Modifications etc. (not altering text)
C1Pt. 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
Modifications etc. (not altering text)
C2Chapter 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
C3Chapter II of Part II modified (18.12.1996) by 1996 c. 61, s. 52, Sch. 15 Pt. III para. 11
C4Pt. II Ch. II modified (22.3.2005) by Midland Metro (Wednesbury to Brierley Hill and Miscellaneous Amendments) Order 2005 (S.I. 2005/927), Sch. 11 para. 11 (with art. 51)
C5Pt. II Ch. II modified (26.8.2005) by River Tyne (Tunnels) Order 2005 (S.I. 2005/2222), art. 1, Sch. 10 para. 14 (with arts. 45(1), 48, Sch. 10 paras. 21, 29)
C6Pt. II Ch. II modified (19.3.2007) by Ouseburn Barrage Order 2007 (S.I. 2007/608), art. 1, Sch. 6 para. 18 (with arts. 46-48, Sch. 6 paras. 17(5), 23)
C7Pt. II Ch. II modified (22.7.2008) by Crossrail Act 2008 (c. 18), Sch. 17 para. 11
C8Pt. II Ch. II modified (9.6.2009) by Nottingham Express Transit System Order 2009 (S.I. 2009/1300), arts. 1, 71(12) (with Sch. 13 para. 14(2), Sch. 14 para. 19, Sch. 16)
C9Pt. II Ch. II modified (20.7.2010) by The Network Rail (Nuneaton North Chord) Order 2010 (S.I. 2010/1721), art. 1, Sch. 11 para. 12
C10Pt. II Ch. II modified (27.8.2010) by The Llangollen and Corwen Railway Order 2010 (S.I. 2010/2136), art. 1(1), Sch. 4 para. 12
C11Pt. II Ch. II modified (1.9.2010) by The Port of Bristol (Deep Sea Container Terminal) Harbour Revision Order 2010 (S.I. 2010/2020), art. 1(2), Sch. 6 para. 11(1) (with arts. 18, 19)
C12Pt. II Ch. II modified (1.2.2011) by The River Mersey (Mersey Gateway Bridge) Order 2011 (S.I. 2011/41), art. 1, Sch. 10 para. 41(1) (with art. 51, Sch. 10 paras. 6885)
(1)[F1Subject to subsection (1A) below,] the [F2appropriate agency] shall not, except with the consent of the person entitled to the rights, grant a licence so authorising—
(a)the abstraction of water; or
(b)the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from any rights which, at the time when the application is determined by the [F2appropriate agency], are protected rights for the purposes of this Chapter.
[F3(1A)Subsection (1) above does not apply when—
(a)the application to be determined is one which does not fall within subsection (1A) of section 38 above only because paragraph (b) of that subsection is not satisfied; or
(b)the determination of an application is being concluded in accordance with subsection (1C) of that section.]
(2)In a case where an application for a licence under this Chapter relates to abstraction from underground strata, the [F2appropriate agency], in dealing with the application, shall have regard to the requirements of existing lawful uses of water abstracted from those strata, whether for agriculture, industry, water supply or other purposes.
F4(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)Any reference in this Chapter, in relation to the abstraction of water or obstructing or impeding the flow of any inland waters by means of impounding works, to derogating from a right which is a protected right for the purposes of this Chapter is a reference to, as the case may be—
(a)abstracting water; or
(b)so obstructing or impeding the flow of any such waters,
in such a way, or to such an extent, as to prevent the person entitled to that right from abstracting water to the extent mentioned in [F5(as the case may be) section 39A(2) or (7), 48(1) or 59C(10) below or section 102(3) of the Water Act 2003, or in a provision made in an order by virtue of section 10(5)(b) of that Act, in each case subject to any limitations mentioned there].
(5)For the purposes of subsection (2) above the [F2appropriate agency] shall be entitled (but shall not be bound) to treat as lawful any existing use of water from underground strata unless—
(a)by a decision given in any legal proceedings, it has been held to be unlawful; and
(b)that decision has not been quashed or reversed.
Textual Amendments
F1Words in s. 39(1) inserted (1.4.2004) by Water Act 2003 (c. 37), ss. 16(2), 105(3); S.I. 2004/641, art. 3(e) (with Sch. 3 para. 7)
F2Words in ss. 33A-45 substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 270(g) (with Sch. 7)
F3S. 39(1A) inserted (1.4.2004) by Water Act 2003 (c. 37), ss. 16(3), 105(3); S.I. 2004/641, art. 3(e) (with Sch. 3 para. 7)
F4S. 39(3) repealed (1.4.2005) by Water Act 2003 (c. 37), ss. 16(4), 105(3), Sch. 9 Pt. 1; S.I. 2005/968, art. 2(c)(n)
F5Words in s. 39(4) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 16(5), 105(3); S.I. 2005/968, art. 2(c)
Modifications etc. (not altering text)
C13S. 39 applied (with modifications) (1.4.2006) by Water Resources (Abstraction and Impounding) Regulations 2006 (S.I. 2006/641), reg. 1(2), Sch. 2 para. 8(4)