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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

    27

 

                  (b)                 to a number of other persons of parts amounting in all to the

whole,

                         of that right.

           (2)           The holder of the old licence and any person proposing to carry on a

part of the abstraction authorised by the old licence in place of the

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holder (a “successor”) shall give notice to the Agency of their

agreement to the division and transfer (an “apportionment notice”).

           (3)           The apportionment notice shall, in relation to the abstraction

authorised by the old licence—

                  (a)                 specify, for each proposed successor, what quantity of water it

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is proposed he be permitted to abstract, and (if the holder of the

old licence is to continue the abstraction in part) what quantity

of water it is proposed he be permitted to abstract;

                  (b)                 specify the purpose or purposes for which the persons referred

to in paragraph (a) above would be permitted to abstract water

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(being one or more of the purposes for which abstraction is

authorised under the old licence);

                  (c)                 specify the point (or points) of abstraction from which it is

proposed those persons would be permitted to abstract water

(being one or more of the points from which abstraction is

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authorised under the old licence);

                  (d)                 include a declaration by each of those persons who requires a

licence under this Chapter in order to carry on the abstraction

that—

                        (i)                        he has, or at the time when the proposed grant to him of

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a new licence under subsection (5) below is to take effect

will have, a right of access in relation to each such point

of abstraction; and

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

least one year beginning with the date on which the new

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

and

                  (e)                 include such other information as the Agency reasonably

requires,

                                       and may specify the date on which the holder and the successor (or

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successors) wish the division and transfer (or transfers) to take effect.

           (4)           The apportionment notice shall be accompanied by an application on

the part of the holder of the old licence for its revocation.

           (5)           Subject to subsection (9) below, if the Agency receives an

apportionment notice and the application for revocation referred to in

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subsection (4) above, the Agency shall—

                  (a)                 revoke the old licence;

                  (b)                 if the holder is to continue the abstraction in part and a licence

is required under this Chapter for that purpose, grant to the

holder of the old licence a licence relating to that part of the

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abstraction; and

                  (c)                 grant to each successor who requires a licence under this

Chapter in order to carry on his part of the abstraction a licence

relating to that part of the abstraction.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    28

 

           (6)           Sections 34 to 45 above shall not apply to the grant of a new licence

under subsection (5) above.

           (7)           Subject to section 46 above and to any provision of regulations made

under section 59D(1) below, each new licence to be granted under

subsection (5) above shall be granted subject to provisions which

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correspond as nearly as practicable to those of the old licence in relation

to the part of the abstraction to be authorised by the new licence.

           (8)           The revocation of the old licence and the grant of the new licences shall

take effect—

                  (a)                 from the date on which the Agency revokes the old licence and

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grants the new ones; or

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

           (9)           The Agency shall not grant a new licence to the holder of the old licence

or to a successor if, by virtue of an exemption, the restriction on

abstraction would not apply to that part of the abstraction proposed in

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relation to him in the apportionment notice.

           (10)          For the purposes of this Chapter, a person (whether the holder of the

old licence or a successor) who proposes to carry on a part of the

abstraction in the circumstances mentioned in subsection (9) above

shall be taken to have the right to do so in relation to that part, subject

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to subsection (11) below.

           (11)          For the purposes of this Chapter, a person shall cease to be taken to

have a right, by virtue of subsection (10) above, to carry on an

abstraction if—

                  (a)                 during a period of four years that person does not carry out any

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such abstraction; or

                  (b)                 following an order under section 27A(1) above or regulations

under section 33A above, that person is granted a full licence in

respect of abstraction from the same point.

           (12)          For the purposes of section 39A above, a new licence granted under

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subsection (5) above shall be treated as if it (together with any other

new licence granted by virtue of the relevant apportionment notice)

had been granted at the time of, and in place of, the grant of the old

licence.

           (13)          In this section—

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                                  “exemption” means the disapplication of the restriction on

abstraction under or by virtue of section 27 or 33A above; and

                                  “point of abstraction” and “right of access” have the same

meanings as in section 59A above.

       59D            Apportionment of licence to abstract: supplementary

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           (1)           The Secretary of State may make regulations about the provisions to be

contained in licences granted under section 59C above.

           (2)           Nothing in section 59C above shall affect the liability of the holder of

the old licence for any failure by him, before the revocation of that

licence took effect, to comply with any condition or requirement of that

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licence.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    29

 

           (3)           If the holder of the old licence is a person in whom the old licence has

vested under section 59B above, an apportionment notice shall be of no

effect unless the notice required by section 59B(4) has been given.

           (4)           In this section, “apportionment notice” and “old licence” have the same

meanings as in section 59C above.”

5

     (2)    In section 47 of the WRA (holders of licence)—

           (a)           for subsection (2) there is substituted—

                  “(2)                    The person to whom a licence under this Chapter is granted to

abstract water or to obstruct or impede any inland waters is the

holder of the licence for the purposes of this Act, subject to

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sections 59A to 59C and 67 below.”,

           (b)           subsection (3) is omitted.

