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Part IE+W Prohibition of Certain Modes of Taking or Destroying Fish, etc.

1 Prohibited implements.E+W

(1)F1... no person shall—

(a)use any of the following instruments, that is to say—

(i)a firearm within the meaning of the M1Firearms Act 1968;

(ii)an otter lath or jack, wire or snare;

(iii)a crossline or setline;

(iv)a spear, gaff,[F2 tailer, ] stroke-haul, snatch or other like instrument;

(v)a light;

for the purpose of taking or killing [F3 salmon, trout, eels, lampreys, smelt, shad, freshwater fish and any specified fish in any waters ];

(b)have in his possession any instrument mentioned in paragraph (a) above intending to use it to take or kill [F4 any such fish in any waters ]; or

(c)throw or discharge any stone or other missile for the purpose of taking or killing, or facilitating the taking or killing of [F5 any such fish in any waters ].

[F6(1A) In this section “ specified fish ” means fish of such description as may be specified for the purposes of this section by order under section 40A below.

(1B)The appropriate national authority may by order amend subsection (1)(a) above so as to—

(a)add any instrument to it; or

(b)remove any instrument for the time being specified in it.]

(2)If any person contravenes this section, he shall be guilty of an offence unless he proves to the satisfaction of the court that the act was done for the purpose of the preservation or development of a private fishery and with the previous permission in writing of [F7the appropriate agency].

(3)In this section—

  • “crossline” means a fishing line reaching from bank to bank across water and having attached to it one or more lures or baited hooks;

  • “otter lath or jack” includes any small boat or vessel, board, stick or other instrument, whether used with a hand line, or as auxiliary to a rod and line, or otherwise for the purpose of running out lures, artificial or otherwise;

  • “setline” means a fishing line left unattended in water and having attached to it one or more lures or baited hooks;

  • “stroke-haul or snatch” includes any instrument or device, whether used with a rod and line or otherwise, for the purpose of foul hooking any fish.

[F8(3A)References in this section to any waters include waters adjoining the coast of England and Wales to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured.]

F9(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F6S. 1(1A)(1B) inserted (12.11.2009 for specified purposes, 12.1.2010 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 215(5), 324(1)(c), 324(1)(d); S.I. 2009/3345, art. 2, Sch. para. 10

Marginal Citations

2 Roe, spawning and unclean fish, etc.E+W

(1)Subject to subsection (5) below, any person who, for the purpose of fishing for [F10 salmon, trout, eels, lampreys, smelt, shad, freshwater fish or any specified fish in any waters ]—

(a)uses any fish roe; or

(b)buys, sells, or exposes for sale, or has in his possession [F11 any fish roe ],

shall be guilty of an offence.

(2)Subject to subsections (3)[F12 , (3A) ] and (5) below, any person who—

(a)knowingly takes, kills or injures, or attempts to take, kill or injure, any [F13 salmon, trout, lamprey, smelt, shad, freshwater fish or specified fish in any waters ] which is unclean or immature; or

(b)buys, sells, or exposes for sale, or has in his possession [F14 any such fish ] which is unclean or immature, or any part of any such fish,

shall be guilty of an offence.

(3)Subsection (2) above does not apply to any person who takes a fish accidentally and returns it to the water with the least possible injury.

[F15(3A)Subsection (2) above does not apply where a person takes an immature freshwater fish in circumstances prescribed by byelaws.]

(4)Subject to subsection (5) below, any person who, except in the exercise of a legal right to take materials from any waters, wilfully disturbs any spawn or spawning fish, or any bed, bank or shallow on which any spawn or spawning fish may be, shall be guilty of an offence.

(5)A person shall not be guilty of an offence under this section in respect of any act, if he does the act for the purpose of the artificial propagation of [F16 fish of any description ] or for some scientific purpose or for the purpose of the preservation or development of a private fishery and has obtained the previous permission in writing of [F17the appropriate agency].

[F18(6) In this section “ specified fish ” means fish of such description as may be specified for the purposes of this section by order under section 40A below.

(7)Subsection (3A) of section 1 above applies for the purposes of this section.]

Textual Amendments

Modifications etc. (not altering text)

F193 Nets. E+W

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

Textual Amendments

Modifications etc. (not altering text)

4 Poisonous matter and polluting effluent. E+W

(1)F20... any person who causes or knowingly permits to flow, or puts or knowingly permits to be put, into any waters containing fish or into any tributaries of waters containing fish, any liquid or solid matter to such an extent as to cause the waters to be poisonous or injurious to fish or the spawning grounds, spawn or food of fish, shall be guilty of an offence.

