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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

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           (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)—

           (a)           for subsection (2) there is substituted—

                  “(2)                    The person to whom a licence under this Chapter is granted to

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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.”,

           (b)           subsection (3) is omitted.

     (3)    In section 189 of the WRA (register of abstraction and impounding licences), in

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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

abstract water) shall cease to have effect.

     (5)    Subsection (4) does not affect the succession to a licence to abstract water where

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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

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

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applicable section.

Claims and compensation

 26    Claims arising out of water abstraction

     (1)    After section 48 of the WRA there is inserted—

       “48A            Civil remedies for loss or damage due to water abstraction

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           (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

that abstraction cause loss or damage to another person.

           (2)           A person who suffers such loss or damage (a “relevant person”) may

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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

interrupting the supply of water to the public, or would put public

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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

water.

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           (6)           Nothing in this section prevents or affects a claim for negligence or

breach of contract.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    32

 

           (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

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

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of the duty referred to in that section);

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

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

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                  (c)                 constituting grounds on which a person is entitled to apply to

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

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.”

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     (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

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

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section—

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

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

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force.

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

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

           “(4A)              No compensation shall be payable under this section in respect of the

variation of a full licence, or of a transfer licence which specifies a

minimum value under section 46(2A) above, so as to reduce the

quantity of water which the holder of the licence is authorised by the

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licence to abstract from the source of supply to which the licence relates

if—

                  (a)                 the ground for varying the licence is that the Secretary of State

is satisfied that the variation is necessary in order to protect the

availability of water in the source of supply to which the licence

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relates;

                  (b)                 the variation does not reduce the quantity of water which the

holder of the licence is authorised by the licence to abstract to

less than the minimum value specified in the licence under

section 46(2A) above for the purposes of this subsection; and

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                  (c)                 the conditions set out in subsection (4B) below are satisfied.

           (4B)              Those conditions are that—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    33

 

                  (a)                 the licence was granted after the coming into force of section 21

of the Water Act 2003;

                  (b)                 the variation is made no sooner than the end of the period of six

years beginning with the date on which the licence took effect;

and

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                  (c)                 the variation takes effect no sooner than the end of the period of

six years beginning with the date of the variation.”

     (4)    The amendment made by subsection (2) has effect in relation to the revocation

or variation of a licence only if the period referred to in section 61(4) of the

WRA during which no water was abstracted in pursuance of the licence began

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after the coming into force of that subsection.

 28    Recovery of compensation from new licence-holder

After section 61 of the WRA there is inserted—

       “61A            Recovery of compensation from new licence-holder

           (1)           This section applies where compensation has been paid under section

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61 above to the holder of a licence (“licence A”) following its revocation,

and—

                  (a)                 the holder of licence A was a water undertaker;

                  (b)                 at the time of the revocation an application from a qualifying

person for a licence to abstract water (“licence B”) was

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outstanding;

                  (c)                 if the Agency had granted licence B while licence A still had

effect, the Agency would have been in breach of the duty

imposed on it by section 39(1) above owed to the holder of

licence A;

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                  (d)                 the ground for revoking licence A was that the Agency was of

the view that in the interests of greater efficiency in the use of

water resources it would be better for licence B to be granted

and licence A revoked; and

                  (e)                 the Agency proposes to grant licence B.

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           (2)           If this section applies, the Agency may (if licence B is granted) recover

from the qualifying person the amount of the compensation referred to

in subsection (1) above (or such lesser amount as the Agency

determines).

           (3)           Subsection (6) of section 41 of the 1995 Act (which confers powers to

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make schemes imposing charges) shall apply to the amount referred to

in subsection (2) above as if it were a charge due and payable to the

Agency in respect of the subsistence of licence B.

           (4)           In this section, “qualifying person” means—

                  (a)                 a water undertaker; or

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                  (b)                 a person who has made an application for an appointment or

variation replacing a company as a water undertaker under

section 8 of the Water Industry Act 1991 which has not been

determined.”

