Transport Act 1968

Part VII U.K. Inland Waterways

The Board’s waterways U.K.

104 Classification of the Board’s waterways. U.K.

(1) For the purposes of sections 105 to 111 of this Act the inland waterways comprised in the undertaking of the Waterways Board shall be divided into—

(a) the waterways for the time being specified in Part I of Schedule 12 to this Act, being waterways (in this Part of this Act referred to as “the commercial waterways”) to be principally available for the commercial carriage of freight;

(b) the waterways for the time being specified in Part II of that Schedule, being waterways (in this Part of this Act referred to as “the cruising waterways”) to be principally available for cruising, fishing and other recreational purposes; and

(c) the remainder.

(2) The description contained in the said Schedule 12 of any waterway shall be read subject to any order made by the Minister [F1 or, in the case of a waterway in Scotland, the Scottish Ministers] for giving greater precision to that description by reference to a map.

(3) The Minister [F2 or, in the case of a waterway in Scotland, the Scottish Ministers] may by order transfer any waterway from one Part of the said Schedule 12 to the other Part, remove any waterway from either of those Parts or add to either of those Parts any inland waterway for the time being comprised in the undertaking of the Board which is not for the time being a commercial waterway or a cruising waterway.

(4) Schedule 13 to this Act shall have effect in relation to the making of any order under subsection (3) of this section, and any such order shall be subject to annulment [F3 in the case of an order made by the Minister,] in pursuance of a resolution of either House of Parliament [F4 in the case of an order made by the Scottish Ministers, in pursuance of a resolution of the Scottish Parliament.].

(5) In subsection (3) of this section references to any waterway include references to any part of that waterway.

Textual Amendments

F1 Words in s. 104(2) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(17) (with art. 4)

F2 Words in s. 104(3) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(18) (with art. 4)

F3 Words in s. 104(4) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(19)(a) (with art. 4)

F4 Words in s. 104(4) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(19)(b) (with art. 4)

Modifications etc. (not altering text)

C1 S. 104 applied (with modifications) (S.) (4.1.1995) by 1994 c. 39, s. 40(7) (with s. 7(2)); S.I. 1994/2850, art. 3(a), Sch. 2

105 Maintenance of the Board’s waterways. U.K.

(1) With a view to securing the general availability of the commercial and cruising waterways for public use, it shall be the duty of the Waterways Board, subject to the provisions of this section—

(a) to maintain the commercial waterways in a suitable condition for use by commercial freight-carrying vessels; and

(b) to maintain the cruising waterways in a suitable condition for use by cruising craft, that is to say, vessels constructed or adapted for the carriage of passengers and driven by mechanical power.

(2) Neither paragraph (a) nor paragraph (b) of subsection (1) of this section shall impose on the Board any duty to maintain a waterway, or any part of a waterway, in a suitable condition for use by any vessel of the kind mentioned in that paragraph unless the dimensions of the vessel (that it to say, its length, width, height of superstructure and draught)—

(a) correspond to, or are less than, those of a vessel of that kind which customarily used that waterway or part during the period of nine months ending with 8th December 1967; or

(b) if the waterway or part has been restored or improved since that date, are such as to make it suitable for use on that waterway or part;

but, save as aforesaid, the duty imposed by that paragraph shall extend to any vessel of the kind therein mentioned as respects the dimensions of which paragraph (a) or (b) of this subsection is satisfied.

(3) If it appears to the Minister that, having regard to any change in the size, design or type of vessel customarily using any commercial waterway or cruising waterway, or any part thereof, it is desirable to exercise his powers under this subsection, he may (after consultation with the Board) by order substitute for the duty imposed on the Board by the foregoing provisions of this section in respect of that waterway or part such duty in respect of the maintenance thereof as he considers appropriate having regard to that change, and may by that order make such incidental or transitional provision as he thinks necessary or expedient in connection therewith.

[F5 (3A) In the case of a waterway or any part of a waterway in Scotland, the power of the Minister under subsection (3) above shall be exercisable, instead, by the Scottish Ministers; and where the Scottish Ministers exercise that power, the reference in subsection (4) below to either House of Parliament shall be construed as a reference to the Scottish Parliament.]

(4) Schedule 13 to this Act shall have effect in relation to the making of any order under subsection (3) of this section, and any such order shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5) Section 17 of the M1 Regulation of Railways Act 1873 (which requires the Board to maintain certain inland waterways) shall cease to apply to any inland waterway which on the date on which this section comes into force is comprised in the undertaking of the Board; and any local enactment passed with respect to any such inland waterway, so far as that enactment—

(a) confers any public or private right of navigation over the waterway; or

(b) imposes any duty to maintain that waterway for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the waterway for that purpose),

shall cease to have effect.

(6) If the Board acquire any inland waterway after the date on which this section comes into force any local enactment passed with respect thereto shall, so far as it confers or imposes any such right or duty as is mentioned in paragraph (a) or (b) of subsection (5) of this section, cease to have effect on the date on which the waterway is so acquired.

