice;

    (b)

    is or forms part of a church subject to the jurisdiction of the bishop of any diocese of the Church of England or the site of a church so subject; or

    (c)

    is or forms part of a burial ground so subject;

    and

  • the relevant land”, in relation to a licence under this Chapter or an application for such a licence, means—

    (a)

    the land on which water abstracted in pursuance of the licence is to be, or is proposed to be, used; or

    (b)

    in the case of a licence for the purposes of section 25 above or an application for such a licence—

    (i)

    the land on which any part of the impounding works is to be, or is proposed to be, constructed; or

    (ii)

    in relation to an alteration of impounding works, the land on which any part of those works is situated or is to be, or is proposed to be, situated.

F7468
  • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

69 Validity of decisions of Secretary of State and related proceedings.E+W

(1)Except as provided by the following provisions of this section, the validity of a decision of the Secretary of State on—

(a)any appeal to the Secretary of State under this Chapter; or

(b)any reference to the Secretary of State in pursuance of a direction under section 41 above or in pursuance of section 53(4) above,

shall not be questioned in any legal proceedings whatsoever.

(2)If, in the case of any such appeal or reference, the [F75Agency] or the other party desires to question the validity of the decision of the Secretary of State on the grounds—

(a)that the decision is not within the powers of this Act; or

(b)that any of the requirements of, or of any regulations made under, this Chapter which are applicable to the appeal or reference have not been complied with,

the [F75Agency] or, as the case may be, the other party may, at any time within the period of six weeks beginning with the date on which the decision is made, make an application to the High Court under this section.

(3)On any application under this section, the High Court may by interim order suspend the operation of the decision to which the application relates until the final determination of the proceedings.

(4)If the High Court is satisfied, on an application under this section—

(a)that the decision to which the application relates is not within the powers of this Act; or

(b)that the interests of the person making the application under this section have been substantially prejudiced by a failure to comply with any of the requirements mentioned in subsection (2)(b) above,

the High Court may quash the decision.

F76(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In this section—

  • decision” includes a direction; and

  • other party” —

(a)in relation to an appeal, means the appellant;

(b)in relation to a reference in pursuance of a direction under section 41 above, means the applicant for the licence or, where that section applies by virtue of section 51(3) above, for the revocation or variation; and

(c)in relation to a reference in pursuance of section 53(4) above, means (subject, without prejudice to their application to the other provisions of this Chapter, to subsections (6) and (7) of section 25 above) the holder of the licence.

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Amendments (Textual)

F75Words in s. 69 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

70 Civil liability under Chapter II.E+W

Except in so far as this Act otherwise expressly provides and subject to the provisions of section 18 of the M16Interpretation Act 1978 (which relates to offences under two or more laws), the restrictions imposed by sections 24, 25 and 30 above shall not be construed as—

(a)conferring a right of action in any civil proceedings (other than proceedings for the recovery of a fine) in respect of any contravention of those restrictions;

(b)affecting any restriction imposed by or under any other enactment, whether contained in a public general Act or in a local or private Act; or

(c)derogating from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than under this Chapter.

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Marginal Citations

71 Modification of local enactments.E+W

(1)If it appears to the Secretary of State by whom an order is made under a provision of this Chapter to which this section applies that any local enactment passed or made before the relevant date—

(a)is inconsistent with any of the provisions of that order; or

(b)requires to be amended or adapted, having regard to any of the provisions of that order,

the Secretary of State may by order repeal, amend or adapt that enactment to such extent, or in such manner, as he may consider appropriate.

(2)Any order under this section may include such transitional, incidental, supplementary and consequential provisions as the Secretary of State may consider necessary or expedient.

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

(4)This section applies to the following provisions of this Chapter, that is to say, sections 33, 66, 68 and 72(5).

(5)In this section—

  • local enactment” means—

    (a)

    a local or private Act;

    (b)

    a public general Act relating to London;

    (c)

    an order or scheme made under an Act, confirmed by Parliament or brought into operation in accordance with special parliamentary procedure; or

    (d)

    an enactment in a public general Act amending a local or private Act or any such order or scheme;

  • relevant date” means the date which was the second appointed day for the purposes of section 133 of the M17Water Resources Act 1963.

(6)The provisions of this section shall have effect without prejudice to the exercise of any other power to repeal, amend or adapt local enactments which is conferred by any other enactment.

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Marginal Citations

72 Interpretation of Chapter II.E+W

(1)In this Chapter—

  • derogate”, in relation to a protected right, shall be construed in accordance with section 39(4) above;

  • flow” shall be construed subject to section 23(3) above;

  • impounding works” has the meaning given by section 25(8) above;

  • licence”, in relation to the variation or revocation of a licence, shall be construed subject to section 25(6) and (7) above;

  • protected right” shall be construed in accordance with section 39(3) above;

  • the restriction on abstraction” means the restriction imposed by section 24(1) above;

  • the restriction on impounding works” means the restriction imposed by section 25(1) above;

  • spray irrigation” means (subject to subsection (5) below) the irrigation of land or plants (including seeds) by means of water or other liquid emerging (in whatever form) from apparatus designed or adapted to eject liquid into the air in the form of jets or spray; and

  • statutory provision” means a provision (whether of a general or special nature) which is contained in, or in any document made or issued under, any Act (whether of a general or special nature).

(2)References in this Chapter to a watercourse shall not include references—

(a)to any sewer or part of a sewer vested in—

(i)a sewerage undertaker;

(ii)a local authority or joint planning board;

(iii)the Commission for the New Towns or a development corporation for a new town;

(iv)a harbour board within the meaning of the M18Railway and Canal Traffic Act 1888;

or

(b)to any adit or passage constructed in connection with a well, borehole or other similar work for facilitating the collection of water in the well, borehole or work.

(3)Any reference in this Chapter to the doing of anything in pursuance of a licence under this Chapter is a reference to its being done—

(a)by the holder of such a licence; or

(b)by a person acting as a servant or agent of, or otherwise under the authority of, the holder of such a licence,

at a time when the licence is in force and in circumstances such that, if no such licence were in force, the doing of that thing would contravene a restriction imposed by this Chapter.

(4)For the purposes of this Chapter land shall be taken to be contiguous to any inland waters notwithstanding that it is separated from those waters by a towpath or by any other land used, or acquired for use, in connection with the navigation of the inland waters, unless that other land comprises any building or works other than a lock, pier, wharf, landing-stage or similar works.

(5)The Ministers may by order direct that references to spray irrigation in this Chapter, and in any other enactments in which “spray irrigation” is given the same meaning as in this Chapter, or such of those references as may be specified in the order—

(a)shall be construed as not including spray irrigation if carried out by such methods or in such circumstances or for such purposes as may be specified in the order; and

(b)without prejudice to the exercise of the power conferred by virtue of paragraph (a) above, shall be construed as including references to the carrying out, by such methods or in such circumstances or for such purposes as may be specified in the order, of irrigation of any such description, other than spray irrigation, as may be so specified.

(6)The power of the Ministers to make an order under subsection (5) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

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Modifications etc. (not altering text)

C14S. 72(2)(a) applied (with modifications) (4.6.1996) by S.I. 1996/1243, art. 18, Sch. 5 Pt. II para. 6(2)(a)

Marginal Citations

chapter IIIE+W DROUGHT

73 Power to make ordinary and emergency drought orders.E+W

[F77(1)If the Secretary of State is satisfied that, by reason of an exceptional shortage of rain, there exists or is threatened—

(a)a serious deficiency of supplies of water in any area, or

(b)such a deficiency in the flow or level of water in any inland waters as to pose a serious threat to any of the flora or fauna which are dependent on those waters,

then,], subject to the following provisions of this Chapter, he may by order (in this Chapter referred to as an “ordinary drought order”) make such provision authorised by this Chapter as appears to him to be expedient with a view to meeting the deficiency.

(2)If the Secretary of State—

(a)is satisfied that, by reason of an exceptional shortage of rain, a serious deficiency of supplies of water in any area exists or is threatened; and

(b)is further satisfied that the deficiency is such as to be likely to impair the economic or social well-being of persons in the area,

then, subject to the following provisions of this Chapter, he may by order (in this Chapter referred to as an “emergency drought order") make such provision authorised by this Chapter as appears to him to be expedient with a view to meeting the deficiency.

(3)Subject to section 76(3) below, the power to make a drought order in relation to any area shall not be exercisable [F78unless] an application is made to the Secretary of State—

(a)by the [F79Agency]; or

(b)[F80except in the case of an ordinary drought order by virtue of subsection (1)(b) above,]by a water undertaker which supplies water to premises in that area.

(4)The power to make a drought order shall be exercisable by statutory instrument; and Schedule 8 to this Act shall have effect with respect to the procedure on an application for such an order.

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Amendments (Textual)

F77Words in s. 73(1) substituted (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 139(2) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F78Words in s. 73 substituted (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 139(3)(a) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F79Word in s. 73 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

74 Provisions and duration of ordinary drought order.E+W

(1)An ordinary drought order made on the application of the [F81Agency] may contain any of the following provisions, that is to say—

(a)provision authorising the [F81Agency] (or persons authorised to do so by the [F81Agency]) to take water from any source specified in the order subject to any conditions or restrictions so specified;

(b)provision authorising the [F81Agency] (or persons authorised to do so by the [F81Agency]) to discharge water to any place specified in the order subject to any conditions or restrictions so specified;

(c)provision authorising the [F81Agency] to prohibit or limit the taking by any person (including a water undertaker) of water from a source specified in the order if the [F81Agency] is satisfied that the taking of water from that source seriously affects the supplies available to the [F81Agency], any water undertaker or any other person;

(d)provision suspending or modifying, subject to any conditions specified in the order, any restriction or obligation to which the [F81Agency], any water undertaker or sewerage undertaker or any other person is subject as respects—

(i)the taking of water from any source;

(ii)the discharge of water;

(iii)the supply of water (whether in point of quantity, pressure, quality, means of supply or otherwise); or

(iv)the filtration or other treatment of water;

(e)provision authorising the [F81Agency] to suspend or vary, or attach conditions to, any consent specified in the order for the discharge of any effluent by any person, including any sewerage undertaker or water undertaker.

(2)An ordinary drought order made on the application of a water undertaker may contain any of the following provisions, that is to say—

(a)provision authorising the water undertaker to take water from any source specified in the order subject to any conditions or restrictions so specified;

(b)provision authorising the water undertaker to prohibit or limit the use of water for any purpose specified in the order, being a purpose for the time being set out in a direction given by the Secretary of State to water undertakers generally as a purpose which may be specified by virtue of this paragraph in any ordinary drought order;

(c)provision authorising the water undertaker to discharge water to any place specified in the order subject to any conditions or restrictions so specified;

(d)provision authorising the [F81Agency] to prohibit or limit the taking by any person of water from a source specified in the order if the [F81Agency] is satisfied that the taking of water from that source seriously affects the supplies available to the water undertaker;

(e)provision prohibiting or limiting the taking by the [F81Agency] of water from a source specified in the order if the taking of water from that source is determined, in accordance with provision made by the order, seriously to affect the supplies available to the water undertaker;

(f)provision suspending or modifying, subject to any conditions specified in the order, any restriction or obligation to which the water undertaker or any sewerage undertaker or other person is subject as respects—

(i)the taking of water from any source;

(ii)the discharge of water;

(iii)the supply of water (whether in point of quantity, pressure, quality, means of supply or otherwise); or

(iv)the filtration or other treatment of water;

(g)provision authorising the [F81Agency] to suspend or vary, or attach conditions to, any consent specified in the order for the discharge of any effluent by any person, including the company which applied for the order (whether in the capacity in which it made the application, in its capacity as a sewerage undertaker or in any other capacity).

(3)The period for which—

(a)an authorisation given by or under an ordinary drought order;

(b)a prohibition or limitation imposed by or under any such order; or

(c)a suspension or modification effected by or under any such order,

has effect shall expire before the end of the period of six months beginning with the day on which the order comes into force, unless that period of six months is extended, in relation to that order, by virtue of the exercise by the Secretary of State of his power (subject to subsection (4) below) to amend the order.

