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(ii) in connection with such an operation or series of | |
operations relating to the abstraction of water in | |
underground strata, before any other thing which is | |
mentioned in section 24(2) above is done; or | |
(iii) before any impounding works are constructed or | 5 |
altered, | |
in reliance on the exemption. | |
(3) The regulations may provide for an exemption to apply generally or to | |
relate to— | |
(a) a prescribed geographical area; | 10 |
(b) a prescribed source of supply (in the case of an exemption from | |
the restriction on abstraction or the other restrictions imposed | |
by section 24 above); or | |
(c) prescribed inland waters (in the case of an exemption from the | |
restriction on impounding works). | 15 |
(4) Subject to subsection (5) below, if regulations under this section | |
provide for an exemption falling within subsection (1)(a) above, the | |
regulations shall— | |
(a) if appropriate, make provision for the exemption not to permit | |
a person who is authorised by a licence under this Chapter to | 20 |
carry on an abstraction operation (or series of operations) to | |
carry it on beyond the authorisation conferred by the licence; | |
and | |
(b) make provision as to whether or not, in relation to any | |
abstraction, the exemption provided for by the regulations is to | 25 |
be counted cumulatively with any other exemption which a | |
person has by virtue of this section or section 27 above. | |
(5) The regulations may make provision for a licence granted under this | |
Chapter and which is for the time being in force to cease to have effect, | |
or to cease to have effect to the extent specified in the regulations, if it | 30 |
authorises an activity which falls to any extent within the exemption | |
provided for by the regulations.” | |
12 Orders under section 33 of the WRA, etc | |
(1) The appropriate authority may by order revoke— | |
(a) any order made under section 33 of the WRA (power to provide for | 35 |
further rights to abstract), | |
(b) any order made under any local or private Act which provides for any | |
exception from— | |
(i) the restriction on abstraction (within the meaning of Chapter 2 | |
of Part 2 of the WRA), or | 40 |
(ii) that restriction and the one imposed by section 24(2) of the | |
WRA, | |
or for an exception which has the effect of such an exception. | |
(2) An order of a kind referred to in paragraph (a) or (b) of subsection (1) is | |
referred to below in this section as an “exception order”. | 45 |
(3) In this section, “the appropriate authority” means— | |
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(a) in relation to the revocation of an exception order which relates to | |
inland waters or underground strata which are wholly in England, the | |
Secretary of State, | |
(b) in relation to the revocation of an exception order which relates to | |
inland waters or underground strata which are wholly in Wales, the | 5 |
Assembly, | |
(c) in relation to the revocation of an exception order which relates to | |
inland waters or underground strata which are partly in England and | |
partly in Wales— | |
(i) the Secretary of State, in relation to the English part, | 10 |
(ii) the Assembly, in relation to the Welsh part. | |
and references in this section (however expressed) to the revocation of an | |
exception order are to be construed accordingly. | |
(4) Subject to subsection (3)(c), an order under this section may revoke the | |
exception order either wholly, or only in relation to— | 15 |
(a) any one or more areas of inland waters specified in the order under this | |
section or any class of inland waters so specified, or | |
(b) any underground strata described in the order under this section in any | |
way mentioned in section 33(2)(b) of the WRA or any other way. | |
(5) An order under this section may make provision, subject to any conditions or | 20 |
limitations specified in the order— | |
(a) for the restriction on abstraction (and, in the case of abstractions from | |
underground strata, the other restrictions in section 24 of the WRA) to | |
continue not to apply to an abstraction despite the revocation of the | |
exception order, | 25 |
(b) for a person to be taken to continue to have a right to abstract water, for | |
the purposes of Chapter 2 of Part 2 of the WRA, to the same extent he | |
was taken to do so under the exception order, | |
(c) for the payment by the Agency of compensation, in cases specified in | |
the order, to any person who suffers loss or damage as a result of the | 30 |
revocation of the exception order. | |
(6) If an order under this section provides as mentioned in subsection (5)(a), the | |
order must also say whether or not the exemption so provided for is to be | |
counted cumulatively with any other exemption which a person has by virtue | |
of section 27 or 33A of the WRA. | 35 |
(7) If an order made under subsection (1)(b) revokes the exception order wholly, | |
or wholly so far as it is not already revoked, the order under subsection (1)(b) | |
may also repeal so much of the local or private Act as constitutes the power to | |
make the exception order. | |
(8) The procedure provided for by section 33 of and Schedule 6 to the WRA, or (as | 40 |
the case may be) any corresponding procedure provided for by the local or | |
private Act in question, does not apply in relation to an order under this | |
section. | |
(9) The power of the Assembly to make an order by virtue of subsection (3)(b) or | |
(c)(ii) of this section is to be treated as if it were a relevant transferred | 45 |
environmental function for the purposes of paragraph 6 of Schedule 3 to the | |
