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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

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 16    Publication of application for licence

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

substituted—

       “37            Publication of application for licence

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

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                  (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,

                         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

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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

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

those persons).

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           (3)           Those persons are—

                  (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

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any such proposed point; and

                  (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

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does not form part of any inland waters.

           (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

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

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

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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.

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

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

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

                  (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

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

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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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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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

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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

 17    General consideration of licence applications

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

amended as follows.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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     (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

which, if granted—

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

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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

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

expiring, would require an application to be made under

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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

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

below (but as if the existing licence were to continue without expiring).

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           (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

determination concluded accordingly; and otherwise its determination

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

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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

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

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to”.

 18    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).

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

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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

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

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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.

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

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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)—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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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.”

 19    Protected rights

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

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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

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

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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

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

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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)

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

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     (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”.

 20    Register of certain protected rights

After section 39A of the WRA (inserted by section 19) there is inserted—

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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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Water Bill [HL]
Part 1 — Abstraction and impounding

    23

 

           (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.”

Form, contents and effect of licences

 21    Form, contents and effect of licences

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

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in subsections (2) to (4).

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

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—

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

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

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

above.”

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

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           “(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

used.

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

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

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                  (b)                 the date on which it expires.

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

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.

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 22    Limited extension of abstraction licence validity

After section 46 of the WRA there is inserted—

       “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

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Water Bill [HL]
Part 1 — Abstraction and impounding

    24

 

(“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)

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

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

for a new licence—

                  (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

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licence; and

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

           (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.

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

of—

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

for), the date on which it takes effect;

                  (b)                 otherwise—

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

application under section 41 above, the expiry of the

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

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

which that decision is notified to the applicant.”

Modification of licences

 23    Modification of impounding licences

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

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is amended as follows.

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

     (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

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

may revoke the licence accordingly.

           (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—

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                  (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

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.

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