(4)The power of the Secretary of State to amend an ordinary drought order shall not be exercised so as to extend the period of six months mentioned in subsection (3) above beyond the end of the period of one year beginning with the day on which that order came into force.

(5)Without prejudice to the following provisions of this Chapter, an ordinary drought order may—

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(b)contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.

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Amendments (Textual)

F81Words in s. 74 substituted (subject to other provisions of the amending act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

75 Provisions and duration of emergency drought order.E+W

(1)An emergency drought order made on the application of the [F82Agency] may contain any of the provisions which could be included, by virtue of section 74(1) above, in an ordinary drought order made on the application of the [F82Agency].

(2)An emergency drought order made on the application of a water undertaker may contain any of the following provisions, that is to say—

(a)any provision which could be included, by virtue of subsection (2) of section 74 above, in an ordinary drought order made on the application of a water undertaker, except provision authorised by paragraph (b) of that subsection;

(b)provision authorising the water undertaker to prohibit or limit the use of water for such purposes as the water undertaker thinks fit;

(c)provision authorising the water undertaker—

(i)to supply water in its area, or in any place within its area, by means of stand-pipes or water tanks; and

(ii)to erect or set up and maintain stand-pipes or water tanks in any street in that area.

(3)The period for which—

(a)an authorisation given by or under an emergency drought order;

(b)a prohibition or limitation imposed by or under any such order; or

(c)a suspension or modification effected by or under any such order,

has effect shall expire before the end of the period of three months beginning with the day on which the order comes into force unless that period of three months is extended, in relation to that order, by virtue of the exercise by the Secretary of State of his power (subject to subsection (4) below) to amend the order.

(4)The power of the Secretary of State to amend an emergency drought order shall not be exercised so as to extend the period of three months mentioned in subsection (3) above beyond the end of the period of five months beginning with the day on which that order came into force.

(5)Where powers have been conferred by an emergency drought order on any person—

(a)the Secretary of State may give to that person such directions as he considers necessary or expedient as to the manner in which, or the circumstances in which, any of those powers is or is not to be exercised;

(b)it shall be the duty of that person to comply with any such direction; and

(c)where that person is a water undertaker or sewerage undertaker, the duty to comply with any such direction shall be enforceable under section 18 of the M19Water Industry Act 1991 by the Secretary of State.

(6)The giving of a direction under subsection (5) above in relation to any power shall not affect—

(a)the validity of anything done in the exercise of that power before the giving of the direction; or

(b)any obligation or liability incurred before the giving of the direction.

(7)Without prejudice to the following provisions of this Chapter, an emergency drought order may—

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(b)contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.

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Amendments (Textual)

F82Words in s. 75 substituted (subject to other provisions of the amending act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

76 Provisions of drought order restricting use of water.E+W

(1)The following provisions apply where a drought order contains a provision authorising a water undertaker to prohibit or limit the use of water, that is to say—

(a)the power may be exercised in relation to consumers generally, a class of consumer or a particular consumer;

(b)the water undertaker shall take such steps as it thinks appropriate for bringing the prohibition or limitation to the attention of the persons to whom the prohibition or limitation will apply and, in particular, shall (as the undertaker thinks appropriate)—

(i)cause notice of the prohibition or limitation to be published in one or more local newspapers circulating within that part of the water undertaker’s area which would be affected by the provision of the order; or

(ii)send notice of the prohibition or limitation to the persons to whom the prohibition or limitation will apply;

(c)the prohibition or limitation shall not come into operation until the end of the period of seventy-two hours beginning with the day on which the notice is published or, as the case may be, sent to the person in question.

(2)The Secretary of State may revoke or vary any direction given by him for the purposes of section 74(2)(b) above by a further direction for those purposes.

(3)Where any purpose set out in a direction given for the purposes of section 74(2)(b) above will cease, by virtue of the variation or revocation of the direction, to be one which may be specified in an ordinary drought order, the Secretary of State shall (without an application having been made to him) exercise his power to vary or revoke ordinary drought orders, in so far as any orders in force will be affected by the variation or revocation of the direction, so as to make those orders conform to the variation or reflect the revocation.

(4)The revocation or variation of a direction under subsection (3) above shall not affect either—

(a)the validity of anything done in pursuance of an order before the giving of the further direction; or

(b)any obligation or liability accrued or incurred before the giving of the further direction.

77 Provisions of drought order with respect to abstractions and discharges.E+W

(1)Any drought order which-

(a)authorises the taking of water from a source from which water is supplied to an inland navigation; or

(b)suspends or modifies—

(i)a restriction as respects the taking of water from a source from which water is supplied to an inland navigation; or

(ii)an obligation to discharge compensation water into a canal or into any river or stream which forms part of, or from which water is supplied to, an inland navigation,

may include provision for prohibiting or imposing limitations on the taking of water from the inland navigation or for the suspension or modification of any obligation to which a navigation authority are subject as respects the discharge of water from the inland navigation.

(2)A prohibition or limitation by or under a drought order on the taking of water from any source may be imposed so as to have effect in relation to a source from which a person to whom the prohibition or limitation applies has a right to take water whether by virtue of an enactment or instrument, an agreement or the ownership of land.

(3)Where a drought order made on the application of a water undertaker confers power on the [F83Agency]

(a)to prohibit or limit the taking of water from any source; or

(b)to suspend or vary, or attach conditions to, any consent for the discharge of any effluent,

the [F83Agency] shall exercise that power in such manner as will ensure, so far as reasonably practicable, that the supplies of water available to the water undertaker are not seriously affected.

(4)For the purposes of sections 125 to 129 below any water authorised by a drought order to be abstracted from a source of supply shall be treated as if it had been authorised to be so abstracted by a licence granted under Chapter II of this Part, whether the water undertaker to which the order relates is the holder of such a licence or not.

(5)Where—

(a)any drought order confers power on the [F83Agency] to suspend or vary, or attach conditions to, any consent for the discharge of any effluent; and

(b)the [F83Agency] exercises that power so as to restrict the discharge of effluent by a sewerage undertaker,

the sewerage undertaker may so modify any consents or agreements relating to the discharge by other persons of trade effluent as to enable it to comply with any requirements or conditions imposed on it by or under the order with respect to discharges from sewers or works of the undertaker.

(6)In this section—

  • compensation water” means water which a water undertaker or the [F83Agency] is under an obligation to discharge—

    (a)

    in accordance with the provisions of a licence under Chapter II of this Part into a source of supply; or

    (b)

    under any local statutory provision, into any river, stream, brook or other running water or into a canal;

    and

  • inland navigation” includes any canal or navigable river.

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Amendments (Textual)

F83Words in s. 77 substituted (subject to other provisions of the amending act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

78 Works under drought orders.E+W

(1)A drought order may authorise the [F84Agency] or a water undertaker, subject to any conditions and restrictions specified in the order, to carry out any works required for the performance of any duty or the exercise of any power which is imposed or conferred by or under the order.

(2)A drought order authorising the [F84Agency] or a water undertaker to carry out any works—

(a)may authorise the [F84Agency] or that undertaker for that purpose to enter upon any land specified in the order and to occupy and use the land to such extent and in such manner as may be requisite for the carrying out and maintenance of the works; and

(b)may apply in relation to the carrying out of the works such of the provisions of Part VII of this Act or Part VI of the M20Water Industry Act 1991 as appear to the Secretary of State to be appropriate, subject to such modifications as may be specified in the order.

(3)The Secretary of State shall include in any drought order authorising the [F84Agency] or a water undertaker to enter any land provisions requiring the [F84Agency] or that undertaker to give to the occupier of the land and to such other persons concerned with the land as may be specified in the order not less than twenty-four hours’ notice of any intended entry.

(4)Subject to subsection (3) above, a drought order may make any such provision in relation to provisions of the order authorising any person to enter any land as corresponds to provision having effect by virtue of section 173 below or to provision contained in Part II of Schedule 6 to the Water Industry Act 1991.

(5)Any works to be carried out under the authority of an emergency drought order shall be included in the definition of emergency works in section 52 of the New Roads and Street Works Act 1991.

(6)Until the coming into force of section 52 of the M21New Roads and Street Works Act 1991, subsection (5) above shall have effect as if the reference to that section were a reference to section 39(1) of the M22Public Utilities Street Works Act 1950; but nothing in this section shall be taken to prejudice the power of the Secretary of State under that Act of 1991 to make an order bringing that section 52 into force on different days for different purposes (including the purposes of this section).

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Amendments (Textual)

F84Words in s. 78 substituted (subject to other provisions of the amending act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

79 Compensation and charges where drought order made.E+W

(1)Schedule 9 to this Act shall have effect with respect to the payment of compensation where a drought order has been made.

(2)Except as provided by Schedule 9 to this Act, neither the [F85Agency] nor any water undertaker or sewerage undertaker shall incur any liability to any person for loss or damage sustained by reason of anything done in pursuance of any drought order or of any omission in pursuance of such an order.

(3)Nothing in any drought order shall affect the right of the [F85Agency], a water undertaker or a sewerage undertaker, in the event of an interruption or diminution of the supply of water, to recover any fixed or minimum charge which might have been recovered from any person by the [F85Agency] or that undertaker if there had been no such interruption or diminution.

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Amendments (Textual)

F85Words in s. 79 substituted (subject to other provisions of the amending act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

[F8679A Drought permits.E+W

(1)If the Agency is satisfied that, by reason of an exceptional shortage of rain, a serious deficiency of supplies of water in any area exists or is threatened then, subject to the following provisions of this section, it may, upon the application of a water undertaker which supplies water to premises in that area, issue to that undertaker a drought permit making such provision authorised by this section as appears to the Agency to be expedient with a view to meeting the deficiency.

(2)A drought permit may contain any of the following provisions, that is to say—

(a)provision authorising the water undertaker to which it is issued to take water from any source specified in the permit subject to any conditions or restrictions so specified;

(b)provision suspending or modifying, subject to any conditions specified in the permit, any restriction or obligation to which that undertaker is subject as respects the taking of water from any source.

(3)A drought permit shall specify—

(a)the day on which it comes into force; and

(b)the period for which, subject to subsections (4) and (5) below, any authorisation given, or suspension or modification effected, by the permit is to have effect.

(4)Subject to subsection (5) below, the period for which—

(a)an authorisation given by a drought permit, or

(b)a suspension or modification effected by such a permit,

has effect shall expire before the end of the period of six months beginning with the day on which the permit comes into force.

(5)At any time before the expiration of the period for which such an authorisation, suspension or modification has effect, the Agency may, by giving notice to the water undertaker to which the permit in question was issued, extend that period, but not so as to extend it beyond the end of the period of one year beginning with the day on which the permit came into force.

(6)A drought permit which—

(a)authorises the taking of water from a source from which water is supplied to an inland navigation; or

(b)suspends or modifies—

(i)a restriction as respects the taking of water from a source from which water is supplied to an inland navigation; or

(ii)an obligation to discharge compensation water into a canal or into any river or stream which forms part of, or from which water is supplied to, an inland navigation,

shall not be issued without the consent of every navigation authority exercising functions over any or all of the parts of the canal or inland navigation in question which are affected by the permit.

(7)Schedule 8 to this Act shall have effect with respect to the procedure on an application for a drought permit as it has effect with respect to the procedure on an application for a drought order, but with the following modifications, that is to say—

(a)with the substitution for any reference to a drought order of a reference to a drought permit;

(b)with the substitution for any reference to the Secretary of State of a reference to the Agency;

(c)with the omission of the reference to the Agency in the Table in paragraph 1;

(d)with the insertion, in paragraph 1(3)(c), of a requirement that the notice in question shall specify the address at which any objections are to be made to the Agency; and

(e)with the omission—

(i)of paragraph 2(1)(a) and the word “either" immediately preceding it, and

(ii)of paragraph 2(6).

