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Water Bill [HL]


Water Bill [HL]
Part 1 — Abstraction and impounding

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                                       (in each case as specified in the order) as if for “twenty cubic metres”

there were substituted another quantity specified in the order.

           (2)           The Secretary of State shall not make such an order except upon the

application of the Agency; but he may direct the Agency to make such

an application.

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           (3)           Such an order may—

                  (a)                 make different provision in relation to the different paragraphs

in subsection (1) above; and

                  (b)                 make different provision for different areas, waters or

underground strata.

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           (4)           Schedule 6 to this Act shall have effect with respect to applications for

orders under subsection (1) above and with respect to the making of

such orders.

           (5)           An order under subsection (1) above which specifies a greater quantity

than the one which previously had effect in relation to the area, waters

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or strata in question may make provision for a licence to abstract water

granted under this Chapter—

                  (a)                 which is for the time being in force; but

                  (b)                 which by virtue of the order has become wholly or partly

unnecessary,

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                         to cease to have effect, or to cease to have effect to the extent specified

in the order.

           (6)                         An order under subsection (1) above may include provision for or in

relation to the payment by the Agency of compensation, in cases

specified in the order, to a person who—

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                  (a)                 immediately before the making of an order under subsection (1)

above, had been in a position to carry out an abstraction to

which, by virtue of section 27(1) above, the restriction on

abstraction did not apply;

                  (b)                 following the making of that order, requires a licence under this

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Chapter in order to carry out that abstraction; and

                  (c)                 has suffered loss or damage as a result of his having been—

                        (i)                        refused such a licence in respect of that abstraction; or

                        (ii)                       granted such a licence, but in respect of an abstraction of

more limited extent than the one he had been in a

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position to carry out.

           (7)           Paragraphs (e) and (f) of section 219(2) below apply in relation to orders

under subsection (1) above as they apply to regulations made under

this Act.

           (8)           A statutory instrument containing an order under subsection (1) above

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shall be subject to annulment in pursuance of a resolution of either

House of Parliament.”

     (2)    Section 28 of the WRA shall cease to have effect.

 7     Rights to abstract for drainage purposes, etc

     (1)    Section 29 of the WRA (rights to abstract for drainage purposes etc) is amended

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as follows.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    9

 

     (2)    After subsection (1) there is inserted—

           “(1A)              The restriction on abstraction shall not apply to any abstraction of

water from inland waters within the district of an internal drainage

board if—

                  (a)                 the abstraction is carried out by or on behalf of that board in

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connection with its functions;

                  (b)                 the water abstracted is transferred to another area of inland

waters within the board’s district without intervening use; and

                  (c)                 the sole or main purpose of the transfer is to augment that other

area of inland waters.”

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     (3)    For subsection (2) there is substituted—

           “(2)              The restriction on abstraction shall not apply to any abstraction of

water from a source of supply in so far as the abstraction (where it does

not fall within subsection (1) or (1A) above) is an emergency abstraction

and the person abstracting the water complies with subsection (2B)

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below.

           (2A)              An abstraction of water is an emergency abstraction if, in the opinion of

the abstractor, an emergency has arisen which makes the abstraction

necessary to prevent immediate danger of interference with any

mining, quarrying, engineering, building or other operations (whether

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underground or on the surface) or, in relation to such operations, to

prevent an immediate risk—

                  (a)                 to a human being of death, personal injury or harm to health;

                  (b)                 of serious damage to works resulting from any such operations;

or

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                  (c)                 of serious damage to the environment.

           (2B)              In the case of any emergency abstraction, the person abstracting the

water shall before the end of the period of five days beginning with the

date on which the abstraction started give notice to the Agency of—

                  (a)                 the abstraction and of the source of supply in question; and

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                  (b)                 the reasons for the abstractor’s opinion that an emergency had

arisen and that the abstraction was necessary.

           (2C)              The Agency may give notice to the person referred to in subsection (2B)

above that in the Agency’s opinion an emergency had not arisen, or

that the abstraction is not, or is no longer, necessary for any of the

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reasons set out in subsection (2A) above; and, if the Agency does so, the

restriction on abstraction shall apply to the abstraction from the time

when the notice is served (and, if applicable, the restriction imposed by

section 24(2) above shall apply accordingly).”

     (4)    Subsection (3) is omitted.

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     (5)    For subsection (5) there is substituted—

           “(5)              In this section, “land drainage”—

                  (a)                 includes the protection of land against erosion or encroachment

by water, whether from inland waters or from the sea; but

                  (b)                 does not include warping, irrigation (including spray

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irrigation), or transferring water from one source of supply to

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    10

 

another (whether with or without intervening use) solely or

mainly in order to augment the latter.”

 8     Amendments relating to section 7

     (1)    Subsections (2) to (6) make amendments to the WRA consequential on the

amendments made by section 7.

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     (2)    In section 21 (minimum acceptable flows)—

           (a)           in subsection (9), the words from “and in that subsection” to the end are

omitted,

           (b)           after subsection (9) there is added—

                  “(10)                    In subsection (5) above, the reference to land drainage

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includes—

                        (a)                        defence against water (including sea water), irrigation

(other than spray irrigation), warping and the carrying

on, for any purpose, of any other practice which

involves management of the level of water in a

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watercourse; and

                        (b)                        the provision of flood warning systems.”

     (3)    Sections 30 (notices with respect to borings not requiring licences) and 31

(appeals against notices under section 30) shall cease to have effect.

     (4)    In section 70 (civil liability under Chapter 2), for “24, 25 and 30” there is

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substituted “24 and 25”.

