(1) The restriction on abstraction shall not apply to any abstraction by machinery or apparatus installed on a vessel, where the water is abstracted for use on that, or any other, vessel.
(2) The restriction on abstraction and the other restrictions imposed by section 24 above shall not apply to the doing of anything—
(a) for extinguishing fires or protecting life and property in the event of fire; or
(b) for the purpose of testing apparatus used for either of those purposes or of training or practice in the use of such apparatus.
(3) The restriction on abstraction and the other restrictions imposed by section 24 above shall not apply—
(a) to any abstraction of water;
(b) to the construction or extension of any well, borehole or other work; or
(c) to the installation or modification of machinery or other apparatus,
if the abstraction, construction, extension, installation or modification is for any of the purposes specified in subsection (4) below and takes place with the consent of the appropriate agency and in compliance with any conditions imposed by the appropriate agency.
(4) The purposes mentioned in subsection (3) above are—
(a) the purpose of ascertaining the presence of water in any underground strata or the quality or quantity of any such water; and
(b) the purpose of ascertaining the effect of abstracting water from the well, borehole or other work in question on the abstraction of water from, or the level of water in, any other well, borehole or other work or any inland waters.
(1) The Secretary of State may make regulations providing for further cases 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,
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;
(b) for the exemption not to apply unless prescribed conditions are satisfied, or continue to be satisfied;
(c) for the appropriate agency to be notified, or its consent obtained—
(i) before any particular abstraction operation or series of such operations begins; or
(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 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;
(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).
(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 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 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 authorises an activity which falls to any extent within the exemption provided for by the regulations.
(1) Any application for a licence under this Chapter shall be made in such manner as may be prescribed, and shall include such particulars, be accompanied by such reports, and be verified by such evidence, as may be prescribed.
(2) The Secretary of State may by regulations make provision as to the manner in which applications for the grant of licences under this Chapter are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such applications or decisions on such applications , and provision for making such applications available for public inspection.
(3) Without prejudice to the generality of subsection (2) above, provision shall be made by regulations under this section for securing that, in such circumstances as may be prescribed (being circumstances in which it appears to the Secretary of State that applications for licences under this Chapter would be of special concern to National Park . . . authorities)—
(a) notice of any such application will be given to such one or more National Park . . . authorities as may be determined in accordance with the regulations; and
(b) the matters to which the appropriate agency or, as the case may be, the Secretary of State is to have regard in dealing with the application will include any representations made by any such National Park . . . authority within such period and in such manner as may be prescribed.
(4) The preceding provisions of this section shall have effect subject to any express provision contained in, or having effect by virtue of, any other enactment contained in this Chapter; and any regulations made under this section shall have effect subject to any such express provision.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
35 Restrictions on persons who may make applications for abstraction licences.
(1) No application for a licence under this Chapter to abstract water shall be entertained unless it is made by a person entitled to make the application in accordance with the following provisions of this section.
(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 appropriate 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 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 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 appropriate 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 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 appropriate agency may, in particular, take evidence of a person’s occupation of land to be evidence of his right of access to it.
(4) Any reference in this section to a person who will have a right of access to land of any description—
(a) includes a reference to a person who satisfies the appropriate agency that he has entered into negotiations for the acquisition of an interest in land of that description such that, if the interest is acquired by him, he will be entitled to a right of access to that land; and
(b) without prejudice to the application of paragraph (a) above to a person who is or can be authorised to acquire land compulsorily, also includes any person who satisfies the appropriate agency that by virtue of any enactment, the compulsory acquisition by that person of land of that description either has been authorised or can be authorised and has been initiated.
(5) In subsection (4) above the reference to initiating the compulsory acquisition of land by a person is a reference to—
(a) the submission to the relevant Minister of a draft of an order which, if made by that Minister in the form of the draft, will authorise that person to acquire that land compulsorily, with or without other land; or
(b) the submission to the relevant Minister of an order which, if confirmed by that Minister as submitted will authorise that person to acquire that land compulsorily, with or without other land.
(6) In subsection (5) above “the relevant Minister”, in relation to the compulsory acquisition of land by any person, means the Minister who, in accordance with the enactment mentioned in subsection (4)(b) above, is empowered to authorise that person to acquire land compulsorily.
(1) The appropriate 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;
(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 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.
(2) The appropriate 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);
(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.
(3) If the appropriate 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 appropriate agency made the decision referred to in paragraph (d) of subsection (1) above in relation to any application (or applications), means not publishing 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 appropriate agency.
(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 appropriate 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—
(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—
(a) may allow or dismiss the appeal, or vary any part of the decision of the appropriate agency, whether the appeal relates to that part of the decision or not; and
(b) shall direct the appropriate agency to deal with the application, or applications, accordingly (which, if the appropriate agency's decision was 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).
(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).
(1) The appropriate 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 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 appropriate 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 appropriate 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 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 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 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 appropriate agency with respect to the application at any time before 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 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 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 application, would authorise—
(a) water to be abstracted; or
(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.
37A Power to dispense with publication requirements
The Secretary of State may by regulations make provision for—
(a) enabling the appropriate agency; or
(b) him, in the case of applications referred to him in accordance with section 41 below,
to direct or determine that the requirements of subsections (1) and (2) of section 37 above may in any case (except where the appropriate agency is the applicant) be dispensed with, if in that case it appears to the appropriate agency (or, as the case may be, the Secretary of State) to be appropriate to do so.
(1) The appropriate agency shall not determine any application for a licence under this Chapter before the end of the period specified in the notice referred to in section 37(4)(b) above.
(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 or a transfer licence which, if granted—
(a) would take effect immediately after the expiry of an existing licence of the same type (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 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) 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 shall be concluded as if it were an application for a licence with no such variation.
