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Water Resources Act 1991

Type Public General Act

Publication 1991-07-25

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

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Part I — PRELIMINARY

CHAPTER I — THE NATIONAL RIVERS AUTHORITY

Enforcement: powers and duties.

1

The Authority’s functions

2

Incidental functions of the Authority

3

Incidental general powers of the Authority

4

Ministerial directions to the Authority

5

CHAPTER II — COMMITTEES WITH FUNCTIONS IN RELATION TO THE AUTHORITY

Advisory committees

The advisory committee for Wales

6

Regional rivers advisory committees

7

Regional and local fisheries advisory committees

8

Flood defence committees

Continuance of regional flood defence committees

9

Composition of regional flood defence committees

10

Change of composition of regional flood defence committee

11

Local flood defence schemes and local flood defence committees

12

Composition of local flood defence committees

13

Membership and proceedings of flood defence committees

14

CHAPTER III — GENERAL DUTIES

General duties with respect to the water industry

15

(1) It shall be the duty of the Agency and the NRBW, in exercising any of their powers under any enactment, to have particular regard to the duties imposed, by virtue of the provisions of Parts II to IV of the Water Industry Act 1991, on any water undertaker or sewerage undertaker which appears to the Agency or the NRBW, as the case may be, to be or to be likely to be affected by the exercise of the power in question.

(2) It shall be the duty of each of the Ministers, in exercising—

(a) any power conferred by virtue of the 1995 Act,this Act, the Land Drainage Act 1991, the Water Industry Act 1991, the Water Act 1989 or the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903) in relation to, or to decisions of, the Agency or the NRBW; or

(b) any power which, but for any direction given by one of the Ministers, would fall to be exercised by the Agency or the NRBW,

to take into account the duty imposed on the Agency and the NRBW by subsection (1) above.

General environmental and recreational duties

16

Environmental duties with respect to sites of special interest

17

Codes of practice with respect to environmental and recreational duties

18

Part II — Water Resources Management

CHAPTER I — General Management Functions

General management of resources by the Authority

19

(1) It shall be the duty of the Agency to take all such action as it may from time to time consider, in accordance (if any have been given for the purposes of this section) with the directions of the Secretary of State, to be necessary or expedient for the purpose—

(a) of conserving, redistributing or otherwise augmenting water resources in England and Wales; and

(b) of securing the proper use of water resources in England and Wales.

(2) Nothing in this section shall be construed as relieving any water undertaker of the obligation to develop water resources for the purpose of performing any duty imposed on it by virtue of section 37 of the Water Industry Act 1991 (general duty to maintain water supply system).

Water resources management schemes

20

(1) It shall be the duty of the appropriate agency so far as reasonably practicable to enter into and maintain such arrangements with water undertakers for securing the proper management or operation of—

(a) the waters which are available to be used by water undertakers for the purposes of, or in connection with, the carrying out of their functions; and

(b) any reservoirs, apparatus or other works which belong to, are operated by or are otherwise under the control of water undertakers for the purposes of, or in connection with, the carrying out of their functions,

as the appropriate agency from time to time considers appropriate for the purpose of carrying out its functions under section 6(2) or, as the case may be, section 6(2A) of the 1995 Act.

(2) Without prejudice to the power of the appropriate agency and any water undertaker to include any such provision as may be agreed between them in arrangements under this section, such arrangements may—

(a) make provision by virtue of subsection (1)(a) above with respect to the construction or installation of any reservoirs, apparatus or other works which will be used by the undertaker in the carrying out of its functions;

(b) contain provision requiring payments to be made by the appropriate agency to the undertaker; and

(c) require the reference to and determination by the Secretary of State or the Water Services Regulation Authority of questions arising under the arrangements.

(3) The appropriate agency shall send a copy of any arrangements entered into by it under this section to the Secretary of State; and the obligations of a water undertaker by virtue of any such arrangements shall be enforceable under section 18 of the Water Industry Act 1991 (enforcement orders) by the Secretary of State.

Minimum acceptable flows

21

(1) The appropriate agency may, if it thinks it appropriate to do so, submit a draft statement to the Secretary of State containing, in relation to any inland waters that are not discrete waters—

(a) provision for determining the minimum acceptable flow for those waters; or

(b) where any provision for determining such a flow is for the time being in force in relation to those waters, provision for amending that provision or for replacing it with different provision for determining the minimum acceptable flow for those waters.