     (5)    In section 199 (notice of mining operations which may affect water

conservation)—

           (a)           for subsections (2) and (3) there is substituted—

                  “(2)                    Where a notice under subsection (1) above is given to the

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Agency by any person, the Agency may (subject to section 199A

below) by notice to that person require him, in connection with

the construction, extension or use of the work to which that

person’s notice relates, to take such reasonable measures for

conserving water as are specified in the notice.

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                  (2A)                    The measures that may be specified in a notice under subsection

(2) above shall be measures which, in the opinion of the Agency,

will not interfere with the winning of minerals.

                  (3)                    Section 70 above shall apply to the restrictions imposed by this

section as it applies to the restrictions imposed by sections 24

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and 25 above.”,

           (b)           in subsection (4), for “conservation notice given by virtue of” there is

substituted “notice under”.

     (6)    After section 199 there is inserted—

       “199A             Appeals against conservation notices under section 199

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           (1)           The person on whom a notice under section 199(2) above (“a

conservation notice”) is served may, by notice to the Secretary of State,

appeal to him against the conservation notice on either or both of the

following grounds, that is to say—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    11

 

                  (a)                 that the measures required by the conservation notice are not

reasonable;

                  (b)                 that those measures would interfere with the winning of

minerals.

           (2)           Any notice of appeal against a conservation notice shall be served

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within such period (not being less than twenty-eight days from the date

of service of the conservation notice) and in such manner as may be

prescribed.

           (3)           Before determining an appeal against a conservation notice, the

Secretary of State may, if he thinks fit—

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                  (a)                 cause a local inquiry to be held; or

                  (b)                 afford to the appellant and the Agency an opportunity of

appearing before, and being heard by, a person appointed by

the Secretary of State for the purpose;

                         and the Secretary of State shall act as mentioned in paragraph (a) or (b)

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above if a request is made by the appellant or the Agency to be heard

with respect to an appeal.

           (4)           On an appeal against a conservation notice the Secretary of State may

confirm, quash or vary the notice as he may consider appropriate.

           (5)           The decision of the Secretary of State on any appeal against a

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conservation notice shall be final.

           (6)           The Secretary of State may by regulations make provision as to the

manner in which appeals against conservation notices are to be dealt

with, including provision requiring the giving of notices of, and

information relating to, the making of such appeals or decisions on any

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such appeals.

           (7)           Section 69 above applies to a decision of the Secretary of State on any

appeal to him under this section as it applies to a decision of his on an

appeal to him under Chapter 2 of Part 2, taking the reference in

subsection (2)(b) of that section to that Chapter as a reference to this

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section.

           (8)           This section is subject to section 114 of the 1995 Act (delegation or

reference of appeals).”

     (7)    In section 114 of the Environment Act 1995 (c. 25) (power of Secretary of State

to delegate or refer in connection with appeals), in subsection (2)(a)(v), for “or

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191B(5)” there is substituted “, 191B(5) or 199A”.

 9     Power to provide for further exemptions

After section 33 of the WRA there is inserted—

       “33A            Power to provide for further exemptions

           (1)           The Secretary of State may make regulations providing for further cases

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in which—

                  (a)                 the restriction on abstraction (and, in the case of abstractions

from underground strata, the other restrictions imposed by

section 24 above); or

                  (b)                 the restriction on impounding works,

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Water Bill [HL]
Part 1 — Abstraction and impounding

    12

 

                         shall not apply; and in this section such a case is referred to as an

“exemption”.

           (2)           The regulations may, in particular, make provision, in relation to an

exemption—

                  (a)                 for the exemption to apply only for a prescribed period;

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                  (b)                 for the exemption not to apply unless prescribed conditions are

satisfied, or continue to be satisfied;

                  (c)                 for the Agency to be notified, or its consent obtained—

                        (i)                        before any particular abstraction operation or series of

such operations begins; or

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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

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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;

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                  (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).

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           (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

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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

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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

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authorises an activity which falls to any extent within the exemption

provided for by the regulations.”

 10    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

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further rights to abstract),

           (b)           any order made under any local or private Act which provides for any

exception from—

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    13

 

                  (i)                 the restriction on abstraction (within the meaning of Chapter 2

of Part 2 of the WRA), or

                  (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.

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     (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”.

     (3)    In this section, “the appropriate authority” means—

           (a)           in relation to the revocation of an exception order which relates to

inland waters or underground strata which are wholly in England, the

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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

Assembly,

           (c)           in relation to the revocation of an exception order which relates to

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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,

                  (ii)                the Assembly, in relation to the Welsh part,

            and references in this section (however expressed) to the revocation of an

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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—

           (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

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           (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

limitations specified in the order—

           (a)           for the restriction on abstraction (and, in the case of abstractions from

30

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,

           (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

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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

revocation of the exception order.

     (6)           If an order under this section provides as mentioned in subsection (5)(a), the

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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.

     (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)

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may also repeal so much of the local or private Act as constitutes the power to

make the exception order.

 

 

Water Bill [HL]
Part 1 — Abstraction and impounding

    14

 

     (8)    The procedure provided for by section 33 of and Schedule 6 to the WRA, or (as

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

5

(c)(ii) of this section is to be treated as if it were a relevant transferred

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).

     (10)   No order may be made under this section before the coming into force of

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section 6 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.

     (12)   In this section, “inland waters” and “underground strata” have the meanings

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given in section 221(1) of the WRA.

Applications for a licence

 11    Who may apply for a licence

     (1)    Section 35 of the WRA (restrictions upon who may apply for abstraction

licences) is amended as follows.

20

     (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

are to be effected, he satisfies the Agency that—

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                  (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

one year beginning with the date on which the proposed licence

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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

will have, a right of access to land consisting of or comprising

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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).

           (3A)              The Agency may, in particular, take evidence of a person’s occupation

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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

 

 

 
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