(2) Subject to the following provisions of this Chapter, on any application to the appropriate agency for a licence under this Chapter, the appropriate agency—
(a) may grant a licence containing such provisions as the appropriate agency considers appropriate; or
(b) if, having regard to the provisions of this Chapter, the appropriate agency considers it necessary or expedient to do so, may refuse to grant a licence.
(3) Without prejudice to section 39(1) below, the appropriate agency, in dealing with any application for a licence under this Chapter, shall have regard to 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 authorities and internal drainage boards), and shall have regard in particular to—
(a) any representations in writing relating to the application which are received by the appropriate agency before the end of the period mentioned in subsection (1) above; and
(b) the requirements of the applicant, in so far as they appear to the appropriate agency to be reasonable requirements.
and may have regard to any failure on the part of the applicant to make an application under section 40 of the Water Industry Act 1991 pursuant to a proposal made by the appropriate agency under section 20C above.
(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.
39 Obligation to have regard to existing rights and privileges.
(1) Subject to subsection (1A) below, the appropriate agency shall not, except with the consent of the person entitled to the rights, grant a licence so authorising—
(a) the abstraction of water; or
(b) the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from any rights which, at the time when the application is determined by the appropriate agency, are protected rights for the purposes of this Chapter.
(1A) Subsection (1) above does not apply when—
(a) the application to be determined is one which does not fall 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.
(2) In a case where an application for a licence under this Chapter relates to abstraction from underground strata, the appropriate agency, in dealing with the application, shall have regard to the requirements of existing lawful uses of water abstracted from those strata, whether for agriculture, industry, water supply or other purposes.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Any reference in this Chapter, in relation to the abstraction of water or obstructing or impeding the flow of any inland waters by means of impounding works, to derogating from a right which is a protected right for the purposes of this Chapter is a reference to, as the case may be—
(a) abstracting water; or
(b) so obstructing or impeding the flow of any such waters,
in such a way, or to such an extent, as to prevent the person entitled to that right from abstracting water to the extent mentioned in (as the case may be) section 39A(2) or (7), 48(1) or 59C(10) below or section 102(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.
(5) For the purposes of subsection (2) above the appropriate agency shall be entitled (but shall not be bound) to treat as lawful any existing use of water from underground strata unless—
(a) by a decision given in any legal proceedings, it has been held to be unlawful; and
(b) that decision has not been quashed or reversed.
39A Protected rights for the purposes of this Chapter
(1) For the purposes of this Chapter, a right is a protected right if—
(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 continues to be taken to have by 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;
(e) it is such a right as a person continues to be taken to have by 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 continues to be taken to have by virtue of section 102(3) of that Act.
(2) A person who is in a position to carry out an abstraction of a quantity 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 in respect of the maximum quantity mentioned in subsection (3) below.
(3) The maximum quantity is the lower of the following—
(a) twenty cubic metres;
(b) if, by virtue of an order under section 27A(1) above, section 27(1) above has, or has ever had, effect in relation to the source of supply and point of abstraction in question as if it referred to a quantity lower than twenty cubic metres, that lower quantity (or, if more than one, the lowest of them).
(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 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;
(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.
(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 provision mentioned in paragraph (a), (c), (d), (e) or (f) of subsection (1) above.
(7) Subject to subsection (8) below, a person who was the holder of a full 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 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 continue to be taken to have that right for the purposes of this Chapter.
(8) For the purposes of this Chapter, the person who was the holder of the licence in question (“the old licence”) shall cease to continue to be taken 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 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.
(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 abstractions for emergency purposes only, such longer period as the appropriate agency may determine on the application of the holder of the old licence.
(10) In subsections (8) and (9) above, references to the old licence, in the case of a licence which ceased to have effect only to the extent specified in the order or regulations referred to in subsection (7) above, are to the part of the licence which ceased to have effect.
(11) Any reference in this Chapter to the person entitled to a protected right shall be construed in accordance with this section.
(12) This section is subject to any provision made by virtue of subsection (3) of section 39B below, and to subsections (4) and (5) of that section.
(1) The Secretary of State may by regulations make provision for and in connection with the establishment, and for the keeping and maintenance by the appropriate agency, of one or more registers of protected rights which arise otherwise than by virtue of a licence under this Chapter to abstract water.
(2) The regulations may, in particular, provide for—
(a) a register to relate to a prescribed geographical area, or for different sections of a register to relate to different geographical areas (whether prescribed or not);
(b) the inclusion of protected rights which arise other than by virtue of any provision of this Act;
(c) the form and contents of the register, and its inspection by members of the public;
(d) the procedure for applying for a protected right to be included in the register, including any information which is to accompany the application;
(e) cases in which it is the duty of the appropriate agency to include a protected right in the register without an application for inclusion having been made.
(3) The Secretary of State may by order designate any geographical area in respect of which a register, or a section of a register, relates as an area of compulsory registration.
(4) If he does so, a protected right in that area which is not registered shall not have effect as a protected right for any purpose of this Act (other than that of registering it) for so long as it is not registered.
(5) Subsection (4) above does not apply in relation to any protected right until after the expiry of the period of two years beginning with the date on which the order under subsection (3) above was made, or such longer period as may be specified in the order.
(6) An order under subsection (3) above may be made only on the application of the appropriate agency; but the Secretary of State may direct the appropriate agency to make such an application.
(7) Schedule 6 to this Act shall have effect with respect to applications for orders under subsection (3) above and with respect to the making of such orders.
(8) The power to make orders under this section shall be exercisable by statutory instrument; and a statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(9) Paragraphs (d) to (f) of section 219(2) below apply in relation to orders under this section as they apply to regulations made under this Act.
