Water Bill (HL Bill 71)

Preliminary

3 (1) Establishing standards, objectives or requirements in relation to—

(a) regulated activities, and

(b) in the case of fish regulations, structures or obstructions that affect,
5or could affect, the movement of fish through regulated waters.

(2) In the case of water regulations, authorising the making of plans for—

(a) the setting of overall limits,

(b) the allocation of rights, or

(c) the progressive improvement of standards or objectives,

10relating to the use of water resources.

(3) In the case of water regulations, authorising the making of schemes for the
trading or other transfer of rights so allocated.

4 (1) Determining the authorities (whether public or local or the Minister) by
whom functions conferred by the regulations—

(a) 15in relation to permits under the regulations, or

(b) otherwise for or in connection with the regulated field,

are to be exercisable (in this Schedule referred to as “regulators”).

(2) Specifying any purposes for which any such functions are to be exercisable
by regulators.

5 20Enabling the Minister to give directions which regulators are to comply
with, or guidance which regulators are to have regard to, in exercising
functions under the regulations, including—

(a) directions providing for any functions exercisable by one regulator
to be instead exercisable by another;

(b) 25directions given for the purpose of the implementation of any
obligations of the United Kingdom under the EU treaties or under
any international agreement to which the United Kingdom is a party;

(c) directions relating to the exercise of any function in a particular case
or class of case (except functions in relation to the investigation or
30prosecution, in a particular case, of an offence under the regulations).

Permits

6 Prohibiting persons from carrying on any activities of any specified
description, except—

(a) under a permit in force under the regulations, and

(b) 35in accordance with any conditions to which the permit is subject.

7 Specifying restrictions or other requirements in connection with the grant of
permits (including provisions for restricting the grant of permits to those
who are fit and proper persons within the meaning of the regulations); and
otherwise regulating the procedure to be followed in connection with the
40grant of permits.

8 (1) Prescribing the contents of permits.

(2) Authorising permits to be granted subject to conditions imposed by
regulators (the nature of any such condition not being restricted by section
48(2)).

(3) Securing that permits have effect subject to—

(a) conditions specified in the regulations; or

(b) rules of general application specified in or made under the
regulations.

9 (1) 5Requiring permits or the conditions to which permits are subject to be
reviewed by regulators (whether periodically or in any specified
circumstances).

(2) Authorising or requiring the variation of permits or such conditions by
regulators (whether on applications made by holders of permits or
10otherwise).

(3) Regulating the making of changes in the carrying on of the activities.

10 (1) Regulating the transfer or surrender of permits.

(2) Authorising the revocation of permits by regulators.

(3) Authorising the imposition by regulators of requirements with respect to the
15taking of preventive action (by holders of permits or other persons) in
connection with the surrender or revocation of permits.

11 Authorising the Minister to make schemes for the charging by regulators of
fees or other charges in respect of, or in respect of an application for—

(a) the grant of a permit,

(b) 20the variation of a permit or the conditions to which it is subject, or

(c) the transfer or surrender of a permit,

or in respect of the subsistence of a permit.

12 Authorising, or authorising the Minister to make schemes for, the charging
by the Minister or public or local authorities of fees or other charges in
25respect of—

(a) any advice given, or

(b) any testing, assessment or investigation done or other action taken,

in cases where the advice or action is in any way in anticipation of, or
otherwise in connection with, the making of applications for the grant of
30permits or is carried out in pursuance of conditions to which any permit is
subject.

Further regulation

13 (1) Requiring persons who propose to carry out activities of a specified
description to give notice of their proposals to regulators.

(2) 35Requiring owners or occupiers of land to give notice to regulators of any
obstruction of a specified description occurring on the land.

14 Requiring persons to apply for a permit under the regulations in respect of
activities of a specified description.

15 (1) Authorising a regulator, where a person is carrying on an activity of a
40specified description—

(a) to serve notice on the person requiring them to cease carrying on the
activity or, at their own cost, to take such action in connection with
the activity as may be specified in the notice, or

(b) to arrange itself for action to be taken in connection with the activity.