F21(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Proceedings under this section shall not be instituted [F22except by the appropriate agency or] by a person who has first obtained a certificate from the Minister that he has a material interest in the waters alleged to be affected.

Textual Amendments

Modifications etc. (not altering text)

C6S. 4 modified by SI 2010/675 Sch. 23 Pt. 8 para. 3 Table 9 (as substituted (1.10.2011) by The Environmental Permitting (England and Wales) (Amendment) Regulations 2011 (S.I. 2011/2043), reg. 1(b), Sch. 1)

5 Prohibition of use of explosives, poisons or electrical devices and of destruction of dams etc.E+W

(1)Subject to [F23 subsections (2) and (2A) ] below, no person shall use in or near any waters (including waters adjoining the coast of England and Wales [F24to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured] any explosive substance, any poison or other noxious substance, or any electrical device, with intent thereby to take or destroy fish.

(2)Subsection (1) above shall not apply to the use by a person of any substance or device—

(a)for a scientific purpose, or for the purpose of protecting, improving or replacing stocks of fish; and

(b)with the permission in writing [F25of the appropriate agency, for which that agency may] [F26charge a fee] F27 . . .;

F28. . .

[F29(2A)Subsection (1) above shall not apply to anything done pursuant to an authorisation granted by the [F30appropriate agency] under section 27A below.]

(3)No person shall, without lawful excuse, destroy or damage any dam, flood-gate or sluice with intent thereby to take or destroy fish.

(4)A person who contravenes subsection (1) or (3) above or who, for the purpose of contravening subsection (1) above, has in his possession any explosive or noxious substance or any electrical device, shall be guilty of an offence.

(5)The use of any substance in any waters for a purpose falling within paragraph (a) of subsection (2) above, and with the permission mentioned in paragraph (b) of that subsection, shall not constitute an offence under—

(a)section 4 above;

(b)any byelaws made under paragraph 31 of Schedule 3 below;

[F31(c)regulation 38(1) of ] [F32the Environmental Permitting (England and Wales) Regulations 2016] ;

(d)section 22(1)(a) of the M2Rivers (Prevention of Pollution) (Scotland) Act 1951.

F33(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F28Words in s. 5(2) repealed (1.4.1996) by 1995 c. 25, ss. 105, 120(3), Sch. 15 para. 7, Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

Marginal Citations

Part IIE+W Obstructions to Passage of Fish

F346 Fixed engines. E+W

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Textual Amendments

F347 Fishing weirs.E+W

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

Textual Amendments

F348 Fishing mill dams.E+W

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Textual Amendments

9 Duty to make and maintain fish passes.E+W

(1)Where in any waters frequented by salmon or migratory trout—

(a)a new dam is constructed or an existing dam is raised or otherwise altered so as to create increased obstruction to the passage of salmon or migratory trout, or any other obstruction to the passage of salmon or migratory trout is created, increased or caused; or

(b)a dam which from any cause has been destroyed or taken down to the extent of one-half of its length is rebuilt or reinstated,

the owner or occupier for the time being of the dam or obstruction shall, if so required by notice [F35given by the appropriate agency and within] such reasonable time as may be specified in the notice, make a fish pass for salmon or migratory trout of such form and dimensions [F36as the appropriate agency may] approve as part of the structure of, or in connection with, the dam or obstruction, and shall thereafter maintain it in an efficient state.

(2)If any such owner or occupier fails to make such a fish pass, or to maintain such a fish pass in an efficient state, he shall be guilty of an offence.

(3)[F37The appropriate agency] may cause to be done any work required by this section to be done, and for that purpose may enter on the dam or obstruction or any land adjoining it, and may recover the expenses of doing the work in a summary manner from any person in default.

(4)Nothing in this section—

(a)shall authorise the doing of anything that may injuriously affect any public waterworks or navigable river, canal, or inland navigation, or any dock, the supply of water to which is obtained from any navigable river, canal or inland navigation, under any Act of Parliament; or

(b)shall prevent any person from removing a fish pass for the purpose of repairing or altering a dam or other obstruction, provided that the fish pass is restored to its former state of efficiency within a reasonable time; or

(c)shall apply to any alteration of a dam or other obstruction, unless—

(i)the alteration consists of a rebuilding or reinstatement of a dam or other obstruction destroyed or taken down to the extent of one-half of its length, or

(ii)the dam or obstruction as altered causes more obstruction to the passage of salmon or migratory trout than was caused by it as lawfully constructed or maintained at any previous date.

Textual Amendments

Modifications etc. (not altering text)

C10S. 9 excluded (7.3.1995) by S.I. 1995/519, art. 3(13)

C11S. 9 applied (16.3.1992) by Avon Weir Act 1992 (c. v), s. 5(5).