40 Obligation to take river flow etc. into account.
(1) Without prejudice to sections 38(3) and 39(1) above, subsection (2) or, as the case may be, subsection (3) below shall apply where any application for a licence under this Chapter relates to abstraction from any inland waters or to obstructing or impeding the flow of any inland waters by means of impounding works.
(2) If, in the case of such an application as is mentioned in subsection (1) above, the application is made at a time when no minimum acceptable flow for the inland waters in question has been determined under Chapter I of this Part, the appropriate agency, in dealing with the application, shall have regard to the considerations by reference to which, in accordance with section 21(4) and (5) above, a minimum acceptable flow for those waters would fall to be determined.
(3) If, in the case of such an application as is mentioned in subsection (1) above, the application is made at a time after a minimum acceptable flow for the waters in question has been determined under Chapter I of this Part, the appropriate agency, in dealing with the application, shall have regard to the need to secure or, as the case may be, secure in relation to the different times or periods for which the flow is determined—
(a) that the flow at any control point will not be reduced below the minimum acceptable flow at that point; or
(b) if it is already less than that minimum acceptable flow, that the flow at any control point will not be further reduced below the minimum acceptable flow at that point.
(4) Without prejudice to sections 38(3) and 39(1) above, where—
(a) an application for a licence under this Chapter relates to abstraction from underground strata; and
(b) it appears to the appropriate agency that the proposed abstraction is likely to affect the flow, level or volume of any inland waters which are not discrete waters,
subsection (2) or, as the case may be, subsection (3) above shall apply as if the application related to abstraction from those waters.
41 Secretary of State’s power to call in applications
(1) The Secretary of State may give directions to the appropriate agency requiring applications for licences under this Chapter to be referred to him, instead of being dealt with by the appropriate agency.
(2) A direction under this section—
(a) may relate either to a particular application or to applications of a class specified in the direction; and
(b) may except from the operation of the direction such classes of applications as may be specified in the direction in such circumstances as may be so specified.
(3) An application may not be referred to the Secretary of State under this section—
(a) if in relation to the application the appropriate agency is still considering 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 appropriate agency has served a notice on the applicant under 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.
(1) Subject to the following provisions of this section and to section 46 below, the Secretary of State, on considering a called-in application—
(a) may determine that a licence shall be granted containing such provisions as he considers appropriate; or
(b) if, having regard to the provisions of this Act, he considers it necessary or expedient to do so, may determine that no licence shall be granted.
(2) Before determining a called-in application, the Secretary of State may, if he thinks fit-
(a) cause a local inquiry to be held; or
(b) afford to the applicant and the appropriate 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) above if a request is made by the applicant or the appropriate agency to be heard with respect to the application.
(3) The provisions of sections 37, 38(1) and (3), 39(2) and 40 above shall apply in relation to any called-in application as if—
(a) any reference in those provisions to the appropriate agency, except the references in sections 37 and 38(3)(a), were a reference to the Secretary of State; and
(b) any reference to section 39(1) above were a reference to subsection (4) below.
(4) Subject to subsection (4A) below, in determining any called-in application and, in particular, in determining what (if any) direction to give under subsection (5) below, the Secretary of State shall consider whether any such direction would require the grant of a licence which would so authorise—
(a) the abstraction of water; or
(b) the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from rights which, at the time when the direction in question is given, are protected rights for the purposes of this Chapter.
(4A) Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.
(5) Where the decision of the Secretary of State on a called-in application is that a licence is to be granted, the decision shall include a direction to the appropriate agency to grant a licence containing such provisions as may be specified in the direction.
(6) The decision of the Secretary of State on any called-in application shall be final.
(7) In this section “called-in application” means an application referred to the Secretary of State in accordance with directions under section 41 above.
(1) Where an application has been made to the appropriate agency for a licence under this Chapter, the applicant may by notice appeal to the Secretary of State if—
(a) the applicant is dissatisfied with the decision of the appropriate agency on the application; or
(b) the appropriate agency fails within the period specified in subsection (2) below to give to the applicant either—
(i) notice of the appropriate agency's decision on the application; or
(ii) notice that the application has been referred to the Secretary of State in accordance with any direction under section 41 above.
(1A) This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).
(2) The period mentioned in subsection (1)(b) above is—
(a) except in a case falling within paragraph (b) below, such period as may be prescribed; and
(b) where an extended period is at any time agreed in writing between the applicant and the appropriate agency, the extended period.
(3) A notice of appeal under this section shall be served—
(a) in such manner as may be prescribed; and
(b) within such period as may be prescribed, being a period of not less than twenty-eight days from, as the case may be—
(i) the date on which the decision to which it relates was notified to the applicant; or
(ii) the end of the period which, by virtue of subsection (2) above, is applicable for the purposes of subsection (1)(b) above.
(4) Where a notice is served under this section in respect of any application, the applicant shall, within the period prescribed for the purposes of subsection (3)(b) above, serve a copy of the notice on the appropriate agency.
(5) Where any representations in writing with respect to an application were made within the period specified in any such notice as is referred to in section 37(4)(b) above, the Secretary of State shall, before determining an appeal under this section in respect of the application, require the appropriate agency to serve a copy of the notice of appeal on each of the persons who made those representations.
(1) Subject to the following provisions of this Chapter, where an appeal is brought under section 43 above, the Secretary of State—
(a) may allow or dismiss the appeal or reverse or vary any part of the decision of the appropriate agency, whether the appeal relates to that part of the decision or not; and
(b) may deal with the application as if it had been made to him in the first instance;
and for the purposes of this section an appeal by virtue of section 43(1)(b) above shall be taken to be an appeal against a refusal of the application.