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    34

 

 29    Withdrawal of compensation for certain revocations and variations

     (1)    This section applies where—

           (a)           a licence to abstract water is revoked or varied on or after 15th July 2012

in pursuance of a direction under section 54 or 56 of the WRA;

           (b)           the licence was granted before the coming into force of section 21 of this

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Act;

           (c)           the licence is one which is expressed to remain in force until revoked;

and

           (d)           the ground for revoking or varying the licence is that the Secretary of

State is satisfied that the revocation or variation is necessary in order to

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protect from serious damage—

                  (i)                                     any inland waters,

                  (ii)                any water contained in underground strata,

                  (iii)                                   any underground strata themselves,

                                       or any flora or fauna dependent on any of them.

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     (2)    Where this section applies, no compensation is payable under section 61 of the

WRA in respect of the revocation or variation of the licence.

     (3)    Expressions used in sub-paragraphs (i), (ii) and (iii) of subsection (1)(d) are to

be construed in accordance with section 221 of the WRA, and “waters”, in

relation to a lake, pond, river or watercourse which is for the time being dry,

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includes its bottom, channel or bed.

Water resources management schemes

 30    Water resources management schemes: other abstractors

After section 20 of the WRA there is inserted—

       “20A            Water resources management schemes: other abstractors

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           (1)           The Agency may enter into and maintain such arrangements with

holders of abstraction licences other than water undertakers for

securing the proper management or operation of—

                  (a)                 the waters from which they have the right by virtue of their

licences to abstract water; and

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                  (b)                 any reservoirs, apparatus or other works which are used for the

purposes of or in connection with their abstractions and which

belong to them, are operated by them or are otherwise under

their control,

                                       as the Agency from time to time considers appropriate for the purpose

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of carrying out its functions under section 6(2) of the 1995 Act.

           (2)           Without prejudice to the power of the Agency and any holder of an

abstraction licence to include any such provision as may be agreed

between them in arrangements under this section, such arrangements

may—

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                  (a)                 make provision by virtue of subsection (1)(a) above with respect

to the construction or installation of any reservoirs, apparatus

or other works which the holder of the licence will use for the

purposes of or in connection with his abstraction;

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    35

 

                  (b)                 contain provision requiring payments to be made by the

Agency to the holder of the licence; and

                  (c)                 require the reference to and determination by the Secretary of

State or the Water Services Regulation Authority of questions

arising under the arrangements.

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           (3)           The Agency shall send a copy of any arrangements entered into by it

under this section to the Secretary of State.

           (4)           In this section, references to abstraction licences are to licences under

Chapter 2 of this Part to abstract water.”

 31    Water resources management schemes: referral to Secretary of State

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     (1)    After section 20A of the WRA (inserted by section 30) there is inserted—

       “20B            Water resources management schemes: referral to Secretary of State

           (1)           This section applies where—

                  (a)                 the Agency has sought to enter into arrangements acceptable to

it under section 20 or 20A above, but is satisfied that the other

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party is unwilling to enter into such arrangements or to do so on

terms appearing to the Agency to be reasonable; or

                  (b)                 having entered into such arrangements, the Agency has sought

to renew or vary them but is satisfied that the other party is

unwilling to do so or to do so on terms appearing to the Agency

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to be reasonable.

           (2)           Where this section applies, the Agency may refer to the Secretary of

State the question (as the case may be)—

                  (a)                 whether such arrangements should be entered into, and if so, on

what terms; or

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                  (b)                 whether the arrangements should be renewed or varied (as the

case may be) and if so, on what terms.

           (3)           If the Secretary of State determines that arrangements should be

entered into or (as the case may be) renewed or varied, such

arrangements on the terms determined by the Secretary of State shall be

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enforceable—

                  (a)                 by civil proceedings by the Secretary of State for an injunction

or for any other appropriate relief; and

                  (b)                 where the other party is a water undertaker, also under section

18 of the Water Industry Act 1991 (enforcement orders) by the

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Secretary of State.

           (4)           The functions of the Secretary of State under subsection (2) above shall

be treated for the purposes of section 114 of the 1995 Act (delegation or

reference of appeals) as if they were functions to which paragraph (a)

of subsection (1) of that section applied.”

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