(2) Authorising a regulator to—

(a) to serve notice on persons of a specified description requiring them,
at their own cost, to take such action as may be specified in the notice,
or

(b) 5to arrange itself for action to be taken,

in respect of a structure or obstruction of a specified description.

16 Imposing requirements, or authorising regulators to impose requirements
on persons of a specified description in relation to the operation and
maintenance of specified structures.

10Information, publicity and consultation

17 Enabling persons of any specified description (whether or not they are
holders of permits) to be required—

(a) to compile information about—

(i) regulated activities, and

(ii) 15in the case of fish regulations, structures or obstructions that
affect, or could affect, the movement of fish through
regulated waters;

(b) to provide such information in such manner as is specified in the
regulations.

18 20Securing—

(a) that publicity is given to specified matters;

(b) that regulators maintain registers of specified matters (but excepting
information which under the regulations is, or is determined to be,
commercially confidential and subject to any other exceptions
25specified in the regulations) which are open to public inspection;

(c) that copies of entries in such registers, or of specified documents,
may be obtained by members of the public.

19 Requiring or authorising regulators to carry out consultation in connection
with the exercise of any of their functions; and providing for them to take
30into account representations made to them on consultation.

Enforcement and offences

20 (1) Conferring on regulators functions with respect to the monitoring and
inspection of—

(a) the carrying on of regulated activities, or

(b) 35regulated structures or obstructions.

(2) Authorising regulators to appoint suitable persons to exercise any such
functions and conferring on persons so appointed powers such as those
specified in—

(a) sections 169 to 174 of the Water Resources Act 1991;

(b) 40section 108(4) of the Environment Act 1995;

(c) regulation 26 of the Eels (England and Wales) Regulations 2009
(S.I. 2009/3344S.I. 2009/3344);

(d) sections 31 and 32 of the Salmon and Freshwater Fisheries Act 1975.

(3) Functions which may be conferred in reliance on sub-paragraph (1)
45include—

(a) power to take samples or to make copies of information;

(b) power to arrange for preventive or remedial action to be taken at the
expense of holders of permits.

(4) In sub-paragraph (1) “regulated structures or obstructions” means
5structures or obstructions which—

(a) may be the subject of notices served by regulators under the
regulations, or

(b) may be subject to requirements imposed under the regulations.

21 Authorising regulators to serve on holders of permits—

(a) 10notices requiring them to take remedial action in respect of
contraventions, actual or potential, of conditions to which their
permits are subject;

(b) notices requiring them to provide such financial security as the
regulators serving the notices consider appropriate pending the
15taking of remedial action in respect of any such contraventions;

(c) notices requiring them to take steps to remove or reduce, or to
mitigate the effect of the potential consequences of, the following
imminent risks (whether or not arising from any such
contraventions)—

(i) 20an imminent risk of a significant waste of water resources or
of significant damage to the environment, in the case of water
regulations;

(ii) an imminent risk of a significant impediment to drainage or
of a flood, in the case of flood regulations;

(iii) 25an imminent risk of a significant impediment to the
movement of fish through regulated waters, in the case of
fish regulations.

22 Authorising regulators to suspend the operation of permits so far as having
effect to authorise the carrying on of activities to which they relate.

23 30Establishing a procedure for the resolution of disputes in relation to notices
served by regulators under the regulations.

24 Providing for the enforcement of notices served by regulators under the
regulations by proceedings in—

(a) the High Court, or

(b) 35in the case of fish regulations applying as mentioned in section
48(11)(b), the Sheriff Court.

25 Where action is required to be taken by a person under the regulations or
pursuant to a notice served under the regulations, authorising regulators in
specified circumstances to take action instead of that person; and making
40provision for the liability of that person in respect of reasonable costs
incurred by the regulators in taking such action.

26 Creating offences and dealing with matters relating to such offences,
including—

(a) the provision of defences, and

(b) 45evidentiary matters.