     (3)    In section 189 of the WRA (register of abstraction and impounding licences), in

subsection (1)(b), for the words from “section 49” to the end there is substituted

“section 59A, 59B or 59C above”.

15

     (4)    Sections 49 and 50 of the WRA (which relate to the succession to licences to

abstract water) shall cease to have effect.

     (5)    Subsection (4) does not affect the succession to a licence to abstract water where

the death or other act or event referred to in section 49(2)(a) or 50(1)(a) or (b) of

the WRA occurred before the coming into force of that subsection, and section

20

49 of the WRA or (as applicable) any regulations under section 50 of the WRA

which were in force immediately before the coming into force of subsection (4)

are to continue to have effect in relation to such a case despite the repeal of the

applicable section.

Claims and compensation

25

 24    Claims arising out of water abstraction

     (1)    After section 48 of the WRA there is inserted—

       “48A            Civil remedies for loss or damage due to water abstraction

           (1)           Subject to subsection (7) below and to section 79 (including that section

as applied by section 79A(9)) below, a person who abstracts water from

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any inland waters or underground strata (an “abstractor”) shall not by

that abstraction cause loss or damage to another person.

           (2)           A person who suffers such loss or damage (a “relevant person”) may

bring a claim against the abstractor.

           (3)           Such a claim shall be treated as one in tort for breach of statutory duty.

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           (4)           In proceedings in respect of a claim under this section, the court may

not grant an injunction against the abstractor if that would risk

interrupting the supply of water to the public, or would put public

health or safety at risk.

           (5)           Except as provided in this section, no claim may be made in civil

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proceedings by a person (whether or not a relevant person) against an

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    30

 

           (5)           abstractor in respect of loss or damage caused by his abstraction of

water.

           (6)           Nothing in this section prevents or affects a claim for negligence or

breach of contract.

           (7)           This section does not apply, and no claim may be brought under this

5

section, where the loss or damage is loss or damage caused by an

abstractor acting in pursuance of a licence under this Chapter and—

                  (a)                 in respect of which a person is entitled to bring a claim under

section 60 below (or would be so entitled if there were a breach

of the duty referred to in that section);

10

                  (b)                 in respect of which a person would have been entitled to bring

a claim under section 60 below but for an express provision

(including, for example, section 39(1A) above and section

59C(6) below) disapplying that duty; or

                  (c)                 constituting grounds on which a person is entitled to apply to

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the Secretary of State under section 55 below (or would be so

entitled but for subsection (2) of that section) for the revocation

or variation of that licence,

                         but without prejudice to the application of section 48 above.”

     (2)    In section 48 of the WRA (general effect of licence), in subsection (2), after

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“supply” there is inserted “(other than an abstraction in respect of which a

claim could be brought under section 48A below, in which case that section

shall apply)”.

     (3)    In relation to loss or damage suffered before the coming into force of this

section—

25

           (a)           section 48A of the WRA inserted by subsection (1) of this section does

not apply, and

           (b)           section 48 of, and paragraphs 1(2) and 2 of Schedule 7 to, the WRA

continue to have effect as if subsection (2) of this section were not in

force.

30

 25    Compensation for modification of licence on direction of Secretary of State

     (1)    Section 61 of the WRA (compensation where licence modified on direction of

the Secretary of State) is amended in accordance with subsections (2) and (3).

     (2)    In subsection (4), for “seven” there is substituted “four”.

     (3)    After subsection (4) there is inserted—

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           “(4A)              No compensation shall be payable under this section in respect of the

variation of a full licence, or of a transfer licence which specifies a

minimum value under section 46(2A) above, so as to reduce the

quantity of water which the holder of the licence is authorised by the

licence to abstract from the source of supply to which the licence relates

40

if—

                  (a)                 the ground for varying the licence is that the Secretary of State

is satisfied that the variation is necessary in order to protect the

availability of water in the source of supply to which the licence

relates;

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                  (b)                 the variation does not reduce the quantity of water which the

holder of the licence is authorised by the licence to abstract to

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    31

 

                  (b)                 less than the minimum value specified in the licence under

section 46(2A) above for the purposes of this subsection; and

                  (c)                 the conditions set out in subsection (4B) below are satisfied.

           (4B)              Those conditions are that—

                  (a)                 the licence was granted after the coming into force of section 19

5

of the Water Act 2003;

                  (b)                 the variation is made no sooner than the end of the period of six

years beginning with the date on which the licence took effect;

and

                  (c)                 the variation takes effect no sooner than the end of the period of

10

six years beginning with the date of the variation.”

     (4)    The amendment made by subsection (2) has effect in relation to the revocation

or variation of a licence only if the period referred to in section 61(4) of the

WRA during which no water was abstracted in pursuance of the licence began

after the coming into force of that subsection.

