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Session 2002 - 03
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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

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       “39A            Protected rights for the purposes of this Chapter

           (1)           For the purposes of this Chapter, a right is a protected right if—

                  (a)                 it is such a right as a person who is the holder of a full licence is

taken to have by virtue of section 48(1) below;

                  (b)                 subject to subsection (2) below, it is such a right as a person is

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taken to have by virtue of section 27(2) above; or

                  (c)                 it is such a right as a person is taken to have by virtue of

subsection (10) of section 59C below (subject to subsection (11)

of that section).

           (2)           The protected right mentioned in subsection (1)(b) above is as to an

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abstraction or series of abstractions amounting in aggregate to twenty

cubic metres, even if (by virtue of an order under section 27A(1) above)

section 27(1) has effect in relation to the person in question as if a

different quantity had been substituted.

           (3)           Subject to subsection (4) below, the right to abstract water which a

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person who was the holder of a full licence which has ceased to have

effect (or has ceased in part to have effect) by virtue of—

                  (a)                 any provision made by virtue of section 27A(5) above in an

order made under section 27A(1) above; or

                  (b)                 any provision made by virtue of section 33A(5) above in

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regulations made under section 33A above,

                         was taken to have by virtue of section 48(1) below shall be a protected

right.

           (4)           A protected right referred to in subsection (3) above shall cease to be a

protected right if—

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                  (a)                 during a period of four years the person who was the holder of

the licence in question (“the old licence”) does not carry out any

such abstraction as would have been authorised by the old

licence if it had still been in force; or

                  (b)                 following a further order under section 27A(1) above or further

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regulations under section 33A above, the holder of the old

licence is granted another full licence in respect of abstraction

from the same point as that authorised by the old licence.

           (5)           In subsection (4) above, references to the old licence, in the case of a

licence which ceased to have effect only to the extent specified in the

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order or regulations referred to in subsection (3) above, are to the part

of the licence which ceased to have effect.

           (6)           Any reference in this Chapter to the person entitled to a protected right

shall be construed in accordance with this section.

           (7)           This section is subject to any provision made by virtue of subsection (3)

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of section 39B below, and to subsections (4) and (5) of that section.”

     (2)    In section 72 of the WRA (interpretation of Chapter 2), in the entry for

“protected right” in subsection (1), for “section 39(3)” there is substituted

“section 39A”.

 18    Register of certain protected rights

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After section 39A of the WRA (inserted by section 17) there is inserted—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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       “39B            Register of certain protected rights

           (1)           The Secretary of State may by regulations make provision for and in

connection with the establishment, and for the keeping and

maintenance by the Agency, of one or more registers of protected rights

which arise otherwise than by virtue of a licence under this Chapter to

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abstract water.

           (2)           The regulations may, in particular, provide for—

                  (a)                 a register to relate to a prescribed geographical area, or for

different sections of a register to relate to different geographical

areas (whether prescribed or not);

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                  (b)                 the inclusion of protected rights which arise other than by

virtue of any provision of this Act;

                  (c)                 the form and contents of the register, and its inspection by

members of the public;

                  (d)                 the procedure for applying for a protected right to be included

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in the register, including any information which is to

accompany the application;

                  (e)                 cases in which it is the duty of the Agency to include a protected

right in the register without an application for inclusion having

been made.

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           (3)           The Secretary of State may by order designate any geographical area in

respect of which a register, or a section of a register, relates as an area

of compulsory registration.

           (4)           If he does so, a protected right in that area which is not registered shall

not have effect as a protected right for any purpose of this Act (other

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than that of registering it) for so long as it is not registered.

           (5)           Subsection (4) above does not apply in relation to any protected right

until after the expiry of the period of two years beginning with the date

on which the order under subsection (3) above was made, or such

longer period as may be specified in the order.

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           (6)           An order under subsection (3) above may be made only on the

application of the Agency; but the Secretary of State may direct the

Agency to make such an application.

           (7)           Schedule 6 to this Act shall have effect with respect to applications for

orders under subsection (3) above and with respect to the making of

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such orders.

           (8)           The power to make orders under this section shall be exercisable by

statutory instrument; and a statutory instrument containing an order

under this section shall be subject to annulment in pursuance of a

resolution of either House of Parliament.

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           (9)           Paragraphs (d) to (f) of section 219(2) below apply in relation to orders

under this section as they apply to regulations made under this Act.”

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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Form, contents and effect of licences

 19    Form, contents and effect of licences

     (1)    Section 46 of the WRA (form and contents of licences) is amended as provided

in subsections (2) to (4).

     (2)    In subsection (2), for the words before paragraph (a) there is substituted “Every

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full licence under this Chapter shall, and any other licence under this Chapter

to abstract water may, make—”.

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

           “(2A)              Every full licence under this Chapter shall, and any transfer licence

under this Chapter may, specify for the purposes of section 61(4A)

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below a minimum value for the quantity referred to in subsection (2)(a)

above.”

