Water Bill (HL Bill 88)

(2) Authorising or requiring the variation of permits or such conditions by
regulators (whether on applications made by holders of permits or
45otherwise).

(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
5taking 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) 10the 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
15respect 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
20permits 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) 25Requiring 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
30specified 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) 35Authorising 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) to arrange itself for action to be taken,

40in 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.

Information, 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) 5regulated activities, and

(ii) in 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
10regulations.

18 Securing—

(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,
15commercially confidential and subject to any other exceptions
specified 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
20with the exercise of any of their functions; and providing for them to take
into 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) 25the carrying on of regulated activities, or

(b) regulated 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) 30sections 169 to 174 of the Water Resources Act 1991;

(b) section 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) 35Functions which may be conferred in reliance on sub-paragraph (1)
include—

(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) 40In sub-paragraph (1) “regulated structures or obstructions” means
structures 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 45Authorising regulators to serve on holders of permits—

(a) notices 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
5regulators serving the notices consider appropriate pending the
taking 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
10contraventions)—

(i) an 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
15of a flood, in the case of flood regulations;

(iii) an 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
20effect to authorise the carrying on of activities to which they relate.

23 Establishing 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) 25the High Court, or

(b) in 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
30specified circumstances to take action instead of that person; and making
provision 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) 35the provision of defences, and

(b) evidentiary 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
40remedial 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
expense.

28 Where a person causes damage to any structure constructed, altered or
45maintained 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
recovered.

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,
5considering 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
10under, 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) 15Making 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,
20sections 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) 25Making 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/
303344) (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
35section 48(2).

Crown application

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

Part 2 Supplementary provision

40Water 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) provision for the amount of any penalty under the scheme to be such
as may be set out in, or calculated in accordance with—

(i) 5the scheme, or

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

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

10Determination 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
determined under the regulations by regulators.

Delegation between regulators

34 15The regulations may make provision authorising regulators to arrange for
specified functions to be exercised on their behalf by other regulators.

Imposition of conditions

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

(a) 20for such conditions to be determined in the light of any specified
general principles and any directions or guidance given under the
regulations;

(b) for such guidance to include guidance sanctioning reliance by a
regulator on any arrangements referred to in the guidance to operate
25to secure a particular result as an alternative to imposing a condition.

Charging schemes

36 The regulations may—

(a) require 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
30sufficient, 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).

35Offences

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

(a) only summarily, or

(b) either summarily or on indictment.

(2) 40The regulations may provide for any such offence to be punishable on
summary conviction with—

(a) imprisonment 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
5exceed £20,000),

or 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,
10and

(ii) in 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,
15and

(ii) in 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
20Justice Act 2003 comes into force, and

(b) in 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
25punishable with imprisonment for a term not exceeding six months.

(5) Regulations 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
30triable either summarily or on indictment to be punishable on
summary 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
35exceeding six months.

(6) The 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) 40a fine,

or both.

Restrictions 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) 45No contravention of any provision of the regulations may make the Crown
criminally liable; but the regulations may provide that the High Court may,

on 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) 5The regulations must provide that if the Secretary of State certifies that it
appears 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) 10Subject to sub-paragraph (6), where a power is conferred in relation to land
by 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) 15that a consent for such purposes may be given on such financial and
other 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
20power in relation to any land in which there is a Crown or Duchy interest to
the 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
  25the Town and Country Planning Act 1990;

• “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;

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

• “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-
  35paragraph (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
40follows.

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