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Lord Whitty: Short-term situations.
The Duke of Montrose: It is possible that short-term or emergency situations might recur annually. I suppose that the Minister is saying that, in such cases, the agency would perhaps like people to apply for a long-term licence. However, many people will have short-term necessities which might recur annually. They would be interested in how to progress their re-applications so that they can be sure of some sort of continuity. We shall look at what the Minister has said and perhaps return to it.
Baroness Byford: Before my noble friend withdraws the amendment, I have a question for the Minister. Will he define "short term", "medium term" and "long term"? As the definitions obviously have implications, it would be helpful to have them.
Lord Whitty: Most short-term licences are granted for a period of, say, 12 months in order to deal with a situation that might arise. Strictly speaking, the situation could be an emergency in which there is a problem handling the water that is causing damage to the abstractor or to others. Or the situation could involve maintenance lasting several months although it is not strictly speaking an emergency. I am not saying that those licences should never be renewed—there is a process for renewing them—but that that process should not be as complicated or open-ended as the renewal process for long-term licences. Those licences are specifically to deal with shorter-term situations. They should therefore be dealt with in a way that presumes that the situation is short term.
The Duke of Montrose: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Byford moved Amendment No. 60:
- Page 23, line 15, at end insert—
The noble Baroness said: In an earlier answer—I was writing as quickly as I could—the Minister, if I understood him correctly, said that there is currently no legislative presumption in existing licensing. Is that correct? As I am not sure that I heard him correctly, I wanted to check. I beg to move.
Lord Whitty: I would say two things. First, in the current system under the Water Resources Act, renewal will be granted unless there is a reason not to do so. In a sense, that is close to a presumption. More generally, I was arguing that I am not aware of any
Baroness Byford: I am grateful to the Minister. As I said, I was writing quite quickly and it was difficult to get a full note. I thank him for his response and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Transfer and apportionment of licences]:
The Duke of Montrose moved Amendment No. 62:
The noble Duke said: Amendment No. 62 is a probing amendment. It would appear that categories of protected rights are defined in new Section 39A(1)(a). The reference to Section 48(1) is given in Butterworth and states:
Lord Whitty: If the licence to be apportioned was an existing licence under the previous legislation, that would have had to have been considered under Sections 34 to 45 during the original grant. The provision under Clause 23 is intended to provide a simple and straightforward administrative division of the licence to ease access or to provide a wider range of abstractors without increasing the total volume of the water to be abstracted. It is intended that the process applied should remain substantially the same as that under the current law. It would be a break-down of the old abstraction licence.
The substance of the concern about the terms of the licence would already have been met because the old licence would have been granted on certain terms. New licences will be considered properly and thoroughly in that process. Amendment No. 62 would restore a whole range of considerations that would not really be appropriate. As we are talking about a given volume of water, the point is simply that there will be more abstractors. We would therefore not need to go through all those processes.
As for the issue of protected rights, if the apportionment includes the owner of the original licence, that right is retained. We would not get rid of rights protected under the previous legislation. Although the regulations under this part of the clause will have to make that somewhat clearer, I think that the noble Lord's concern is misplaced in that respect.
The Duke of Montrose: I thank the Minister for his comments. He says that one of those still holding a portion under the apportionment is the original holder and will maintain his rights. However, what happens to the new owners of the new portions of the apportionment? What will they receive?
Lord Whitty: My understanding is that if it had been granted originally on the basis of that volume of water and that attracted a pre-Water Resources Act-protected right, each of the divisors would be protected under those same terms.
The Duke of Montrose: I thank the Minister very much. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty moved Amendment No. 63:
On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24 [Claims arising out of water abstraction]:
Baroness Miller of Chilthorne Domer moved Amendment No. 65:
The noble Baroness said: I have tabled this amendment in order to probe whether the Government believe that there should be some sort of de minimis limit below which litigation is not necessary, and also to discover whether the Environment Agency, by granting a licence, is giving any sort of assurance against any sort of damage. Clause 24 is rather broadly drafted. As it stands, it might attract a significant amount of trivial litigation. I should like to explore with the Minister the issue of those who abstract water merely for personal use; whether he believes that 20 cubic metres is a small amount; whether he believes that there might be a more appropriate de minimis limit; and whether he believe that that is an issue at all.
Amendment No. 65 would focus the clause only on those who have an abstraction licence under the Bill and on the particular problem of large-volume abstractions which cause desiccation and subsidence. I beg to move.
Lord Dixon-Smith: I support the amendment so far as it is probing. If he would, I should like the Minister to go into some detail in his response. It is envisaged that someone might be able to sue an abstractor for damages as a result of loss or damage caused by the
There is another problem which I hope the Minister will deal with. If it is licensed abstractors who are causing the damage, would not the Environment Agency as the authorising body for the licence be an accomplice in the action? I therefore wonder whether the suit should involve that agency. It is a very simple and basic point, but it is the sort of point that we should be clear about at this stage. I have therefore raised the point now.
Lord Whitty: I think that the amendment is based on the presumption that small abstractions cannot cause damage. In general, we do not have a de minimis clause in relation to the ability to sue for damages. Regardless, 20 cubic metres per day is a fair amount of water. One can do damage with that amount of water regardless of whether the abstraction is cumulative to those of neighbours who also have that unlicensed right. So I do not think that it is sensible to exclude the ability to sue for non-licensed abstractors. This clause provides the ability to sue such abstractors. As with any claim for damages, the burden of proof in the courts is of course on the litigant/claimants. There is no intention to put that the other way round. However, I think that it would be odd to exclude the smallest abstractors from the ability to be sued for damages.
"(5) There shall be a presumption that any licence in respect of which the conditions of this section are met shall be renewed unless the Agency is able to show that revocation is necessary in order to protect any waters or underground strata, or any flora or fauna dependent on them, from serious damage."
Page 28, leave out lines 1 and 2.
"a person who is for the time being the holder of a licence under this Chapter to abstract water shall be taken to have a right to abstract water to the extent authorised by the licence".
If we remove Sections 34 to 45—so that they shall not apply—we will also remove Section 39 which establishes the obligation to have regard to existing rights and privileges. If the clause stands part, it would appear that the holder of a new licence apportioned from the old one will lose his protected rights. I think that the issue needs to be aired. If it is not, people could proceed with an apportionment but discover too late that they have lost more than they have gained. I beg to move.
Page 28, line 20, after "shall" insert ", if the old licence was a full licence,"
Page 29, line 31, after ""abstractor")" insert ", such abstraction being subject to licence,"
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