     (4)    For subsections (4) and (5) there is substituted—

           “(4)              Every licence under this Chapter to abstract water shall also specify the

purposes for which water abstracted in pursuance of the licence is to be

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used.

           (5)              Every licence under this Chapter to abstract water shall state—

                  (a)                 the date on which it takes effect; and

                  (b)                 the date on which it expires.

           (5A)              Every licence under this Chapter to obstruct or impede any inland

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waters shall remain in force until revoked.”

     (5)    In section 47 of the WRA (holders of licence), in subsection (1), the words “to

abstract water” are omitted.

 20    Limited extension of abstraction licence validity

After section 46 of the WRA there is inserted—

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       “46A            Limited extension of abstraction licence validity

           (1)           If the condition in subsection (2) below is met, a full licence or a transfer

licence whose term exceeded twelve months but whose expiry date

(“the expiry date”) has passed shall be treated for all the purposes of

this Act as not expiring until the date mentioned in subsection (4)

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below.

           (2)           The condition is that the Agency receives, not later than the beginning

of the period of three months ending on the expiry date (or such later

date before the expiry date as the Agency agrees), a valid application

for a new licence—

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                  (a)                 for abstraction from the same point as the abstraction licensed

by the expiring licence;

                  (b)                 whose holder would be the same as the holder of the expiring

licence; and

                  (c)                 which would take effect immediately after the expiry date.

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Water Bill [HL]
Part 1 — Abstraction and impounding

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           (3)           For the purposes of subsection (2) above, a “valid” application is one

which complies with all the requirements of this Act in relation to the

making of applications for licences of the type in question.

           (4)           The date referred to in subsection (1) above is whichever is the later

of—

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                  (a)                 if a new licence is granted (whether or not on the terms applied

for), the date on which it takes effect;

                  (b)                 otherwise—

                        (i)                        except where the Secretary of State calls in an

application under section 41 above, the expiry of the

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period for appealing under section 43 above, or if an

appeal is brought, the date of its withdrawal; or

                        (ii)                       where the Secretary of State decides (under section 42 or

44 above) that no licence is to be granted, the date on

which that decision is notified to the applicant.”

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Modification of licences

 21    Modification of impounding licences

     (1)    Section 51 of the WRA (modification of licence on application of licence holder)

is amended as follows.

     (2)    In subsection (1), after “Chapter” there is inserted “to abstract water”.

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

           “(1A)              The holder of a licence under this Chapter to obstruct or impede the

flow of inland waters (an “impounding licence”) may apply to the

Agency to revoke the licence and, on any such application, the Agency

may revoke the licence accordingly.

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           (1B)              The Agency may require conditions to be met to its satisfaction before

revocation of the impounding licence takes effect, and those conditions

may in particular include conditions—

                  (a)                 requiring the removal of all or part of the impounding works;

                  (b)                 as to the restoration of the site of the impounding works to a

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state which is satisfactory to the Agency;

                  (c)                 relating to the inland waters the flow of which is obstructed or

impeded by means of the impounding works.

           (1C)              The person making an application under subsection (1A) above (“the

applicant”) may by notice appeal to the Secretary of State if—

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                  (a)                 he is dissatisfied with the decision of the Agency as to—

                        (i)                        whether his licence may be revoked; or

                        (ii)                       any conditions imposed by virtue of subsection (1B)

above; or

                  (b)                 the Agency fails to give notice of its decision to the applicant

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within the prescribed period or within such extended period as

may be agreed in writing between the Agency and the

applicant.

           (1D)              The Secretary of State may by regulations make provision with respect

to—

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Water Bill [HL]
Part 1 — Abstraction and impounding

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                  (a)                 the grounds upon which notices of appeal may be served under

subsection (1C) above;

                  (b)                 the manner in which such notices shall be served;

                  (c)                 the period within which such notices shall be served;

                  (d)                 the procedure on any such appeal.

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           (1E)              Where an appeal is brought under subsection (1C) above, the Secretary

of State may—

                  (a)                 allow or dismiss the appeal or reverse 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)                 may deal with the application as if it had been made to him in

the first place.

           (1F)              The decision of the Secretary of State on any appeal under subsection

(1C) above shall be final.

           (1G)              Subsections (1C) to (1F) above are subject to section 114 of the 1995 Act

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(delegation or reference of appeals).”

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

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

“43,” there is inserted “51,”.

     (5)    The amendments made by this section apply (as regards any act or omission

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after this section comes into force) in respect of impounding licences,

regardless of when the impounding works were constructed.

 22    Proposals for modification at instance of Agency or Secretary of State

     (1)    Section 52 of the WRA (proposals for modification of licences at the instance of

the Agency or the Secretary of State) is amended as follows.

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

           “(1A)              In the case of a licence to obstruct or impede any inland waters, a

variation may take the form of a requirement that the impounding

works be modified in ways specified in the proposed new provision of

the licence.”