10 [F38Power of appropriate agency] to construct and alter fish passes.E+W

(1)[F39The appropriate agency] may, F40. . .construct and maintain in any dam or in connection with any dam a fish pass of such form and dimensions [F41as it may determine], so long as no injury is done by such a fish pass to the milling power, or to the supply of water of or to any navigable river, canal or other inland navigation.

(2)[F42The appropriate agency] may, F43. . .abolish or alter, or restore to its former state of efficiency, any existing fish pass or free gap, or substitute another fish pass or free gap, provided that no injury is done to the milling power, or to the supply of water of or to any navigable river, canal or other inland navigation.

(3)If any person injures any such new or existing fish pass, he shall pay the expenses [F44incurred by the appropriate agency in repairing] the injury, and any such expenses may be recovered [F45by the appropriate agency in a summary manner].

Textual Amendments

F40Words in s. 10(1) repealed (1.4.1996) by 1995 c. 25, ss. 105, 120(3), Sch. 15 para. 11(1)(a), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F41Words in s. 10(1) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 11(1)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F43Words in s. 10(2) repealed (1.4.1996) by 1995 c. 25, ss. 105, 120(3), Sch. 15 para. 11(2), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

11 Minister’s consents and approvals for fish passes.E+W

[F46(1)Any approval given by the [F47appropriate agency] to or in relation to a fish pass may, if in giving it the [F47appropriate agency] indicates that fact, be provisional until the [F47appropriate agency] notifies the applicant for approval that the pass is functioning to its satisfaction.

(1A)The applicant for any such approval—

(a)shall be liable to meet any costs incurred (whether by him or by the [F47appropriate agency] or any other person) for the purposes of, or otherwise in connection with, the performance of the [F47appropriate agency's] function of determining for the purposes of subsection (1) above whether or not the fish pass in question is functioning to its satisfaction; and

(b)shall provide the [F47appropriate agency] with such information or assistance as it may require for the purpose of performing that function.]

(2)While any such approval [F48is provisional, the [F47appropriate agency]] may, after giving the applicant not less than 90 days’ notice of [F49its intention to do so, revoke the approval].

(3)Where [F50the [F47appropriate agency]]revokes a provisional approval given to a fish pass forming part of or in connection with a dam or other obstruction, [F51it] may extend the period within which a fish pass is to be made as part of or in connection with the obstruction.

(4)[F52The [F47appropriate agency]] may approve and certify any fish pass if [F53it] is of opinion that it is efficient in all respects and for all purposes, whether it was constructed under this Act or not.

(5)Where a fish pass has received the approval of [F54the [F47appropriate agency]], and the approval has not been revoked, it shall be deemed to be a fish pass in conformity with this Act, notwithstanding that it was not constructed in the manner and by the person specified in this Act.

Textual Amendments

F46S. 11(1)(1A) substituted for s. 11(1) (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(1) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F48Words in s. 11(2) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(2)(a) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F49Words in s. 11(2) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(2)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F50Words in s. 11(3) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(3)(a) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F51Word in s. 11(3) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(3)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F52Words in s. 11(4) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(4)(a) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F53Word in s. 11(4) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(4)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F54Words in s. 11(5) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 12(5) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

12 Penalty for injuring or obstructing fish pass or free gap.E+W

(1)If any person—

(a)wilfully alters or injures a fish pass; or

(b)does any act whereby salmon or trout are obstructed or liable to be obstructed in using a fish pass or whereby a fish pass is rendered less efficient; or

(c)alters a dam or the bed or banks of the river so as to render a fish pass less efficient; or

(d)uses any contrivance or does any act whereby salmon or trout are in any way liable to be scared, hindered or prevented from passing through a fish pass,

he shall be guilty of an offence, and shall also in every case pay any expenses which may be incurred in restoring the fish pass to its former state of efficiency; and any such expenses may be recovered in a summary manner.

(2)The owner or occupier of a dam shall be deemed to have altered it if it is damaged, destroyed or allowed to fall into a state of disrepair, and if after notice is served on him [F55by the appropriate agency he] fails to repair or reconstruct it within a reasonable time so as to render the fish pass as efficient as before the damage or destruction.

(3)If any person—

(a)does any act for the purpose of preventing salmon or trout from passing through a fish pass, or takes, or attempts to take, any salmon or trout in its passage through a fish pass; or

(b)places any obstruction, uses any contrivance or does any act whereby salmon or trout may be scared, deterred or in any way prevented from freely entering and passing up and down a free gap at all periods of the year,

he shall be guilty of an offence.

