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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

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

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

                  (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)

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above; or

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

within the prescribed period or within such extended period as

may be agreed in writing between the Agency and the

applicant.

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

to—

                  (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;

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

                  (d)                 the procedure on any such appeal.

           (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

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

of the decision or not; and

                  (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

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(1C) above shall be final.

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

(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

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“43,” there is inserted “51,”.

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

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

regardless of when the impounding works were constructed.

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

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     (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.

     (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

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

the licence.”

     (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

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Water Bill [HL]
Part 1 — Abstraction and impounding

    26

 

to be affected if the licence were revoked or varied as

proposed.”

     (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—

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

                  (a)                 include any prescribed matters; and

                  (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

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                        (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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 25    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

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    27

 

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

the transfer to take effect.

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

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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

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

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

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transferee as holder of the licence.

           (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

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

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

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be) a place consisting of or comprising underground strata from

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

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

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

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

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

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

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

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

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.

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           (5)           If—

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

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    28

 

                  (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

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

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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

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

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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

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

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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

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

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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

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

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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

authorised under the old licence);

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                  (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

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

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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

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

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and

                  (e)                 include such other information as the Agency reasonably

requires,

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

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

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

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

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    29

 

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

apportionment notice and the application for revocation referred to in

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

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

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

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

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relating to that part of the abstraction.

           (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

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

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—

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

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

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

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

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shall, if the old licence was a full licence, be taken to have the right to

do so in relation to that part, subject 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—

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

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.

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

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.

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           (13)          In this section—

                                  “exemption” means the disapplication of the restriction on

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

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    30

 

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

meanings as in section 59A above.

       59D            Apportionment of licence to abstract: supplementary

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

contained in licences granted under section 59C above.

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           (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

licence.

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

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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.”

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

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           (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

sections 59A to 59C and 67 below.”,

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           (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”.

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

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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

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

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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

 26    Claims arising out of water abstraction

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     (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

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

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that abstraction cause loss or damage to another person.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    31

 

           (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.

           (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

5

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

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

abstractor in respect of loss or damage caused by his abstraction of

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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

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

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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);

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

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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

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

25

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

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

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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—

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

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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.

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

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     (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”.

 

 

 
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