(8)For the purposes of sections 125 to 129 below any water authorised by a drought permit to be abstracted from a source of supply shall be treated as if it had been authorised to be so abstracted by a licence granted under Chapter II of this Part, whether the water undertaker to which the permit is issued is the holder of such a licence or not.

(9)Section 79 above and Schedule 9 to this Act shall apply in relation to drought permits and their issue as they apply in relation to ordinary drought orders and their making.

(10)A drought permit may—

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(b)contain such supplemental, consequential and transitional provisions as the Agency considers appropriate.

(11)In this section—

  • compensation water” has the same meaning as in section 77 above;

  • drought permit” means a drought permit under this section;

  • inland navigation” has the same meaning as in section 77 above.]

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Amendments (Textual)

F86S. 79A inserted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 140 (with 7(6), 115, 117); S.I. 1996/186, art. 3

80 Offences against drought order.E+W

(1)If any person—

(a)takes or uses water in contravention of a prohibition or limitation imposed by or under any drought order or takes or uses water otherwise than in accordance with any condition or restriction [F87imposed by or under any drought order or by any drought permit]; or

(b)discharges water otherwise than in accordance with any condition or restriction imposed by or under such an order,

he shall be guilty of an offence under this section.

(2)If any person—

(a)fails to construct or maintain in good order a gauge, weir or other apparatus for measuring the flow of water which he was required to construct or maintain by any drought order [F88or drought permit]; or

(b)fails to allow some person authorised for the purpose by or under any such order [F89or by virtue of any such permit] to inspect and examine any such apparatus or any records made thereby or kept by that person in connection therewith or to take copies of any such records,

he shall be guilty of an offence under this section.

(3)In any proceedings against any person for an offence under this section it shall be a defence for that person to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(4)A person who is guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

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Amendments (Textual)

81 Interpretation of Chapter III.E+W

In this Chapter—

(a)references to the taking of water include references to the collection, impounding, diversion or appropriation of water; and

(b)references to an obligation or to a restriction include references to an obligation or, as the case may be, to a restriction which is imposed by or under any enactment or agreement.

Part IIIE+W Control of Pollution of Water Resources

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Modifications etc. (not altering text)

C15Pt. III (ss. 82-104) modified (subject to other provisions of the amending Act) (1.2.1996) by 1995 c. 25, s. 5(5)(g) (with ss. 7(6), 115, 117); S,I. 1996/186, art. 2

C16Pt. III (ss. 82-104): functions transferred to the Environment Agency (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 2(1)(a)(ii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

C17Pt. III: definition of “controlled waters” applied (1.12.1991) by water Consolidation (Consequential Provisions) Act 1991 (c. 60, SIF 130), ss. 2(1), 4(2), Sch. 1 para. 1

chapter IE+W QUALITY OBJECTIVES

82 Classification of quality of waters.E+W

(1)The Secretary of State may, in relation to any description of controlled waters (being a description applying to some or all of the waters of a particular class or of two or more different classes), by regulations prescribe a system of classifying the quality of those waters according to criteria specified in the regulations.

(2)The criteria specified in regulations under this section in relation to any classification shall consist of one or more of the following, that is to say—

(a)general requirements as to the purposes for which the waters to which the classification is applied are to be suitable;

(b)specific requirements as to the substances that are to be present in or absent from the water and as to the concentrations of substances which are or are required to be present in the water;

(c)specific requirements as to other characteristics of those waters;

and for the purposes of any such classification regulations under this section may provide that the question whether prescribed requirements are satisfied may be determined by reference to such samples as may be prescribed.

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Modifications etc. (not altering text)

C18S. 82 modified (1.7.1999) by S.I. 1999/672, art. 5, Sch. 2

C19S. 82 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para.9 (with s. 46).

83 Water quality objectives.E+W

(1)For the purpose of maintaining and improving the quality of controlled waters the Secretary of State may, by serving a notice on the [F90Agency] specifying—

(a)one or more of the classifications for the time being prescribed under section 82 above; and

(b)in relation to each specified classification, a date,

establish the water quality objectives for any waters which are, or are included in, waters of a description prescribed for the purposes of that section.

(2)The water quality objectives for any waters to which a notice under this section relates shall be the satisfaction by those waters, on and at all times after each date specified in the notice, of the requirements which at the time of the notice were the requirements for the classification in relation to which that date is so specified.

(3)Where the Secretary of State has established water quality objectives under this section for any waters he may review objectives for those waters if—

(a)five years or more have elapsed since the service of the last notice under subsection (1) or (6) of this section to be served in respect of those waters; or

(b)the [F90Agency], after consultation with such water undertakers and other persons as it considers appropriate, requests a review;

and the Secretary of State shall not exercise his power to establish objectives for any waters by varying the existing objectives for those waters except in consequence of such a review.

(4)Where the Secretary of State proposes to exercise his power under this section to establish or vary the objectives for any waters he shall—

(a)give notice setting out his proposal and specifying the period (not being less than three months from the date of publication of the notice) within which representations or objections with respect to the proposal may be made; and

(b)consider any representations or objections which are duly made and not withdrawn;

and, if he decides, after considering any such representations or objections, to exercise his power to establish or vary those objectives, he may do so either in accordance with the proposal contained in the notice or in accordance with that proposal as modified in such manner as he considers appropriate.

(5)A notice under subsection (4) above shall be given—

(a)by publishing the notice in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons likely to be affected by it; and

(b)by serving a copy of the notice on the [F90Agency].

(6)If, on a review under this section or in consequence of any representations or objections made following such a review for the purposes of subsection (4) above, the Secretary of State decides that the water quality objectives for any waters should remain unchanged, he shall serve notice of that decision on the [F90Agency].

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Amendments (Textual)

F90Words in s. 83 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C20S. 83 amended (20.3.1992) by S.I. 1992/337, reg. 4

C21S. 83 applied (with modifications) (6.1.1997) by S.I. 1996/3001, reg. 7(1)

S. 83 applied (with modifications) (26.11.1997) by S.I. 1997/2560, reg. 5

C22S. 83 modified (12.6.1997) by S.I. 1997/1331, reg. 6(1)

S. 83 modified (12.6.1997) by S.I. 1997/1332, reg. 6(1)

S. 83 modified (25.3.1998) by S.I. 1998/389, reg. 5

84 General duties to achieve and maintain objectives etc.E+W

(1)It shall be the duty of the Secretary of State and of the [F91Agency] to exercise the powers conferred on him or it by or under the water pollution provisions of this Act (other than the preceding provisions of this Chapter and sections 104 and 192 below) in such manner as ensures, so far as it is practicable by the exercise of those powers to do so, that the water quality objectives specified for any waters in—

(a)a notice under section 83 above; or

(b)a notice under section 30C of the M23Control of Pollution Act 1974 (which makes corresponding provision for Scotland),

are achieved at all times.

(2)It shall be the duty of the [F91Agency], for the purposes of the carrying out of its functions under the water pollution provisions of this Act—

(a)to monitor the extent of pollution in controlled waters; and

(b)to consult, in such cases as it may consider appropriate, with [F92the Scottish Environment Protection Agency].

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Amendments (Textual)

F91Words in s. 84 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

F92Words in s. 84(2)(b) substituted (S.) (1.4.1996) by S.I. 1996/973, reg. 2, Sch. para. 11

Modifications etc. (not altering text)

C23S. 84 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para. 9 (with s. 46).

Marginal Citations

CHAPTER IIE+W POLLUTION OFFENCES

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Modifications etc. (not altering text)

C24Pt. III Chapter II (ss. 85-91) amended (1.5.1994) by S.I. 1994/1056, regs. 1(3), 19, Sch. 4 Pt. I para. 11

Principal offencesE+W

85 Offences of polluting controlled waters.E+W

(1)A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters.

(2)A person contravenes this section if he causes or knowingly permits any matter, other than trade effluent or sewage effluent, to enter controlled waters by being discharged from a drain or sewer in contravention of a prohibition imposed under section 86 below.

(3)A person contravenes this section if he causes or knowingly permits any trade effluent or sewage effluent to be discharged—

(a)into any controlled waters; or

(b)from land in England and Wales, through a pipe, into the sea outside the seaward limits of controlled waters.

(4)A person contravenes this section if he causes or knowingly permits any trade effluent or sewage effluent to be discharged, in contravention of any prohibition imposed under section 86 below, from a building or from any fixed plant—

(a)on to or into any land; or

(b)into any waters of a lake or pond which are not inland freshwaters.

(5)A person contravenes this section if he causes or knowingly permits any matter whatever to enter any inland freshwaters so as to tend (either directly or in combination with other matter which he or another person causes or permits to enter those waters) to impede the proper flow of the waters in a manner leading, or likely to lead, to a substantial aggravation of—

(a)pollution due to other causes; or

(b)the consequences of such pollution.

(6)Subject to the following provisions of this Chapter, a person who contravenes this section or the conditions of any consent given under this Chapter for the purposes of this section shall be guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

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Modifications etc. (not altering text)

C25S. 85 restricted (13.4.2001) by S.I. 2001/1478, reg. 3(c)

C27S. 85 applied (with modifications) (16.3.1992) by Avon Weir Act 1992 (c. v), s. 18(6) (with s. 61)

C28S. 85 applied (with modifications) (13.2.1992) by British Railways Act 1992 (c. i), s. 18(3)(a)

C29S. 85 applied (with modifications) (16.3.1992) by London Underground Act 1992 (c.iii), s. 12(2)(a)

C30S. 85 applied (with modifications) (16.3.1992) by Aire and Calder Navigation Act 1992 (c. iv), s. 18(4)(a)

C31S. 85 applied (with modifications) (18.6.1992) by British Railways (No. 2) Act 1992 (c. xi), s. 22(4)(a)

C32S. 85 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para.9 (with s. 46).

C33S. 85 applied (with modifications) (29.3.1993) by 1993 c. iv, s. 23(4)(a) (with ss. 36, 41(5), 44(1)).

C34S. 85 applied (with modifications) (27.5.1993) by 1993 c. vii, s. 11(2)(a) (with ss. 19(2), 29(1)).

C35S. 85 applied (with modifications) (1.7.1993) by 1993 c. ix, s. 9(2)(a) (with ss. 15(2), 24(1)).

C36S. 85 applied (with modifications) (27.7.1993) by 1993 c. xv, s. 22(3)(a) (with s. 44(1)).

S. 85 applied (with modifications) (31.3.1994) by 1994 c. iv, s. 13(4)(a)

S. 85 applied (with modifications) (5.7.1994) by 1994 c. ix, s. 8(2)(a)

S. 85 applied (with modifications) (21.7.1994) by 1994 c. xi, s. 24(3)(a)

S. 85 applied (with modifications) (21.7.1994) by 1994 c. xv, s. 23(3)(a)

S. 85 applied (with modifications) (7.3.1995) by S.I. 1995/519, art. 16(5)

S. 85 applied (with modifications) (28.7.1998) by 1998 c. iv, s. 22(4)(a)

86 Prohibition of certain discharges by notice or regulations.E+W

(1)For the purposes of section 85 above a discharge of any effluent or other matter is, in relation to any person, in contravention of a prohibition imposed under this section if, subject to the following provisions of this section—

(a)the [F93Agency] has given that person notice prohibiting him from making or, as the case may be, continuing the discharge; or

(b)the [F93Agency] has given that person notice prohibiting him from making or, as the case may be, continuing the discharge unless specified conditions are observed, and those conditions are not observed.

(2)For the purposes of section 85 above a discharge of any effluent or other matter is also in contravention of a prohibition imposed under this section if the effluent or matter discharged—

(a)contains a prescribed substance or a prescribed concentration of such a substance; or

(b)derives from a prescribed process or from a process involving the use of prescribed substances or the use of such substances in quantities which exceed the prescribed amounts.