(4)This section shall not apply to a temporary bridge or board used for crossing a free gap, and taken away immediately after the person using it has crossed.

Textual Amendments

13 Sluices.E+W

(1)Subject to subsection (3) below, unless permission in writing is [F56granted by the appropriate agency, any sluices] for drawing off the water which would otherwise flow over any dam in waters frequented by salmon or migratory trout shall be kept shut on Sundays and at all times when the water is not required for milling purposes, in such manner as to cause the water to flow through any fish pass in or connected with the dam or, if there is no such fish pass, over the dam.

(2)If any person fails to comply with this section, he shall be guilty of an offence.

(3)This section shall not prevent any person opening a sluice for the purpose of letting off water in cases of flood or for milling purposes or when necessary for the purpose of navigation or, subject to previous notice in writing being [F57given by the appropriate authority, for cleaning] or repairing the dam or mill or its appurtenances.

Textual Amendments

F58[14 Screens.E+W

(1)This section applies in any case where—

(a)by means of any conduit or artificial channel, water is diverted from waters frequented by salmon or migratory trout; and

(b)any of the water so diverted is used for the purposes of a water or canal undertaking or for the purposes of any mill or fish farm;

and in this section “ the responsible person ” means the owner of the water or canal undertaking or (as the case may be) the occupier of the mill or the owner or occupier of the fish farm.

(2)Where this section applies, the responsible person shall, unless an exemption from the obligation is granted by the [F59appropriate agency], ensure (at his own cost) that there is placed and maintained at the entrance of, or within, the conduit or channel a screen which—

(a)subject to subsection (4) below, prevents the descent of the salmon or migratory trout; and

(b)in a case where any of the water diverted is used for the purposes of a fish farm, prevents the egress of farmed fish from the fish farm by way of the conduit or channel.

(3)Where this section applies, the responsible person shall also, unless an exemption from the obligation is granted by the [F60appropriate agency], ensure (at his own cost) that there is placed and maintained across any outfall of the conduit or channel a screen which—

(a)prevents salmon or migratory trout from entering the outfall; and

(b)in a case where any of the water diverted is used for the purposes of a fish farm, prevents the egress of farmed fish from the fish farm by way of the outfall.

(4)Where a screen is placed within any conduit or channel pursuant to subsection (2) above, the responsible person shall ensure that a continuous by-wash is provided immediately upstream of the screen, by means of which salmon or migratory trout may return by as direct a route as practicable to the waters from which they entered the conduit or channel (and accordingly nothing in subsection (2) or (3) above applies in relation to a by-wash provided for the purposes of this subsection).

(5)Any screen placed, or by-wash provided, in pursuance of this section shall be so constructed and located as to ensure, so far as reasonably practicable, that salmon or migratory trout are not injured or damaged by it.

(6)No such screen shall be so placed as to interfere with the passage of boats on any navigable canal.

(7)Any exemption under subsection (2) or (3) above may be granted subject to conditions.

(8)If any person who is required to do so by this section fails to ensure that a screen is placed or maintained, or that a by-wash is provided, in accordance with the provisions of this section, he shall be guilty of an offence.

(9)In any proceedings for an offence under subsection (8) above, it shall, subject to subsection (10) below, be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or a person under his control.

(10)If in any case the defence provided by subsection (9) above involves the allegation that the commission of the offence was due to an act or default of another person, or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless—

(a)at least seven clear days before the hearing, and

(b)where he has previously appeared before a court in connection with the alleged offence, within one month of his first such appearance,

he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

(11)Any reference in subsection (10) above to appearing before a court includes a reference to being brought before a court.

(12)The obligations imposed by subsections (2) to (6) above, except so far as relating to farmed fish, shall not be in force during such period (if any) in each year as may be prescribed by byelaw.

(13)The obligations imposed by subsections (2) to (6) above on the occupier of a mill shall apply only where the conduit or channel was constructed on or after 18th July 1923.

(14)Any reference in this section to ensuring that a screen is placed and maintained includes, in a case where the screen takes the form of apparatus the operation of which prevents the passage of fish of the descriptions in question, a reference to ensuring that the apparatus is kept in continuous operation.