15

 26    Recovery of compensation from new licence-holder

After section 61 of the WRA there is inserted—

       “61A            Recovery of compensation from new licence-holder

           (1)           This section applies where compensation has been paid under section

61 above to the holder of a licence (“licence A”) following its revocation,

20

and—

                  (a)                 the holder of licence A was a water undertaker;

                  (b)                 at the time of the revocation an application from a qualifying

person for a licence to abstract water (“licence B”) was

outstanding;

25

                  (c)                 if the Agency had granted licence B while licence A still had

effect, the Agency would have been in breach of the duty

imposed on it by section 39(1) above owed to the holder of

licence A;

                  (d)                 the ground for revoking licence A was that the Agency was of

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the view that in the interests of greater efficiency in the use of

water resources it would be better for licence B to be granted

and licence A revoked; and

                  (e)                 the Agency proposes to grant licence B.

           (2)           If this section applies, the Agency may (if licence B is granted) recover

35

from the qualifying person the amount of the compensation referred to

in subsection (1) above (or such lesser amount as the Agency

determines).

           (3)           Subsection (6) of section 41 of the 1995 Act (which confers powers to

make schemes imposing charges) shall apply to the amount referred to

40

in subsection (2) above as if it were a charge due and payable to the

Agency in respect of the subsistence of licence B.

           (4)           In this section, “qualifying person” means—

                  (a)                 a water undertaker; or

                  (b)                 a person who has made an application for an appointment or

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variation replacing a company as a water undertaker under

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    32

 

                  (b)                 section 8 of the Water Industry Act 1991 which has not been

determined.”

 27    Withdrawal of compensation for certain revocations and variations

     (1)    This section applies where—

           (a)           a licence to abstract water is revoked or varied on or after 15th July 2012

5

in pursuance of a direction under section 54 or 56 of the WRA;

           (b)           the licence was granted before the coming into force of section 19 of this

Act;

           (c)           the licence is one which is expressed to remain in force until revoked;

and

10

           (d)           the ground for revoking or varying the licence is that the Secretary of

State is satisfied that the revocation or variation is necessary in order to

protect any waters or underground strata, or any flora and fauna

dependent on them, from serious damage.

     (2)    Where this section applies, no compensation is payable under section 61 of the

15

WRA in respect of the revocation or variation of the licence.

Water resources management schemes

 28    Water resources management schemes: other abstractors

After section 20 of the WRA there is inserted—

       “20A            Water resources management schemes: other abstractors

20

           (1)           The Agency may enter into and maintain such arrangements with

holders of abstraction licences other than water undertakers for

securing the proper management or operation of—

                  (a)                 the waters from which they have the right by virtue of their

licences to abstract water; and

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                  (b)                 any reservoirs, apparatus or other works which are used for the

purposes of or in connection with their abstractions and which

belong to them, are operated by them or are otherwise under

their control,

                                       as the Agency from time to time considers appropriate for the purpose

30

of carrying out its functions under section 6(2) of the 1995 Act.

           (2)           Without prejudice to the power of the Agency and any holder of an

abstraction licence to include any such provision as may be agreed

between them in arrangements under this section, such arrangements

may—

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                  (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 the holder of the licence will use for the

purposes of or in connection with his abstraction;

                  (b)                 contain provision requiring payments to be made by the

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Agency to the holder of the licence; and

                  (c)                 require the reference to and determination by the Secretary of

State or the Water Services Regulation Authority of questions

arising under the arrangements.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    33

 

           (3)           The Agency shall send a copy of any arrangements entered into by it

under this section to the Secretary of State.

           (4)           In this section, references to abstraction licences are to licences under

Chapter 2 of this Part to abstract water.”

 29    Water resources management schemes: referral to Secretary of State

5

     (1)    After section 20A of the WRA (inserted by section 28) there is inserted—

       “20B            Water resources management schemes: referral to Secretary of State

           (1)           This section applies where—

                  (a)                 the Agency has sought to enter into arrangements acceptable to

it under section 20 or 20A above, but is satisfied that the other

10

party is unwilling to enter into such arrangements or to do so on

terms appearing to the Agency to be reasonable; or

                  (b)                 having entered into such arrangements, the Agency has sought

to renew or vary them but is satisfied that the other party is

unwilling to do so or to do so on terms appearing to the Agency

15

to be reasonable.

           (2)           Where this section applies, the Agency may refer to the Secretary of

State the question (as the case may be)—

                  (a)                 whether such arrangements should be entered into, and if so, on

what terms; or

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                  (b)                 whether the arrangements should be renewed or varied (as the

case may be) and if so, on what terms.

           (3)           If the Secretary of State determines that arrangements should be

entered into or (as the case may be) renewed or varied, such

arrangements on the terms determined by the Secretary of State shall be

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enforceable—

                  (a)                 by civil proceedings by the Secretary of State for an injunction

or for any other appropriate relief; and

                  (b)                 where the other party is a water undertaker, also under section

18 of the Water Industry Act 1991 (enforcement orders) by the

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Secretary of State.

           (4)           The functions of the Secretary of State under subsection (2) above shall

be treated for the purposes of section 114 of the 1995 Act (delegation or

reference of appeals) as if they were functions to which paragraph (a)

of subsection (1) of that section applied.”

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Enforcement

 30    Enforcement notices, and related procedures and offences

After section 25 of the WRA there is inserted—

       “25A            Enforcement notices

           (1)           Subject to the following provisions of this section, where it appears to

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the Agency that a person is—

 

 

 
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