(7) Any person who suffers loss by reason of the extinguishment by virtue of subsection (5) or (6) of this section of any private right shall be entitled to be paid by the Board compensation to be determined, in case of dispute, by the appropriate tribunal; and the tribunal shall, in determining the compensation, take into account any contractual right offered by the Board in substitution for the right which is extinguished.

(8) Where by virtue of subsection (5) of this section a statutory right of navigation ceases to be exercisable as respects a waterway of which the Waterways Board are not the owner, the Board shall have power to authorise any use of the waterway which would have been authorised by that statutory right.

Textual Amendments

F5 S. 105(3A) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(20) (with art. 4)

Modifications etc. (not altering text)

C2 S. 105 applied (with modifications) (S.) (4.1.1995) by 1994 c. 39, s. 40(7) (with s. 7(2)); S.I. 1994/2850, art. 3(a), Sch. 2

C3 S. 105(3) modified (1.6.1993) by S.I. 1993/1119, reg. 4(1)(a), Sch. 1 para. 1

Marginal Citations

M1 1873 c. 48.

106 Enforcement of maintenance duty. U.K.

(1) If, on an application by any person under this section to the High Court or, in Scotland, the Court of Session, the court determines that there has been, in respect of any waterway, a serious and persistent failure by the Waterways Board to discharge the duty imposed on them by—

(a) subsection (1) of section 105 of this Act; or

(b) any order made under subsection (3) of that section,

the court may, subject to the provisions of this section, require the Board to remedy that failure; but, save as aforesaid, neither the said subsection (1) nor any order under the said subsection (3) shall be construed as imposing any duty or liability enforceable by proceedings before any court to which the Board would not otherwise be subject.

(2) The fact that proceedings on an application under subsection (1) of this section (hereafter in this section referred to as “enforcement proceedings”) are in progress in respect of any waterway or any part of a waterway, or that the court has in any such proceedings imposed any requirement on the Board, shall not prevent the Minister [F6 or, in relation to any waterway or any part of a waterway in Scotland, the Scottish Ministers] from making an order in respect of that waterway or part under section 104(3) or 105(3) of this Act; but—

(a) except as provided in subsection (3) of this section, where such an order is made while enforcement proceedings are in progress, the court shall nevertheless determine those proceedings on the basis of the duty of the Board as it stood when the proceedings were instituted; and

(b) the making of such an order shall in no case absolve the Board from complying with any requirement which is imposed by the court in any enforcement proceedings.

(3) If a relevant order is pending at the time when enforcement proceedings are instituted, or if, at any time after enforcement proceedings have been instituted and before the court has imposed any requirement on the Board in the proceedings, the Minister [F7 or, in relation to any waterway or part of a waterway in Scotland, the Scottish Ministers] notifies the Board that he is [F7 or, as the case may be, they are] considering the making of a relevant order and gives the court such a certificate as is mentioned in subsection (4) of this section—

(a) the court shall not, so long as the order is pending, impose any requirement on the Board in those proceedings; and

(b) if the order is made, the court shall, in determining in those proceedings whether there has been a failure by the Board to discharge their duty, have regard only to the duty (if any) to which the Board are subject in consequence of the making of the order.

(4) The said certificate is a certificate in writing to the effect that it appears to the Minister [F8 or, as the case may be, the Scottish Ministers] that the imposition of any requirement on the Board on the basis of their existing duty would result in their incurring substantial expense and that, having regard to their financial position and their duty under section 18 of the Act of 1962 and section 41 of this Act, it would be unreasonable for them to bear that expense without a grant or further grant under section 43 of this Act.

(5) In subsection (3) of this section “relevant order” means, in relation to any enforcement proceedings, an order under section 104(3) or 105(3) of this Act in relation to the waterway or part of a waterway which is the subject of the proceedings; and for the purposes of that subsection an order is pending during the period of three months beginning with the day on which the Minister notifies [F9 or, as the case may be, the Scottish Ministers notify] the Board that he is [F9 or, as the case may be, they are]considering the making of the order and, if before the expiration of that period notice of the proposed order is published under Schedule 13 to this Act, during any further period until the order is made or the Minister notifies the Board that it will not be made.

(6) As soon as may be after giving the Board any such notification as is mentioned in the last foregoing subsection, the Minister shall give notice thereof in the London Gazette or, [F10 the Scottish Ministers shall give such notice in], the Edinburgh Gazette.

(7) For the purposes of this section enforcement proceedings shall be treated as instituted at the time when the writ or summons beginning the proceedings is served on the Board.

[F11 (8) References in this section to an order made under section 105(3) of this Act include references to such an order made by the Scottish Ministers by virtue of section 105(3A) of this Act.]