Government of Wales Act 1998 (c. 38) (intervention in case of functions relating | |
to water). | |
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(10) No order may be made under this section before the coming into force of | |
section 8 of this Act. | |
(11) Section 33 of the WRA shall cease to have effect; but (subject to the provisions | |
of this section) any order under section 33 of the WRA which was in force | |
immediately before its repeal shall continue in force despite the repeal. | 5 |
(12) In this section, “inland waters” and “underground strata” have the meanings | |
given in section 221(1) of the WRA. | |
Applications for a licence | |
13 Who may apply for a licence | |
(1) Section 35 of the WRA (restrictions upon who may apply for abstraction | 10 |
licences) is amended as follows. | |
(2) For subsections (2) and (3) there is substituted— | |
“(2) In relation to abstractions from any inland waters, a person shall be | |
entitled to make the application if, as respects the place (or, if more than | |
one, as respects each of the places) at which the proposed abstractions | 15 |
are to be effected, he satisfies the Agency that— | |
(a) he has, or at the time when the proposed licence is to take effect | |
will have, a right of access to land contiguous to the inland | |
waters at that place (or those places); and | |
(b) he will continue to have such a right for the period of at least | 20 |
one year beginning with the date on which the proposed licence | |
is to take effect, or until it is to expire (if sooner). | |
(3) In relation to abstractions from underground strata, a person shall be | |
entitled to make the application if he satisfies the Agency that— | |
(a) he has, or at the time when the proposed licence is to take effect | 25 |
will have, a right of access to land consisting of or comprising | |
those underground strata; and | |
(b) he will continue to have such a right for the period of at least | |
one year beginning with the date on which the proposed licence | |
is to take effect, or until it is to expire (if sooner). | 30 |
(3A) The Agency may, in particular, take evidence of a person’s occupation | |
of land to be evidence of his right of access to it.” | |
(3) In subsection (4)— | |
(a) for “is the occupier of” there is substituted “will have a right of access | |
to”, and | 35 |
(b) in paragraph (a), for “occupy” there is substituted “a right of access to”. | |
14 Abolition of combined licences | |
Section 36 of the WRA (combined abstraction and impounding licences) shall | |
cease to have effect. | |
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15 Applications: types of abstraction licence | |
(1) After section 36 of the WRA there is inserted— | |
“36A Applications: types of abstraction licence | |
(1) The Agency may decide that— | |
(a) an application for a full licence, a transfer licence or a temporary | 5 |
licence ought to be for one of the other types of licence; | |
(b) a number of applications for licences (of any type or types) to | |
abstract water from a particular source of supply ought to be | |
treated as an application for a single such licence (of any type); | |
(c) an application for a single licence (of any type) to abstract water | 10 |
from a particular source of supply ought to be treated as a | |
number of applications for such licences (of any type or types); | |
or | |
(d) any such application as is referred to above ought to be | |
accompanied by an application for revocation of an existing | 15 |
licence to abstract water. | |
(2) The Agency may arrive at the decision referred to in paragraph (a), (b), | |
(c) or (d) of subsection (1) above on the basis of its assessment of any | |
one or more of the following— | |
(a) the likely effect of the abstraction (or abstractions) for which the | 20 |
applicant has applied for a licence (or licences); | |
(b) the likely effect of that abstraction (or those abstractions) taken | |
together with abstractions under any other licence held by the | |
applicant, or abstractions which would be authorised under | |
any other licence for which the applicant has applied; | 25 |
(c) any other prescribed matter. | |
(3) If the Agency does so decide, it shall serve a notice of its decision on the | |
applicant; and, subject to subsections (4) to (8) below, shall deal with | |
the application (or applications) accordingly (which, if the Agency | |
made the decision referred to in paragraph (d) of subsection (1) above | 30 |
in relation to any application (or applications), means not publishing | |
any notice under section 37 below, or taking any further step in | |
connection with the application (or applications), until the application | |
for revocation has been received). | |
(4) The applicant may by notice appeal to the Secretary of State against the | 35 |
decision, and shall serve a copy of any such notice on the Agency. | |
(5) That notice, and the copy of it, shall be served in such manner and | |
within such period as may be prescribed. | |
(6) If the Agency serves a notice under subsection (3) above, it shall not | |
publish any notice under section 37 below, or take any further step in | 40 |
connection with the application (or applications), before— | |
(a) the end of the period within which notice of an appeal may be | |
served on the Secretary of State; or | |
(b) if notice of an appeal is so served, the appeal has been | |
determined. | 45 |
(7) The Secretary of State— | |
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(a) may allow or dismiss the appeal, or vary any part of the | |
decision of the Agency, whether the appeal relates to that part | |
of the decision or not; and | |
(b) shall direct the Agency to deal with the application, or | |