27 Enabling, where a person has been convicted of an offence under the
regulations—

(a) a court dealing with that person for the offence to order the taking of
remedial action (in addition to or instead of imposing any
punishment), or

(b) a regulator to arrange for such action to be taken at that person’s
5expense.

28 Where a person causes damage to any structure constructed, altered or
maintained by a regulator under these regulations, authorising the regulator
to require the person to pay the expenses of the regulator in repairing the
damage and providing for the manner in which such expenses may be
10recovered.

Appeals

29 Conferring rights of appeal in respect of decisions made, notices served or
other things done (or omitted to be done) under the regulations; and making
provision for (or for the determination of) matters relating to the making,
15considering and determination of such appeals (including provision for or
in connection with the holding of inquiries or hearings).

Corresponding provision

30 (1) Making provision which, subject to any modifications that the Minister
considers appropriate, corresponds or is similar to any provision made by or
20under, or capable of being made under—

(a) section 71 of the Water Industry Act 1991 (waste from water sources);

(b) Chapter 2 of Part 2 of the Water Resources Act 1991 (abstraction and
impounding);

(c) Part 1 of the Water Act 2003 (abstraction and impounding).

(2) 25Making provision which, subject to any modifications that the Minister
considers appropriate, corresponds or is similar to—

(a) any provision made by section 339 of the Highways Act 1980 (saving
for works etc of drainage authorities etc);

(b) any provision made by or under, or capable of being made under,
30sections 109 and 110 of the Water Resources Act 1991 (erecting
structures over main rivers etc prohibited without consent);

(c) any provision made by any byelaw, or capable of being made by any
byelaw, under paragraph 5 of Schedule 25 to that Act (byelaws for
flood defence and drainage purposes).

(3) 35Making provision which, subject to any modifications that the Minister
considers appropriate, corresponds or is similar to—

(a) sections 9 to 15 and 18 of the Salmon and Freshwater Fisheries Act
1975 (obstructions to passage of fish);

(b) Part 4 of the Eels (England and Wales) Regulations 2009 (S.I. 2009/
403344) (passage of eels).

(4) Each reference to an enactment in sub-paragraph (1), (2) or (3) is a reference
to that enactment as it has effect on the coming into force of that sub-
paragraph.

(5) Provision made under this paragraph is not subject to the requirement in
45section 48(2).

Crown application

31 Making provision about the application of the regulations to the Crown.

Part 2 Supplementary provision

5Water regulations trading schemes: penalties

32 (1) The regulations may, if they are water regulations, authorise the inclusion in
a trading scheme of—

(a) provision for penalties in respect of contraventions of provisions of
the scheme;

(b) 10provision for the amount of any penalty under the scheme to be such
as may be set out in, or calculated in accordance with—

(i) the scheme, or

(ii) the regulations (including regulations made after the scheme
starts to operate).

(2) 15In this paragraph “trading scheme” means a scheme of the kind mentioned
in paragraph 3(3).

Determination of matters by regulators

33 The regulations may make provision for anything which, by virtue of
paragraphs 7 to 10, could be provided for by the regulations to be
20determined under the regulations by regulators.

Delegation between regulators

34 The regulations may make provision authorising regulators to arrange for
specified functions to be exercised on their behalf by other regulators.

Imposition of conditions

35 25In connection with the determination of conditions as mentioned in
paragraph 8(3)(a) the regulations may in particular provide—

(a) for such conditions to be determined in the light of any specified
general principles and any directions or guidance given under the
regulations;

(b) 30for such guidance to include guidance sanctioning reliance by a
regulator on any arrangements referred to in the guidance to operate
to secure a particular result as an alternative to imposing a condition.

Charging schemes

36 The regulations may—

(a) 35require any such scheme as is mentioned in paragraph 11 or 12 to be
so framed that the fees and charges payable under the scheme are
sufficient, taking one year with another, to cover such expenditure
(whether or not incurred by the regulator or other person to whom
they are so payable) as is specified;

(b) authorise any such scheme to make different provision for different
cases (and specify particular kinds of such cases).