Textual Amendments

F6 Words in s. 106(2) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(21) (with art. 4)

F7 Words in s. 106(3) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(22)(a)(b) (with art. 4)

F8 Words in s. 106(4) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(23) (with art. 4)

F9 Words in s. 106(5) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(24)(a)(b) (with art. 4)

F10 Words in s. 106(6) substituted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II, para. 3(25) (with art. 4)

F11 S. 106(8) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2, Sch. 2 Pt. II para. 3(26) (with art. 4)

Modifications etc. (not altering text)

C4 S. 106(2) applied (with modifications) (S.) (4.1.1995) by 1994 c. 39, s. 40(7) (with s. 7(2)); S.I. 1994/2850, art. 3(a), Sch. 2

107 Amendments as to general duties of Board. U.K.

(1) The duty of the Waterways Board under subsection (1) of section 10 of the Act of 1962 to provide services and facilities on the inland waterways owned or managed by them shall extend only to the commercial waterways and cruising waterways.

(2) It shall be the duty of the Board—

(a) to secure that each of the inland waterways comprised in their undertaking which is not a commercial waterway or cruising waterway is dealt with in the most economical manner possible (consistent, in the case of a waterway which is retained, with the requirements of public health and the preservation of amenity and safety), whether by retaining and managing the waterway, by developing or eliminating it, or by disposing of it; and

(b) to secure that the best possible financial return is obtained from any asset of the Board which is not an inland waterway or harbour and is not required in connection with the provision of services and facilities by the Board, whether by exploiting it, by developing it, or by disposing of it.

(3) Subsection (4) of the said section 10 (which provides that the duties of the Board under that section are not to be legally enforceable) shall apply also to the duty imposed on the Board by subsection (2) of this section.

(4)F12

Textual Amendments

F12 Ss. 107(4), 112(7) repealed by Statute Law (Repeals) Act 1974 (c. 22), Sch. Pt. VI

108 Prevention of nuisance as respects certain waterways. E+W+S

(1) Subject to subsection (3) of this section, any inland waterway in England or Wales comprised in the undertaking of the Waterways Board which is not a commercial waterway or cruising waterway shall be deemed to be—

(a) a watercourse for the purposes of section 259 of the M2 Public Health Act 1936; and

[F13 (b) land to which section 215 of the Town and Country Planning Act 1990 applies;]

and the provisions of Part III of the [F14 Environmental Protection Act 1990], as they apply by virtue of this subsection, may be enforced by a county council as well as by a local authority as defined in that Act, and any local authority within the meaning of [F15 the said Act of 1990] (and not only the local planning authority) shall be entitled to enforce the provisions of [F15 the said section 215] as it applies by virtue of this subsection.

(2) Subject to subsection (3) of this section, any inland waterway in Scotland comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway shall be deemed to be—

(a) a watercourse for the purpose of section 16 of the M3 Public Health (Scotland) Act 1897; and

[F16 (b) land to which section 179 of the Town and Country Planning (Scotland) Act 1997 applies;]

and any local authority within the meaning of [F17 the said Act of 1997] (and not only the local planning authority) shall be entitled to enforce the provisions of [F18 the said section 179] as it applies by virtue of this subsection.

(3) This section shall not apply to any waterway which has been closed to navigation under any local enactment before the date on which this section comes into force if the use of the waterway has been changed between the passing of that enactment and that date in pursuance of planning permission granted under [F19 Part III of the Town and Country Planning Act 1962 or][F20 Part II of the Town and Country Planning (Scotland) Act 1947; and] and this section shall cease to apply to any waterway if the use thereof is changed after that date in pursuance of such permission as aforesaid.

(4) This section shall have effect to the exclusion of any provision for similar purposes in any local enactment passed before the date on which this section comes into force in relation to any waterway to which this section applies.

Textual Amendments

F13 S. 108(1)(b) substituted by Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 4, Sch. 2 para. 22(2)(a)

F14 Words substituted by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(1), Sch. 15 para. 10(3)

F15 Words substituted by virtue of Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 4, Sch. 2 para. 22(2)(a)

F16 S. 108(2)(b) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 17(1)(a)(i)

F17 Words in s. 108(2) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(5), Sch. 2 para. 17(1)(a)(ii)

F18 Words in s. 108(2) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 17(1)(a)(ii)

F19 Words substituted by Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 4, Sch. 2 para. 22(2)(b)

F20 By 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 17(1)(b) it is provided (27.5.1997) that the words “Part II of the Town and Country Planning (Scotland) Act 1947; and" are substituted for the words from “Part II" to “1947; and"

Marginal Citations

M2 1936 c. 49.

M3 1897 c. 38.

109 Power of certain bodies to maintain or take over waterways and connected works. E+W

(1) Without prejudice to their powers apart from this section, but subject to subsection (3) of this section, the Waterways Board shall have power—

(a) to enter into an agreement with any body to which this section applies for the maintenance by that body of any inland waterway comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway, or of any part of, or of any works connected with, any such waterway;

(b) by agreement with any such body, to transfer to it any such waterway, part of a waterway or works as aforesaid belonging to the Board, together with any powers or obligations (whether statutory or otherwise) of the Board in respect thereof;

and any body to which this section applies shall have all such powers as are required to enable it to enter into and carry out any such agreement as aforesaid or as are required to be exercised by it in consequence of any such transfer as is mentioned in this subsection.