applications, accordingly (which, if the Agency’s decision was | 5 |
made under paragraph (d) of subsection (1) above in relation to | |
any such application, and that decision is upheld, may mean | |
not publishing any notice under section 37 below, or taking any | |
further step in connection with the application, until the | |
application for revocation has been received). | 10 |
(8) Subsections (2) and (7) of section 44 below apply in relation to an appeal | |
under this section as they apply in relation to an appeal under section | |
43 below. | |
(9) This section is subject to section 114 of the 1995 Act (delegation or | |
reference of appeals).” | 15 |
(2) In section 41 of the WRA (Secretary of State’s power to call in applications), | |
after subsection (2) there is added— | |
“(3) An application may not be referred to the Secretary of State under this | |
section— | |
(a) if in relation to the application the Agency is still considering | 20 |
whether to make any such decision as is referred to in | |
subsection (1) of section 36A above, or if it has made such a | |
decision but has not yet served the notice referred to in | |
subsection (3) of that section; or | |
(b) where the Agency has served a notice on the applicant under | 25 |
subsection (3) of that section, until the period for appealing | |
under that section has expired or (if the applicant appeals) the | |
appeal has been determined.” | |
(3) In section 45 of the WRA (regulations with respect to appeals)— | |
(a) in subsection (1), after “against decisions” there is inserted “of the | 30 |
Agency under section 36A above or”, | |
(b) after subsection (2) there is inserted— | |
“(2A) Subsection (2) above does not apply in relation to appeals | |
against decisions of the Agency under section 36A above.” | |
(4) In section 114 of the Environment Act 1995 (c. 25) (power of Secretary of State | 35 |
to delegate or refer in connection with appeals), in subsection (2)(a)(v), after | |
“section” there is inserted “36A,”. | |
16 Publication of application for licence | |
(1) For section 37 of the WRA (publication of application for licence) there is | |
substituted— | 40 |
“37 Publication of application for licence | |
(1) The Agency shall publish a notice of an application for— | |
(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, | 45 |
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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 | |
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 | 5 |
subsection (3) below (except the applicant, if the applicant is one of | |
those persons). | |
(3) Those persons are— | |
(a) any water undertaker within whose area any proposed point of | |
abstraction or impounding is situated; | 10 |
(b) any navigation authority, harbour authority or conservancy | |
authority having functions in relation to any inland waters at | |
any such proposed point; and | |
(c) the drainage board for any internal drainage district within | |
which any such proposed point is situated, | 15 |
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 | |
does not form part of any inland waters. | |
(4) A notice for the purposes of the preceding provisions of this section | |
shall— | 20 |
(a) be in the prescribed form and shall include any prescribed | |
matters; and | |
(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. | 25 |
(5) The period referred to in subsection (4)(b) above— | |
(a) begins on the date the notice referred to in subsection (1) above | |
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. | 30 |
(6) The Secretary of State may make regulations providing for— | |
(a) the requirements of subsection (2) above, or of both subsections | |
(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 | 35 |
application. | |
(7) In this section, “proposed point of abstraction or impounding”, in | |
relation to an application for a licence referred to in subsection (1) | |
above, means a place where a licence, if granted in accordance with the | |
application, would authorise— | 40 |
(a) water to be abstracted; or | |
(b) the flow of inland waters to be obstructed or impeded by means | |
of impounding works, | |
(as the case may be). | |
(8) This section is subject to section 37A below.” | 45 |
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(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— | |
(a) enabling the Agency; or | |
(b) him, in the case of applications referred to him in accordance | 5 |
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 | |
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.” | 10 |
(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 | |
accordance with section 37(5)” there is substituted “in the notice | |
referred to in section 37(4)(b)”, | 15 |
(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 | |
question the requirements of section 37(1) above do not | |
apply by virtue of section 37(6)(a) above or have been | 20 |
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”, | |
(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 | 25 |
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 | |
“subsection (1)” to the end of that sub-paragraph there is substituted | |
“paragraphs (b) and (c), and the succeeding words, of subsection (3) of | 30 |
that section were omitted.” | |
Consideration of licence applications | |
17 General consideration of licence applications | |
(1) Section 38 of the WRA (general consideration of licence applications) is | |
amended as follows. | 35 |
(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 | 40 |
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 | 45 |
section 51(2) below for a variation of the licence. | |
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