(2) Before determining an appeal under section 43 above, the Secretary of State may, if he thinks fit—
(a) cause a local inquiry to be held; or
(b) afford to the applicant and the appropriate 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) above if a request is made by the applicant or the appropriate agency to be heard with respect to the appeal.
(3) The Secretary of State, in determining an appeal under section 43 above, shall take into account—
(a) any further representations in writing received by him, within the prescribed period, from the persons mentioned in section 43(5) above; and
(b) the requirements of the applicant, in so far as they appear to the Secretary of State to be reasonable requirements.
(4) Subject to subsection (4A) below, in determining any appeal under section 43 above and, in particular, in determining what (if any) direction to give under subsection (6) below, the Secretary of State shall consider whether any such direction would require such a grant or variation of a licence as would so authorise—
(a) the abstraction of water; or
(b) the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from rights which, at the time when the direction in question is given, are protected rights for the purposes of this Chapter.
(4A) Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.
(5) The provisions of sections 39(2) and 40 above shall apply in relation to any appeal under section 43 above as if—
(a) any reference in those provisions to the appropriate agency, were a reference to the Secretary of State; and
(b) the references to sections 38(3) and 39(1) above were references to subsections (3) and (4) above.
(6) Where the decision on an appeal under section 43 above is that a licence is to be granted or to be varied or revoked, the decision shall include a direction to the appropriate agency, as the case may be—
(a) to grant a licence containing such provisions as may be specified in the direction;
(b) to vary the licence so as to contain such provisions as may be so specified; or
(c) to revoke the licence.
(7) The decision of the Secretary of State on any appeal under section 43 above shall be final.
(1) The Secretary of State may by regulations make provision as to the manner in which appeals against decisions of the appropriate agency under section 36A above or on applications for the grant, revocation or variation of licences under this Chapter 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 such appeals.
(2) Without prejudice to the generality of subsection (1) above, provision shall be made by regulations under this section for securing that, in prescribed circumstances (being circumstances in which it appears to the Secretary of State that applications for licences under this Chapter would be of special concern to National Park . . . authorities)—
(a) notice of any appeal against the decision on such an application, will be served on any National Park . . . authority who made representations falling within paragraph (b) of section 34(3) above; and
(b) the Secretary of State, in determining the appeal, will take account of any further representations made by such an authority within such period and in such manner as may be prescribed.
(2A) Subsection (2) above does not apply in relation to appeals against decisions of the appropriate agency under section 36A above.
(3) Subsections (4) . . . of section 34 above shall apply for the purposes of this section as they apply for the purposes of that section.
(1) The Secretary of State may by regulations make provision as to the form of licences under this Chapter or of any class of such licences; but any regulations under this subsection shall have effect subject to the following provisions of this section and to any other express provision contained in, or having effect by virtue of, any other enactment contained in this Chapter.
(2) Every full licence under this Chapter shall, and any other licence under this Chapter to abstract water may, make—
(a) provision as to the quantity of water authorised to be abstracted in pursuance of the licence from the source of supply to which the licence relates during a period or periods specified in the licence, including provision as to the way in which that quantity is to be measured or assessed for the purposes of this Chapter; and
(b) provision for determining, by measurement or assessment, what quantity of water is to be taken to have been abstracted during any such period by the holder of the licence from the source of supply to which the licence relates.
(2A) For the purposes of section 61(4A) below—
(a) every full licence under this Chapter which is for a term exceeding twelve years shall; and
(b) any transfer licence under this Chapter which is for a term exceeding twelve years may,
specify a minimum value for the quantity referred to in subsection (2)(a) above.
(3) Every licence under this Chapter to abstract water shall indicate the means by which water is authorised to be abstracted in pursuance of the licence, by reference either to specified works, machinery or apparatus or to works, machinery or apparatus fulfilling specified requirements.
(4) Every licence under this Chapter to abstract water shall also specify the purposes for which water abstracted in pursuance of the licence is to be used.
(5) Every licence under this Chapter to abstract water shall state—
(a) the date on which it takes effect; and
(b) the date on which it expires.
(5A) Every licence under this Chapter to obstruct or impede any inland waters shall remain in force until revoked.
(6) Different provision may be made by the same licence with respect to any one or more of the following matters, that is to say—
(a) the abstraction of water during different periods;
(b) the abstraction of water from the same source of supply but at different points or by different means;
(c) the abstraction of water for use for different purposes;
and any such provision as is mentioned in subsection (2) above may be made separately in relation to each of the matters for which (in accordance with this subsection) different provision is made in the licence.
(7) Nothing in subsection (6) above shall be construed as preventing two or more licences from being granted to the same person to be held concurrently in respect of the same source of supply, if the licences authorise the abstraction of water at different points , by different means or for different purposes .
46A Limited extension of abstraction licence validity
(1) If the condition in subsection (2) below is met, a full licence or a transfer licence whose term exceeded twelve months but whose expiry date (“the expiry date”) has passed shall be treated for all the purposes of this Act as not expiring until the date mentioned in subsection (4) below.
(2) The condition is that the appropriate agency receives, not later than the beginning of the period of three months ending on the expiry date (or such later date before the expiry date as the appropriate agency agrees), a valid application for a new licence—
(a) for abstraction from the same point as the abstraction licensed by the expiring licence;
(b) whose holder would be the same as the holder of the expiring licence; and
(c) which would take effect immediately after the expiry date.
(3) For the purposes of subsection (2) above, a “valid” application is one which complies with all the requirements of this Act in relation to the making of applications for licences of the type in question.
(4) The date referred to in subsection (1) above is whichever is the later of—
(a) if a new licence is granted (whether or not on the terms applied for), the date on which it takes effect;
(b) otherwise—
(i) except where the Secretary of State calls in an application under section 41 above, the expiry of the period for appealing under section 43 above, or if an appeal is brought, the date of its withdrawal; or
(ii) where the Secretary of State decides (under section 42 or 44 above) that no licence is to be granted, the date on which that decision is notified to the applicant.
