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(b) in paragraph (a), for “occupy” there is substituted “a right of access to”. | |
12 Abolition of combined licences | |
Section 36 of the WRA (combined abstraction and impounding licences) shall | |
cease to have effect. | |
13 Applications: types of abstraction licence | 5 |
(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 | |
licence ought to be for one of the other types of licence; | 10 |
(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 | |
from a particular source of supply ought to be treated as a | 15 |
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 | |
licence to abstract water. | 20 |
(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 | |
applicant has applied for a licence (or licences); | 25 |
(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; | |
(c) any other prescribed matter. | 30 |
(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 | |
in relation to any application (or applications), means not publishing | 35 |
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 | |
decision, and shall serve a copy of any such notice on the Agency. | 40 |
(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 | |
connection with the application (or applications), before— | 45 |
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(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. | |
(7) The Secretary of State— | 5 |
(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 | 10 |
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). | 15 |
(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).” | 20 |
(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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
to delegate or refer in connection with appeals), in subsection (2)(a)(v), after | |
“section” there is inserted “36A,”. | |
14 Publication of application for licence | |
(1) For section 37 of the WRA (publication of application for licence) there is | |
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substituted— | |
“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 | 5 |
any inland waters by means of impounding works, | |
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 | 10 |
Agency shall also serve a copy of it on the persons referred to in | |
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 | 15 |
abstraction or impounding is situated; | |
(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 | 20 |
which any such proposed point is situated, | |
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 | 25 |
shall— | |
(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 | 30 |
the end of a period specified in the notice. | |
(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 | 35 |
beginning with that date. | |
(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 | 40 |
information, either generally or as respects prescribed classes of | |
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 | 45 |
application, would authorise— | |
(a) water to be abstracted; or | |
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(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.” | |
(2) After section 37 of the WRA there is inserted— | 5 |
“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 | |
with section 41 below, | 10 |
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.” | |
(3) The WRA is further amended as follows— | 15 |
(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)”, | |
(ii) after subsection (3) there is added— | 20 |
“(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 | |
dispensed with by virtue of section 37A above.”, | 25 |
(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 | |
substituted “in any such notice as is referred to in section 37(4)(b)”, | 30 |
(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 | |
that section were omitted.” | 35 |
Consideration of licence applications | |
15 General consideration of licence applications | |
(1) Section 38 of the WRA (general consideration of licence applications) is | |
amended as follows. | |
(2) After subsection (1) there is inserted— | 40 |
“(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— | |
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(a) would take effect immediately after the expiry of an existing full | |
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 | 5 |
expiring, would require an application to be made under | |
section 51(2) below for a variation of the licence. | |
(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) | 10 |
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 | |
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 | 15 |
shall be concluded as if it were an application for a licence with no such | |
variation.” | |
(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 | 20 |
authorities and internal drainage boards), and shall have regard in particular | |
to”. | |
16 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). | 25 |
(2) In subsection (1), at the beginning there is inserted “Subject to subsection (1A) | |
below,”. | |
(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 | 30 |
within subsection (1A) of section 38 above only because | |
paragraph (b) of that subsection is not satisfied; or | |
(b) the determination of an application is being concluded in | |
accordance with subsection (1C) of that section.” | |
(4) Subsection (3) is omitted. | 35 |
(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 | |
59C(10) below or section 101(3) of the Water Act 2003, or in a provision made | |
in an order by virtue of section 10(5)(b) of that Act, in each case subject to any | |
limitations mentioned there”. | 40 |
(6) In section 42 of the WRA (consideration of called-in applications)— | |
(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.” | |
(7) In section 44 of the WRA (determination of appeals)— | 5 |
(a) in subsection (4), at the beginning there is inserted “Subject to | |
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) | 10 |
above.” | |
17 Protected rights | |
(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— | 15 |
(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; | |
(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 | 20 |
virtue of subsection (7) below; | |
(d) it is such a right as a person is taken to have by virtue of | |
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 | 25 |
virtue of a provision made under subsection (5)(b) of section 10 | |
of the Water Act 2003 in an order made under that section; or | |
(f) it is such a right as a person is taken to continue to have by | |
virtue of section 101(3) of that Act. | |
(2) A person who is in a position to carry out an abstraction of a quantity | 30 |
of water which— | |
(a) by virtue of section 27(1) above is not subject to the restriction | |
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 | 35 |
in respect of that quantity or, if lower, the maximum quantity | |
mentioned in subsection (3) below. | |
(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 | 40 |
abstraction in question, to a quantity of water lower than | |
twenty cubic metres, that lower quantity (or, if more than one, | |
the lowest of them); or | |
(b) in any other case, twenty cubic metres (and no more). | |
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(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 | |
(“contiguous land”), and— | |
(a) the water is abstracted for use on a holding consisting of the | 5 |
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 | |
following purposes— | |
(i) the domestic purposes of the occupier’s household; | 10 |
(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. | 15 |
(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 | 20 |
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 | 25 |
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. | 30 |
(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 | 35 |
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. | 40 |
(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 | 45 |
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 | |
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