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 [F1Agency], 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 [F1Agency] 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 [F1Agency] 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)[F2Subject to subsection (4A) below,] in determining any appeal under section 43 above and, in particular, in determining what (if any) direction to give under subsection (6) below, the Secretary of State shall consider whether any such direction would require such a grant or variation of a licence as would so authorise—
(a)the abstraction of water; or
(b)the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from rights which, at the time when the direction in question is given, are protected rights for the purposes of this Chapter.
[F3(4A)Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.]
(5)The provisions of sections 39(2) and 40 above shall apply in relation to any appeal under section 43 above as if—
(a)any reference in those provisions to the [F1Agency], 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 [F1Agency], 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.
Textual Amendments
F1Words 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
F2Words in s. 44(4) inserted (1.4.2004) by Water Act 2003 (c. 37), ss. 16(7)(a), 105(3); S.I. 2004/641, art. 3(e) (with Sch. 3 para. 7)
F3S. 44(4A) inserted (1.4.2004) by Water Act 2003 (c. 37), ss. 16(7)(b), 105(3); S.I. 2004/641, art. 3(e) (with Sch. 3 para. 7)