(2) The bodies to which this section applies are as follows—

(a) a local authority;

[F21 (b) the National Rivers Authority]

(c) a highway authority, not being a local authority;

[F22 (d) a public gas supplier within the meaning of Part I of the Gas Act 1986;]

[F23 (e) a public electricity supplier within the meaning of Part I of the Electricity Act 1989;]

[F24 (h) a water undertaker;]

(j) a [F25 water authority];

(k) a water development board,

and, as respects any particular agreement or transfer, any other body having public or charitable objects which is certified by the Minister [F26 or, where the particular agreement or transfer relates to a waterway or part of a waterway in Scotland, the Scottish Ministers] as a body appearing to him [F26 or, as the case may be, them] to be capable of discharing the responsibilities falling on the body in consequence of that agreement or transfer.

(3) Subject to subsection (5) of this section, no such agreement or transfer as is mentioned in subsection (1) of this section shall be made with or to—

(a) any local authority unless what is to be maintained or transferred—

(i) is situated in the area of the authority; or

(ii) though not situated in that area, is so situated that persons residing in that area have convenient access to it;

[F27 (b) the National Rivers Authority unless [F28 the Ministers (for the purposes of Schedule 2 to the Water Resources Act 1991)] have consented to the agreement or transfer;]. . .

(4) Any agreement under this section whereby a waterway or part of a waterway is to be maintained by, or transferred to, a body to which this section applies may include provision for securing that the body in question makes the waterway or part available for public use.

(5) The Board may make an agreement for maintenance or transfer under this section with two or more bodies jointly on such terms as to the sharing of expenses between those bodies and otherwise as those bodies may agree; and, notwithstanding subsection (3)(a)(i) F29 . . . of this section (but without prejudice, F29 . . .to subsection (3)(a)(ii) of this section), a local [F30 authority may] be a party to such an agreement if part of what is to be maintained or transferred is situated in their area and the remainder in the area or areas of one or more other [F31 authorities who] are also parties to the agreement.

Extent Information

E1 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only.

Textual Amendments

F21 S. 109(2)(b) substituted (E.W.) by Water Act 1989 (c.15, SIF 130), s. 190(1), Sch. 25, para. 38(1)(a)(i) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(90), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F22 S. 109(2)(d) substituted by Gas Act 1986 (c. 44, SIF 44:2), s. 67(1), Sch. 7 para. 9

F23 S. 109(2)(e) substituted for paragraphs (e), (f) and (g) by Electricity Act 1989 (c. 29, SIF 44:1), s. 112(1), Sch. 16 para. 14 (with Sch. 17 paras. 33, 35(1))

F24 S. 109(2)(h) substituted (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25, para. 38(1)(a)(ii) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F25 Words in s. 109(2)(j) substituted by virtue of Local Government (Scotland) Act 1973 (c. 65), Sch. 17 para. 1

F26 Words in s. 109(2) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(27)(a)(b) (with art. 4)

F27 S. 109(3)(b) substituted (E.W.) by Water Act 1989 (c.15, SIF 130), s. 190(1), Sch. 25 para. 38(1)(b) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F28 Words in s. 109(3)(b) substituted (E.W.) (01.12.1991) by Water Consolidation (Consequential Provisions) Act 1991 (c. 60, SIF 130), ss. 2(1), 4(2), Sch. 1 para. 19

F29 Words in s. 109(3)(5) repealed (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 190(3), Sch. 27 Part I (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(1), 57(6), 58)

F30 Words in s. 109(5) substituted (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 38(1)(c)(i)(ii) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(4), 57(6), 58)

F31 Words in s. 109(5) substituted (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 38(1)(c)(i)(ii) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(4), 57(6), 58)

Modifications etc. (not altering text)

C5 S. 109(2)(d) amended (1.3.1996) by 1995 c. 45, s. 16(1), Sch. 4 para. 2(2)(d); S.I. 1996/218, art. 2

109 Power of certain bodies to maintain or take over waterways and connected works. S

(1) Without prejudice to their powers apart from this section, but subject to subsection (3) of this section, the Waterways Board shall have power—

(a) to enter into an agreement with any body to which this section applies for the maintenance by that body of any inland waterway comprised in the undertaking of the Board which is not a commercial waterway or cruising waterway, or of any part of, or of any works connected with, any such waterway;

(b) by agreement with any such body, to transfer to it any such waterway, part of a waterway or works as aforesaid belonging to the Board, together with any powers or obligations (whether statutory or otherwise) of the Board in respect thereof;

and any body to which this section applies shall have all such powers as are required to enable it to enter into and carry out any such agreement as aforesaid or as are required to be exercised by it in consequence of any such transfer as is mentioned in this subsection.