46B Power to impose general conditions with respect to licensed activity by water companies
(1) The appropriate national authority may by regulations make provision for the purpose of securing that water industry licences under this Chapter have effect subject to—
(a) conditions specified in the regulations, or
(b) rules of general application specified in or made under the regulations.
(2) A condition or rule to which a licence is subject by virtue of regulations under this section is to be treated for the purposes of this Chapter as a provision of the licence.
(3) For the purposes of this section, a licence under this Chapter is a “water industry licence” if—
(a) it is held by a water undertaker or sewerage undertaker, or
(b) it is held by a water supply licensee or sewerage licensee, within the meaning of the Water Industry Act 1991, for the purposes of the activities to which its water supply licence or sewerage licence relates;
and regulations under this section may apply to water industry licences granted before the coming into force of this section.
(4) In this section, “the appropriate national authority” means—
(a) the Secretary of State, in relation to England;
(b) the Welsh Ministers, in relation to Wales.
(5) Section 219 (general provision about regulations) applies to the power of the Welsh Ministers under this section as it applies to that of the Secretary of State, with the necessary modifications (including the substitution of “Senedd Cymru” for “either House of Parliament” in subsection (1)).
(1) Every licence under this Chapter ... shall specify the person to whom the licence is granted.
(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.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) For the purposes of this Chapter 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 and in accordance with the provisions contained in it.
(2) In any action brought against a person in respect of the abstraction of water from a source of supply (other than an abstraction in respect of which a claim could be brought under section 48A below, in which case that section shall apply), it shall be a defence, subject to paragraph 2 of Schedule 7 to this Act, for him to prove—
(a) that the water was abstracted in pursuance of a licence under this Chapter; and
(b) that the provisions of the licence were complied with.
(3) In any action brought against a person in respect of any obstruction or impeding of the flow of any inland waters at any point by means of impounding works, it shall be a defence for him to prove—
(a) that the flow was so obstructed or impeded in pursuance of a licence under this Chapter;
(b) that the obstructing or impeding was in the manner specified in that licence and to an extent not exceeding the extent so specified; and
(c) that the other requirements of the licence (if any) were complied with.
(4) Nothing in subsection (2) or (3) above shall exonerate a person from any action for negligence or breach of contract.
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 that abstraction cause loss or damage to another person.
(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 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 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 caused by an abstractor acting in pursuance of a licence under this Chapter and is loss or damage—
(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 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 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.
(1) The holder of a licence under this Chapter to abstract water may apply to the appropriate agency to revoke the licence and, on any such application, the appropriate agency shall revoke the licence accordingly.
(1A) The holder of a licence under this Chapter to obstruct or impede the flow of inland waters (an “impounding licence”) may apply to the appropriate agency to revoke the licence and, on any such application, the appropriate agency may revoke the licence accordingly.
(1B) The appropriate agency may require conditions to be met to its satisfaction before revocation of the impounding licence takes effect, and those conditions may in particular include conditions—
(a) requiring the removal of all or part of the impounding works;
(b) as to the restoration of the site of the impounding works to a state which is satisfactory to the appropriate agency;
(c) relating to the inland waters the flow of which is obstructed or impeded by means of the impounding works.
(1C) The person making an application under subsection (1A) above (“the applicant”) may by notice appeal to the Secretary of State if—
(a) he is dissatisfied with the decision of the appropriate agency as to—
(i) whether his licence may be revoked; or
(ii) any conditions imposed by virtue of subsection (1B) above; or
(b) the appropriate agency fails to give notice of its decision to the applicant within the prescribed period or within such extended period as may be agreed in writing between the appropriate agency and the applicant.
(1D) The Secretary of State may by regulations make provision with respect to—
(a) the manner in which notices of appeal under subsection (1C) above shall be served;
(b) the period within which such notices shall be served;
(c) the procedure on any such appeal.
(1E) Where an appeal is brought under subsection (1C) above, the Secretary of State may—
(a) allow or dismiss the appeal or reverse or vary any part of the decision of the appropriate agency, whether the appeal relates to that part of the decision or not; and
(b) may deal with the application as if it had been made to him in the first place.
(1F) The decision of the Secretary of State on any appeal under subsection (1C) above shall be final.
(1G) Subsections (1C) to (1F) above are subject to section 114 of the 1995 Act (delegation or reference of appeals).
(2) The holder of a licence under this Chapter may apply to the appropriate agency to vary the licence.
(2A) An application may not be made under subsection (2) above to convert an abstraction licence of one type into an abstraction licence of a different type.
(3) Subject to subsection (4) below, the provisions of sections 37 to 44 above shall apply (with the necessary modifications) to applications under subsection (2) above, and to the variation of licences in pursuance of such applications, as they apply to applications for, and the grant of, licences under this Chapter.
(4) Where the variation proposed in an application under subsection (2) above is limited to reducing the quantity of water authorised to be abstracted in pursuance of the licence during one or more periods—
(a) sections 37 and 38(1) above shall not apply by virtue of subsection (3) above; and
(b) sections 43 and 44 above, as applied by that subsection, shall have effect as if subsection (5) of section 43 and paragraph (a) of section 44(3) were omitted.
52 Proposals for modification at instance of the appropriate agency or Secretary of State.
(1) Where it appears to the appropriate agency that a licence under this Chapter should be revoked or varied, the appropriate agency may formulate proposals for revoking or varying the licence.
(1A) In the case of a licence to obstruct or impede any inland waters, a variation may take the form of a requirement that the impounding works be modified in ways specified in the proposed new provision of the licence.
