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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

    1

 

A

Bill

[AS AMENDED IN GRAND COMMITTEE]

To

amend the Water Resources Act 1991 and the Water Industry Act 1991; to

make provision with respect to compensation under section 61 of the Water

Resources Act 1991; to provide for the establishment and functions of the

Water Services Regulation Authority and the Consumer Council for Water,

and for the abolition of the office of Director General of Water Services; to

make provision in connection with land drainage and flood defence; to amend

the Reservoirs Act 1975; to make provision about contaminated land so far as

it relates to the pollution of controlled waters; to confer on the Coal Authority

functions in relation to the discharge of water from coal mines; to extend the

functions of the Environment Agency in relation to the Rivers Esk, Sark and

Tweed and their tributaries so far as they are in England; and for connected

purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and

consent of the Lords Spiritual and Temporal, and Commons, in this present

Parliament assembled, and by the authority of the same, as follows:—

Part 1

Abstraction and impounding

Restrictions on abstraction and impounding

 1     Licences to abstract water

     (1)    After section 24 of the Water Resources Act 1991 (c. 57) (in this Act referred to

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as the “WRA”) there is inserted—

       “24A            Abstraction licences

           (1)           Each licence to abstract water shall be of one of the following three

types—

 
HL Bill 6153/2
 
 

Water Bill [HL]
Part 1 — Abstraction and impounding

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                  (a)                 a licence to abstract water from one source of supply over a

period of twenty-eight days or more for any purpose (a “full

licence”);

                  (b)                 a licence to abstract water from one source of supply over a

period of twenty-eight days or more for the purpose of

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transferring water to another source of supply without

intervening use (a “transfer licence”);

                  (c)                 a licence to abstract water from one source of supply over a

period of less than twenty-eight days (a “temporary licence”).

           (2)           In this Act, a reference (however expressed) to a licence to abstract

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water is to be taken as a reference to all types of licence, unless it is clear

that a different meaning is intended.”

     (2)    In section 72 of the WRA (interpretation of Chapter 2), in subsection (1), in the

appropriate places there is inserted—

                    ““full licence” has the meaning given in section 24A above;”,

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                    ““temporary licence” and “transfer licence” have the meanings given in

section 24A above.”

 2     Restrictions on impounding

     (1)    Section 25 of the WRA (restrictions on impounding) is amended as provided in

subsections (2) to (5).

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     (2)    For subsection (1) there is substituted—

           “(1)              Subject to the following provisions of this Chapter and to any drought

order or drought permit under Chapter 3 of this Part, no person shall—

                  (a)                 begin, or cause or permit any other person to begin, to construct

or alter any impounding works at any point in any inland

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waters which are not discrete waters; or

                  (b)                 cause or permit the flow of any inland waters which are not

discrete waters to be obstructed or impeded at any point by

means of impounding works,

                         unless (in either case) the conditions mentioned in subsection (1A)

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below are satisfied.

           (1A)              The conditions are—

                  (a)                 a licence under this Chapter granted by the Agency to obstruct

or impede the flow of those inland waters at that point by

means of impounding works is in force;

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                  (b)                 the impounding works will not (or, as the case may be, do not)

obstruct or impede the flow of the inland waters except to the

extent, and in the manner, authorised by the licence; and

                  (c)                 any other conditions or requirements imposed by the

provisions, as for the time being in force, of the licence (whether

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as to the provision of compensation water or otherwise) are

complied with.”

     (3)    In subsection (2), the words “, in circumstances not constituting such a

contravention,” are omitted.

     (4)    In subsection (5), for “shall not apply to the construction or alteration of any

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impounding works” there is substituted “shall not apply in respect of any

impounding works”.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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     (5)    After subsection (8) there is added—

           “(9)              In relation to impounding works, references to alteration include the

removal or partial removal of those works, and cognate expressions

shall be construed accordingly.”

     (6)    A licence which—

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           (a)           has been granted in respect of particular impounding works, for the

purposes of section 25 of the WRA, before the coming into force of

subsection (2); and

           (b)           is in force,

            is to be taken to satisfy the condition referred to in section 25(1A)(a) of that Act,

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as inserted by subsection (2), in respect of those impounding works.

     (7)    In section 64 of the WRA (abstraction and impounding by the Agency), for

subsection (1)(b) there is substituted—

                  “(b)                    in relation to—

                        (i)                        the construction or alteration by the Agency of

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impounding works; and

                        (ii)                       the obstruction or impeding by the Agency of the flow

of inland waters by means of impounding works,”.

     (8)    In section 67 of the WRA (ecclesiastical property), in the definition of “relevant

land” in subsection (8), in paragraph (b)(i), after “impounding works” there is

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inserted “is, or”.

     (9)    In section 72 of the WRA (interpretation of Chapter 2), in subsection (1), in the

definition of “the restriction on impounding works”, for “25(1)” there is

substituted “25(1)(a) and (b)”.