(3)Nothing in subsection (1) above shall authorise the giving of a notice for the purposes of that subsection in respect of discharges from a vessel; and nothing in any regulations made by virtue of subsection (2) above shall require any discharge from a vessel to be treated as a discharge in contravention of a prohibition imposed under this section.

(4)A notice given for the purposes of subsection (1) above shall expire at such time as may be specified in the notice.

(5)The time specified for the purposes of subsection (4) above shall not be before the end of the period of three months beginning with the day on which the notice is given, except in a case where the [F93Agency] is satisfied that there is an emergency which requires the prohibition in question to come into force at such time before the end of that period as may be so specified.

(6)Where, in the case of such a notice for the purposes of subsection (1) above as (but for this subsection) would expire at a time at or after the end of the said period of three months, an application is made before that time for a consent under this Chapter in respect of the discharge to which the notice relates, that notice shall be deemed not to expire until the result of the application becomes final—

(a)on the grant or withdrawal of the application;

(b)on the expiration, without the bringing of an appeal with respect to the decision on the application, of any period prescribed as the period within which any such appeal must be brought; or

(c)on the withdrawal or determination of any such appeal.

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Amendments (Textual)

F93Words in s. 86 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C38S. 86 applied (with modifications) (16.3.1992) by Avon Weir Act 1992 (c. v), s. 18(6) (with s. 61)

S. 86 applied (with modifications) (7.3.1995) by S.I. 1995/519, art. 16(5)

C39S. 86 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para. 9 (with s. 46).

87 Discharges into and from public sewers etc.E+W

[F94(1)This section applies for the purpose of determining liability where sewage effluent is discharged as mentioned in subsection (3) or (4) of section 85 above from any sewer or works (“the discharging sewer”) vested in a sewerage undertaker (“the discharging undertaker”).

(1A)If the discharging undertaker did not cause, or knowingly permit, the discharge it shall nevertheless be deemed to have caused the discharge if—

(a)matter included in the discharge was received by it into the discharging sewer or any other sewer or works vested in it;

(b)it was bound (either unconditionally or subject to conditions which were observed) to receive that matter into that sewer or works; and

(c)subsection (1B) below does not apply.

(1B)This subsection applies where the sewage effluent was, before being discharged from the discharging sewer, discharged through a main connection into that sewer or into any other sewer or works vested in the discharging undertaker by another sewerage undertaker (“the sending undertaker”) under an agreement having effect between the discharging undertaker and the sending undertaker under section 110A of the Water Industry Act 1991.

(1C)Where subsection (1B) above applies, the sending undertaker shall be deemed to have caused the discharge if, although it did not cause, or knowingly permit, the sewage effluent to be discharged into the discharging sewer, or into any other sewer or works of the discharging undertaker—

(a)matter included in the discharge was received by it into a sewer or works vested in it; and

(b)it was bound (either unconditionally or subject to conditions which were observed) to receive that matter into that sewer or works.]

(2)A sewerage undertaker shall not be guilty of an offence under section 85 above by reason only of the fact that a discharge from a sewer or works vested in the undertaker contravenes conditions of a consent relating to the discharge if—

(a)the contravention is attributable to a discharge which another person caused or permitted to be made into the sewer or works;

(b)the undertaker either was not bound to receive the discharge into the sewer or works or was bound to receive it there subject to conditions which were not observed; and

(c)the undertaker could not reasonably have been expected to prevent the discharge into the sewer or works.

(3)A person shall not be guilty of an offence under section 85 above in respect of a discharge which he caused or permitted to be made into a sewer or works vested in a sewerage undertaker if the undertaker was bound to receive the discharge there either unconditionally or subject to conditions which were observed.

[F95(4)In this section “main connection” has the same meaning as in section 110A of the Water Industry Act 1991.]

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Amendments (Textual)

F94S. 87(1)(1A)(1B)(1C) substituted (1.7.1992) for s. 87(1) by Competition and Service (Utilities) Act 1992 (c. 43), s. 46(1)(3); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992, dated 29th May 1992

F95S. 87(4) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 46(2)(3); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992, dated 29 May 1992

Modifications etc. (not altering text)

C40S. 87 applied (with modifications) (16.3.1992) by Avon Weir Act 1992 (c. v), s. 18(6) (with s. 61)

S. 87 applied (with modifications) (7.3.1995) by S.I. 1995/519, art. 16(5)

C41S. 87(1) amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para.9 (with s. 46).

88 Defence to principal offences in respect of authorised discharges.E+W

(1)Subject to the following provisions of this section, a person shall not be guilty of an offence under section 85 above in respect of the entry of any matter into any waters or any discharge if the entry occurs or the discharge is made under and in accordance with, or as a result of any act or omission under and in accordance with—

(a)a consent given under this Chapter or under Part II of the M24Control of Pollution Act 1974 (which makes corresponding provision for Scotland);

[F96(aa)a permit granted, under regulations under section 2 of the Pollution Prevention and Control Act 1999, by an authority exercising functions under the regulations that are exercisable for the purpose of preventing or reducing emissions in to the air, water and land;]

(b)an authorisation for a prescribed process designated for central control granted under Part I of the M25Environmental Protection Act 1990;

(c)a waste management or disposal licence;

(d)a licence granted under Part II of the M26Food and Environment Protection Act 1985;

(e)section 163 below or section 165 of the M27Water Industry Act 1991 (discharges for works purposes);

(f)any local statutory provision or statutory order which expressly confers power to discharge effluent into water; or

(g)any prescribed enactment.

(2)Schedule 10 to this Act shall have effect, subject to section 91 below, with respect to the making of applications for consents under this Chapter for the purposes of subsection (1)(a) above and with respect to the giving, revocation and modification of such consents.

(3)Nothing in any disposal licence shall be treated for the purposes of subsection (1) above as authorising—

(a)any such entry or discharge as is mentioned in subsections (2) to (4) of section 85 above; or

(b)any act or omission so far as it results in any such entry or discharge.

(4)In this section—

  • disposal licence” means a licence issued in pursuance of section 5 of the Control of Pollution Act 1974;

  • statutory order” means—

    (a)

    any order under section 168 below or section 167 of the Water Industry Act 1991 (compulsory works orders); or

    (b)

    any order, byelaw, scheme or award made under any other enactment, including an order or scheme confirmed by Parliament or brought into operation in accordance with special parliamentary procedure;

    and

  • waste management licence” means such a licence granted under Part II of the the M28Environmental Protection Act 1990.

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Amendments (Textual)

Modifications etc. (not altering text)

C43S. 88(1) applied (with modifications) (1.4.1999) by S.I. 1998/2746, reg. 14(2)

C44S. 88(2) amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para. 9 (with s. 46).

Marginal Citations

89 Other defences to principal offences.E+W

(1)A person shall not be guilty of an offence under section 85 above in respect of the entry of any matter into any waters or any discharge if—

(a)the entry is caused or permitted, or the discharge is made, in an emergency in order to avoid danger to life or health;

(b)that person takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the entry or discharge and of its polluting effects; and

(c)particulars of the entry or discharge are furnished to the [F97Agency] as soon as reasonably practicable after the entry occurs.

(2)A person shall not be guilty of an offence under section 85 above by reason of his causing or permitting any discharge of trade or sewage effluent from a vessel.

(3)A person shall not be guilty of an offence under section 85 above by reason only of his permitting water from an abandoned mine [F98or an abandoned part of a mine]to enter controlled waters.

[F99(3A)Subsection (3) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.

(3B)In determining for the purposes of subsection (3A) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—

(a)at least one falls on or before that date, and

(b)at least one falls after that date,

the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date).

(3C)Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (3A) or (3B) above as constituting the abandonment of the mine, but only of that part of it.]

(4)A person shall not, otherwise than in respect of the entry of any poisonous, noxious or polluting matter into any controlled waters, be guilty of an offence under section 85 above by reason of his depositing the solid refuse of a mine or quarry on any land so that it falls or is carried into inland freshwaters if—

(a)he deposits the refuse on the land with the consent of the [F97Agency];

(b)no other site for the deposit is reasonably practicable; and

(c)he takes all reasonably practicable steps to prevent the refuse from entering those inland freshwaters.

(5)A highway authority or other person entitled to keep open a drain by virtue of section 100 of the M29Highways Act 1980 shall not be guilty of an offence under section 85 above by reason of his causing or permitting any discharge to be made from a drain kept open by virtue of that section unless the discharge is made in contravention of a prohibition imposed under section 86 above.

(6)In this section “mine” and “quarry” have the same meanings as in the M30Mines and Quarries Act 1954.

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Amendments (Textual)

F97Words in s. 89 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F98Words in s. 89(3) inserted (subject to other provisions of the amending Act) (1.7.1998) by 1995 c. 25, s. 60(1) (with ss. 7(6), 115, 117); S.I. 1998/604, art. 3

F99S. 89(3A)-(3C) inserted (subject to other provisions of the amending Act) (1.7.1998) by 1995 c. 25, s. 60(2) (with ss. 7(6), 115, 117); S.I. 1998/604, art. 3

Marginal Citations

Offences in connection with deposits and vegetation in riversE+W

90 Offences in connection with deposits and vegetation in rivers.E+W

(1)A person shall be guilty of an offence under this section if, without the consent of the [F100Agency], he—

(a)removes from any part of the bottom, channel or bed of any inland freshwaters a deposit accumulated by reason of any dam, weir or sluice holding back the waters; and

(b)does so by causing the deposit to be carried away in suspension in the waters.

(2)A person shall be guilty of an offence under this section if, without the consent of the [F100Agency], he—

(a)causes or permits a substantial amount of vegetation to be cut or uprooted in any inland freshwaters, or to be cut or uprooted so near to any such waters that it falls into them; and

(b)fails to take all reasonable steps to remove the vegetation from those waters.

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(4)Nothing in subsection (1) above applies to anything done in the exercise of any power conferred by or under any enactment relating to land drainage, flood prevention or navigation.

(5)In giving a consent for the purposes of this section the [F100Agency] may make the consent subject to such conditions as it considers appropriate.

(6)The Secretary of State may by regulations provide that any reference to inland freshwaters in subsection (1) or (2) above shall be construed as including a reference to such coastal waters as may be prescribed.

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Amendments (Textual)

F100Words in s. 90 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

[F101 Consents for the purposes of sections 88 to 90E+W

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Amendments (Textual)

F101Ss. 90A, 90B and preceding cross-heading inserted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 142 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F10290A Applications for consent under section 89 or 90.E+W

(1)Any application for a consent for the purposes of section 89(4)(a) or 90(1) or (2) above—

(a)must be made on a form provided for the purpose by the Agency, and

(b)must be advertised in such manner as may be required by regulations made by the Secretary of State,

except that paragraph (b) above shall not have effect in the case of an application of any class or description specified in the regulations as being exempt from the requirements of that paragraph.

(2)The applicant for such a consent must, at the time when he makes his application, provide the Agency—

(a)with all such information as it reasonably requires; and

(b)with all such information as may be prescribed for the purpose by the Secretary of State.

(3)The information required by subsection (2) above must be provided either on, or together with, the form mentioned in subsection (1) above.

(4)The Agency may give the applicant notice requiring him to provide it with all such further information of any description specified in the notice as it may require for the purpose of determining the application.

(5)If the applicant fails to provide the Agency with any information required under subsection (4) above, the Agency may refuse to proceed with the application or refuse to proceed with it until the information is provided.

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Amendments (Textual)

F102Ss. 90A, 90B and preceding cross-heading inserted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 142 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F10390B Enforcement notices.E+W

(1)If the Agency is of the opinion that the holder of a relevant consent is contravening any condition of the consent, or is likely to contravene any such condition, the Agency may serve on him a notice (an “enforcement notice”).

(2)An enforcement notice shall—

(a)state that the Agency is of the said opinion;

(b)specify the matters constituting the contravention or the matters making it likely that the contravention will arise;

(c)specify the steps that must be taken to remedy the contravention or, as the case may be, to remedy the matters making it likely that the contravention will arise; and

(d)specify the period within which those steps must be taken.

