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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

    14

 

Applications for a licence

 11    Who may apply for a licence

     (1)    Section 35 of the WRA (restrictions upon who may apply for abstraction

licences) is amended as follows.

     (2)    For subsections (2) and (3) there is substituted—

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           “(2)              In relation to abstractions from any inland waters, a person shall be

entitled to make the application if, as respects the place (or, if more than

one, as respects each of the places) at which the proposed abstractions

are to be effected, he satisfies the Agency that—

                  (a)                 he has, or at the time when the proposed licence is to take effect

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will have, a right of access to land contiguous to the inland

waters at that place (or those places); and

                  (b)                 he will continue to have such a right for the period of at least

one year beginning with the date on which the proposed licence

is to take effect, or until it is to expire (if sooner).

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           (3)              In relation to abstractions from underground strata, a person shall be

entitled to make the application if he satisfies the Agency that—

                  (a)                 he has, or at the time when the proposed licence is to take effect

will have, a right of access to land consisting of or comprising

those underground strata; and

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                  (b)                 he will continue to have such a right for the period of at least

one year beginning with the date on which the proposed licence

is to take effect, or until it is to expire (if sooner).

           (3A)              The Agency may, in particular, take evidence of a person’s occupation

of land to be evidence of his right of access to it.”

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     (3)    In subsection (4)—

           (a)           for “is the occupier of” there is substituted “will have a right of access

to”, and

           (b)           in paragraph (a), for “occupy” there is substituted “a right of access to”.

 12    Abolition of combined licences

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Section 36 of the WRA (combined abstraction and impounding licences) shall

cease to have effect.

 13    Applications: types of abstraction licence

     (1)    After section 36 of the WRA there is inserted—

       “36A            Applications: types of abstraction licence

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           (1)           The Agency may decide that—

                  (a)                 an application for a full licence, a transfer licence or a temporary

licence ought to be for one of the other types of licence;

                  (b)                 a number of applications for licences (of any type or types) to

abstract water from a particular source of supply ought to be

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treated as an application for a single such licence (of any type);

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    15

 

                  (c)                 an application for a single licence (of any type) to abstract water

from a particular source of supply ought to be treated as a

number of applications for such licences (of any type or types);

or

                  (d)                 any such application as is referred to above ought to be

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accompanied by an application for revocation of an existing

licence to abstract water.

           (2)           The Agency may arrive at the decision referred to in paragraph (a), (b),

(c) or (d) of subsection (1) above on the basis of its assessment of any

one or more of the following—

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                  (a)                 the likely effect of the abstraction (or abstractions) for which the

applicant has applied for a licence (or licences);

                  (b)                 the likely effect of that abstraction (or those abstractions) taken

together with abstractions under any other licence held by the

applicant, or abstractions which would be authorised under

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any other licence for which the applicant has applied;

                  (c)                 any other prescribed matter.

           (3)           If the Agency does so decide, it shall serve a notice of its decision on the

applicant; and, subject to subsections (4) to (8) below, shall deal with

the application (or applications) accordingly (which, if the Agency

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made the decision referred to in paragraph (d) of subsection (1) above

in relation to any application (or applications), means not publishing

any notice under section 37 below, or taking any further step in

connection with the application (or applications), until the application

for revocation has been received).

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           (4)           The applicant may by notice appeal to the Secretary of State against the

decision, and shall serve a copy of any such notice on the Agency.

           (5)           That notice, and the copy of it, shall be served in such manner and

within such period as may be prescribed.

           (6)           If the Agency serves a notice under subsection (3) above, it shall not

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publish any notice under section 37 below, or take any further step in

connection with the application (or applications), before—

                  (a)                 the end of the period within which notice of an appeal may be

served on the Secretary of State; or

                  (b)                 if notice of an appeal is so served, the appeal has been

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determined.

           (7)           The Secretary of State—

                  (a)                 may allow or dismiss the appeal, or vary any part of the

decision of the Agency, whether the appeal relates to that part

of the decision or not; and

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                  (b)                 shall direct the Agency to deal with the application, or

applications, accordingly (which, if the Agency’s decision was

made under paragraph (d) of subsection (1) above in relation to

any such application, and that decision is upheld, may mean

not publishing any notice under section 37 below, or taking any

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further step in connection with the application, until the

application for revocation has been received).