     (10)   Subject to section 3 of this Act, the amendments of the WRA made by this

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section apply (as regards any act or omission after this section comes into force)

with respect to impounding works whenever constructed.

 3     Existing impounding works

     (1)    Except as provided in subsection (3), the restriction in section 25(1)(b) of the

WRA (as substituted by section 2 of this Act) does not apply in respect of any

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existing unlicensed impounding works.

     (2)    With respect to any existing unlicensed impounding works to which, but for

subsection (1), that restriction would apply, the Environment Agency may

serve a notice on any relevant person requiring him to apply for a licence.

     (3)    If that person fails to apply for such a licence within—

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           (a)           the period of twenty-eight days beginning with—

                  (i)                 the date of service of the notice, or

                  (ii)                if an appeal is brought under subsection (4) and the appeal is

dismissed, the date when the decision of the appropriate

authority is notified to that person, or

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           (b)           such extended period as may be agreed in writing between the Agency

and that person,

            the restriction in section 25(1)(b) of the WRA applies in respect of the

impounding works from the expiry of that period.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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     (4)    If the relevant person on whom a notice is served under subsection (2) is

aggrieved by the service of that notice, he may by notice appeal to the

appropriate authority.

     (5)           The appropriate authority may by regulations make provision with respect

to—

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

subsection (4),

           (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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     (6)           Where an appeal is brought under subsection (4)—

           (a)           the appropriate authority may 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

           (b)           the decision of the appropriate authority shall be final.

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     (7)           Subsections (4) to (6) are subject to section 114 of the Environment Act 1995

(c. 25) (delegation or reference of appeals).

     (8)    On an application for a licence in respect of any existing unlicensed

impounding works, section 39(1) of the WRA applies only to the extent that the

obstruction or impeding of the flow of inland waters which would, if the

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licence were granted, be authorised by that licence is to differ in any material

respect from that which was taking place at the time the application was made.

     (9)    If a licence granted in respect of existing unlicensed impounding works is

revoked or varied in the circumstances mentioned in section 61 of the WRA

(compensation where licence modified on direction of the Secretary of State),

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subsection (3) of that section shall apply as if that licence had been granted

when construction of the impounding works began and had remained in force

since then.

     (10)   Subsection (9) does not apply to a licence granted in respect of existing

unlicensed impounding works if, before the effective date, there had occurred

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any contravention of section 25(1) of the WRA in respect of those impounding

works.

     (11)   Nothing in the preceding subsections affects the application of section 25(1)(a)

of the WRA (as substituted by section 2 of this Act) to the alteration, after the

effective date, of any existing unlicensed impounding works.

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     (12)   In this section—

                    “the appropriate authority” means—

                  (a)                 in relation to Wales, the Assembly, and

                  (b)                 otherwise, the Secretary of State,

                    “the effective date” means the date when section 2 of this Act comes into

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force,

                    “existing unlicensed impounding works” means unlicensed impounding

works, the construction of which was begun before the effective date,

                    “licence” means a licence of the kind referred to in section 25 of the WRA,

                    “relevant person” means any person who appears to the Environment

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Agency to have responsibility in respect of the impounding works in

question, and

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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                    “unlicensed impounding works” means impounding works (as defined in

section 25(8) of the WRA) in respect of which—

                  (a)                 no licence or authorisation of the kind referred to in section 25

of that Act was in force immediately before the effective date,

and

5

                  (b)                 no such licence has been granted since that date.

     (13)   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), after

paragraph (viii) there is inserted—

                  “(ix)                    section 3 of the Water Act 2003,”.

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 4     Existing impounding works: works notices

     (1)    Without prejudice to the Environment Agency’s power under subsection (2) of

section 3, where it appears to the Agency to be necessary for—

           (a)           the protection of the environment, or

           (b)           the performance of its functions in connection with the management of

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water resources,

            the Agency may serve a works notice on any relevant person with respect to

any existing unlicensed impounding works of the kind mentioned in

subsection (2) of that section.

     (2)    For the purposes of subsection (1), a works notice is a notice requiring the

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person on whom it is served to carry out such works or operations in relation

to the impounding works as—

           (a)           appear to the Environment Agency to be required for the purposes

mentioned in subsection (1)(a) or (b), and

           (b)           are specified in the notice.

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     (3)    The following provisions of the WRA apply in relation to works notices under

this section as they apply in relation to notices referred to in those provisions—

           (a)           subsections (5) to (9) of section 25A (as inserted by section 30 of this

Act), and

           (b)           sections 161B and 161C,

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            including any power to make regulations or give directions, but references in

those provisions to the Secretary of State shall be treated as references to the

appropriate authority.

     (4)    If a person on whom the Agency serves a notice under this section fails to

comply with any of its requirements, he shall be guilty of an offence.