(2) The bodies to which this section applies are as follows—

(a) a local authority;

[F58 (b) Scottish Water;]

(c) a highway authority, not being a local authority;

[F59 (d) a public gas supplier within the meaning of Part I of the Gas Act 1986;]

[F60 (e) a public electricity supplier within the meaning of Part I of the Electricity Act 1989;]

(h) any statutory water undertakers as defined in section 59(1) of the M13 Water Act 1945 otherwise than for the purposes of Part II of that Act only;

F61 (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k) a water development board,

and, as respects any particular agreement or transfer, any other body having public or charitable objects which is certified by the Minister [F62 or, where the particular agreement or transfer relates to a waterway or part of a waterway in Scotland, the Scottish Ministers] as a body appearing to him [F62 or, as the case may be, them] to be capable of discharing the responsibilities falling on the body in consequence of that agreement or transfer.

(3) Subject to subsection (5) of this section, no such agreement or transfer as is mentioned in subsection (1) of this section shall be made with or to—

(a) any local authority unless what is to be maintained or transferred—

(i) is situated in the area of the authority; or

(ii) though not situated in that area, is so situated that persons residing in that area have convenient access to it;

(b) [F63 Scottish Water unless the Scottish Ministers] have consented to the agreement or transfer ;

and the powers under this section of any statutory water undertakers or of [F64 Scottish Water or of] any [F65 water authority] or water development board shall be exercisable only for the purposes of their water undertaking and with the consent of [F66 the Secretary of State] and Local Government or, as respects anything to be done in Scotland or in Wales, the Secretary of State.

(4) Any agreement under this section whereby a waterway or part of a waterway is to be maintained by, or transferred to, a body to which this section applies may include provision for securing that the body in question makes the waterway or part available for public use.

(5) The Board may make an agreement for maintenance or transfer under this section with two or more bodies jointly on such terms as to the sharing of expenses between those bodies and otherwise as those bodies may agree; and, notwithstanding subsection (3)(a)(i) F67 ... of this section (but without prejudiceF67 ... to subsection (3)(a)(ii) of this section), a local authority or [[F68 water authority] may be a party to such an agreement if part of what is to be maintained or transferred is situated in their area and the remainder in the area or areas of one or more other authorities (whether local authorities or [[F68 water authorities)]] who are also parties to the agreement.

Extent Information

E3 This version of this provision extends to Scotland only; a separate version has been created for England and Wales only.

Textual Amendments

F58 S. 109(2)(b) substituted (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(2)(a)(i)

F59 S. 109(2)(d) substituted by Gas Act 1986 (c. 44, SIF 44:2), s. 67(1), Sch. 7 para. 9

F60 S. 109(2)(e) substituted for paragraphs (e), (f) and (g) by Electricity Act 1989 (c. 29, SIF 44:1), s. 112(1), Sch. 16 para. 14 (with Sch. 17 paras. 33, 35(1))

F61 S. 109(2)(j) repealed (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(2)(a)(ii)

F62 Words in s. 109(2) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II, art. 3(27)(a) (with art. 4)

F63 Words in s. 109(3)(b) substituted (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(2)(b)(i)

F64 Words in s. 109(3) inserted (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(2)(b)(ii)

F65 Words substituted by virtue of Local Government (Scotland) Act 1973 (c. 65), Sch. 17 para. 1

F66 Words substituted by virtue of S.I. 1970/1681 arts. 2, 6(3)

F67 Words in s. 109(5) repealed (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(2)(c)

F68 Words substituted by virtue of Water Act 1973 (c. 37), s. 9(a).

Modifications etc. (not altering text)

C6 S. 109(2)(d) amended (1.3.1996) by 1995 c. 45, s. 16(1), Sch. 4 para. 2(2)(d); S.I. 1996/218, art. 2

Marginal Citations

M13 1945 c. 42.

110 The Inland Waterways Amenity Advisory Council. U.K.

[F32 (1) There shall be a body to be known as the Inland Waterways Amenity Advisory Council consisting of a chairman and not less than twelve members appointed after consultation with the chairman of the Waterways Board.

(1A) The chairman of the Council shall be appointed by the Minister after consultation with the Scottish Ministers and the chairman of the Waterways Board.

(1B) Two of the members of the Council shall be appointed by the Scottish Ministers after consultation with the Minister and the chairman of the Waterways Board; and in making such appointments, the Scottish Ministers shall have regard to the desirability of appointing persons who appear to them to have special knowledge of Scotland.

(1C) The other members of the Council shall be appointed by the Minister after consultation with the chairman of the Waterways Board.

(1D) The members appointed to the Council–

(a) shall include persons who appear to the person making the appointment to have wide knowledge of, and interest in, the use of inland waterways for amenity or recreational purposes, including fishing; and

(b) may include not more than four persons who are members of the Waterways Board.]