(3)Any person who fails to comply with any requirement imposed by an enforcement notice shall be guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(4)If the Agency is of the opinion that proceedings for an offence under subsection (3) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of an enforcement notice, the Agency may take proceedings in the High Court for the purpose of securing compliance with the notice.

(5)The Secretary of State may, if he thinks fit in relation to any person, give to the Agency directions as to whether the Agency should exercise its powers under this section and as to the steps which must be taken.

(6)In this section—

  • relevant consent” means—

    (a)

    a consent for the purposes of section 89(4)(a) or 90(1) or (2) above; or

    (b)

    a discharge consent, within the meaning of section 91 below; and

  • the holder”, in relation to a relevant consent, is the person who has the consent in question.]

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Amendments (Textual)

F103Ss. 90A, 90B and preceding cross-heading inserted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 142 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

Appeals in respect of consents under Chapter IIE+W

91 Appeals in respect of consents under Chapter II.E+W

(1)This section applies where the [F104Agency], otherwise than in pursuance of a direction of the Secretary of State—

(a)on an application for a consent under this Chapter for the purposes of section 88(1)(a) above, has refused a consent for any discharges;

(b)in giving a discharge consent, has made that consent subject to conditions;

(c)has revoked a discharge consent, modified the conditions of any such consent or provided that any such consent which was unconditional shall be subject to conditions;

(d)has, for the purposes of paragraph [F1058(1)] or (2) of Schedule 10 to this Act, specified a period in relation to a discharge consent without the agreement of the person who proposes to make, or makes, discharges in pursuance of that consent;

(e)has refused a consent for the purposes of section 89(4)(a) above for any deposit; F106. . .

(f) he refused a consent for the purposes of section 90 above for the doing of anything by any person or, in giving any such consent, made that consent subject to conditions;

[F107(g)has refused a person a variation of any such consent as is mentioned in paragraphs (a) to (f) above or, in allowing any such variation, has made the consent subject to conditions; or

(h)has served an enforcement notice on any person.]

(2)The person, if any, who applied for the consent [F108or variation] in question, or any person whose deposits, discharges or other conduct is or would be authorised by the consent [F109, or the person on whom the enforcement notice was served,] may appeal against the decision to the Secretary of State.

[F110(2A)This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).

(2B)An appeal under this section shall, if and to the extent required by regulations under subsection (2K) below, be advertised in such manner as may be prescribed by regulations under that subsection.

(2C)If either party to the appeal so requests or the Secretary of State so decides, an appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private).

(2D)On determining an appeal brought by virtue of any of paragraphs (a) to (g) of subsection (1) above against a decision of the Agency, the Secretary of State—

(a)may affirm the decision;

(b)where the decision was a refusal to grant a consent or a variation of a consent, may direct the Agency to grant the consent or to vary the consent, as the case may be;

(c)where the decision was as to the conditions of a consent, may quash all or any of those conditions;

(d)where the decision was to revoke a consent, may quash the decision;

(e)where the decision relates to a period specified for the purposes of paragraph 8(1) or (2) of Schedule 10 to this Act, may modify any provisions specifying that period;

and where he exercises any of the powers in paragraphs (b), (c) or (d) above, he may give directions as to the conditions to which the consent is to be subject.

(2E)On the determination of an appeal brought by virtue of paragraph (h) of subsection (1) above, the Secretary of State may either quash or affirm the enforcement notice and, if he affirms it, may do so either in its original form or with such modifications as he may in the circumstances think fit.

(2F)Subject to subsection (2G) below, where an appeal is brought by virtue of subsection (1)(c) above against a decision—

(a)to revoke a discharge consent,

(b)to modify the conditions of any such consent, or

(c)to provide that any such consent which was unconditional shall be subject to conditions,

the revocation, modification or provision shall not take effect pending the final determination or the withdrawal of the appeal.

(2G)Subsection (2F) above shall not apply to a decision in the case of which the notice effecting the revocation, modification or provision in question includes a statement that in the opinion of the Agency it is necessary for the purpose of preventing or, where that is not practicable, minimising—

(a)the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter, or

(b)harm to human health,

that that subsection should not apply.

(2H)Where the decision under appeal is one falling within subsection (2G) above, if, on the application of the holder or former holder of the consent, the Secretary of State or other person determining the appeal determines that the Agency acted unreasonably in excluding the application of subsection (2F) above, then—

(a)if the appeal is still pending at the end of the day on which the determination is made, subsection (2F) above shall apply to the decision from the end of that day; and

(b)the holder or former holder of the consent shall be entitled to recover compensation from the Agency in respect of any loss suffered by him in consequence of the exclusion of the application of that subsection;

and any dispute as to a person’s entitlement to such compensation or as to the amount of it shall be determined by arbitration.

(2J)Where an appeal is brought under this section against an enforcement notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.

(2K)Provision may be made by the Secretary of State by regulations with respect to appeals under this section and in particular—

(a)as to the period within which and the manner in which appeals are to be brought; and

(b)as to the manner in which appeals are to be considered.]

(8)In this section “discharge consent” means such a consent under this Chapter for any discharges or description of discharges as is given for the purposes of section 88(1)(a) above either on an application for a consent or, by virtue of paragraph [F1116] of Schedule 10 to this Act, without such an application having been made.

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Amendments (Textual)

F104Words in s. 91 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F105Words in s. 91(1)(d) substituted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 143(1)(a) (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F106Word in s. 91(1) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2

F107S. 91(1)(g)(h) added (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 143(1)(b) (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F108Words in s. 91(2) inserted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 143(2)(a) (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F109Words in s. 91(2) inserted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 143(2)(b) (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F110S. 91(2A)-(2K) substituted for s. 91(3)-(7) (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 143(3) (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F111Word in s. 91(8) substituted (subject to other provisions of the amending Act) (21.11.1996 for certain purposes and 31.12.1996 otherwise) by 1995 c. 25, s. 120(1), Sch. 22 para. 143(4) (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

Modifications etc. (not altering text)

C45S. 91: power to delegate functions conferred (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 114(2)(a)(v) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

[F112Chapter IIAE+W Abandoned Mines

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Amendments (Textual)

F112Chapter IIA (ss. 91A-91B) inserted (subject to other provisions of the amending Act) (21.9.1995 for certain purposes and 1.7.1998 otherwise) by 1995 c. 25, s. 58 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3 (with art. 4); S.I. 1998/604, art. 3

F11391A Introductory.E+W

(1)For the purposes of this Chapter, “abandonment”, in relation to a mine,—

(a)subject to paragraph (b) below, includes—

(i)the discontinuance of any or all of the operations for the removal of water from the mine;

(ii)the cessation of working of any relevant seam, vein or vein-system;

(iii)the cessation of use of any shaft or outlet of the mine;

(iv)in the case of a mine in which activities other than mining activities are carried on (whether or not mining activities are also carried on in the mine)—

(A)the discontinuance of some or all of those other activities in the mine; and

(B)any substantial change in the operations for the removal of water from the mine; but

(b)does not include—

(i)any disclaimer under section 178 or 315 of the M31Insolvency Act 1986 (power of liquidator, or trustee of a bankrupt’s estate, to disclaim onerous property) by the official receiver acting in a compulsory capacity; or

(ii)the abandonment of any rights, interests or liabilities by the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the M32Bankruptcy (Scotland) Act 1985);

and cognate expressions shall be construed accordingly.

(2)In this Chapter, except where the context otherwise requires—

  • the 1954 Act” means the M33Mines and Quarries Act 1954;

  • acting in a compulsory capacity”, in the case of the official receiver, means acting as—

    (a)

    liquidator of a company;

    (b)

    receiver or manager of a bankrupt’s estate, pursuant to section 287 of the M34Insolvency Act 1986;

    (c)

    trustee of a bankrupt’s estate;

    (d)

    liquidator of an insolvent partnership;

    (e)

    trustee of an insolvent partnership;

    (f)

    trustee, or receiver or manager, of the insolvent estate of a deceased person;

  • mine” has the same meaning as in the 1954 Act;

  • the official receiver” has the same meaning as it has in the M35Insolvency Act 1986 by virtue of section 399(1) of that Act;

  • prescribed” means prescribed in regulations;

  • regulations” means regulations made by the Secretary of State;

  • relevant seam, vein or vein-system”, in the case of any mine, means any seam, vein or vein-system for the purpose of, or in connection with, whose working any excavation constituting or comprised in the mine was made.

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Amendments (Textual)

F113Chapter IIA (ss. 91A-91B) inserted (subject to other provisions of the amending Act) (21.9.1995 for certain purposes and 1.7.1998 otherwise) by 1995 c. 25, s. 58 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3 (with art. 4); S.I. 1998/604, art. 3

Marginal Citations

F11491B Mine operators to give the Agency six months’ notice of any proposed abandonment.E+W

(1)If, in the case of any mine, there is to be an abandonment at any time after the expiration of the initial period, it shall be the duty of the operator of the mine to give notice of the proposed abandonment to the Agency at least six months before the abandonment takes effect.

(2)A notice under subsection (1) above shall contain such information (if any) as is prescribed for the purpose, which may include information about the operator’s opinion as to any consequences of the abandonment.

(3)A person who fails to give the notice required by subsection (1) above shall be guilty of an offence and liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(4)A person shall not be guilty of an offence under subsection (3) above if—

(a)the abandonment happens in an emergency in order to avoid danger to life or health; and

(b)notice of the abandonment, containing such information as may be prescribed, is given as soon as reasonably practicable after the abandonment has happened.

(5)Where the operator of a mine is—

(a)the official receiver acting in a compulsory capacity, or

(b)the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the M36Bankruptcy (Scotland) Act 1985),

he shall not be guilty of an offence under subsection (3) above by reason of any failure to give the notice required by subsection (1) above if, as soon as reasonably practicable (whether before or after the abandonment), he gives to the Agency notice of the abandonment or proposed abandonment, containing such information as may be prescribed.

(6)Where a person gives notice under subsection (1), (4)(b) or (5) above, he shall publish prescribed particulars of, or relating to, the notice in one or more local newspapers circulating in the locality where the mine is situated.

(7)Where the Agency—

(a)receives notice under this section or otherwise learns of an abandonment or proposed abandonment in the case of any mine, and

(b)considers that, in consequence of the abandonment or proposed abandonment taking effect, any land has or is likely to become contaminated land, within the meaning of Part IIA of the M37Environmental Protection Act 1990,

it shall be the duty of the Agency to inform the local authority in whose area that land is situated of the abandonment or proposed abandonment.

(8)In this section—

  • the initial period” means the period of six months beginning with the day on which subsection (1) above comes into force;

  • local authority” means—

    (a)

    any unitary authority;

    (b)

    any district council, so far as it is not a unitary authority;

    (c)

    the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;

  • unitary authority” means—

    (a)

    the council of a county, so far as it is the council of an area for which there are no district councils;

    (b)

    the council of any district comprised in an area for which there is no county council;

    (c)

    the council of a London borough;

    (d)

    the council of a county borough in Wales.]

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Amendments (Textual)

F114Chapter IIA (ss. 91A-91B) inserted (subject to other provisions of the amending Act) (21.9.1995 for certain purposes and 1.7.1998 otherwise) by 1995 c. 25, s. 58 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3 (with art. 4); S.I. 1998/604, art. 3

Marginal Citations

chapter iiiE+W POWERS TO PREVENT AND CONTROL POLLUTION

92 Requirements to take precautions against pollution.E+W

(1)The Secretary of State may by regulations make provision—

(a)for prohibiting a person from having custody or control of any poisonous, noxious or polluting matter unless prescribed works and prescribed precautions and other steps have been carried out or taken for the purpose of preventing or controlling the entry of the matter into any controlled waters;

(b)for requiring a person who already has custody or control of, or makes use of, any such matter to carry out such works for that purpose and to take such precautions and other steps for that purpose as may be prescribed.