(2) Where—
(a) it appears to the Secretary of State (either in consequence of representations made to the Secretary of State or otherwise) that a licence under this Chapter ought to be reviewed; but
(b) no proposals for revoking or varying the licence have been formulated by the appropriate agency under subsection (1) above,
the Secretary of State may, as he may consider appropriate in the circumstances, give the appropriate agency a direction under subsection (3) below.
(3) A direction under this subsection may—
(a) direct the appropriate agency to formulate proposals for revoking the licence in question; or
(b) direct the appropriate agency to formulate proposals for varying that licence in such manner as may be specified in the direction.
(4) Notice in the prescribed form of any proposals formulated under this section with respect to any licence shall—
(a) be served on the holder of the licence; and
(b) be published in the prescribed way or (if no way is prescribed) in a way calculated to bring it to the attention of persons likely to be affected if the licence were revoked or varied as proposed.
(5) If—
(a) a licence with respect to which any proposals are formulated under this section relates to any inland waters; and
(b) the proposals provide for variation of that licence,
a copy of the notice for the purposes of subsection (4) above shall, not later than the date on which it is first published as mentioned in subsection (4)(b) above, be served on any navigation authority, harbour authority or conservancy authority having functions in relation to those waters at a place where the licence, if varied in accordance with the proposals, would authorise water to be abstracted or impounded.
(6) A notice for the purposes of subsection (4) above shall—
(a) include any prescribed matters; and
(b) state that, before the end of a period specified in the notice—
(i) the holder of the licence may give notice in writing to the appropriate agency objecting to the proposals; and
(ii) any other person may make representations in writing to the appropriate agency with respect to the proposals.
(7) The period referred to in subsection (6)(b) above—
(a) begins on the date the notice referred to in subsection (4) above is first published as mentioned there; and
(b) shall not end before the end of the period of twenty-eight days beginning with that date.
(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
53 Modification in pursuance of proposals under section 52.
(1) Subject to the following provisions of this section, where the appropriate agency has formulated any proposals under section 52 above with respect to any licence under this Chapter, it may—
(a) if the proposals are for the revocation of the licence, revoke the licence; and
(b) if the proposals are proposals for varying the licence, vary the licence in accordance with those proposals or, with the consent of the holder of the licence, in any other way.
(2) The appropriate agency shall not proceed with any proposals formulated under section 52 above before the end of the period specified, in accordance with subsection (7) of that section, for the purposes in relation to those proposals of subsection (6) of that section.
(3) If no notice under subsection (4) below is given to the appropriate agency before the end of the period mentioned in subsection (2) above, the appropriate agency may proceed with the proposals.
(4) If the holder of the licence gives notice to the appropriate agency objecting to the proposals before the end of the period mentioned in subsection (2) above, the appropriate agency shall refer the proposals to the Secretary of State, with a copy of the notice of objection.
(5) Where the appropriate agency proceeds with any proposals under subsection (3) above and the proposals are proposals for varying the licence, the provisions of sections 38(3), 39(1) and (2) and 40 above shall apply (with the necessary modifications) to any action of the appropriate agency in proceeding with the proposals as they apply to the action of the appropriate agency in dealing with an application for a licence.
54 Reference of modification proposals to the Secretary of State.
(1) Where any proposals of the appropriate agency with respect to a licence are referred to the Secretary of State in accordance with subsection (4) of section 53 above, the Secretary of State shall consider—
(a) the proposals;
(b) the objection of the holder of the licence; and
(c) any representations in writing relating to the proposals which were received by the appropriate agency before the end of the period mentioned in subsection (2) of that section,
and, subject to subsection (2) below, shall determine (according to whether the proposals are for the revocation or variation of the licence) the question whether the licence should be revoked or the question whether it should be varied as mentioned in subsection (1)(b) of that section.
(2) Before determining under this section whether a licence should be revoked or varied in a case in which proposals have been formulated under section 52 above, the Secretary of State may, if he thinks fit—
(a) cause a local inquiry to be held; or
(b) afford to the holder of the licence and the appropriate 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) above if a request is made by the holder of the licence or the appropriate agency to be heard with respect to the proposals.
(3) In determining under this section whether a licence should be varied and, if so, what directions should be given under subsection (5) below, the Secretary of State shall consider whether any such direction would require such a variation of the licence as would so authorise—
(a) the abstraction of water; or
(b) the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from rights which, at the time when the direction is given, are protected rights for the purposes of this Chapter.
(4) The provisions of sections 39(2) and 40 above shall apply in relation to any proposals referred to the Secretary of State in accordance with section 53(4) above as if in those provisions—
(a) any reference to the appropriate agency were a reference to the Secretary of State;
(b) any reference to the application were a reference to the proposals; and
(c) the references to sections 38(3) and 39(1) were references to subsections (1) and (3) above.
(5) Where the decision of the Secretary of State on a reference in accordance with section 53(4) above is that the licence in question should be revoked or varied, the decision shall include a direction to the appropriate agency to revoke the licence or, as the case may be, to vary it so as to contain such provisions as may be specified in the direction.
(6) A decision of the Secretary of State under this section with respect to any proposals shall be final.
55 Application for modification of licence by owner of fishing rights.
(1) Subject to the following provisions of this section and to Schedule 7 to this Act, where a licence under this Chapter authorises abstraction from any inland waters in respect of which no minimum acceptable flow has been determined under Chapter I of this Part, any person who is the owner of fishing rights in respect of those inland waters may apply to the Secretary of State for the revocation or variation of the licence.
(2) No application shall be made under this section in respect of any licence except at a time after the end of the period of one year beginning with the date on which the licence was granted but before a minimum acceptable flow has been determined in relation to the waters in question.
