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(5) Subject to subsection (9) below, if the Agency receives an | |
apportionment notice and the application for revocation referred to in | |
subsection (4) above, the Agency shall— | |
(a) revoke the old licence; | |
(b) if the holder is to continue the abstraction in part and a licence | 5 |
is required under this Chapter for that purpose, grant to the | |
holder of the old licence a licence relating to that part of the | |
abstraction; and | |
(c) grant to each successor who requires a licence under this | |
Chapter in order to carry on his part of the abstraction a licence | 10 |
relating to that part of the abstraction. | |
(6) Sections 34 to 45 above shall not apply to the grant of a new licence | |
under subsection (5) above. | |
(7) Subject to section 46 above and to any provision of regulations made | |
under section 59D(1) below, each new licence to be granted under | 15 |
subsection (5) above shall be granted subject to provisions which | |
correspond as nearly as practicable to those of the old licence in relation | |
to the part of the abstraction to be authorised by the new licence. | |
(8) The revocation of the old licence and the grant of the new licences shall | |
take effect— | 20 |
(a) from the date on which the Agency revokes the old licence and | |
grants the new ones; or | |
(b) from the date specified in the apportionment notice, if later. | |
(9) The Agency shall not grant a new licence to the holder of the old licence | |
or to a successor if, by virtue of an exemption, the restriction on | 25 |
abstraction would not apply to that part of the abstraction proposed in | |
relation to him in the apportionment notice. | |
(10) For the purposes of this Chapter, a person (whether the holder of the | |
old licence or a successor) who proposes to carry on a part of the | |
abstraction in the circumstances mentioned in subsection (9) above | 30 |
shall, if the old licence was a full licence, be taken to have the right to | |
do so in relation to that part, subject to subsection (11) below. | |
(11) For the purposes of this Chapter, a person shall cease to be taken to | |
have a right, by virtue of subsection (10) above, to carry on an | |
abstraction if— | 35 |
(a) during a period of four years that person does not carry out any | |
such abstraction; or | |
(b) following an order under section 27A(1) above or regulations | |
under section 33A above, that person is granted a full licence in | |
respect of abstraction from the same point. | 40 |
(12) For the purposes of section 39A above, a new licence granted under | |
subsection (5) above shall be treated as if it (together with any other | |
new licence granted by virtue of the relevant apportionment notice) | |
had been granted at the time of, and in place of, the grant of the old | |
licence. | 45 |
(13) In this section— | |
“exemption” means the disapplication of the restriction on | |
abstraction under or by virtue of section 27 or 33A above; and | |
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| |
|
| |
| |
“point of abstraction” and “right of access” have the same | |
meanings as in section 59A above. | |
59D Apportionment of licence to abstract: supplementary | |
(1) The Secretary of State may make regulations about the provisions to be | |
contained in licences granted under section 59C above. | 5 |
(2) Nothing in section 59C above shall affect the liability of the holder of | |
the old licence for any failure by him, before the revocation of that | |
licence took effect, to comply with any condition or requirement of that | |
licence. | |
(3) If the holder of the old licence is a person in whom the old licence has | 10 |
vested under section 59B above, an apportionment notice shall be of no | |
effect unless the notice required by section 59B(4) has been given. | |
(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)— | 15 |
(a) for subsection (2) there is substituted— | |
“(2) The person to whom a licence under this Chapter is granted to | |
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.”, | 20 |
(b) subsection (3) is omitted. | |
(3) In section 189 of the WRA (register of abstraction and impounding licences), in | |
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 | 25 |
abstract water) shall cease to have effect. | |
(5) Subsection (4) does not affect the succession to a licence to abstract water where | |
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 | 30 |
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 | |
applicable section. | |
Claims and compensation | |
24 Claims arising out of water abstraction | 35 |
(1) After section 48 of the WRA there is inserted— | |
“48A Civil remedies for loss or damage due to water abstraction | |
(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 | 40 |
that abstraction cause loss or damage to another person. | |
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(2) A person who suffers such loss or damage (a “relevant person”) may | |
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 | 5 |
interrupting the supply of water to the public, or would put public | |
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 | 10 |
water. | |
(6) Nothing in this section prevents or affects a claim for negligence or | |
breach of contract. | |
(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 | 15 |
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 | |
of the duty referred to in that section); | |
(b) in respect of which a person would have been entitled to bring | 20 |
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 | |
(c) constituting grounds on which a person is entitled to apply to | |
the Secretary of State under section 55 below (or would be so | 25 |
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.” | |
(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 | 30 |
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 | |
section— | |
(a) section 48A of the WRA inserted by subsection (1) of this section does | 35 |
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 | |
force. | |
25 Compensation for modification of licence on direction of Secretary of State | 40 |