(2) The provision contained in any statement for determining the minimum acceptable flow for any inland waters shall, in relation to the inland waters to which it relates, set out—

(a) the control points at which the flow in the waters is to be measured;

(b) the method of measurement which is to be used at each control point; and

(c) the flow which is to be the minimum acceptable flow at each control point or, where appropriate, the flows which are to be the minimum acceptable flows at each such point for the different times or periods specified in the statement.

(3) Before preparing so much of any draft statement under this section as relates to any particular inland waters, the appropriate agency shall consult—

(za) if those waters are in Wales and there are related inland waters in England, the Agency;

(zb) if those waters are in England and there are related inland waters in Wales, the NRBW;

(a) any water undertaker having the right to abstract water from those waters;

(b) any other water undertaker having the right to abstract water from any related underground strata;

(c) the drainage board for any internal drainage district from which water is discharged into those waters or in which any part of those waters is situated;

(d) any navigation authority, harbour authorityor conservancy authority having functions in relation to those waters or any related inland waters;

(e) if those waters are ... situated in Wales (or in an area of the sea adjoining either the coast of Wales or an area of sea forming part of Wales) and they or any related inland waters are tidal waters in relation to which there is no such navigation authority, harbour authority or conservancy authority, the Secretary of State for Transport; and

(f) any person authorised by a licence under Part I of the Electricity Act 1989 to generate electricity who has a right to abstract water from those waters.

(4) In determining the flow to be specified in relation to any inland waters under subsection (2)(c) above, the appropriate agency shall have regard—

(a) to the flow of water in the inland waters from time to time;

(b) in the light of its duties under sections 6(1), 7 and 8 of the 1995 Act, to the character of the inland waters and their surroundings; and

(c) to any water quality objectives established under Chapter I of Part III of this Act in relation to the inland waters or any other inland waters which may be affected by the flow in the inland waters in question.

(5) The flow specified in relation to any inland waters under subsection (2)(c) above shall be not less than the minimum which, in the opinion of the appropriate agency, is needed for safeguarding the public health and for meeting (in respect of both quantity and quality of water)—

(a) the requirements of existing lawful uses of the inland waters, whether for agriculture, industry, water supply or other purposes; and

(b) the requirements, in relation to both those waters and other inland waters whose flow may be affected by changes in the flow of those waters, of navigation, fisheries or land drainage.

(6) The provisions of Schedule 5 to this Act shall have effect with respect to draft statements under this section and with respect to the approval of statements submitted as draft statements.

(7) The approval under Schedule 5 to this Act of a draft statement under this section shall bring into force, on the date specified in that approval, so much of that statement, as approved, as contains provision for determining, amending or replacing the minimum acceptable flow for any inland waters.

(8) For the purposes of subsection (3) above—

(a) underground strata are related underground strata in relation to any inland waters if—

(i) a water undertaker has a right to abstract water from the strata; and

(ii) it appears to the appropriate agency, having regard to the extent to which the level of water in the strata depends on the flow of those waters, that the exercise of that right may be substantially affected by so much of the draft statement in question as relates to those waters;

(b) inland waters are related inland waters in relation to any other inland waters, where it appears to the appropriate agency that changes in the flow of the other waters may affect the flow of the first-mentioned inland waters.

(9) For the purposes of subsection (5) above the appropriate agency shall be entitled (but shall not be bound) to treat as lawful any existing use of any inland waters 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;

... .

(10) In subsection (5) above, the reference to land drainage 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 watercourse; and

(b) the provision of flood warning systems.

Directions to the Authority to consider minimum acceptable flow

22

(1) If the appropriate agency is directed by the Secretary of State to consider whether the minimum acceptable flow for any particular inland waters ought to be determined or reviewed, the appropriate agency shall consider that matter as soon as reasonably practicable after being directed to do so.

(2) After considering any matter under subsection (1) above the appropriate agency shall submit to the Secretary of State with respect to the inland waters in question either—

(a) such a draft statement as is mentioned in subsection (1) of section 21 above; or

(b) a draft statement that no minimum acceptable flow ought to be determined for those waters or, as the case may require, that the minimum acceptable flow for those waters does not need to be changed.

and subsections (6) and (7) of that section shall apply in relation to a draft statement under this subsection as they apply in relation to a draft statement under that section.

