Land Drainage Act 1991 (c. 59)

Part III E+W POWERS TO MODIFY EXISTING OBLIGATIONS

32 Variation of awards. E+W

(1) Where any award made under any public or local Act contains any provision which in any manner affects or relates to the drainage of land, including any provision affecting the powers or duties of any drainage body or other person with respect to the drainage of land, the [F1 appropriate agency]—

(a) may submit to the appropriate Minister for confirmation a scheme for revoking, varying or amending that provision; and

(b) shall submit such a scheme if it is directed to do so by the appropriate Minister on an application under subsection (2) below.

(2) An application may be made to the appropriate Minister for such a direction as is mentioned in subsection (1)(b) above by any person who is under any obligation imposed by the award or by any internal drainage board.

(3) An application under subsection (2) above shall not be entertained unless—

(a) the applicant has requested the [F1 appropriate agency] to submit a scheme under this section; and

(b) the [F1 appropriate agency] has either refused to do so or failed to do so within six months or has submitted a scheme different from that which was requested.

(4) A scheme under this section with respect to any award may—

(a) provide for commuting, on the basis on which the obligations to which section 33 below relates are to be commuted, the obligation of any person under the award to repair or maintain any drainage works;

(b) contain such incidental, consequential or supplemental provisions as are necessary or proper for the purposes of the scheme;

(c) be revoked or varied by a subsequent scheme under this section.

(5) The appropriate Minister may by order made by statutory instrument confirm any scheme submitted to him under this section, either with or without modifications.

(6) Schedule 3 to this Act shall apply with respect to an order confirming a scheme under this section.

(7) An order confirming a scheme under this section may contain provisions with respect to the persons by whom all or any of the expenses incurred by the appropriate Minister or other persons in connection with the making or confirmation of the order, or the making of the scheme, are to be borne.

(8) In this section “the appropriate Minister”—

(a) in relation to England, means the Minister; and

(b) in relation to Wales, means the Secretary of State.

Textual Amendments

F1 Words in s. 32 substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (No. 755), art. 1(2), Sch. 2 para. 323 (with Sch. 7)

Modifications etc. (not altering text)

C1 S. 32 excluded (1.6.2016) by The A14 Cambridge to Huntingdon Improvement Scheme Development Consent Order 2016 (S.I. 2016/547), arts. 1, 3(1)(d) (with arts. 4, 5(3))

C2 S. 32 excluded (22.12.2017) by The M20 Junction 10a Development Consent Order 2017 (S.I. 2017/1202), arts. 1, 3(1)(e) (with arts. 4, 37)

C3 S. 32 excluded (30.10.2019) by The Northampton Gateway Rail Freight Interchange Order 2019 (S.I. 2019/1358), arts. 1, 45(1)(b) (with art. 45(7), Sch. 13 Pt. 1 para. 19)

C4 S. 32 excluded (25.5.2020) by The West Midlands Rail Freight Interchange Order 2020 (S.I. 2020/511), arts. 1, 44(1)(c) (with art. 44(8))

C5 S. 32 excluded (15.10.2020) by The Great Yarmouth Third River Crossing Development Consent Order 2020 (S.I. 2020/1075), arts. 1, 3(1)(b)

C6 S. 32 excluded (29.10.2020) by The Southampton to London Pipeline Development Consent Order 2020 (S.I. 2020/1099), arts. 1, 36(1)(d) (with art. 32, Sch. 9 para. 36)

C7 S. 32 excluded (19.2.2021) by The A303 Sparkford to Ilchester Dualling Development Consent Order 2021 (S.I. 2021/125), arts. 1, 3(1)(c) (with arts. 4, 47)

C8 S. 32 excluded (2.6.2022) by The M25 Junction 10/A3 Wisley Interchange Development Consent Order 2022 (S.I. 2022/549), arts. 1, 3(1)(d) (with arts. 6, 34)

C9 S. 32 excluded (6.6.2022) by The M25 Junction 28 Development Consent Order 2022 (S.I. 2022/573), arts. 1, 47(1)(d) (with arts. 5, 36)

C10 S. 32 excluded (2.9.2022) by The A47 North Tuddenham to Easton Development Consent Order 2022 (S.I. 2022/911), arts. 1, 3(2) (with arts. 4, 53)