(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 | 5 |
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 | 10 |
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 | 15 |
(c) the conditions set out in subsection (4B) below are satisfied. | |
(4B) Those conditions are that— | |
(a) the licence was granted after the coming into force of section 19 | |
of the Water Act 2003; | |
(b) the variation is made no sooner than the end of the period of six | 20 |
years beginning with the date on which the licence took effect; | |
and | |
(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 | 25 |
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 | |
after the coming into force of that subsection. | |
26 Recovery of compensation from new licence-holder | |
After section 61 of the WRA there is inserted— | 30 |
“61A Recovery of compensation from new licence-holder | |
(1) This section applies where compensation has been paid under section | |
61 above to the holder of a licence (“licence A”) following its revocation, | |
and— | |
(a) the holder of licence A was a water undertaker; | 35 |
(b) at the time of the revocation an application from a qualifying | |
person for a licence to abstract water (“licence B”) was | |
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 | 40 |
imposed on it by section 39(1) above owed to the holder of | |
licence A; | |
(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 | 45 |
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 | 5 |
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 | 10 |
(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.” | |
27 Withdrawal of compensation for certain revocations and variations | 15 |
(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 19 of this | |
Act; | 20 |
(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 | |
protect from serious damage— | 25 |
(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. | |
(2) Where this section applies, no compensation is payable under section 61 of the | 30 |
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, | |
includes its bottom, channel or bed. | 35 |
Water resources management schemes | |
28 Water resources management schemes: other abstractors | |
After section 20 of the WRA there is inserted— | |
“20A Water resources management schemes: other abstractors | |
(1) The Agency may enter into and maintain such arrangements with | 40 |
holders of abstraction licences other than water undertakers for | |
securing the proper management or operation of— | |
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| |
|
| |
| |
(a) the waters from which they have the right by virtue of their | |
licences to abstract water; and | |
(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 | 5 |
their control, | |
as the Agency from time to time considers appropriate for the purpose | |
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 | 10 |
between them in arrangements under this section, such arrangements | |
may— | |
(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 | 15 |
purposes of or in connection with his abstraction; | |
(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 | 20 |
arising under the arrangements. | |
(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.” | 25 |
29 Water resources management schemes: referral to Secretary of State | |
(1) After section 20A of the WRA (inserted by section 28) 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 | 30 |
it under section 20 or 20A above, but is satisfied that the other | |
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 | 35 |
unwilling to do so or to do so on terms appearing to the Agency | |
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 | 40 |
what terms; or | |
(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 | 45 |
arrangements on the terms determined by the Secretary of State shall be | |
enforceable— | |
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(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 | |
Secretary of State. | 5 |
(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.” | |
Enforcement | 10 |
30 Enforcement notices, and related procedures and offences | |
After section 25 of the WRA there is inserted— | |
“25A Enforcement notices | |
(1) Subject to the following provisions of this section, where it appears to | |
the Agency that a person is— | 15 |
(a) in breach of section 24(1) or (2) or section 25(1) above; or | |
(b) for the purposes of section 24 or 25 above a holder of a licence | |
under this Chapter and has not complied with a condition or | |
requirement imposed by the provisions, as for the time being in | |
force, of that licence, | 20 |
the Agency shall be entitled to serve an enforcement notice on him if the | |
condition in subsection (2) below is satisfied. | |
(2) The condition is that it appears to the Agency that the breach or failure | |
to comply is causing or is likely to cause significant damage to the | |
environment. | 25 |
(3) An enforcement notice is a notice requiring the person on whom it is | |
served— | |
(a) to cease his breach of section 24(1) or (2) or section 25(1) above, | |
or to comply with the condition or requirement in question; and | |
(b) to carry out any works or operations specified in the notice. | 30 |
(4) The works or operations which may be specified are works or | |
operations which it appears to the Agency are appropriate for the | |
purpose of remedying or mitigating the effects of the breach or failure | |
to comply, and may include— | |
(a) works or operations for the purpose, so far as it is reasonably | 35 |
practicable to do so, of restoring any affected waters, including | |
any flora and fauna dependent on them, to their state | |
immediately before the breach or failure to comply; and | |
(b) in the case of a breach of section 25(1) above, the removal of any | |
unauthorised impounding works or the reversal of any | 40 |
unauthorised alteration to impounding works. | |
(5) An enforcement notice must specify the periods within which the | |
person on whom it is served must do each of the things specified in the | |
notice. | |
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