(3) Any application under this section made by a person as owner of fishing rights in respect of any inland waters shall be made on the grounds that, in his capacity as owner of those rights, he has sustained loss or damage which is directly attributable to the abstraction of water in pursuance of the licence in question and either—
(a) he is not entitled to a protected right for the purposes of this Chapter in respect of those inland waters; or
(b) the loss or damage which he has sustained in his capacity as owner of those rights is not attributable to any such breach of statutory duty as is mentioned in subsection (2) or (3) of section 60 below or is in addition to any loss or damage attributable to any such breach.
(4) Where an application is made under this section in respect of any licence, the applicant shall serve notice in the prescribed form on the appropriate agency and on the holder of the licence, stating that each of them is entitled, at any time before the end of the period of twenty-eight days beginning with the date of service of the notice, to make representations in writing to the Secretary of State with respect to the application.
(5) In this section and section 56 below “fishing rights”, in relation to any inland waters, means any right (whether it is an exclusive right or a right in common with one or more other persons) to fish in those waters, where the right in question—
(a) constitutes or is included in an interest in land; or
(b) is exercisable by virtue of an exclusive licence granted for valuable consideration;
and any reference to an owner of fishing rights is a reference to the person for the time being entitled to those rights.
(6) In this section any reference to a right included in an interest in land is a reference to a right which is exercisable only by virtue of, and as a right incidental to, the ownership of that interest.
(1) The Secretary of State, in determining any application under section 55 above in respect of any licence, shall take into account any representations in writing received by him, within the period mentioned in subsection (4) of that section, from the appropriate agency or from the holder of the licence.
(2) Before determining on an application under section 55 above whether a licence should be revoked or varied the Secretary of State may, if he thinks fit—
(a) cause a local inquiry to be held; or
(b) afford to the applicant, the holder of the licence and the appropriate 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) above if a request is made by the applicant, the holder of the licence or the appropriate agency to be heard with respect to the proposals.
(3) Subject to subsections (4) and (5) below, on an application under section 55 above in respect of any licence, the Secretary of State shall not determine that the licence shall be revoked or varied unless—
(a) the grounds of the application, as mentioned in subsection (3) of that section, are established to his satisfaction; and
(b) he is satisfied that the extent of the loss or damage which the applicant has sustained, as mentioned in that subsection, is such as to justify the revocation or variation of the licence.
(4) On an application under section 55 above in respect of any licence, the Secretary of State shall not determine that the licence shall be revoked or varied if he is satisfied that the fact that the abstraction of water in pursuance of the licence caused the loss or damage which the applicant has sustained, as mentioned in subsection (3) of that section, was wholly or mainly attributable to exceptional shortage of rain or to an accident or other unforeseen act or event not caused by, and outside the control of, the appropriate agency.
(5) Where the Secretary of State determines, on an application under section 55 above, that a licence shall be varied, the variation shall be limited to that which, in the opinion of the Secretary of State, is requisite having regard to the loss or damage which the applicant has sustained as mentioned in subsection (3) of that section.
(6) Where the decision of the Secretary of State on an application under section 55 above in respect of any licence is that the licence should be revoked or varied, the decision shall include a direction to the appropriate agency to revoke the licence or, as the case may be, to vary it so as to contain such provisions as may be specified in the direction.
(7) A decision of the Secretary of State on an application under section 55 above shall be final.
57 Emergency variation of licences for spray irrigation purposes.
(1) This section applies where at any time—
(a) one or more licences under this Chapter are in force in relation to a source of supply authorising water abstracted in pursuance of the licences to be used for the purpose of spray irrigation, or for that purpose together with other purposes; and
(b) by reason of exceptional shortage of rain or other emergency, it appears to the appropriate agency that it is necessary to impose a temporary restriction on the abstraction of water for use for that purpose.
(2) Subject to subsections (3) and (4) below, where this section applies the appropriate agency may serve a notice on the holder of any of the licences reducing, during such period as may be specified in the notice, the quantity of water authorised to be abstracted in pursuance of the licence from the source of supply for use for the purpose of spray irrigation; and, in relation to that period, the licence shall have effect accordingly subject to that reduction.
(3) The appropriate agency shall not serve a notice under this section in respect of abstraction of water from underground strata unless it appears to the appropriate agency that such abstraction is likely to affect the flow, level or volume of any inland waters which are not discrete waters.
(4) In the exercise of the power conferred by this section in a case where there are two or more licences under this Chapter in force authorising abstraction from the same source of supply either at the same point or at points which, in the opinion of the appropriate agency, are not far distant from each other—
(a) the appropriate agency shall not serve a notice under this section on the holder of one of the licences unless a like notice is served on the holders of the other licences in respect of the same period; and
(b) the reductions imposed by the notices on the holders of the licences shall be so calculated as to represent, as nearly as appears to the appropriate agency to be practicable, the same proportion of the quantity of water authorised by the licences (apart from the notices) to be abstracted for use for the purpose of spray irrigation.
(5) The provisions of this section shall have effect without prejudice to the exercise of any power conferred by sections 51 to 54 above.
59 Regulations with respect to modification applications.
(1) The Secretary of State may by regulations make provision as to the manner in which applications for the revocation or variation of licences under this Chapter are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such applications or decisions on any such applications.
(2) Subsection (1) above shall have effect subject to any express provision contained in, or having effect by virtue of, any other enactment contained in this Chapter; and any regulations made under this section shall have effect subject to any such express provision.
(1) The following licences—
(a) a full licence;
(b) a transfer licence; or
(c) a licence to obstruct or impede the flow of inland waters by means of impounding works,
may be transferred by the holder of the licence to another person (“the transferee”) in accordance with the following provisions of this section.