(15) In this section “ by-wash ” means a passage through which water flows. ]

Textual Amendments

F58S. 14 substituted (1.1.1999) by 1995 c. 25, s. 105, Sch. 15 para. 13 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 4

Modifications etc. (not altering text)

15 [F61Power of appropriate agency] to use [F62screens] etc. to limit movements of salmon and trout.E+W

(1)[F63The appropriate agency—]

(a)may cause a [F62screen] or [F62screens] of such form and dimensions as [F64it] may determine to be placed and maintained, at the [F65expense of the appropriate agency, at a suitable] place in any watercourse, mill race, cut, leat, conduit or other channel for conveying water for any purpose from any waters frequented by salmon or migratory trout; and

(b)may cause any watercourse, mill race, cut, leat, conduit or other channel in which a [F62screen] is placed under this section to be widened or deepened at the [F66expense of the appropriate agency so far] as may be necessary to compensate for the diminution of any flow of water caused by the placing of the [F62screen], or shall take some other means to prevent the flow of water being prejudicially diminished or otherwise injured.

(2)If any person—

(a)injures any such [F62screen]; or

(b)removed any such [F62screen] or part of any such [F62screen], except during any period of the year during which under a byelaw [F62screens] need not be maintained; or

(c)opens any such [F62screen] improperly; or

(d)permits any such [F62screen] to be injured, or removed, except as aforesaid, or improperly opened;

he shall be guilty of an offence.

(3)[F67The appropriate agency] may adopt such means [F68as in its oppinion are necessary] for preventing the ingress of salmon or trout into waters in which they or their spawning beds or ova are, from the nature of the channel or other causes, liable to be destroyed.

(4)Nothing in this section shall—

(a)affect the liability under this Act of any person to place and maintain a [F62screen]; or

(b)authorise a [F62screen] to be so placed or maintained during any period of the year during which under a byelaw [F62screens] need not be maintained; or

(c)authorise any [F62screen] to be placed or maintained so as to obstruct any conduit or channel used for navigation or in any way interfere with the effective working of any mill;

and nothing in subsection (3) above shall [F69authorise the appropriate agency prejudicially] to interfere with water rights used or enjoyed for the purposes of manufacturing or for milling purposes or for drainage or navigation.

[F70(5) In this section “ open ”, in relation to a screen which consists of apparatus, includes the doing of anything which interrupts, or otherwise interferes with, the operation of the apparatus. ]

Textual Amendments

F62Word in s. 15 substituted (1.1.1999) by 1995 c. 25, s. 105, Sch. 15 para. 14(1) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 4

F68Words in s. 15(3) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 14(3)(b)(with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F70S. 15(5) added (1.1.1999) by 1995 c. 25, s. 105, Sch. 15 para. 14(4) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 4

F7116 Boxes and cribs in weirs and dams.E+W

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Textual Amendments

F7217 Restrictions on taking salmon or trout above or below an obstruction or in mill races.E+W

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

Textual Amendments

18 Provisons supplementary to Part II.E+W

(1)If any person obstructs a person legally authorised whilst he is doing any act authorised by section 9, 10 or 15 above, he shall be guilty of an offence.

F73 [( 2 )The [F74appropriate agency] shall not—

(a)construct, abolish or alter any fish pass, or abolish or alter any free gap, in pursuance of section 10 above, or

(b)do any work under section 15 above,

unless reasonable notice of its intention to do so (specifying the section in question) has been served on the owner and occupier of the dam, fish pass or free gap, watercourse, mill race, cut, leat, conduit or other channel, with a plan and specification of the proposed work; and the [F74appropriate agency] shall take into consideration any objections by the owner or occupier, before doing the proposed work.]

(3)If any injury is caused—

(a)to any dam by reason of the construction, abolition or alteration of a fish pass or the abolition or alteration of a free gap in pursuance of section 10 above; or

(b)by anything [F75done by the appropriate agency under] section 15 above,

any person sustaining any loss as a result may recover [F76from the appropriate agency compensation] for the injury sustained.

(4)The amount of any compensation under section 10[F77 or 15 ] above shall be settled in case of dispute by a single arbitrator appointed by the Minister.

(5)In any case [F78in which the appropriate agency is liable] to pay compensation under this Part of this Act in respect of injury or damage caused by the making or maintaining of any work, compensation shall not be recoverable unless proceedings for its recovery are instituted within two years from the completion of the work.

Textual Amendments

F73S. 18(2) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 16 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3.