(3) Without prejudice to the generality of paragraph 4 of Schedule 5 to this Act, the power of the Secretary of State under that paragraph to alter a draft statement before approving it shall include power to substitute a statement containing or amending any such provision as is mentioned in subsection (2) of section 21 above for such a draft statement as is mentioned in subsection (2)(b) of this section.

Minimum acceptable level or volume of inland waters

23

(1) Where it appears to the appropriate agency, in the case of any particular inland waters, that it would be appropriate to measure the level or the volume (either instead of or in addition to the flow) the appropriate agency may determine that sections 21 and 22 above shall apply in relation to those inland waters as if any reference to the flow were or, as the case may be, included a reference to the level or to the volume.

(2) Where the appropriate agency makes a determination under subsection (1) above with respect to any inland waters, any draft statement prepared for the purposes of section 21 or 22 above, in so far as it relates to those waters, shall state—

(a) whether the level or the volume is to be measured; and

(b) whether it is to be measured instead of, or in addition to, the flow.

(3) Chapter II of this Part shall apply in relation to any inland waters with respect to which a determination has been made under subsection (1) above as if any reference in that Chapter to the flow were, or (as the case may be) included, a reference to the level or, as the case may be, the volume.

Chapter II — ABSTRACTION AND IMPOUNDING

Restrictions on abstraction and impounding

Restrictions on abstraction

24

(1) Subject to the following provisions of this Chapter and to any drought order or drought permit under Chapter III of this Part, no person shall—

(a) abstract water from any source of supply; or

(b) cause or permit any other person so to abstract any water,

except in pursuance of a licence under this Chapter granted by the appropriate agency and in accordance with the provisions of that licence.

(2) Where by virtue of subsection (1) above the abstraction of water contained in any underground strata is prohibited except in pursuance of a licence under this Chapter, no person shall begin, or cause or permit any other person to begin—

(a) to construct any well, borehole or other work by which water may be abstracted from those strata;

(b) to extend any such well, borehole or other work; or

(c) to instal or modify any machinery or apparatus by which additional quantities of water may be abstracted from those strata by means of a well, borehole or other work,

unless the conditions specified in subsection (3) below are satisfied.

(3) The conditions mentioned in subsection (2) above are—

(a) that the abstraction of the water or, as the case may be, of the additional quantities of water is authorised by a licence under this Chapter; and

(b) that—

(i) the well, borehole or work, as constructed or extended; or

(ii) the machinery or apparatus, as installed or modified,

fulfils the requirements of that licence as to the means by which water is authorised to be abstracted.

(4) A person shall be guilty of an offence if—

(a) he contravenes subsection (1) or (2) above; or

(b) he is for the purposes of this section the holder of a licence under this Chapter and, in circumstances not constituting such a contravention, does not comply with a condition or requirement imposed by the provisions, as for the time being in force, of that licence.

(5) A person who is guilty of an offence under this section shall be liable on summary conviction, or on conviction on indictment, to a fine.

(6) The restrictions imposed by this section shall have effect notwithstanding anything in any enactment contained in any Act passed before the passing of the Water Resources Act 1963 on 31st July 1963 or in any statutory provision made or issued, whether before or after the passing of that Act, by virtue of such an enactment.

Restrictions on impounding

25

(1) Subject to the following provisions of this Chapter and to any drought order or drought permit under Chapter 3 of this Part, no person shall—

(a) begin, or cause or permit any other person to begin, to construct or alter any impounding works at any point in any inland waters which are not discrete waters; or

(b) cause or permit the flow of any inland waters which are not discrete waters to be obstructed or impeded at any point by means of impounding works,

unless (in either case) the conditions mentioned in subsection (1A) below are satisfied.

(1A) The conditions are—

(a) a licence under this Chapter granted by the appropriate agency to obstruct or impede the flow of those inland waters at that point by means of impounding works is in force;

(b) the impounding works will not (or, as the case may be, do not) obstruct or impede the flow of the inland waters except to the extent, and in the manner, authorised by the licence; and

(c) any other conditions or requirements imposed by the provisions, as for the time being in force, of the licence (whether as to the provision of compensation water or otherwise) are complied with.

(2) A person shall be guilty of an offence if—

(a) he contravenes subsection (1) above; or

(b) he is for the purposes of this section the holder of a licence under this Chapter and ... does not comply with a condition or requirement imposed by the provisions, as for the time being in force, of that licence.

(3) A person who is guilty of an offence under this section shall be liable on summary conviction, or on conviction on indictment, to a fine.