(2) The holder and the proposed transferee shall give notice (a “transfer notice”) to the appropriate agency of their agreement that the licence should be transferred.
(3) The transfer notice shall include—
(a) such information as the appropriate agency reasonably requires; and
(b) (in the case of the transfer of a full licence or of a transfer licence) a declaration by the proposed transferee that—
(i) he has, or at the time when the proposed transfer is to take effect will have, a right of access in relation to each point of abstraction; and
(ii) he will continue to have such a right for the period of at least one year beginning with the date on which the proposed transfer is to take effect, or until the licence is to expire (if sooner),
and may specify the date on which the holder and the transferee wish the transfer to take effect.
(4) If the holder is a person in whom the licence has vested under section 59B below, a transfer notice shall be of no effect unless the notice required by section 59B(4) has been given.
(5) Subject to subsection (4) above, if the appropriate agency receives a transfer notice which complies with the requirements of subsections (2) and (3) above, the appropriate agency shall amend the licence by substituting the name of the transferee as holder of the licence.
(6) The transfer shall take effect—
(a) from the date on which the appropriate agency amends the licence; or
(b) from the date specified in the transfer notice, if later.
(7) Nothing in this section shall affect the liability of the holder of the licence for any failure by him, before the transfer took effect, to comply with any condition or requirement of that licence.
(8) In this section—
“point of abstraction” means a place where the licence authorises water to be abstracted from inland waters or (as the case may be) a place consisting of or comprising underground strata from which the licence authorises water to be abstracted; and
“right of access” means, in relation to a point of abstraction, a right of access to land of the kind referred to in subsection (2)(a) or, as the case may be, (3)(a) of section 35 above; and references to a person who will have such a right of access shall be construed in accordance with that section (including subsections (4) to (6)).
59B Vesting of licence on death or bankruptcy of holder
(1) On the death of the holder of a licence under this Chapter, the licence shall be regarded as property forming part of the deceased’s personal estate, whether or not it would be so regarded apart from this subsection, and shall accordingly vest in his personal representatives.
(2) If a bankruptcy order is made against the holder of a licence under this Chapter, the licence shall be regarded for the purposes of any of the Second Group of Parts of the Insolvency Act 1986 (insolvency of individuals; bankruptcy) as property forming part of the bankrupt’s estate, whether or not it would be so regarded apart from this subsection, and shall accordingly vest as such in the trustee in bankruptcy.
(3) A person in whom a licence vests under this section shall become the holder of the licence, in place of the prior holder, from the date of the vesting.
(4) Where a licence other than a temporary licence vests in any person under this section, that person shall give notice of that fact to the appropriate agency not later than the end of the period of fifteen months beginning with the date of the vesting.
(5) If—
(a) a licence vests in any person under this section; but
(b) that person fails to give the notice required by subsection (4) above within the period mentioned there,
the licence shall cease to have effect.
(1) The holder of a full licence or of a transfer licence (the “old licence”) may apply to the appropriate agency for the division of the holder’s right to abstract water in accordance with the old licence and for the transfer—
(a) to another person of part, or to a number of other persons of parts not amounting to the whole; or
(b) to a number of other persons of parts amounting in all to the whole,
of that right.
(2) The holder of the old licence and any person proposing to carry on a part of the abstraction authorised by the old licence in place of the holder (a “successor”) shall give notice to the appropriate agency of their agreement to the division and transfer (an “apportionment notice”).
(3) The apportionment notice shall, in relation to the abstraction authorised by the old licence—
(a) specify, for each proposed successor, what quantity of water he proposes to abstract, and (if the holder of the old licence is to continue the abstraction in part) what quantity of water he proposes to abstract;
(b) specify the purpose or purposes for which those persons referred to in paragraph (a) above who would require a new licence granted under subsection (5) below would abstract water (being one or more of the purposes for which abstraction is authorised under the old licence);
(c) specify the point (or points) of abstraction from which it is proposed that the persons referred to in paragraph (a) above would abstract water (being one or more of the points from which abstraction is authorised under the old licence);
(d) include a declaration by each of those persons who requires a licence under this Chapter in order to carry on the abstraction that—
(i) he has, or at the time when the proposed grant to him of a new licence under subsection (5) below is to take effect will have, a right of access in relation to each such point of abstraction; and
(ii) he will continue to have such a right for the period of at least one year beginning with the date on which the new licence is to take effect, or until it is to expire (if sooner); and
(e) include such other information as the appropriate agency reasonably requires,
and may specify the date on which the holder and the successor (or successors) wish the division and transfer (or transfers) to take effect.
(4) The apportionment notice shall be accompanied by an application on the part of the holder of the old licence for its revocation.
(5) Subject to subsection (9) below, if the appropriate agency receives an apportionment notice and the application for revocation referred to in subsection (4) above, the appropriate agency shall—
(a) revoke the old licence;
(b) if the holder is to continue the abstraction in part and a licence 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 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 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—
(a) from the date on which the appropriate agency revokes the old licence and grants the new ones; or
(b) from the date specified in the apportionment notice, if later.
(9) The appropriate 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 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 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—
(a) during a period mentioned in subsection (12) below 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.
(12) The period referred to in subsection (11)(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 abstractions for emergency purposes only, such longer period as the appropriate agency may determine on the application of the person in question.
(13) For the purposes of section 39A above, a new licence granted under subsection (5) above shall be treated—
(a) as if it had been granted at the time the old licence was granted; and
(b) as if it and any other new licence granted by virtue of the relevant apportionment notice had been granted in place of the old licence.
(14) In this section—
“exemption” means the disapplication of the restriction on abstraction under or by virtue of section 27 or 33A above; and
“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.
(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 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.