(2) In addition to their functions under Schedule 13 to this Act, it shall be the function of the Council—

(a) to advise the Waterways Board and the Minister [F33 or, in relation to any waterway in Scotland, the Scottish Ministers] on any proposal to add to or reduce the cruising waterways;

(b) to consider, and, where it appears to them to be desirable, to make recommendations to the Waterways Board or the Minister [F34 or, in relation to any waterway in Scotland, the Scottish Ministers] with respect to, any other matter—

(i) affecting the use or development for amenity or recreational purposes, including fishing, of the cruising waterways;

(ii) with respect to the provision for those purposes of services or facilities in connection with those waterways or the commercial waterways,

being a matter which has been referred to the Council by the Board or the Minister [F35 or, as the case may be, the Scottish Ministers], which has been the subject of representations to the Council by any other person or which appears to the Council to be a matter to which consideration ought to be given.

(3) The Council shall not make recommendations to the Minister [F36 or, as the case may be, the Scottish Ministers] with respect to any matter under this section without first consulting with the Board about that matter.

(4) The persons appointed to be members of the Council shall hold and vacate office in accordance with their terms of appointment and shall, on ceasing to hold office, be eligible for reappointment; but any such person may at any time by notice in writing to [F37 the person who made the appointment] resign his office.

(5) The Council may, with the approval of the Minister [F38 , and after consultation with the Scottish Ministers,], appoint such regional committees, and may appoint such other committees, as they think fit; and the procedure of the Council and of any such committee, including the quorum at meetings, shall be such as may be determined by the Council.

(6) The Waterways Board shall provide the Council with such officers and servants and such accommodation as appear to the Board to be requisite for the proper discharge of the Council’s functions or as may be directed by the Minister; and the said Board may pay to the members of the Council allowances in respect of loss of remunerative time in accordance with a scale approved by the Minister with the consent of the Treasury and such travelling allowances and allowances in respect of out-of-pocket expenses as the Board may determine.

[F39 (7) The Secretary of State may, with the consent of the Treasury, pay the chairman of the Council out of money provided by Parliament such remuneration as the Secretary of State may determine; and where the chairman is in receipt of such remuneration he shall not be paid any allowance under subsection (6) of this section in respect of loss of remunerative time.]

Textual Amendments

F32 S. 110(1)-(1D) substituted (1.4.2001) for s. 110(1) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(2) (with art. 4)

F33 Words in s. 110(2)(a) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(3) (with art. 4)

F34 Words in s. 110(2)(b) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(4) (with art. 4)

F35 Words in s. 110(2) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(5) (with art. 4)

F36 Words in s. 110(3) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(6) (with art. 4)

F37 Words in s. 110(4) substituted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(7) (with art. 4)

F38 Words in s. 110(5) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 3 Pt. II para. 2(8) (with art. 4)

F39 S. 110(7) inserted by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 155

111 Access agreements and orders as respects canals other than commercial waterways and cruising waterways. E+W+S

Subsections (2) and (3) of section 16 of the M4 Countryside Act 1968 (which enable access agreements and access orders to be made under Part V of the National Parks and Access to the M5 Countryside Act 1949 in respect of canals and of certain land held therewith) shall apply as respects, and as respects land held with, any canal or part of a canal owned or managed by the Waterways Board which is not for the time being a commercial waterway or a cruising waterway; and accordingly in subsection (6)(c) of that section (which prevents the said subsections (2) and (3) from applying where the canal or part of a canal is owned or managed by the Board) there shall be added at the end the words “ which is for the time being a commercial waterway of a cruising waterway within the meaning of section 104 of the Transport Act 1968 ”.

Marginal Citations

M4 1968 c. 41.

M5 1949 c. 97.

Other inland waterway provisions E+W+S

112 Power to extinguish statutory rights and obligations in respect of canals not comprised in undertaking of Board. E+W+S

(1) In the case of any canal which is not comprised in the undertaking of the Waterways Board, the Minister may by order direct all or any of the following, that is to say—

(a) that any local enactment passed with respect to that canal shall cease to have effect so far as it confers any public or private right of navigation over that canal;

(b) that any such enactment shall cease to have effect so far as it imposes any duty to maintain that canal for the purpose of navigation (including any duty to supply, or maintain a supply of, water for the canal for that purpose);

(c) that section 17 of the M6 Regulation of Railways Act 1873 if applicable to that canal, shall cease to apply to it.

(2) An order under this section in respect of any canal may be made on the application of the person who owns or manages the canal, on the application of [F40 [F41 any local authority or [F42 water] [F40 Scottish Water or any local] authority] in whose][F41 the National Rivers Authority or any local authority in whose] area the canal is situated, or without any application being made.