(4) Subject to subsection (5) below, the restrictions imposed by this section shall have effect notwithstanding anything in any enactment contained in any Act passed before the passing of the Water Resources Act 1963 on 31st July 1963 or in any statutory provision made or issued, whether before or after the passing of that Act, by virtue of such an enactment.

(5) Subject to subsection (6) below, the restriction on impounding works shall not apply in respect of any impounding works, if—

(a) the construction or alteration of those works; or

(b) the obstruction or impeding of the flow of the inland waters resulting from the construction or alteration of the works,

is authorised (in whatsoever terms, and whether expressly or by implication) by virtue of any such statutory provision as at the coming into force of this Act was an alternative statutory provision for the purposes of section 36(2) of the Water Resources Act 1963.

(6) The provisions of this Chapter shall have effect in accordance with subsection (7) below where by virtue of any such provision as is mentioned in subsection (5) above and is for the time being in force—

(a) any water undertaker or sewerage undertaker to which rights under that provision have been transferred in accordance with a scheme under Schedule 2 to the Water Act 1989 or Schedule 2 to the Water Industry Act 1991; or

(b) any other person,

is authorised (in whatsoever terms, and whether expressly or by implication) to obstruct or impede the flow of any inland waters by means of impounding works (whether those works have already been constructed or not).

(7) Where subsection (6) above applies, the provisions of this Chapter shall have effect (with the necessary modifications), where the reference is to the revocation or variation of a licence under this Chapter, as if—

(a) any reference in those provisions to a licence under this Chapter included a reference to the authorisation mentioned in that subsection; and

(b) any reference to the holder of such a licence included a reference to the undertaker or other person so mentioned.

(8) In this Chapter “impounding works” means either of the following, that is to say—

(a) any dam, weir or other works in any inland waters by which water may be impounded;

(b) any works for diverting the flow of any inland waters in connection with the construction or alteration of any dam, weir or other works falling within paragraph (a) above.

(9) In relation to impounding works, references to alteration include the removal or partial removal of those works, and cognate expressions shall be construed accordingly.

Rights to abstract or impound

26

(1) Subject to subsection (2) below, the restriction on abstraction shall not apply to any transfer, without intervening use, of water from inland waters described in the first column of the Table below to inland waters described in the corresponding entry in the second column, if the transfer is in the course of, or results from, any operations carried out by a navigation authority, harbour authority or conservancy authority in the carrying out of their functions as such an authority.

Transfer from	Transfer to
A water system of the authority's.	The same water system.
A water system of the authority's.	Inland waters not forming part of that water system.
A supply reservoir of the authority's.	A water system of the authority’s with which that reservoir is connected.

(2) Subsection (1) above shall not apply to a transfer of water from a water system to any inland waters outside that water system in order to—

(a) empty a dry dock; or

(b) introduce into those inland waters all or part of a quantity of water to be abstracted from any connected inland waters in pursuance of a licence to do so granted under this Chapter.

(3) The restriction on impounding works shall not apply to—

(a) the construction or alteration of impounding works; or

(b) the obstruction or impeding of inland waters by means of impounding works,

in the course of the performance by a navigation authority, harbour authority or conservancy authority of their functions as such an authority, unless the construction, alteration, obstruction or impeding affects any inland waters in relation to which the authority does not have functions.

(4) In this section, references to—

(a) an authority’s water system are to a water system in relation to which the authority has functions;

(b) an authority’s supply reservoir are to a reservoir—

(i) belonging to a navigation authority;

(ii) used for the purposes of supplying that navigation authority’s water system; and

(iii) which does not discharge to any inland waters other than that water system.

(5) For the purposes of this section, “water system” means the canals, the harbours, or the canals and harbours constituting the system in question—

(a) together with the locks, docks, balancing reservoirs, weirs and other works associated with the system (other than any supply reservoir as described in subsection (4)(b) above); but

(b) excluding any part of the system which consists of a navigable river or part of one.

Rights to abstract small quantities

27

(1) The restriction on abstraction shall not apply to any abstraction of a quantity of water not exceeding twenty cubic metres in any period of twenty-four hours, if the abstraction does not form part of a continuous operation, or of a series of operations, by which a quantity of water which, in aggregate, is more than twenty cubic metres is abstracted during the period.

(2) In the case of any abstraction of water from underground strata which falls within subsection (1) above, the restriction imposed by section 24(2) above shall not apply—

(a) to the construction or extension of any well, borehole or other work; or

(b) to the installation or modification of machinery or other apparatus,

if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.