Modifications etc. (not altering text)

C15S. 18(2) extended (1.4.1996) by 1995 c. 25, s. 120(2), Sch. 23 para. 14(7) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Part IIIE+W Times of Fishing and Selling and Exporting Fish

F7919 Close seasons and close times. E+W

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

Textual Amendments

F79Ss. 19-22 repealed (12.1.2010 except for the omission of s. 20, 1.1.2011 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), s. 324(3), Sch. 16 para. 8, 22 Pt. 5(B); S.I. 2009/3345, art. 2, Sch. paras. 15(c), 27(b); S.I. 2010/298, art. 2, Sch. para. 13

Modifications etc. (not altering text)

F7920 Close seasons and close times—fixed engines and obstructions.E+W

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

Textual Amendments

F79Ss. 19-22 repealed (12.1.2010 except for the omission of s. 20, 1.1.2011 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), s. 324(3), Sch. 16 para. 8, 22 Pt. 5(B); S.I. 2009/3345, art. 2, Sch. paras. 15(c), 27(b); S.I. 2010/298, art. 2, Sch. para. 13

F7921 Eel baskets etc.E+W

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

Textual Amendments

F79Ss. 19-22 repealed (12.1.2010 except for the omission of s. 20, 1.1.2011 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), s. 324(3), Sch. 16 para. 8, 22 Pt. 5(B); S.I. 2009/3345, art. 2, Sch. paras. 15(c), 27(b); S.I. 2010/298, art. 2, Sch. para. 13

F7922 Sale of salmon and trout.E+W

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

Textual Amendments

F79Ss. 19-22 repealed (12.1.2010 except for the omission of s. 20, 1.1.2011 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), s. 324(3), Sch. 16 para. 8, 22 Pt. 5(B); S.I. 2009/3345, art. 2, Sch. paras. 15(c), 27(b); S.I. 2010/298, art. 2, Sch. para. 13

F8023 Export of salmon and trout.E+W

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

Textual Amendments

F8124 Consignment of salmon and trout.E+W

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

Textual Amendments

Part IVE+W Fishing Licences[F82 and authorisations ]

Textual Amendments

25 Licences to fish.E+W

[F83(1)The [F84appropriate agency] shall by means of a system of licensing regulate fishing by licensable means of fishing for—

(a)salmon, trout, eels, lampreys, smelt and freshwater fish; and

(b)fish of such other description as may be specified for the purposes of this section by order under section 40A below.

(1A) In this Act “ licensable means of fishing ” means any of the following—

(a)rod and line;

(b)an historic installation;

(c)such other means of fishing as the appropriate national authority may by order specify.

(1B) In this Act “ historic installation ” means any of the following—

(a)a fixed engine certified in pursuance of the Salmon Fishery Act 1865 to be a privileged fixed engine;

(b)a fixed engine which was in use for taking salmon or migratory trout during the open season of 1861, in pursuance of an ancient right or mode of fishing as lawfully exercised during that open season, by virtue of any grant or charter or immemorial usage;

(c)a fishing weir or fishing mill dam which was lawfully in use on 6th August 1861 by virtue of a grant or charter or immemorial usage.]

(2)Subject to the following provisions of this section, a licence granted for the purposes of this section (hereafter in this Act referred to as a “fishing licence”) shall entitle the person to whom it was granted and no others to use [F85 the means of fishing ] specified in the licence to fish for any fish [F86of a description, in an area and for a period][F86of such a description, in such area or areas[F87 (or in waters of such description or descriptions) ] and for such period as is] so specified.

(3)A fishing licence for the use of [F88 any means of fishing ] other than a rod and line to fish for salmon or trout shall also authorise the use of [F89 that means of fishing ] for that purpose by the duly authorised servants or agents of the person to whom it was granted, but [F90not exceeding the number permitted by paragraph 13 of Schedule 2 to this Act][F90subject to the provisions of paragraphs 9 to 13 of Schedule 2 to this Act].

(4)A fishing licence for the use of a rod and line shall entitle the licensee to use as ancillary to that use a F91... landing net.

F92(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F93(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Any person or association entitled to an exclusive right of fishing in any inland waters may be granted a general licence to fish in those waters subject to any conditions agreed [F94between the appropriate agency and the licensee], and the licence shall entitle the licensee and, subject to paragraph 9 of Schedule 4 below, any person authorised by him in writing, or in the case of an association, by its secretary so to fish.

(8)Schedule 2 to this Act shall have effect with respect to fishing licences.

(9)Any licence in force under any provision of section 61 of the M3Salmon and Freshwater Fisheries Act 1923 immediately before 29th June 1972 shall be treated as having been granted under the corresponding provision of this section.

[F95(10)For the purposes of this Part, the [F96appropriate agency] may permit a person to take fish of any description in circumstances where he would for those purposes otherwise require a fishing licence.]

[F95(11)Permission under subsection (10) above—

(a)must be in writing;

(b)may be given generally or specifically;

(c)may be given subject to conditions.]