(3) An order under this section in respect of any canal—

(a) shall specify the person, whether the person who owns or manages the canal, a [F43 local authority, [F44 a [F42 water authority]] [F44 Scottish Water] or the][F43 local authority, the National Rivers Authority or the] Minister, by whom any such compensation as is mentioned in subsection (4) of this section is to be paid;

(b) may confer on a person specified in the order power to authorise any use of the canal which would have been authorised by a statutory right of navigation which by virtue of the order ceases to be exercisable as respects the canal;

(c) may make provision, in relation to the canal or any works connected therewith, for purposes corresponding to those of section 109 of this Act; and

(d) may include such incidental or supplementary provisions as the Minister thinks fit, including provisions for applying section 259 of the M7 Public Health Act 1936 and [F45 section 215 of the Town and Country Planning Act 1990], or, as the case may be, section 16 of the M8 Public Health (Scotland) Act 1897 and [F46 section 179 of the Town and Country Planning (Scotland) Act 1997] to the canal.

(4) Any person who suffers loss by reason of the extinguishment by virtue of an order under this section of any private right shall be entitled to be paid by the person specified in that behalf in the order compensation to be determined, in case of dispute, by the appropriate tribunal; and the tribunal shall, in determining the compensation, take into account any contractual right offered by the person who owns or manages the canal in substitution for the right which is extinguished.

(5) Schedule 13 to this Act shall have effect in relation to the making of any order under this section, and any such order shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(6) In this section “canal” includes any navigation which has been made under, or in respect of which tolls may be levied by virtue of, any enactment, and references to a canal include references to part of a canal.

[F47 (6A) In the case of an order made under this section in respect of any canal in Scotland which is not comprised in the undertaking of the Waterways Board, any reference in this section (however expressed) to the Minister is to be construed as a reference to the Scottish Ministers.]

(7)F48

Textual Amendments

F40 Words in s. 112(2) substituted (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(3)(a)

F41 Words commencing “the National Rivers" substituted (E.W.) for words commencing “any local" by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 38(2)(a) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F42 Words substituted by virtue of Water Act 1973 (c. 37), s. 9(a)

F43 Words commencing “local authority, the National" substituted (E.W.) for words commencing “local authority, a water" by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 38(2)(b) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F44 Words in s. 112(3)(a) substituted (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(3)(b)

F45 Words substituted by virtue of Planning (Consequential Provisions) Act 1990 (c.11, SIF 123:1, 2), s. 4, Sch. 2 para. 22(3)

F46 Words in s. 112(3)(d) substituted (27.5.1997) by 1997 c. 11, ss. 4, 6(2), Sch. 2 para. 17(2)

F47 S. 112(6A) inserted (1.4.2001) by S.I. 2000/3251, arts. 1(2)(b), 2, Sch. 2 Pt. II para. 3(28) (with art. 4)

F48 Ss. 107(4), 112(7) repealed by Statute Law (Repeals) Act 1974 (c. 22), Sch. Pt. VI

Marginal Citations

M6 1873 c. 48.

M7 1936 c. 49.

M8 1897 c. 38.

113 Byelaws in respect of waterways owned or managed by certain bodies. E+W+S

(1) The Minister may, on the application of any qualified body which owns or manages an inland waterway and after consultation with the relevant authority, by order confer on that body power to make byelaws in relation to that waterway for such purposes as may be specified in the order.

(2) Byelaws made by virtue of an order under this section shall not have effect until confirmed by the Minister, and before applying to the Minister for the confirmation of any byelaws the body concerned shall take such steps as may be specified in the order for securing that persons affected by the byelaws have an opportunity of making representations thereon to the Minister.

(3) If any person contravenes, or fails to comply with, any byelaws made by virtue of an order under this section he shall be guilty of an offence and liable on summary conviction to a fine not exceeding [F49 level 1 on the standard scale], and if the contravention or failure to comply is continued after the conviction, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding £5 for each day on which it is so continued.

(4) An order under this section may contain such supplementary provisions as the Minister thinks necessary or expedient.

(5) In this section—

• “qualified body” means any navigation authority as defined in section 135(1) of the M9 Water Resources Act 1963, a body mentioned in any of the paragraphs of section 109(2) of this Act (except paragraph (c) thereof) and any other body having public or charitable objects;

• “relevant authority”, in relation to any order, [F50 means [F51 any local authority or [F52 water authority] (except any such authority which is itself the applicant for the order)]] [F51 , except where applying for the order, Scottish Water or any local authority] [F50 means, except in a case where it is itself the applicant for the order, the National Rivers Authority or any local authority] in whose area the waterway in question is wholly or partly situated.

(6) Section 40 of the M10 Railway and Canal Traffic Act 1888 (which makes provision as to the byelaws of canal companies) shall not apply to byelaws made by virtue of an order under this section.

Textual Amendments

F49 Words substituted by virtue of (E.W.) Criminal Justice Act 1982 (c. 48, SIF 39:1), ss. 38, 46 and (S.) Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), ss. 289F, 289G (as inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1), s. 54)

F50 Words commencing “means, except" substituted (E.W.) for words commencing “means any local" by Water Act 1989 (c. 15, SIF 130), s. 190(1), Sch. 25 para. 38(3) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F51 Words in s. 113(5) substituted (S.) (14.7.2004) by The Water Industry (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I. 2004/1822), art. 1(1), Sch. para. 7(4)

F52 Words substituted by virtue of Water Act 1973 (c. 37), s. 9(a)

Marginal Citations

M9 1963 c. 38.