Offences

37 (1) The regulations may provide for any such offence as is mentioned in
5paragraph 26 to be triable—

(a) only summarily, or

(b) either summarily or on indictment.

(2) The regulations may provide for any such offence to be punishable on
summary conviction with—

(a) 10imprisonment for a term not exceeding such period as is specified in
the regulations (which may not exceed the normal maximum term),
or

(b) a fine not exceeding such amount as is so specified (which may not
exceed £20,000),

15or both.

(3) The “normal maximum term” means—

(a) in relation to England and Wales—

(i) in the case of an offence triable only summarily, 51 weeks,
and

(ii) 20in the case of an offence triable either summarily or on
indictment, twelve months;

(b) in relation to Scotland—

(i) in the case of an offence triable only summarily, 6 months,
and

(ii) 25in the case of an offence triable either summarily or on
indictment, twelve months.

(4) Regulations that—

(a) are made before the date on which section 281(5) of the Criminal
Justice Act 2003 comes into force, and

(b) 30in relation to England and Wales, make provision for a summary
offence to be punishable with a term of imprisonment exceeding six
months,

must provide that, where the offence is committed before that date, it is
punishable with imprisonment for a term not exceeding six months.

(5) 35Regulations that—

(a) are made before the date on which section 154(1) of the Criminal
Justice Act 2003 comes into force, and

(b) in relation to England and Wales, make provision for an offence
triable either summarily or on indictment to be punishable on
40summary conviction with a term of imprisonment exceeding six
months,

must provide that, where the offence is committed before that date, it is
punishable on summary conviction with imprisonment for a term not
exceeding six months.

(6) 45The regulations may provide for such an offence to be punishable on
indictment with—

(a) imprisonment for a term not exceeding such period as is specified
(which may not exceed two years), or

(b) a fine,

or both.

5Restrictions on Crown application

38 (1) To the extent that the regulations bind the Crown (by virtue of provision
made under paragraph 31), they are subject to the following restrictions.

(2) No contravention of any provision of the regulations may make the Crown
criminally liable; but the regulations may provide that the High Court may,
10on the application of a regulator, declare unlawful any act or omission of the
Crown which constitutes such a contravention.

(3) Sub-paragraph (2) does not affect the criminal liability of persons in the
service of the Crown.

(4) The regulations must provide that if the Secretary of State certifies that it
15appears to him, as respects any Crown premises and any relevant powers of
entry, that it is requisite or expedient that, in the interests of national
security, the powers should not be exercisable in relation to those premises,
those powers shall not be exercisable in relation to those premises.

(5) Subject to sub-paragraph (6), where a power is conferred in relation to land
20by any provision of the regulations, the regulations must provide that—

(a) that power is to be exercisable in relation to any land in which there
is a Crown or Duchy interest only with the consent of the appropriate
authority, and

(b) that a consent for such purposes may be given on such financial and
25other conditions as the appropriate authority giving the consent may
consider appropriate.

(6) But provision contained in the regulations in accordance with sub-
paragraph (5) is not to require any consent to be given for the exercise of any
power in relation to any land in which there is a Crown or Duchy interest to
30the extent that that power would be so exercisable apart from provision in
the regulations made by virtue of paragraph 31.

(7) In this paragraph—

• “the appropriate authority” has the same meaning as in section 293 of
  the Town and Country Planning Act 1990;

• 35“Crown or Duchy interest” means an interest belonging to Her Majesty
  in right of the Crown or the Duchy of Lancaster, or to the Duchy of
  Cornwall, or belonging to a government department, or held in trust
  for Her Majesty for the purposes of a government department;

• “Crown premises” means premises held by or on behalf of the Crown;

• 40“relevant powers of entry” means powers of entry that are—

  (a)

  contained in the regulations,

  (b)

  exercisable in relation to the premises in question, and

  (c)

  specified in the Secretary of State’s certificate under sub-
  paragraph (4).

