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(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). | |
(1C) If the result of that would have been the grant of the application for | 5 |
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 | |
variation.” | 10 |
(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 | |
to”. | 15 |
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) | |
below,”. | 20 |
(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 | |
paragraph (b) of that subsection is not satisfied; or | 25 |
(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) | |
below” there is substituted “(as the case may be) section 39A(2) or (7), 48(1) or | 30 |
59C(10) below or section 103(3) of the Water Act 2003, or in a provision made | |
in an order by virtue of section 12(5)(b) of that Act, in each case subject to any | |
limitations mentioned there”. | |
(6) In section 42 of the WRA (consideration of called-in applications)— | |
(a) in subsection (4), at the beginning there is inserted “Subject to | 35 |
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) | |
above.” | 40 |
(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 | |
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(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) | |
above.” | |
19 Protected rights | 5 |
(1) After section 39 of the WRA there is inserted— | |
“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; | 10 |
(b) it is such a right as a person is taken to have by virtue of | |
subsection (2) below; | |
(c) it is such a right as a person is taken to continue to have by | |
virtue of subsection (7) below; | |
(d) it is such a right as a person is taken to have by virtue of | 15 |
subsection (10) of section 59C below (subject to subsection (11) | |
of that section); | |
(e) it is such a right as a person is taken to continue to have by | |
virtue of a provision made under subsection (5)(b) of section 12 | |
of the Water Act 2003 in an order made under that section; or | 20 |
(f) it is such a right as a person is taken to continue to have by | |
virtue of section 103(3) of that Act. | |
(2) A person who is in a position to carry out an abstraction of a quantity | |
of water which— | |
(a) by virtue of section 27(1) above is not subject to the restriction | 25 |
on abstraction; and | |
(b) also falls within subsection (4) or (5) below, | |
shall be taken, for the purposes of this Chapter, to have a right to do so | |
in respect of that quantity or, if lower, the maximum quantity | |
mentioned in subsection (3) below. | 30 |
(3) The maximum quantity is— | |
(a) if, by virtue of an order under section 27A(1) above, section | |
27(1) has ever had effect as if it referred, for the purposes of the | |
abstraction in question, to a quantity of water lower than | |
twenty cubic metres, that lower quantity (or, if more than one, | 35 |
the lowest of them); or | |
(b) in any other case, twenty cubic metres (and no more). | |
(4) An abstraction falls within this subsection if it is an abstraction from | |
inland waters carried out by or on behalf of an occupier of land | |
contiguous to those waters at the place where the abstraction is effected | 40 |
(“contiguous land”), and— | |
(a) the water is abstracted for use on a holding consisting of the | |
contiguous land with or without other land held with that land; | |
and | |
(b) it is abstracted for use on that holding for either or both of the | 45 |
following purposes— | |
(i) the domestic purposes of the occupier’s household; | |
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(ii) agricultural purposes other than spray irrigation. | |
(5) An abstraction falls within this subsection if it is an abstraction from | |
underground strata and the water is abstracted by or on behalf of an | |
individual as a supply of water for the domestic purposes of his | |
household. | 5 |
(6) Subsection (2) above shall not apply to a person in respect of an | |
abstraction which that person is, or was at any time, taken to have a | |
right to carry out by virtue of any other provision mentioned in | |
subsection (1) above. | |
(7) Subject to subsection (8) below, a person who was the holder of a full | 10 |
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 | 15 |
regulations made under section 33A above, | |
and who was taken in consequence of that licence (or that part of the | |
licence) to have a right to abstract water by virtue of section 48(1) below | |
shall be taken to continue to have that right for the purposes of this | |
Chapter. | 20 |
(8) For the purposes of this Chapter, the person who was the holder of the | |
licence in question (“the old licence”) shall cease to be taken to continue | |
to have a right, by virtue of subsection (7) above, to abstract water if— | |
(a) during a period mentioned in subsection (9) below he does not | |
carry out any such abstraction as would have been authorised | 25 |
by the old licence if it had still been in force; or | |
(b) following a further order under section 27A(1) above or further | |
regulations under section 33A above, he is granted another full | |
licence in respect of abstraction from the same point as that | |
authorised by the old licence. | 30 |
(9) The period referred to in subsection (8)(a) above is— | |
(a) four years; or | |
(b) if the abstractions authorised under the old licence were | |
abstractions planned to be carried out at intervals of more than | |
four years, or for emergency purposes only, such longer period | 35 |
as the Agency may determine on the application of the holder | |
of the old licence. | |
(10) In subsection (8) 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 (7) above, are to the part | 40 |
of the licence which ceased to have effect. | |
(11) Any reference in this Chapter to the person entitled to a protected right | |
shall be construed in accordance with this section. | |
(12) 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.” | 45 |
(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”. | |
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20 Register of certain protected rights | |
After section 39A of the WRA (inserted by section 19) there is inserted— | |
“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 | 5 |
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 | |
abstract water. | |
(2) The regulations may, in particular, provide for— | |
(a) a register to relate to a prescribed geographical area, or for | 10 |
different sections of a register to relate to different geographical | |
areas (whether prescribed or not); | |
(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 | 15 |
members of the public; | |
(d) the procedure for applying for a protected right to be included | |
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 | 20 |
right in the register without an application for inclusion having | |
been made. | |
(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. | 25 |
(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 | |
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 | 30 |
on which the order under subsection (3) above was made, or such | |
longer period as may be specified in the order. | |
(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. | 35 |
(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 | |
such orders. | |
(8) The power to make orders under this section shall be exercisable by | |
statutory instrument; and a statutory instrument containing an order | 40 |
under this section shall be subject to annulment in pursuance of a | |
resolution of either House of Parliament. | |
(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.” | |
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