(3) Where a person is authorised by a licence under this Chapter to carry on a particular abstraction operation (or series of operations), this section does not permit him to carry it on beyond the authorisation conferred by the licence.

Curtailment of rights under section 27

28

(1) The provisions of this section shall have effect where a person (“the occupier") is entitled, by virtue of subsection (6) of section 27 above, to a protected right for the purposes of this Chapter by reason of his being the occupier of such a holding as is mentioned in subsection (4) of that section in relation to an abstraction falling within that subsection (“the holding").

(2) If it appears to the Agency that the occupier is entitled, as against other occupiers of land contiguous to the inland waters in question, to abstract water from those waters for use on part of the holding (“the relevant part"), but is not so entitled to abstract water for use on other parts of the holding—

(a) the Agency may serve on him a notice specifying the relevant part of the holding; and

(b) subject to the following provisions of this section, the notice shall have effect so as to require subsections (3) and (4) of section 27 above to be construed in relation to the holding as if the references in subsection (4) to use on the holding were references to use on the part of the holding specified in the notice.

(3) Where a notice is served under subsection (2) above and the occupier objects to the notice on the grounds—

(a) that he is entitled, as against other occupiers of land contiguous to the inland waters in question, to abstract water from those waters for use on every part of the holding; or

(b) that he is so entitled to abstract water for use on a larger part of the holding than that specified in the notice,

he may, within such period (not being less than twenty-eight days from the date of service of the notice) and in such manner as may be prescribed, appeal to the court against the notice.

(4) On any appeal under subsection (3) above, the court shall determine the matter in dispute and, in accordance with its decision, confirm, quash or vary the Agency’s notice and—

(a) where the court quashes a notice served under subsection (2) above, paragraph (b) of that subsection shall not have effect; and

(b) where the court varies such a notice, that paragraph shall have effect, but with the substitution, for the reference to the part of the holding specified in the notice, of a reference to the part specified in the notice as varied by the court.

(5) In this section—

“the court” means the county court for the district in which the holding, or the part of the holding which is contiguous to the inland waters in question, is situated; and

“entitled” (except in subsection (1) above) means entitled apart from this Chapter or any other statutory provision.

Rights to abstract for drainage purposes etc

29

(1) The restriction on abstraction shall not apply to any abstraction of water from a source of supply in the course of, or resulting from, any operations for purposes of land drainage.

(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 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

(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) 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 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

(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 appropriate agency of—

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

(b) the reasons for the abstractor’s opinion that an emergency had arisen and that the abstraction was necessary.

(2C) The appropriate agency may give notice to the person referred to in subsection (2B) above that in the appropriate agency's opinion an emergency had not arisen, or that the abstraction is not, or is no longer, necessary for any of the reasons set out in subsection (2A) above; and, if the appropriate 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).

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In the case of any abstraction of water from underground strata which falls within subsection (1) or (2) above, the restriction imposed by section 24(2) above shall not apply—

(a) to the construction or extension of any well, borehole or other work; or

(b) to the installation or modification of machinery or other apparatus,

if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.

(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 irrigation), or transferring water from one source of supply to another (whether with or without intervening use) solely or mainly in order to augment the latter.

Notices with respect to borings not requiring licences

30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals against conservation notices under section 30

31

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous rights to abstract

32

(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

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.

Power to provide for further rights to abstract

33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Applications for a licence

Regulations with respect to applications

34

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restrictions on persons who may make applications for abstraction licences

35

(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.

Application for combined abstraction and impounding licence

36

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Publication of application for licence

37

(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

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.

Consideration of licence applications

General consideration of applications

38

(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.

Obligation to have regard to existing rights and privileges

39

(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.

Obligation to take river flow etc. into account

40

(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.

Call-in of applications

Secretary of State’s power to call in applications

41

(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.

Consideration of called-in applications

42

(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.

Appeals with respect to decisions on licence applications

Appeals to the Secretary of State

43

(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.

Determination of appeals

44

(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

(7) The decision of the Secretary of State on any appeal under section 43 above shall be final.

Regulations with respect to appeals

45

(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.

Form, contents and effect of licences

Form and contents of licences

46

(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;

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 .

Holders of licence

47

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General effect of licence

48

(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

(4) Nothing in subsection (2) or (3) above shall exonerate a person from any action for negligence or breach of contract.