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     (3)    In subsection (4), for paragraph (b) there is substituted—

                  “(b)                    be published in the prescribed way or (if no way is prescribed)

in a way calculated to bring it to the attention of persons likely

to be affected if the licence were revoked or varied as

proposed.”

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     (4)    In subsection (5), for “otherwise than in the London Gazette” there is

substituted “as mentioned in subsection (4)(b) above”.

     (5)    For subsection (6) there is substituted—

           “(6)              A notice for the purposes of subsection (4) above shall—

                  (a)                 include any prescribed matters; and

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                  (b)                 state that, before the end of a period specified in the notice—

                        (i)                        the holder of the licence may give notice in writing to the

Agency objecting to the proposals; and

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    25

 

                        (ii)                       any other person may make representations in writing

to the Agency with respect to the proposals.”

     (6)    For subsection (7) there is substituted—

           “(7)              The period referred to in subsection (6)(b) above—

                  (a)                 begins on the date the notice referred to in subsection (4) above

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is first published as mentioned there; and

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

beginning with that date.”

     (7)    Subsection (8) is omitted.

Transfer and apportionment of licences

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 23    Transfer and apportionment of licences

     (1)    After section 59 of the WRA there is inserted—

       “59A            Transfer of licence

           (1)           The following licences—

                  (a)                 a full licence;

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                  (b)                 a transfer licence; or

                  (c)                 a licence to obstruct or impede the flow of inland waters by

means of impounding works,

                         may be transferred by the holder of the licence to another person (“the

transferee”) in accordance with the following provisions of this section.

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           (2)           The holder and the proposed transferee shall give notice (a “transfer

notice”) to the Agency of their agreement that the licence should be

transferred.

           (3)           The transfer notice shall include—

                  (a)                 such information as the Agency reasonably requires; and

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                  (b)                 (in the case of the transfer of a full licence or of a transfer licence)

a declaration by the proposed transferee that—

                        (i)                        he has, or at the time when the proposed transfer is to

take effect will have, a right of access in relation to each

point of abstraction; and

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

least one year beginning with the date on which the

proposed transfer is to take effect, or until the licence is

to expire (if sooner),

                                       and may specify the date on which the holder and the transferee wish

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the transfer to take effect.

           (4)           If the holder is a person in whom the licence has vested under section

59B below, a transfer notice shall be of no effect unless the notice

required by section 59B(4) has been given.

           (5)           Subject to subsection (4) above, if the Agency receives a transfer notice

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which complies with the requirements of subsections (2) and (3) above,

the Agency shall amend the licence by substituting the name of the

transferee as holder of the licence.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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           (6)           The transfer shall take effect—

                  (a)                 from the date on which the Agency amends the licence; or

                  (b)                 from the date specified in the transfer notice, if later.

           (7)           Nothing in this section shall affect the liability of the holder of the

licence for any failure by him, before the transfer took effect, to comply

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with any condition or requirement of that licence.

           (8)           In this section—

                                  “point of abstraction” means a place where the licence authorises

water to be abstracted from inland waters or (as the case may

be) a place consisting of or comprising underground strata from

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which the licence authorises water to be abstracted; and

                                  “right of access” means, in relation to a point of abstraction, a right

of access to land of the kind referred to in subsection (2)(a) or, as

the case may be, (3)(a) of section 35 above; and references to a

person who will have such a right of access shall be construed

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in accordance with that section (including subsections (4) to (6)).

       59B            Vesting of licence on death or bankruptcy of holder

           (1)           On the death of the holder of a licence under this Chapter, the licence

shall be regarded as property forming part of the deceased’s personal

estate, whether or not it would be so regarded apart from this

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subsection, and shall accordingly vest in his personal representatives.

           (2)           If a bankruptcy order is made against the holder of a licence under this

Chapter, the licence shall be regarded for the purposes of any of the

Second Group of Parts of the Insolvency Act 1986 (insolvency of

individuals; bankruptcy) as property forming part of the bankrupt’s

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estate, whether or not it would be so regarded apart from this

subsection, and shall accordingly vest as such in the trustee in

bankruptcy.

           (3)           A person in whom a licence vests under this section shall become the

holder of the licence, in place of the prior holder, from the date of the

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vesting.

           (4)           Where a licence vests in any person under this section, that person shall

give notice of that fact to the Agency not later than the end of the period

of fifteen months beginning with the date of the vesting.

           (5)           If—

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                  (a)                 a licence vests in any person under this section; but

                  (b)                 that person fails to give the notice required by subsection (4)

above within the period mentioned there,

                         the licence shall cease to have effect.

       59C            Apportionment of licence to abstract

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           (1)           The holder of a full licence or of a transfer licence (the “old licence”)

may apply to the Agency for the division of the holder’s right to

abstract water in accordance with the old licence and for the transfer—

                  (a)                 to another person of part, or to a number of other persons of

parts not amounting to the whole; or

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