Textual Amendments

F83S. 25(1)-(1B) substituted for s. 25(1) (12.11.2009 for specified purposes, 12.1.2010 for specified purposes, 1.1.2011 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 217(1), 324(1)(c), 324(1)(d); S.I. 2009/3345, art. 2, Sch. para. 11; S.I. 2010/298, art. 2, Sch. para. 13

F86Words “of such a description, in such area or areas and for such period as is” substituted for “of a description, in an area and for a period” (E.W.) by Water Act 1989 (c.15, SIF 130), s. 141, Sch. 17 para. 7(1)(5) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), 194(9), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F90Words beginning “subject to the provisions” substituted for words beginning “not exceeding” (E.W. and as mentioned in s. 43(4) of the amending act (border rivers)) by Salmon Act 1986 (c. 62, SIF 52:2), ss. 33(1), 43(4)

Modifications etc. (not altering text)

Marginal Citations

26 Limitation of fishing licences.E+W

(1)[F97 Subject to this] [F98section, the appropriate agency may]in relation to any such area or areas as are specified in the order, by order confirmed by [F99 the appropriate national authority ]—

(a)limit for a period not exceeding ten years from the coming into operation of the order the number of fishing licences [F100 of any description to be issued pursuant to section 25 above in any year in relation to that area or those areas ]; and

(b)provide for the selection of the applicants to whom such licences are to be issued where the number of applications exceeds the number of licences which may be granted.

[F101(1A)The [F102appropriate agency] may only make an order under subsection (1) above in relation to licences for fishing for fish of any description if it is satisfied that it is necessary to do so for the purposes of—

(a)maintaining, improving or developing fisheries of any fish referred to in section 25(1) above; or

(b)protecting the marine or aquatic environment from significant harm.

(1B)The [F102appropriate agency] may not make an order under subsection (1) above in relation to licences for fishing for fish by—

(a)rod and line; or

(b)an historic installation.]

(2)Where [F103 the appropriate national authority ] proposes to confirm an order under this section, [F104 that authority ] [F105shall require the appropriate agency to publish] the order and notice of [F106that authority's] intention to confirm it in such manner as [F104 that authority ] may require, together with a notification that within a period specified in the requirement written objections to the order may be made to [F107 that authority ].

(3)[F108 The appropriate national authority ] shall consider any such objections received by [F109 that authority ] within the said period, and—

(a)if the number of licences as proposed to be limited by the order is less than the number of licences issued in any of the three years preceding the year in which the order is to come into operation; and

(b)any such objection is made by any person who has during each of the two years preceding that year held a licence of the same description as the licences which it is proposed so to limit in number;

[F110 that authority ] [F111 may cause ] a local inquiry to be held before confirming the order.

[F112(4)If it appears to the [F113appropriate agency] that an order under this section would prevent a person from fishing in circumstances where that person is wholly dependent on the fishing for his livelihood, the [F113appropriate agency] may pay that person such amount by way of compensation as it considers appropriate.]

(6)[F114 The appropriate national authority ] may with the [F115consent of the appropriate agency vary] an order submitted to [F116 that authority ] under this section before confirming it and may [F117require the appropriate agency to publish] the terms of the proposed variation in such manner, if any, as [F118 that authority ] may specify in the requirement.

(7)An order under this section may be revoked by [F119 the appropriate national authority ], or by an order [F120made by the appropriate agency and] confirmed by [F121 that authority ].

[F122(8) Any order limiting the number of licences in force in a water authority area under section 62 of the M4 Salmon and Freshwater Fisheries Act 1923 immediately before 29th June 1972 shall be treated as having limited the number of licences in that area for a period of ten years from that date. ]

Textual Amendments

F101S. 26(1A)(1B) inserted (12.11.2009 for specified purposes, 1.1.2011 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 218(3), 324(1)(c), 324(1)(d); S.I. 2010/298, art. 2, Sch. para. 13

Marginal Citations

27 Unlicensed fishing. E+W

[F123(1)]A person is guilty of an offence if, in any place in which fishing for fish of any description[F124 by any licensable means of fishing ] is regulated by a system of licensing, he—

[F125(a)fishes for or takes fish of that description by that means and—

“(i)is not entitled to use that means for that purpose by virtue of a fishing licence, or

(ii)is acting in breach of any condition of such a licence, or”]

[F125(b)where that licensable means of fishing is an instrument, has that instrument in his possession with intent to use it for that purpose and is not entitled to use it for that purpose by virtue of a fishing licence.]

[F126(2)Subsection (1) above does not apply to a person where—

(a)he has permission under section 25(10) above to take fish of that description in that place by that means, and

(b)he is not acting in breach of any condition of that permission.]