Section 74

SCHEDULE 9 Publication requirements under the Land Drainage Act 1991

1 The Land Drainage Act 1991 is amended as follows.

2 (1) Section 2 (review of boundaries of internal drainage districts) is amended as
5follows.

(2) In subsection (2)(b), the words “, in one or more newspapers circulating in
the internal drainage district,” are repealed.

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

“(2A) Where the internal drainage district is wholly or partly in Wales the
10duty under subsection (2)(b) to publish a notice is a duty to publish
the notice in one or more newspapers circulating in that district.”

3 (1) Section 3 (schemes for reorganisation of internal drainage districts etc) is
amended as follows.

(2) In subsection (4)(b), the words “in one or more newspapers circulating in the
15area affected by the scheme” are repealed.

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

“(4A) Where the area affected by the scheme is wholly or partly in Wales
the duty under subsection (4)(b) to publish a notice is a duty to
publish the notice in one or more newspapers circulating in that
20area.”

4 (1) Section 38 (orders subdividing a district for the purposes of raising
expenses) is amended as follows.

(2) In subsection (5)(b), the words “, in one or more newspapers circulating in
that district,” are repealed.

(3) 25After subsection (6) there is inserted—

“(6A) Where an order is made under this section by the drainage board for
an internal drainage district that is wholly or partly in Wales, the
duty under subsection (5)(b) to publish a notice is a duty to publish
the notice in one or more newspapers circulating in that district.”

5 (1) 30Section 39 (petition for subdivision of internal drainage district) is amended
as follows.

(2) In subsection (4)(b), the words “in one or more newspapers circulating in
that district” are repealed.

(3) After subsection (5) there is inserted—

“(5A) 35Where a petition is received by the drainage board for an internal
drainage district that is wholly or partly in Wales, the duty under
subsection (4)(b) to publish a notice is a duty to publish the notice in
one or more newspapers circulating in that district.”

6 (1) Section 48 (procedure for making of rate) is amended as follows.

(2) 40In subsection (3)(b), for “in one or more newspapers circulating in that
district” there is substituted “in some other way”.

(3) After subsection (3) insert—

“(3A) Where the rate is made by the drainage board for an internal
drainage district that is wholly or partly in Wales, the reference in
subsection (3)(b) to publishing the notice in some other way is to be
5read as a reference to publishing it in one or more newspapers
circulating in that district.”

7 (1) Section 58 (allocation of appropriate agency revenue for its functions as an
internal drainage board) is amended as follows.

(2) In subsection (3), the words “in one or more newspapers circulating in the
10internal drainage district in question” are repealed.

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

“(3A) Where the internal drainage district in question is wholly or partly in
Wales, the duty under subsection (3) to publish a resolution is a duty
to publish the resolution in one or more newspapers circulating in
15that district.”

8 (1) Paragraph 1 of Schedule 5 (byelaws: publicity for application and
confirmation) is amended as follows.

(2) In sub-paragraph (1), in paragraph (a), the words from “in the London
Gazette” to the end are repealed.

(3) 20After sub-paragraph (1) insert—

“(1A) Where the relevant drainage board’s district is wholly or partly in
Wales, the duty under sub-paragraph (1)(a) to cause a notice to be
published is a duty to cause the notice to be published in the
London Gazette and in such other manner as the board think best
25adapted for informing persons affected by it.”

Section 75

SCHEDULE 10 Amendments relating to Regional Flood and Coastal Committees

Public Bodies (Admission to Meetings) Act 1960 (c. 67)Public Bodies (Admission to Meetings) Act 1960 (c. 67)

1 In the Schedule to the Public Bodies (Admission to Meetings) Act 1960
30(bodies to which the Act applies), in paragraph 1(i), for “regional and local
flood defence committees” there is substituted “Regional Flood and Coastal
Committees”.

Local Government Act 1974 (c. 7)Local Government Act 1974 (c. 7)

2 In section 25 of the Local Government Act 1974 (authorities subject to
35investigation by the Commission for Local Administration in England), in
subsection (1)(d), for “any regional flood defence committee” there is
substituted “any Regional Flood and Coastal Committee”.