Succession to licences

Succession to licences to abstract where person ceases to occupy the relevant land

49

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Succession where person becomes occupier of part of the relevant land

50

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification of licences

Modification on application of licence holder

51

(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;

(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;

(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.

Proposals for modification at instance of the Authority or Secretary of State

52

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification in pursuance of proposals under section 52

53

(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.

Reference of modification proposals to the Secretary of State

54

(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

(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.

Application for modification of licence by owner of fishing rights

55

(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.

Determination of application under section 55

56

(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.

Emergency variation of licences for spray irrigation purposes

57

(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.

Revocation of licence for non-payment of charges

58

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulations with respect to modification applications

59

(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.

Remedies and compensation in respect of infringement of protected rights etc.

Liability of the Authority for derogation from protected right

60

(1) A breach of the duty imposed by subsection (1) of section 39 above (including that duty as applied by section 51(3) or 53(5) above) shall neither invalidate the grant or variation of a licence nor be enforceable by any criminal proceedings, by prohibition or injunction or by action against any person other than the appropriate agency.

(2) Instead, the duty referred to in subsection (1) above shall be enforceable, at the suit of any person entitled to a protected right for the purposes of this Chapter, by an action against the appropriate agency for damages for breach of statutory duty.

(3) Where under any provision of this Chapter, the appropriate agency is directed by the Secretary of State to grant or vary a licence, and the licence, as granted or varied in compliance with the direction, authorises derogation from protected rights, then—

(a) the grant or variation of the licence shall, as between the appropriate agency and the person entitled to those rights, have effect as a breach on the part of the appropriate agency of a statutory duty not to authorise derogation from those rights; and

(b) subsection (2) above shall apply in relation to that statutory duty as it applies in relation to the duty imposed by section 39(1) above.

(4) Subsection (3) above shall be without prejudice to the duty of the appropriate agency, to comply with the direction in question, but that duty shall not afford any defence in an action brought by virtue of paragraph (b) of that subsection.

(5) In any action brought against the appropriate agency in pursuance of this section it shall be a defence for the appropriate agency to show that the fact, as the case may be—

(a) that the abstraction of water authorised by the licence, as granted or varied by the appropriate agency, derogated from the plaintiff’s protected right; or

(b) that the obstruction or impeding of the flow of the inland waters authorised by the licence, as so granted or varied, derogated from the plaintiff’s protected right,

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.

(6) This section has effect subject to the provision made by Schedule 7 to this Act.

(7) In this section any reference to authorising a derogation from protected rights is a reference to 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,

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Water Resources Act 1991

Part I — PRELIMINARY

CHAPTER I — THE NATIONAL RIVERS AUTHORITY

Enforcement: powers and duties.

1

The Authority’s functions

2

Incidental functions of the Authority

3

Incidental general powers of the Authority

4

Ministerial directions to the Authority

5

CHAPTER II — COMMITTEES WITH FUNCTIONS IN RELATION TO THE AUTHORITY

Advisory committees

The advisory committee for Wales

6

Regional rivers advisory committees

7

Regional and local fisheries advisory committees

8

Flood defence committees

Continuance of regional flood defence committees

9

Composition of regional flood defence committees

10

Change of composition of regional flood defence committee

11

Local flood defence schemes and local flood defence committees

12

Composition of local flood defence committees

13

Membership and proceedings of flood defence committees

14

CHAPTER III — GENERAL DUTIES

General duties with respect to the water industry

15

General environmental and recreational duties

16

Environmental duties with respect to sites of special interest

17

Codes of practice with respect to environmental and recreational duties

18

Part II — Water Resources Management

CHAPTER I — General Management Functions

General management of resources by the Authority

19

Water resources management schemes

20

Minimum acceptable flows

21

Directions to the Authority to consider minimum acceptable flow

22

Minimum acceptable level or volume of inland waters

23

Chapter II — ABSTRACTION AND IMPOUNDING

Restrictions on abstraction and impounding

Restrictions on abstraction

24

Restrictions on impounding

25

Rights to abstract or impound

Rights of navigation, harbour and conservancy authorities

26

Rights to abstract small quantities

27

Curtailment of rights under section 27

28

Rights to abstract for drainage purposes etc

29

Notices with respect to borings not requiring licences

30

Appeals against conservation notices under section 30

31

Miscellaneous rights to abstract

32

Power to provide for further rights to abstract

33

Applications for a licence

Regulations with respect to applications