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    16

 

           (8)           Subsections (2) and (7) of section 44 below apply in relation to an appeal

under this section as they apply in relation to an appeal under section

43 below.

           (9)           This section is subject to section 114 of the 1995 Act (delegation or

reference of appeals).”

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     (2)    In section 41 of the WRA (Secretary of State’s power to call in applications),

after subsection (2) there is added—

           “(3)              An application may not be referred to the Secretary of State under this

section—

                  (a)                 if in relation to the application the Agency is still considering

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whether to make any such decision as is referred to in

subsection (1) of section 36A above, or if it has made such a

decision but has not yet served the notice referred to in

subsection (3) of that section; or

                  (b)                 where the Agency has served a notice on the applicant under

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subsection (3) of that section, until the period for appealing

under that section has expired or (if the applicant appeals) the

appeal has been determined.”

     (3)    In section 45 of the WRA (regulations with respect to appeals)—

           (a)           in subsection (1), after “against decisions” there is inserted “of the

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Agency under section 36A above or”,

           (b)           after subsection (2) there is inserted—

                  “(2A)                    Subsection (2) above does not apply in relation to appeals

against decisions of the Agency under section 36A above.”

     (4)    In section 114 of the Environment Act 1995 (c. 25) (power of Secretary of State

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to delegate or refer in connection with appeals), in subsection (2)(a)(v), after

“section” there is inserted “36A,”.

 14    Publication of application for licence

     (1)    For section 37 of the WRA (publication of application for licence) there is

substituted—

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       “37            Publication of application for licence

           (1)           The Agency shall publish a notice of an application for—

                  (a)                 a full licence or a transfer licence; or

                  (b)                 a licence under this Chapter to obstruct or impede the flow of

any inland waters by means of impounding works,

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                         in the prescribed way or (if no way is prescribed) in a way calculated to

bring the application to the attention of persons who in the Agency’s

view are likely to be affected by the licence.

           (2)           Not later than the date on which that notice is first published, the

Agency shall also serve a copy of it on the persons referred to in

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subsection (3) below (except the applicant, if the applicant is one of

those persons).

           (3)           Those persons are—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    17

 

                  (a)                 any water undertaker within whose area any proposed point of

abstraction or impounding is situated;

                  (b)                 any navigation authority, harbour authority or conservancy

authority having functions in relation to any inland waters at

any such proposed point; and

5

                  (c)                 the drainage board for any internal drainage district within

which any such proposed point is situated,

                         but paragraphs (b) and (c) above do not apply if the licence applied for

is exclusively for the abstraction of water from a source of supply that

does not form part of any inland waters.

10

           (4)           A notice for the purposes of the preceding provisions of this section

shall—

                  (a)                 be in the prescribed form and shall include any prescribed

matters; and

                  (b)                 state that any person may make representations in writing to

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the Agency with respect to the application at any time before

the end of a period specified in the notice.

           (5)           The period referred to in subsection (4)(b) above—

                  (a)                 begins on the date the notice referred to in subsection (1) above

is first published as mentioned there; and

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                  (b)                 shall not end before the end of the period of twenty-eight days

beginning with that date.

           (6)           The Secretary of State may make regulations providing for—

                  (a)                 the requirements of subsection (2) above, or of both subsections

(1) and (2) above, not to apply in prescribed cases;

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                  (b)                 notices of applications to exclude prescribed classes of

information, either generally or as respects prescribed classes of

application.

           (7)           In this section, “proposed point of abstraction or impounding”, in

relation to an application for a licence referred to in subsection (1)

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above, means a place where a licence, if granted in accordance with the

application, would authorise—

                  (a)                 water to be abstracted; or

                  (b)                 the flow of inland waters to be obstructed or impeded by means

of impounding works,

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                         (as the case may be).

           (8)           This section is subject to section 37A below.”

     (2)    After section 37 of the WRA there is inserted—

       “37A            Power to dispense with publication requirements

The Secretary of State may by regulations make provision for—

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                  (a)                 enabling the Agency; or

                  (b)                 him, in the case of applications referred to him in accordance

with section 41 below,

            to direct or determine that the requirements of subsections (1) and (2)

of section 37 above may in any case (except where the Agency is the

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Water Bill [HL]
Part 1 — Abstraction and impounding

    18

 

            applicant) be dispensed with, if in that case it appears to the Agency (or,

as the case may be, the Secretary of State) to be appropriate to do so.”