(2)Without prejudice to the generality of the power conferred by subsection (1) above, regulations under that subsection may—

(a)confer power on the [F115Agency]

(i)to determine for the purposes of the regulations the circumstances in which a person is required to carry out works or to take any precautions or other steps; and

(ii)by notice to that person, to impose the requirement and to specify or describe the works, precautions or other steps which that person is required to carry out or take;

(b)provide for appeals to the Secretary of State against notices served by the [F115Agency] in pursuance of provision made by virtue of paragraph (a) above; and

(c)provide that a contravention of the regulations shall be an offence the maximum penalties for which shall not exceed the penalties specified in subsection (6) of section 85 above.

[F116(3)This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).]

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Amendments (Textual)

F115Words in s. 92 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

F116S. 92(3) added (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 144 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C46S. 92 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para. 9 (with s. 46).

C47S. 92: power to delegate functions conferred (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 114(2)(a)(v) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

93 Water protection zones.E+W

(1)Where the Secretary of State considers, after consultation (in the case of an area wholly or partly in England) with the Minister, that subsection (2) below is satisfied in relation to any area, he may by order make provision—

(a)designating that area as a water protection zone; and

(b)prohibiting or restricting the carrying on in the designated area of such activities as may be specified or described in the order.

(2)For the purposes of subsection (1) above this subsection is satisfied in relation to any area if (subject to subsection (3) below) it is appropriate, with a view to preventing or controlling the entry of any poisonous, noxious or polluting matter into controlled waters, to prohibit or restrict the carrying on in that area of activities which the Secretary of State considers are likely to result in the pollution of any such waters.

(3)The reference in subsection (2) above to the entry of poisonous, noxious or polluting matter into controlled waters shall not include a reference to the entry of nitrate into controlled waters as a result of, or of anything done in connection with, the use of any land for agricultural purposes

(4)Without prejudice to the generality of the power conferred by virtue of subsection (1) above, an order under this section may—

(a)confer power on the [F117Agency] to determine for the purposes of the order the circumstances in which the carrying on of any activities is prohibited or restricted and to determine the activities to which any such prohibition or restriction applies;

(b)apply a prohibition or restriction in respect of any activities to cases where the activities are carried on without the consent of the [F117Agency] or in contravention of any conditions subject to which any such consent is given;

(c)provide that a contravention of a prohibition or restriction contained in the order or of a condition of a consent given for the purposes of any such prohibition or restriction shall be an offence the maximum penalties for which shall not exceed the penalties specified in subsection (6) of section 85 above;

(d)provide (subject to any regulations under section 96 below) for anything falling to be determined under the order by the [F117Agency] to be determined in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be specified in the order;

(e)make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(f)contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.

(5)The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; but the Secretary of State shall not make such an order except on an application made by the [F117Agency] in accordance with Schedule 11 to this Act and otherwise in accordance with that Schedule.

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Amendments (Textual)

F117Words in s. 93 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C49S. 93 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para. 9 (with s. 46).

94 Nitrate sensitive areas.E+W

(1)Where the relevant Minister considers that it is appropriate to do so with a view to achieving the purpose specified in subsection (2) below in relation to any land, he may by order make provision designating that land, together with any other land to which he considers it appropriate to apply the designation, as a nitrate sensitive area.

(2)The purpose mentioned in subsection (1) above is preventing or controlling the entry of nitrate into controlled waters as a result of, or of anything done in connection with, the use for agricultural purposes of any land.

(3)Where it appears to the relevant Minister, in relation to any area which is or is to be designated by an order under this section as a nitrate sensitive area, that it is appropriate for provision for the imposition of requirements, prohibitions or restrictions to be contained in an order under this section (as well as for him to be able to enter into such agreements as are mentioned in section 95 below), he may, by a subsequent order under this section or, as the case may be, by the order designating that area—

(a)with a view to achieving the purpose specified in subsection (2) above, require, prohibit or restrict the carrying on, either on or in relation to any agricultural land in that area, of such activities as may be specified or described in the order; and

(b)provide for such amounts (if any) as may be specified in or determined under the order to be paid by one of the Ministers, to such persons as may be so specified or determined, in respect of the obligations imposed in relation to that area on those persons by virtue of paragraph (a) above.

(4)Without prejudice to the generality of subsection (3) above, provision contained in an order under this section by virtue of that subsection may—

(a)confer power on either of the Ministers to determine for the purposes of the order the circumstances in which the carrying on of any activities is required, prohibited or restricted and to determine the activities to which any such requirement, prohibition or restriction applies;

(b)provide for any requirement to carry on any activity not to apply in cases where one of the Ministers has consented to a failure to carry on that activity and any conditions on which the consent has been given are complied with;

(c)apply a prohibition or restriction in respect of any activities to cases where the activities are carried on without the consent of one of the Ministers or in contravention of any conditions subject to which any such consent is given;

(d)provide that a contravention of a requirement, prohibition or restriction contained in the order or in a condition of a consent given in relation to or for the purposes of any such requirement, prohibition or restriction shall be an offence the maximum penalties for which shall not exceed the penalties specified in subsection (6) of section 85 above;

(e)provide for amounts paid in pursuance of any provision contained in the order to be repaid at such times and in such circumstances, and with such interest, as may be specified in or determined under the order; and

(f)provide (subject to any regulations under section 96 below) for anything falling to be determined under the order by any person to be determined in accordance with such procedure and by reference to such matters and to the opinion of such persons as may be specified in the order.

(5)An order under this section may—

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and

(b)contain such supplemental, consequential and transitional provision as the relevant Minister considers appropriate.

(6)The power of the relevant Minister to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; but the relevant Minister shall not make such an order except in accordance with any applicable provisions of Schedule 12 to this Act.

(7)In this section and in Schedule 12 to this Act “the relevant Minister”—

(a)in relation to the making of an order in relation to an area which is wholly in England or which is partly in England and partly in Wales, means the Ministers; and

(b)in relation to the making of an order in relation to an area which is wholly in Wales, means the Secretary of State.

95 Agreements in nitrate sensitive areas.E+W

(1)Where—

(a)any area has been designated as a nitrate sensitive area by an order under section 94 above; and

(b)the relevant Minister considers that it is appropriate to do so with a view to achieving the purpose mentioned in subsection (2) of that section,

he may, subject to such restrictions (if any) as may be set out in the order, enter into an agreement falling within subsection (2) below.

(2)An agreement falls within this subsection if it is one under which, in consideration of payments to be made by the relevant Minister—

(a)the owner of the freehold interest in any agricultural land in a nitrate sensitive area; or

(b)where the owner of the freehold interest in any such land has given his written consent to the agreement being entered into by any person having another interest in that land, that other person,

accepts such obligations with respect to the management of that land or otherwise as may be imposed by the agreement.

(3)An agreement such as is mentioned in subsection (2) above between the relevant Minister and a person having an interest in any land shall bind all persons deriving title from or under that person to the extent that the agreement is expressed to bind that land in relation to those persons.

(4)In this section “the relevant Minister”—

(a)in relation to an agreement with respect to land which is wholly in England, means the Minister;

(b)in relation to an agreement with respect to land which is wholly in Wales, means the Secretary of State; and

(c)in relation to an agreement with respect to land which is partly in England and partly in Wales, means either of the Ministers.

96 Regulations with respect to consents required by virtue of section 93 or 94.E+W

(1)The Secretary of State may, for the purposes of any orders under section 93 above which require the consent of the [F118Agency] to the carrying on of any activities, by regulations make provision with respect to—

(a)applications for any such consent;

(b)the conditions of any such consent;

(c)the revocation or variation of any such consent;

(d)appeals against determinations on any such application;

(e)the exercise by the Secretary of State of any power conferred on the [F118Agency] by the orders;

(f)the imposition of charges where such an application has been made, such a consent has been given or anything has been done in pursuance of any such consent; and

(g)the registration of any such application or consent.

(2)The Ministers may, for the purposes of any orders under section 94 above which require the consent of either of those Ministers to the carrying on of any activities or to any failure to carry on any activity, by regulations make provision with respect to—

(a)applications for any such consent;

(b)the conditions of any such consent;

(c)the revocation or variation of any such consent;

(d)the reference to arbitration of disputes about determinations on any such application;

(e)the imposition of charges where such an application has been made, such a consent has been given or there has been any act or omission in pursuance of any such consent; and

(f)the registration of any such application or consent.

(3)Without prejudice to the generality of the powers conferred by the preceding provisions of this section, regulations under subsection (1) above may apply (with or without modifications) any enactment having effect in relation to consents under Chapter II of this Part.

[F119(4)This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).]

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Amendments (Textual)

F118Words in s. 96 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

F119S. 96(4) added (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 145 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C50S. 96: power to delegate functions conferred (1.4.1996) by 1995 c. 25, s. 114(2)(a)(v) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

97 Codes of good agricultural practice.E+W

(1)The Ministers may by order made by statutory instrument approve any code of practice issued (whether by either or both of the Ministers or by another person) for the purpose of—

(a)giving practical guidance to persons engaged in agriculture with respect to activities that may affect controlled waters; and

(b)promoting what appear to them to be desirable practices by such persons for avoiding or minimising the pollution of any such waters,

and may at any time by such an order approve a modification of such a code or withdraw their approval of such a code or modification.

(2)A contravention of a code of practice as for the time being approved under this section shall not of itself give rise to any criminal or civil liability, but the [F120Agency] shall take into account whether there has been or is likely to be any such contravention in determining when and how it should exercise—

(a)its power, by giving a notice under subsection (1) of section 86 above, to impose a prohibition under that section; and

(b)any powers conferred on the [F120Agency] by regulations under section 92 above.

(3)The Ministers shall not make an order under this section unless they have first consulted the [F120Agency].

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Amendments (Textual)

F120Words in s. 97 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

chapter IVE+W SUPPLEMENTAL PROVISIONS WITH RESPECT TO WATER POLLUTIONS

98 Radioactive substances.E+W

(1)Except as provided by regulations made by the Secretary of State under this section, nothing in this Part shall apply in relation to radioactive waste within the meaning of the [F121Radioactive Substances Act 1993].

(2)The Secretary of State may by regulations—

(a)provide for prescribed provisions of this Part to have effect with such modifications as he considers appropriate for dealing with such waste;

(b)make such modifications of the said Act of [F1221993] or, in relation to such waste, of any other enactment as he considers appropriate in consequence of the provisions of this Part and of any regulations made by virtue of paragraph (a) above.

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Amendments (Textual)

F121Words in s. 98(1) substituted (27.8.1993) by 1993 c. 12, ss. 49(1), 51(2), Sch. 4 para. 11(a ) (with s. 46).

F122Words in s. 98(2)(b) substituted (27.8.1993) by 1993 c. 12, ss. 49(1), 51(2), Sch. 4 para. 11(b) (with s. 46).

99 Consents required by the [F123Agency].E+W

(1)The Secretary of State may by regulations—

(a)make provision modifying the water pollution provisions of this Act in relation to cases in which consents under Chapter II of this Part are required by the [F123Agency]; and

(b)for the purposes of the application of the provisions of this Part in relation to discharges by the [F123Agency], make such other modifications of those provisions as may be prescribed.

(2)Without prejudice to the generality of subsection (1) above, regulations under this section may provide for such consents as are mentioned in paragraph (a) of that subsection to be required to be given by the Secretary of State (instead of by the [F123Agency]) and, in prescribed cases, to be deemed to have been so given.

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Amendments (Textual)

F123Words in s. 99 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C51S. 99 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(2), Sch. 3 Pt. I para. 9 (with s. 46).

100 Civil liability in respect of pollution and savings.E+W

Except in so far as this Part expressly otherwise provides and subject to the provisions of section 18 of the M38Interpretation Act 1978 (which relates to offences under two or more laws), nothing in this Part—

(a)confers a right of action in any civil proceedings (other than proceedings for the recovery of a fine) in respect of any contravention of this Part or any subordinate legislation, consent or other instrument made, given or issued under this Part;

(b)derogates from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than under this Part; or

(c)affects any restriction imposed by or under any other enactment, whether public, local or private.