C11 S. 32 excluded (8.9.2022) by The A428 Black Cat to Caxton Gibbet Development Consent Order 2022 (S.I. 2022/934), arts. 1, 3(2)(d)

33 Commutation of obligations. E+W

(1) Where—

(a) any person is under an obligation imposed on him by reason of tenure, custom, prescription or otherwise to do any work in connection with the drainage of land (whether by way of repairing banks or walls, maintaining watercourses or otherwise); and

(b) without prejudice to section 107(4) of the M1 Water Resources Act 1991 (application of this section to main rivers), that work is otherwise than in connection with a main river,

the [F2 relevant authority for the area ] where the work falls to be done may commute the obligation with the consent of the appropriate Minister.

(2) Where the [F3 relevant authority proposes ] to commute any obligation to which this section applies, the [F4 authority ] shall give, in such manner as the appropriate Minister may direct, notice of—

(a) the proposal;

(b) the terms on which it is to be commuted; and

(c) the period within which objection to the proposal may be made.

(3) If within one month of any notice being given under subsection (2) above the person on whom the obligation is imposed gives notice to the [F5 relevant authority ] of his objection to the proposal, the question whether the [F5 relevant authority ] shall proceed to commute the obligation shall be referred to the appropriate Minister.

(4) The decision of the appropriate Minister on a reference under subsection (3) above shall be final.

(5) Nothing in this section shall apply to any obligation imposed by section 25 above.

[F6 (5A) In this section and section 34, references to the relevant authority for an area—

(a) in relation to work in an area which forms part of an internal drainage district, are references to the drainage board for the district, and

(b) in relation to work in any other area, are references to the lead local flood authority for the area.]

[F6 (5B) “Lead local flood authority” has the meaning given by section 6 of the Flood and Water Management Act 2010.]

(6) In this section and section 34 below “the appropriate Minister”—

[F7 (a) in relation to a lead local flood authority for an area in England, means the Secretary of State,

(aa) in relation to a lead local flood authority for an area in Wales, means the Welsh Ministers, and]

(b) in relation to an internal drainage board, means the relevant Minister.

Textual Amendments

F2 Words in s. 33(1) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 35(2) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F3 Words in s. 33(2) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 35(3)(a) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F4 Word in s. 33(2) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 35(3)(b) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F5 Words in s. 33(3) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 35(4) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F6 S. 33(5A)(5B) inserted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 35(5) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F7 S. 33(6)(a)(aa) substituted for s. 33(6)(a) (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 35(6) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

Modifications etc. (not altering text)

C12 Ss. 33 and 34 modified(01.12.91)by Water Resources Act 1991 (c. 57, SIF 130), ss. 107(4), 225(2).

Marginal Citations

M1 1991 c. 57.

34 Financial consequences of commutation. E+W

(1) Where any obligation is commuted under section 33 above, any person who would, but for the commutation, be entitled to any exemption in respect of drainage rates (either absolutely as being the person subject to the obligation or conditionally on performance of the obligation) shall be entitled absolutely to a like exemption.

(2) The sum to be paid in respect of the commutation of any obligation under section 33 above shall be such sum as the [F8 relevant authority ] in question may, in accordance with the provisions of subsection (4) below, by order determine; and the sum so determined shall—

(a) be payable by way either of a capital sum or of a terminable annuity for a period not exceeding thirty years, at the option of the owner;

(b) be charged on the land in respect of which the obligation existed; and

(c) have priority over any other incumbrances (whenever created) charged on that land by the owner thereof, other than charges (whenever created) under the M2 Improvement of Land Act 1864.

(3) Any capital sum or terminable annuity fixed under this section shall, notwithstanding any agreement to the contrary between the owner and any lessee of the land, be payable by the owner.

(4) For the purpose of determining the sum to be paid in respect of the commutation of any obligation, the [F9 relevant authority ] in question shall—

(a) ascertain the amount which, in the opinion of the [F10 relevant authority ], fairly represents the probable average annual cost, taking one year with another, of carrying out and maintaining in a due state of efficiency the works which are required to be carried out and maintained by virtue of the obligation to be commuted; and

(b) fix the capital sum or terminable annuity to be paid in respect of the commutation accordingly.