     (3)    The WRA is further amended as follows—

           (a)           in section 38 (general consideration of applications)—

                  (i)                 in subsection (1), for “for the purposes of the application in

5

accordance with section 37(5)” there is substituted “in the notice

referred to in section 37(4)(b)”,

                  (ii)                after subsection (3) there is added—

                        “(4)                           Subsection (1) above, and paragraph (a) of subsection (3)

above, do not apply if in relation to the application in

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question the requirements of section 37(1) above do not

apply by virtue of section 37(6)(a) above or have been

dispensed with by virtue of section 37A above.”,

           (b)           in section 42 (consideration of called-in applications), in subsection

(3)(a), for “37(4)(b) and (6)(a)” there is substituted “37”,

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           (c)           in section 43 (appeals to Secretary of State), in subsection (5), for “for the

purposes of the application in accordance with section 37(5)” there is

substituted “in any such notice as is referred to in section 37(4)(b)”,

           (d)           in section 66 (inland waters owned or managed by British Waterways

Board), in sub-paragraph (ii) of subsection (2)(c), for the words from

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“subsection (1)” to the end of that sub-paragraph there is substituted

“paragraphs (b) and (c), and the succeeding words, of subsection (3) of

that section were omitted.”

Consideration of licence applications

 15    General consideration of licence applications

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     (1)    Section 38 of the WRA (general consideration of licence applications) is

amended as follows.

     (2)    After subsection (1) there is inserted—

           “(1A)              An application shall be determined in two stages in accordance with

subsections (1B) and (1C) below if it is an application for a full licence

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which, if granted—

                  (a)                 would take effect immediately after the expiry of an existing full

licence (the “existing licence”) and be held by the same person

as the holder of that licence; but

                  (b)                 would in any other respect be different from the existing licence

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in a way which, if the existing licence were to continue without

expiring, would require an application to be made under

section 51(2) below for a variation of the licence.

           (1B)              So far as the application relates to any such difference as is mentioned

in subsection (1A)(b) above, it shall first be treated for determination

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purposes as if it were an application for a variation under section 51(2)

below.

           (1C)              If the result of that would have been the grant of the application for

variation of the licence, the application referred to in subsection (1)

above shall be treated as one for a licence with that variation, and its

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determination concluded accordingly; and otherwise its determination

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    19

 

           shall be concluded as if it were an application for a licence with no such

variation.”

     (3)    In subsection (3), after “regard to” there is inserted “all the relevant

circumstances, including any duty imposed by or under any enactment on

bodies having functions in relation to inland waters (for example, navigation

5

authorities and internal drainage boards), and shall have regard in particular

to”.

 16    Protection from derogation

     (1)    Section 39 of the WRA (obligation to have regard to existing rights and

privileges) is amended as provided in subsections (2) to (5).

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     (2)    In subsection (1), at the beginning there is inserted “Subject to subsection (1A)

below,”.

     (3)    After subsection (1) there is inserted—

           “(1A)              Subsection (1) above does not apply when—

                  (a)                 the application to be determined is one which does not fall

15

within subsection (1A) of section 38 above only because

paragraph (b) of that subsection is not satisfied; or

                  (b)                 the determination of an application is being concluded in

accordance with subsection (1C) of that section.”

     (4)    Subsection (3) is omitted.

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     (5)    In subsection (4), for “section 27(6) above or, as the case may be, section 48(1)

below” there is substituted “(as the case may be) section 27(2) above or section

59C(10) below, or subsection (1) of section 48 below or that subsection as

applied by section 39A(3) below”.

     (6)    In section 42 of the WRA (consideration of called-in applications)—

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           (a)           in subsection (4), at the beginning there is inserted “Subject to

subsection (4A) below,”, and

           (b)           after subsection (4) there is inserted—

                  “(4A)                    Subsection (1A) of section 39 above applies in relation to

subsection (4) above as it applies in relation to section 39(1)

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above.”

     (7)    In section 44 of the WRA (determination of appeals)—

           (a)           in subsection (4), at the beginning there is inserted “Subject to

subsection (4A) below,”, and

           (b)           after subsection (4) there is inserted—

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                  “(4A)                    Subsection (1A) of section 39 above applies in relation to

subsection (4) above as it applies in relation to section 39(1)

above.”

 17    Protected rights

     (1)    After section 39 of the WRA there is inserted—

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