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Marginal Citations

101 Limitation for summary offences under Part III.E+W

Notwithstanding anything in section 127 of the M39Magistrates’ Courts Act 1980 (time limit for summary proceedings), a magistrates’ court may try any summary offence under this Part, or under any subordinate legislation made under this Part, if the information is laid not more than twelve months after the commission of the offence.

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Marginal Citations

102 Power to give effect to international obligations.E+W

The Secretary of State shall have power by regulations to provide that the water pollution provisions of this Act shall have effect with such modifications as may be prescribed for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect—

(a)to any Community obligations; or

(b)to any international agreement to which the United Kingdom is for the time being a party.

103 Transitional pollution provisions.E+W

The provisions of this Part shall have effect subject to the provisions of Schedule 13 to this Act (which reproduce transitional provision originally made in connection with the coming into force of provisions of the M40Water Act 1989).

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Marginal Citations

104 Meaning of “controlled waters" etc. in Part III.E+W

(1)References in this Part to controlled waters are references to waters of any of the following classes—

(a)relevant territorial waters, that is to say, subject to subsection (4) below, the waters which extend seaward for three miles from the baselines from which the breadth of the territorial sea adjacent to England and Wales is measured;

(b)coastal waters, that is to say, any waters which are within the area which extends landward from those baselines as far as—

(a)the limit of the highest tide; or

(b)in the case of the waters of any relevant river or watercourse, the fresh-water limit of the river or watercourse,

together with the waters of any enclosed dock which adjoins waters within that area;

(c)inland freshwaters, that is to say, the waters of any relevant lake or pond or of so much of any relevant river or watercourse as is above the fresh-water limit;

(d)ground waters, that is to say, any waters contained in underground strata;

and, accordingly, in this Part “coastal waters”, “controlled waters”, “ground waters”, “inland freshwaters” and “relevant territorial waters” have the meanings given by this subsection.

(2)In this Part any reference to the waters of any lake or pond or of any river or watercourse includes a reference to the bottom, channel or bed of any lake, pond, river or, as the case may be, watercourse which is for the time being dry.

(3)In this section—

  • fresh-water limit”, in relation to any river or watercourse, means the place for the time being shown as the fresh-water limit of that river or watercourse in the latest map deposited for that river or watercourse under section 192 below;

  • miles” means international nautical miles of 1,852 metres;

  • lake or pond” includes a reservoir of any description;

  • relevant lake or pond” means (subject to subsection (4) below) any lake or pond which (whether it is natural or artificial or above or below ground) discharges into a relevant river or watercourse or into another lake or pond which is itself a relevant lake or pond;

  • relevant river or watercourse” means (subject to subsection (4) below) any river or watercourse (including an underground river or watercourse and an artificial river or watercourse) which is neither a public sewer nor a sewer or drain which drains into a public sewer.

(4)The Secretary of State may by order provide—

(a)that any area of the territorial sea adjacent to England and Wales is to be treated as if it were an area of relevant territorial waters for the purposes of this Part and of any other enactment in which any expression is defined by reference to the meanings given by this section;

(b)that any lake or pond which does not discharge into a relevant river or watercourse or into a relevant lake or pond is to be treated for those purposes as a relevant lake or pond;

(c)that a lake or pond which does so discharge and is of a description specified in the order is to be treated for those purposes as if it were not a relevant lake or pond;

(d)that a watercourse of a description so specified is to be treated for those purposes as if it were not a relevant river or watercourse.

(5)An order under this section may—

(a)contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and

(b)make different provision for different cases, including different provision in relation to different persons, circumstances or localities.

(6)The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

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Modifications etc. (not altering text)

C52S. 104 definition of "controlled waters" applied by London Docklands Railway Act 1991 (c. xxiii), s. 7(2)(a)

C53S. 104(1) modified (12.6.1997) by S.I. 1997/1331, reg. 6(2)

S. 104(1) modified (12.6.1997) by S.I. 1997/1332, reg. 6(2)

C54S. 104(1)(c) applied (with modifications) (6.1.1997) by S.I. 1996/3001, reg. 7(2)

Part IVE+W FLOOD DEFENCE

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Modifications etc. (not altering text)

C55Pt. IV (ss. 105-113): functions transferred to the Environment Agency (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 2(1)(a)(iii) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

GeneralE+W

105 General functions with respect to flood defence.E+W

F124(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)For the purpose of carrying out its flood defence functions the [F125Agency] shall from time to time carry out surveys of the areas in relation to which it carries out those functions.

(3)In the exercise of the powers conferred by the following provisions of this Part and the other flood defence provisions of this Act due regard shall be had to the interests of fisheries, including sea fisheries.

(4)Nothing in the following provisions of this Part or the other flood defence provisions of this Act shall prejudice or affect the provisions of Part V of this Act or the M41Salmon and Freshwater Fisheries Act 1975 or any right, power or duty conferred or imposed by that Part or that Act.

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Amendments (Textual)

F124S. 105(1) repealed (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1)(3), Sch. 22 para. 146, Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F125Word in s. 105 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C56S. 105 excluded (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, ss. 19, 120(2), Sch. 5 Pt. II para. 13(2), Sch. 23 Pt. II para. 23 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

106 Obligation to carry out flood defence functions through committees.E+W

(1)Without prejudice to any scheme for the appointment of local flood defence committees and subject to subsection (2) below, the [F126Agency] shall arrange for all its functions relating to flood defence under the following provisions of this Act and the M42Land Drainage Act 1991 to be carried out by regional flood defence committees, so that those functions of the [F126Agency] are carried out—

(a)in relation to the area of each regional flood defence committee, by the committee for that area; and

(b)in cases involving the areas of more than one regional flood defence committee, by such committee, or jointly by such committees, as may be determined in accordance with arrangements made by the [F126Agency].

(2)The [F126Agency] shall not make arrangements for the carrying out by any other body, or by any committee, of any of its functions with respect to—

(a)the issuing of levies (within the meaning of the M43Local Government Finance Act 1988); or

(b)the making of drainage charges under Chapter II of Part VI of this Act;

and nothing in this section shall enable the [F126Agency] to authorise any such other body or any committee to borrow money for purposes connected with the [F126Agency’s] functions relating to flood defence.

(3)The [F126Agency] may give a regional flood defence committee a direction of a general or specific character as to the carrying out of any function relating to flood defence, other than one of its internal drainage functions, so far as the carrying out of that function appears to the [F126Agency] likely to affect materially the [F126Agency’s] management of water for purposes other than flood defence.

(4)It shall be the duty of a regional flood defence committee to comply with any direction under subsection (3) above.

(5)In subsection (3) above “internal drainage functions” means the functions of the [F126Agency] under sections 108, 139 and 140 below and the following provisions of the M44Land Drainage Act 1991, that is to say—

(a)sections 2 to 9 (transfer to the [F126Agency] and supervision by the [F126Agency]of the functions of internal drainage boards);

(b)sections 38, 39 and 47 (differential drainage rates and exemptions from such rates);

(c)sections 57 and 58(1) (provisions with respect to contributions by the [F126Agency] to the expenses of internal drainage boards and the expenses of the [F126Agency] as such a board).

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Amendments (Textual)

F126Words in s. 106 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C57S. 106 excluded (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, ss. 19, 120(2), Sch. 5 Pt. II para. 13(2), Sch. 23 Pt. II para. 23 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

Main river functionsE+W

107 Main river functions under the Land Drainage Act 1991.E+W

(1)This section has effect for conferring functions in relation to main rivers on the [F127Agency] which are functions of drainage boards in relation to other watercourses.

(2)Notwithstanding subsection (3) of section 21 of the Land Drainage Act 1991 (power to secure compliance with drainage obligations), the powers of the [F127Agency] in relation to a main river shall, by virtue of this section, include the powers which under that section are exercisable otherwise than in relation to a main river by the drainage board concerned; and the provisions of that section shall have effect accordingly.

(3)The powers of the [F127Agency] in relation to a main river shall, by virtue of this section, include the powers which under section 25 of the Land Drainage Act 1991 (powers for securing the maintenance of flow of watercourses) are exercisable in relation to an ordinary watercourse by the drainage board concerned; and the provisions of that section and section 27 of that Act shall have effect accordingly.

(4)Sections 33 and 34 of the Land Drainage Act 1991 (commutation of obligations) shall have effect where—

(a)any person is under an obligation imposed on him by reason of tenure, custom, prescription or otherwise to do any work in connection with the drainage of land (whether by way of repairing banks or walls, maintaining watercourses or otherwise); and

(b)that work is in connection with a main river,

as they have effect in relation to an obligation to do work otherwise than in connection with a main river but as if the [F127Agency] were under a duty to take steps to commute the obligation and the references in those sections to the drainage board for the internal drainage district where the works fall to be done were omitted.

(5)In this section—

(a)references to the exercise of a power in relation to a main river shall include a reference to its exercise in connection with a main river or in relation to the banks of such a river or any drainage works in connection with such a river; and

(b)expressions used both in this section and in a provision applied by this section have the same meanings in this section as in that provision.

(6)The functions of the [F127Agency] by virtue of this section are in addition to the functions of the [F127Agency] which by virtue of the provisions of the M45Land Drainage Act 1991 are exercisable by the [F127Agency] concurrently with an internal drainage board.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F127Words in s. 107 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Marginal Citations

108 Schemes for transfer to the [F128Agency] of functions in relation to main river.E+W

(1)The [F128Agency] may at any time prepare and submit to either of the Ministers for confirmation a scheme making provision for the transfer to the [F128Agency] from any drainage body of—

(a)all rights, powers, duties, obligations and liabilities (including liabilities incurred in connection with works) over or in connection with a main river; and

(b)any property held by the drainage body for the purpose of, or in connection with, any functions so transferred;

and the [F128Agency] shall prepare such a scheme and submit it to one of the Ministers if it is directed to do so by that Minister.

(2)A scheme prepared and submitted under subsection (1) above may make provisions for any matter supplemental to or consequential on the transfers for which the scheme provides.

(3)The Minister to whom a scheme is submitted under this section may by order made by statutory instrument confirm that scheme; and Schedule 14 to this Act shall have effect with respect to the procedure to be followed in connection with the making of such an order and with respect to challenges to such orders.

(4)An order under this section may contain provisions with respect to the persons by whom all or any of the expenses incurred by the Ministers or other persons in connection with the making or confirmation of the order, or with the making of the scheme confirmed by the order, are to be borne.

(5)Where, under a scheme made by the [F128Agency] under this section, liabilities incurred in connection with drainage works are transferred to the [F128Agency] from a local authority, the [F128Agency] may require the local authority to make contributions to the [F128Agency] towards the discharge of the liabilities.

(6)If the amount to be paid by a local authority by way of contributions required under subsection (5) above is not agreed between the [F128Agency] and the local authority, it shall be referred to the arbitration of a single arbitrator appointed—

(a)by agreement between them; or

(b)in default of agreement, by the Ministers.

(7)The relevant Minister shall by regulations provide for the payment, subject to such exceptions or conditions as may be specified in the regulations, of compensation by the [F128Agency] to any officer or other employee of a drainage body who suffers loss of employment or loss or diminution of emoluments which is attributable to a scheme under this section or anything done in pursuance of such a scheme.

(8)Regulations under subsection (7) above may include provision—

(a)as to the manner in which and the persons to whom any claim for compensation by virtue of the regulations is to be made; and

(b)for the determination of all questions arising under the regulations.

(9)In this section—

  • drainage body” means an internal drainage board or any other body having power to make or maintain works for the drainage of land;

  • the relevant Minister”—

(a)in relation to employees of a drainage body wholly in Wales, means the Secretary of State;

(b)in relation to employees of a drainage body partly in Wales, means the Ministers; and

(c)in any other case, means the Minister.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F128Words in s. 108 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

109 Structures in, over or under a main river.E+W

(1)No person shall erect any structure in, over or under a watercourse which is part of a main river except with the consent of and in accordance with plans and sections approved by the [F129Agency].