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     (5)    A person who commits an offence under subsection (4) shall be liable—

           (a)           on summary conviction, to a fine not exceeding £20,000;

           (b)           on conviction on indictment, to a fine.

     (6)    If a person on whom a works notice has been served under this section fails to

comply with any of its requirements, the Agency may do what that person was

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required to do and may recover from him any costs or expenses reasonably

incurred by the Agency in doing it.

     (7)    If the Agency is of the opinion that proceedings for an offence under subsection

(4) would afford an ineffectual remedy against a person who has failed to

comply with the requirements of a works notice, the Agency may take

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Water Bill [HL]
Part 1 — Abstraction and impounding

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proceedings in the High Court for the purpose of securing compliance with the

notice.

     (8)    In this section, “the appropriate authority”, “existing unlicensed impounding

works” and “relevant person” have the meanings given in section 3.

 5     Rights of navigation, harbour and conservancy authorities

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For section 26 of the WRA (rights of navigation, harbour and conservancy

authorities) there is substituted—

       “26            Rights of navigation, harbour and conservancy authorities

           (1)           Subject to subsection (2) below, the restriction on abstraction shall not

apply to any transfer, without intervening use, of water from inland

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waters described in the first column of the Table below to inland waters

described in the corresponding entry in the second column, if the

transfer is in the course of, or results from, any operations carried out

by a navigation authority, harbour authority or conservancy authority

in the carrying out of their functions as such an authority.

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Transfer from

Transfer to

 
 

A water system of the

The same water system.

 
 

authority’s.

  
 

A water system of the

Inland waters not forming part

 
 

authority’s.

of that water system.

 

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A supply reservoir of the

A water system of the

 
 

authority’s.

authority’s with which that

 
  

reservoir is connected.

 

           (2)           Subsection (1) above shall not apply to a transfer of water from a water

system to any inland waters outside that water system in order to—

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                  (a)                 empty a dry dock; or

                  (b)                 introduce into those inland waters all or part of a quantity of

water to be abstracted from any connected inland waters in

pursuance of a licence to do so granted under this Chapter.

           (3)           The restriction on impounding works shall not apply to—

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                  (a)                 the construction or alteration of impounding works; or

                  (b)                 the obstruction or impeding of inland waters by means of

impounding works,

                         in the course of the performance by a navigation authority, harbour

authority or conservancy authority of their functions as such an

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authority, unless the construction, alteration, obstruction or impeding

affects any inland waters in relation to which the authority does not

have functions.

           (4)           In this section, references to—

                  (a)                 an authority’s water system are to a water system in relation to

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which the authority has functions;

                  (b)                 an authority’s supply reservoir are to a reservoir—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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                        (i)                        belonging to a navigation authority;

                        (ii)                       used for the purposes of supplying that navigation

authority’s water system; and

                        (iii)                      which does not discharge to any inland waters other

than that water system.

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           (5)           For the purposes of this section, “water system” means the canals, the

harbours, or the canals and harbours constituting the system in

question—

                  (a)                 together with the locks, docks, balancing reservoirs, weirs and

other works associated with the system (other than any supply

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reservoir as described in subsection (4)(b) above); but

                  (b)                 excluding any part of the system which consists of a navigable

river or part of one.”

 6     Rights to abstract small quantities

     (1)    For section 27 of the WRA (rights to abstract small quantities) there is

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substituted—

       “27            Rights to abstract small quantities

           (1)           The restriction on abstraction shall not apply to any abstraction of a

quantity of water not exceeding twenty cubic metres in any period of

twenty-four hours, if the abstraction does not form part of a continuous

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operation, or of a series of operations, by which a quantity of water

which, in aggregate, is more than twenty cubic metres is abstracted

during the period.

           (2)           For the purposes of this Chapter, a person who is in a position to carry

out an abstraction of water which—

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                  (a)                 falls within subsection (1) above; and

                  (b)                 also falls within subsection (3) or (4) below,

                         shall be taken to have the right to do so.

           (3)           An abstraction falls within this subsection if it is an abstraction from

inland waters carried out by or on behalf of an occupier of land

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contiguous to those waters at the place where the abstraction is effected

(“contiguous land”), and—

                  (a)                 the water is abstracted for use on a holding consisting of the

contiguous land with or without other land held with that land;

and

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                  (b)                 it is abstracted for use on that holding for either or both of the

following purposes—

                        (i)                        the domestic purposes of the occupier’s household;

                        (ii)                       agricultural purposes other than spray irrigation.

           (4)           An abstraction falls within this subsection if it is an abstraction from

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underground strata and the water is abstracted by or on behalf of an

individual as a supply of water for the domestic purposes of his

household.

           (5)           In the case of any abstraction of water from underground strata which

falls within subsection (1) above, the restriction imposed by section

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24(2) above shall not apply—

 

 

 
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