M10 1888 c. 25.

114 Power of local authorities to assist in maintaining waterways for amenity purposes. E+W+S

Without prejudice to section 109 of this Act, a local authority may assist any other person (whether financially, by the provision of services or facilities, or otherwise) in maintaining or improving for amenity or recreational purposes, including fishing—

(a) any inland waterway situated wholly or partly in the area of the authority; and

(b) any other inland waterway which is so situated that it can conveniently be used for those purposes by persons residing in the area of the authority.

Supplementary U.K.

115 Interpretation of Part VII. E+W+N.I.

(1) In sections 105 and 112 of this Act—

(a) references to any right of navigation over a waterway or canal include references to any right to use or keep any vessel or craft on the waterway or canal;

(b) “the appropriate tribunal” means, as respects England and Wales, the Lands Tribunal and, as respect Scotland, the Lands Tribunal for Scotland or, until sections 1 to 3 of the M11 Lands Tribunal Act 1949 come into force as regards Scotland, an official arbiter appointed under Part I of the M12 Land Compensation (Scotland) Act 1963;

and sections 3 and 5 of the said Act of 1963 shall apply, subject to any necessary modifications, in relation to the determination of any question under either of those sections by an arbiter so appointed.

(2) Nothing in section 105 or in any order under section 112 of this Act shall be construed as abrogating any rights of navigation which subsist otherwise than by virtue of the enactments referred to in subsections (5) and (6) of the said section 105 or subsection (1) of the said section 112; and in those subsections references to rights conferred by an enactment do not include references to rights which are merely confirmed by it and which, if that enactment had not been passed, would subsist otherwise than by virtue of any such enactments as aforesaid.

(3) In sections 109, 112, 113 and 114 of this Act, “local authority” means—

(a) as respects England and Wales, the council of a county, F53 [F54 district] or London borough, F55 and the Common Council of the City of London;

(b)

F56 (4)F57

Extent Information

E2 This version of this provision extends to England and Wales and Northern Ireland only; a separate version has been created for Scotland only

Textual Amendments

F53 Words repealed by Local Government Act 1972 (c. 70, SIF 81:1), Sch. 30

F54 Word substituted by virtue of Local Government Act 1972 (c. 70, SIF 81:1), s. 179(3)

F55 Words repealed by Local Government Act 1985 (c. 51, SIF 81:1), s. 102, Sch. 17

F56 S. 115(3)(b) omitted by virtue of Local Government (Scotland) Act 1973 (c. 65), Sch. 18 para. 19

F57 S. 115(4) repealed by Water Act 1973 (c. 37 SIF 130), Sch. 9

Marginal Citations

M11 1949 c. 42.

M12 1963 c. 51.

115 Interpretation of Part VII. S

(1) In sections 105 and 112 of this Act—

(a) references to any right of navigation over a waterway or canal include references to any right to use or keep any vessel or craft on the waterway or canal;

(b) “the appropriate tribunal” means, as respects England and Wales, the Lands Tribunal and, as respect Scotland, the Lands Tribunal for Scotland or, until sections 1 to 3 of the M14 Lands Tribunal Act 1949 come into force as regards Scotland, an official arbiter appointed under Part I of the M15 Land Compensation (Scotland) Act 1963;

and sections 3 and 5 of the said Act of 1963 shall apply, subject to any necessary modifications, in relation to the determination of any question under either of those sections by an arbiter so appointed.

(2) Nothing in section 105 or in any order under section 112 of this Act shall be construed as abrogating any rights of navigation which subsist otherwise than by virtue of the enactments referred to in subsections (5) and (6) of the said section 105 or subsection (1) of the said section 112; and in those subsections references to rights conferred by an enactment do not include references to rights which are merely confirmed by it and which, if that enactment had not been passed, would subsist otherwise than by virtue of any such enactments as aforesaid.

[F69 [F70 (3) In sections 109, 112 and 113 of this Act “local authority” means a regional or islands council and in section 114 of this Act means a regional, islands or district council.]]

[F71 (3A) In sections 109, 112, 113 and 114 of this Act, “local authority” means, as respects Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994]

(4)F72

Extent Information

E4 This version of this provision extends to Scotland only; a separate version has been created for England, Wales and Northern Ireland only

Textual Amendments

F69 S. 115(3) repealed (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 80(9); S.I. 1996/323, art. 4(1)(b)(c)

F70 S. 115(3) substituted by Local Government (Scotland) Act 1973 (c. 65), Sch. 18 para. 19

F71 S. 115(3A) inserted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 80(9); S.I. 1996/323, art 4(b)(c)

F72 S. 115(4) repealed by Water Act 1973 (c. 37 SIF 130), Sch. 9

Marginal Citations

M14 1949 c. 42.

M15 1963 c. 51.