(2)No person shall, without the consent of the [F129Agency], carry out any work of alteration or repair on any structure in, over or under a watercourse which is part of a main river if the work is likely to affect the flow of water in the watercourse or to impede any drainage work.

(3)No person shall erect or alter any structure designed to contain or divert the floodwaters of any part of a main river except with the consent of and in accordance with plans and sections approved by the [F129Agency].

(4)If any person carries out any work in contravention of this section the [F129Agency] may—

(a)remove, alter, or pull down the work; and

(b)recover from that person the expenses incurred in doing so.

(5)Subsections (1) and (2) above shall not apply to any work carried out in an emergency; but a person carrying out any work excepted from those subsections by this subsection shall inform the [F129Agency] in writing as soon as practicable—

(a)of the carrying out of the work; and

(b)of the circumstances in which it was carried out.

(6)Nothing in this section shall be taken to affect any enactment requiring the consent of any government department for the erection of a bridge or any powers exercisable by any government department in relation to a bridge.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F129Words in s. 109 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C62S. 109 excluded (5.11.1993) by 1993 c. 42, s. 25(1) (with s. 30(1), Sch. 2 para. 9).

C63S. 109 applied (21.7.1994) by 1994 c. xv, s. 43(11)

C64S. 109 applied (with modifications) (7.3.1995) by S.I. 1995/519, arts. 3(9), 57-64

110 Applications for consents and approvals under section 109.E+W

(1)The [F130Agency] may require the payment of an application fee by a person who applies to it for its consent under section 109 above; and the amount of that fee shall be £50 or such other sum as may be [F131prescribed].

(2)A consent or approval required under section 109 above—

(a)shall not be unreasonably withheld;

(b)shall be deemed to have been given if it is neither given nor refused within the relevant period; and

(c)in the case of a consent, may be given subject to any reasonable condition as to the time at which and the manner in which any work is to be carried out.

(3)For the purposes of subsection (2)(b) above the relevant period is—

(a)in the case of a consent, the period of two months after whichever is the later of—

(i)the day on which application for the consent is made; and

(ii)if at the time when that application is made an application fee is required to be paid, the day on which the liability to pay that fee is discharged;

and

(b)in the case of an approval, the period of two months after application for the approval is made.

(4)If any question arises under this section whether any consent or approval is unreasonably withheld or whether any condition imposed is reasonable, the question shall—

(a)if the parties agree to arbitration, be referred to a single arbitrator appointed by agreement between the parties or, in default of agreement, by the President of the Institution of Civil Engineers; and

(b)if the parties do not agree to arbitration, be referred to and determined by [F132the Minister] or the Secretary of State, according to whether the determination falls to be made in relation to England or Wales.

(5)The power of the Ministers to make an order under subsection (1) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

[F133(6)In subsection (1) above “prescribed” means specified in, or determined in accordance with, an order made by the Ministers; and any such order may make different provision for different cases, including different provision in relation to different persons, circumstances or localities.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F130Word in s. 110 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F131Word in s. 110(1) substituted (subject to other provisions of the amending Act) (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 147(1) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F132Words in s. 110(4)(b) substituted (subject to other provisions of the amending Act) (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 147(2) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F133S. 110(6) inserted (subject to other provisions of the amending Act) (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 147(3) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

Arrangements with certain authoritiesE+W

111 Arrangements with navigation and conservancy authorities.E+W

(1)Subject to subsection (2) below, the [F134Agency], with a view to improving the drainage of any land, may enter into an arrangement with a navigation authority or conservancy authority for any of the following purposes, that is to say—

(a)the transfer to the [F134Agency] of—

(i)the whole or any part of the undertaking of the navigation authority or conservancy authority or of any of the rights, powers, duties, liabilities and obligations of that authority; or

(ii)any property vested in that authority as such;

(b)the alteration or improvement by the [F134Agency] of any of the works of the navigation authority or conservancy authority;

(c)the making of payments by the [F134Agency] to the navigation authority or conservancy authority or by that authority to the [F134Agency] in respect of any matter for which provision is made by the arrangement.

(2)The exercise by the [F134Agency] of its power to enter into an arrangement under this section shall require the approval of the Ministers.

(3)Where the [F134Agency] is intending to enter into an arrangement under this section it shall publish a notice of its intention in such manner as may be directed by either of the Ministers.

(4)Where an arrangement has been made under this section, the [F134Agency] shall cause a notice under subsection (5) below to be published in the London Gazette in such form as may be prescribed by regulations made by one of the Ministers.

(5)A notice under this subsection is a notice—

(a)stating that the arrangement has been made; and

(b)specifying the place at which a copy of the arrangement may be inspected by persons interested.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F134Words in s. 111 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

SupplementalE+W

112 Flood defence regulations.E+W

The Ministers shall each have power by regulations to make provision generally for the purpose of carrying into effect the provisions of this Part and the other flood defence provisions of this Act.

113 Interpretation of Part IV.E+W

(1)In this Part—

  • banks” means banks, walls or embankments adjoining or confining, or constructed for the purposes of or in connection with, any channel or sea front, and includes all land and water between the bank and low-watermark;

  • drainage” includes—

(a)defence against water, including sea water;

(b)irrigation other than spray irrigation; F135. . .

(c)warping; [F136and

(d)the carrying on, for any purpose, of any other practice which involves management of the level of water in a watercourse;]

  • flood defence” means the drainage of land and the provision of flood warning systems;

  • main river” (subject to section 137(4) below) means a watercourse shown as such on a main river map and includes any structure or appliance for controlling or regulating the flow of water into, in or out of the channel which—

(a)is a structure or appliance situated in the channel or in any part of the banks of the channel; and

(b)is not a structure or appliance vested in or controlled by an internal drainage board;

  • watercourse” shall be construed as if for the words from “except" onwards in the definition in section 221(1) below there were substituted the words “except a public sewer".

(2)If any question arises under this Part—

(a)whether any work is a drainage work in connection with a main river; or

(b)whether any proposed work will, if constructed, be such a drainage work,

the question shall be referred to one of the Ministers for decision or, if either of the parties so requires, to arbitration.

(3)Where any question is required under subsection (2) above to be referred to arbitration it shall be referred to the arbitration of a single arbitrator appointed—

(a)by agreement between the parties; or

(b)in default of agreement, by the President of the Institution of Civil Engineers, on the application of either party.

(4)Nothing in this Part shall affect the powers exercisable by the [F137Agency] under any local Act, as they existed immediately before the coming into force of this Act.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F135Word in definition in s. 113(1) repealed (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F136Words in definition in s. 113(1) added (subject to other provisions of the amending Act) (21.9.1995) by 1995 c. 25, s. 100(1) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F137Word in s. 113(4) substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C65S. 113 definitions of "main river" and "banks" applied by London Docklands Railway Act 1991 (c. xxiii), s. 7(2)(b)

Part VE+W GENERAL CONTROL OF FISHERIES

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C66Pt. V (ss. 114-116): certain functions transferred to the Environment Agency (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 2(1)(a)(v) (with ss. 115, 117); S.I. 1996/186, art. 3 (with art. 4)

F138114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F138S. 114 repealed (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1)(3), Sch. 22 para. 148, Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

115 Fisheries orders.E+W

(1)Subject to the following provisions of this section, each of the Ministers shall have power, on an application made to him by the [F139Agency], by order made by statutory instrument to make provision in relation to an area defined by the order for the modification, in relation to the fisheries in that area—

(a)of any provisions of the M46Salmon and Freshwater Fisheries Act 1975 relating to the regulation of fisheries;

[F140(b)of section 142 or 156 below or paragraph 6 or 7 of Schedule 25 to this Act; or]

(c)of any provisions of a local Act relating to any fishery in that area.

(2)An order under this section—

(a)may contain such supplemental, consequential and transitional provision, including provision for the payment of compensation to persons injuriously affected by the order, as may appear to be necessary or expedient in connection with the other provisions of the order; but

(b)shall not apply to any waters in respect of which either of the Ministers has granted a licence under section 29 of the Salmon and Freshwater Fisheries Act 1975 (fish rearing licences).

(3)Before either of the Ministers makes an order under this section he shall—

(a)send to the [F139Agency] a copy of the draft order; and

(b)notify the [F139Agency] of the time within which, and the manner in which, objections to the draft order may be made to him.

(4)Neither of the Ministers shall make an order under this section unless the [F139Agency] has caused notice of—

(a)that Minister’s intention to make the order;

(b)the place where copies of the draft order may be inspected and obtained; and

(c)the matters notified under subsection (3)(b) above,

to be published in the London Gazette and, if it is directed to do so by one of the Ministers, in such other manner as that Minister thinks best adapted for informing persons affected.

(5)Before either of the Ministers makes an order under this section he-

(a)shall consider any objection which may be duly made to the draft order; and

(b)may cause a public local inquiry to be held with respect to any such objections.

(6)A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament; and, where a statutory instrument is laid before Parliament for the purposes of this paragraph, a copy of the report of any local inquiry held with respect to objections considered in connection with the making of the order contained in that instrument shall be so laid at the same time.

(7)Where—

(a)any fishery, land or foreshore proposed to be comprised in an order under this section [F141making provision, by virtue of subsection (1)(b) above, for the modification of section 156 below in relation to fisheries in an area]; or

(b)any fishery proposed to be affected by any such order; or

(c)any land over which it is proposed to acquire an easement under any such order,

belongs to Her Majesty in right of the Crown or forms part of the possessions of the Duchy of Lancaster or the Duchy of Cornwall or belongs to, or is under the management of, any government department, the order may be made by one of the Ministers only if he has previously obtained the consent of the appropriate authority.

(8)In subsection (7) above “the appropriate authority”—

(a)in the case of any foreshore under the management of the Crown Estate Commissioners or of any fishery or land belonging to Her Majesty in right of the Crown, means those Commissioners;

(b)in the case of any foreshore, fishery or land forming part of the possessions of the Duchy of Lancaster, means the Chancellor of the Duchy;

(c)in the case of any foreshore, fishery or land forming part of the possessions of the Duchy of Cornwall, means the Duke of Cornwall or the persons for the time being empowered to dispose for any purpose of the land of the Duchy;

(d)in the case of any foreshore, fishery or land which belongs to or is under the management of a government department, means that government department.

(9)In this section “foreshore” includes the shore and bed of the sea and of every channel, creek, bay, estuary and navigable river as far as the tide flows.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F139Words in s. 115 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

F140S. 115(1)(b) substituted (subject to other provisions of the amending Act) (21.9.1995) by 1995 c. 25, s. 105, Sch. 15 para. 25 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3 (with art. 4)

F141Words in s. 115(7)(a) inserted (subject to other provisions of the amending Act) (21.9.1995) by 1995 c. 25, s. 116, Sch. 21 Pt. I para. 2(2) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

Modifications etc. (not altering text)

C67S. 115 excluded by S.I. 1999/1746, arts. 1(1), 4(1) (with art. 2) (the exclusion coming into force immediately before the principal appointed day (1.7.1999 appointed by S.I. 1998/3178, art. 3))

Marginal Citations

116 Power to give effect to international obligations.E+W

Each of the Ministers shall have power by regulations to provide that the provisions of this Part or of any other enactment relating to the carrying out by the [F142Agency] of such of its functions as relate to fisheries shall have effect with such modifications as may be prescribed by the regulations for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect—

(a)to any Community obligations; or

(b)to any international agreement to which the United Kingdom is for the time being a party.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F142Words in s. 116 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3 (with art. 4)

Modifications etc. (not altering text)

C68S. 116 excluded by S.I. 1999/1746, arts. 1(1), 4(1) (with art. 2) (the exclusion coming into force immediately before the principal appointed day (1.7.1999 appointed by S.I. 1998/3178, art. 3))

Part VIE+W FINANCIAL PROVISIONS IN RELATION TO THE [F143AGENCY]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F143Word in the heading to Pt. VI substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with