(5) In fixing any such capital sum or terminable annuity no account shall be taken of so much of the probable annual average cost as, in the opinion of the [F11 relevant authority ] in question, is attributable to the fact that, by reason of—

(a) improvements effected since 1st January 1900 in the drainage of the land drained by a main river; or

(b) alterations effected since that date in the method of cultivation thereof,

the volume of water which is discharged into a main river at any time is greater than it would have been if those improvements or alterations had not been effected.

(6) If any person is aggrieved by any determination of the [F12 relevant authority ] under this section as regards the sum to be paid in respect of the commutation of any obligation, he may, at any time within three months after the date on which the [F13 authority ] notify him of the determination, require the matter to be referred to the arbitration of a single arbitrator to be appointed, in default of agreement, by the President of the Institution of Civil Engineers.

(7) On any reference under subsection (6) above the arbitrator may either confirm, vary or set aside the determination of the [F14 relevant authority ] in question, as he thinks proper.

(8) An order under this section may contain provisions with respect to the persons by whom all or any of the expenses incurred by the appropriate Minister or other persons in connection with the making or confirmation of the order are to be borne.

(9) A record of any such charge as is mentioned in subsection (2) above shall be entered in a register to be kept for the purpose by an authorised officer of the [F15 relevant authority ]; and a copy of any such record purporting to be certified by such an officer as a true copy shall be receivable in evidence in all legal proceedings.

Textual Amendments

F8 Words in s. 34(2) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(2) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F9 Words in s. 34(4) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(3)(a) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F10 Words in s. 34(4) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(3)(b) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F11 Words in s. 34(5) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(4) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F12 Words in s. 34(6) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(5)(a) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F13 Word in s. 34(6) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(5)(b) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F14 Words in s. 34(7) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(6) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

F15 Words in s. 34(9) substituted (19.7.2011 for E., 1.10.2011 for W.) by Flood and Water Management Act 2010 (c. 29), s. 49(3), Sch. 2 para. 36(6) (with s. 49(1)(6)); S.I. 2011/1770, art. 3(e); S.I. 2011/2204, art. 3(2)(c)

Modifications etc. (not altering text)

C13 Ss. 33 and 34 modified(01.12.91)by Water Resources Act 1991 (c. 57, SIF 130), ss. 107(4), 225(2).

Marginal Citations

M2 1864 c. 114.

35 Powers to vary navigation rights. E+W

(1) Subject to the following provisions of this section, where, on an application made to him for that purpose by the [F16 appropriate agency] and (except where the application is made in connection with a main river) the drainage boards for every internal drainage district within which any of the waters to which that application relates are situated—

(a) it appears to either of the Ministers that a navigation authority is not exercising at all, or is not exercising to the necessary extent, the powers vested in it; and

(b) it appears to him desirable to do so with a view to securing the better drainage of any land,

he may by order made by statutory instrument revoke, vary or amend the provisions of any local Act relating to navigation rights over any canal, river or navigable waters or to the powers and duties of the navigation authority with respect to any canal, river or navigable waters.

(2) Without prejudice to the generality of the power conferred by subsection (1) above, an order under this section may extinguish, vary or suspend, during such period as the Minister making the order may think proper, any such rights, powers or duties as are mentioned in that subsection.

(3) The power of each of the Ministers to make an order under this section—

(a) shall be exercisable only after consultation with [F17 the Secretary of State]; and

(b) shall not be exercisable in relation to any waters within the ebb and flow of the tide at ordinary spring tides except with the consent of [F18 the Secretary of State for Transport].

(4) An order made under this section may contain such incidental, consequential or supplemental provisions as appear to the Minister making the order to be necessary or proper for the purposes of the order.

(5) Schedule 3 to this Act shall apply with respect to an order under this section.

Textual Amendments

F16 Words in s. 35(1) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (No. 755), art. 1(2), Sch. 2 para. 324 (with Sch. 7)

F17 Words in s. 35(3)(a) substituted (13.8.2001) by S.I. 2001/2568, art. 16, Sch. para. 13(a)(b)

F18 Words in s. 35(3)(b) substituted (25.11.2002) by S.I. 2002/2626, art. 20, Sch. 2 para. 19

Modifications etc. (not altering text)

C14 S. 35(3)(a): functions transferred (13.8.2001) by virtue of S.I. 2001/2568, art. 6(2)