Textual Amendments

Modifications etc. (not altering text)

C20S. 27 excluded (30.6.1999) by S.I. 1999/1746, arts. 1(1), 6(3) (with art. 2); S.I. 1998/3178, art. 3

[F12727AAuthorisation of fishing otherwise than by licensable meansE+W

(1)The [F128appropriate agency] may authorise a person to use any means, other than a licensable means of fishing, to fish for—

(a)salmon, trout, eels, lampreys, smelt and freshwater fish; and

(b)fish of such other description as may be specified for the purposes of this section by order under section 40A below.

(2)An application for an authorisation under this section must be in such form as the [F128appropriate agency] may specify.

(3)An authorisation under this section must be in writing, but subject to that may be in such form as the [F128appropriate agency] may determine.

(4)An authorisation under this section—

(a)must be granted for a specified period of time;

(b)may be granted to more than one person;

(c)may be limited as to the waters in respect of which it is granted;

(d)may be subject to conditions.

(5)The [F128appropriate agency] may at any time, on application or on its own initiative—

(a)amend an authorisation under this section;

(b)revoke an authorisation under this section.

(6)In determining whether to grant, amend or revoke an authorisation the [F128appropriate agency] must consider the effect of doing so on—

(a)fisheries in the area to which the authorisation relates; and

(b)the aquatic or marine environment in that area.

(7)An authorisation under this section granted to a body corporate—

(a)may, if the authorisation so specifies, apply in relation to any individual acting on behalf of that body (as well as to the body corporate); or

(b)may, if the authorisation so specifies, apply only in relation to individuals named in the authorisation when acting on behalf of the body (as well as to the body corporate).

(8)The [F128appropriate agency] may charge a fee for the grant of an authorisation under this section.

(9)Where the [F128appropriate agency] determines standard fees for the grant of authorisations of particular descriptions, it must publish them.

(10)Where—

(a)the [F128appropriate agency] has determined a standard fee for the grant of an authorisation of a particular description, but

(b)the [F128appropriate agency] considers, in any case, that special circumstances apply to the grant of an authorisation of that description,

it may charge a fee of another amount.]

Textual Amendments

[F12727B Unauthorised fishing etc E+W

(1)A person is guilty of an offence if, by any means other than a licensable means of fishing, he fishes for or takes any fish in circumstances where—

(a)the fishing or taking may be authorised under section 27A above, but

(b)he is not authorised to fish for or take the fish under that section (or is so authorised but the fishing or taking is in breach of any condition of his authorisation).

(2)A person is guilty of an offence if he has an instrument in his possession, other than an instrument which is a licensable means of fishing, with intent to use it to fish for or take fish in circumstances where—

(a)the fishing or taking may be authorised under section 27A above, but

(b)he is not authorised to fish for or take the fish under that section (or is so authorised but the fishing or taking would be in breach of any condition of an authorisation under that section).]

Textual Amendments

Part VE+W+S Administration and Enforcement

Regulation of fisheries etc.E+W+S

28 General powers and duties of water authorities and Minister.E+W+S

F129(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F129(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F129(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F129(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F130(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

29 Fish rearing licences.E+W

(1)The Minister may grant a licence to carry on the business of artificially propagating or rearing salmon or trout in any waters.

(2)Any such licence may be granted subject to such conditions (if any) as the Minister thinks fit, and may be revoked if he is of opinion that any condition has not been observed.

30 Introduction of fish into inland waters.E+W

[F131A person shall be guilty of an offence if he introduces any fish or spawn of fish into an inland water[F132in Wales], or has in his possession any fish or spawn of fish intending to introduce it into an inland water[F132in Wales], unless he first obtains the written [F133consent of the appropriate agency or the inland water] [F134is one which consists exclusively of, or of part of, a fish farm and which, if it discharges into another inland water, does so only through a conduit constructed or adapted for the purpose.

F135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]]

Textual Amendments

F134Words added (E.W. and as mentioned in s. 43(4) of the amending act (border rivers)) by Salmon Act 1986 (c. 62, SIF 52:2), ss. 34, 43(4)

F135S. 30: paragraph defining “fish farm”repealed and superseded (1.1.1999) by 1995 c. 25, ss. 105, 120(3), Sch. 15 para. 17, Sch. 24 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 4

Powers of water bailiffs etc.E+W

31 Powers of search etc.E+W

(1)Any [F136water bailiff appointed by the appropriate agency and] any person appointed by the Minister—

(a)may examine any dam, fishing weir, fishing mill dam, fixed engine or obstruction, or any artificial watercourse, and for that purpose enter on any land;

(b)may examine any instrument or bait which he has reasonable cause to suspect of having been or being used or likely to be used in taking fish F137... or any container which he has reasonable cause to suspect of having been or being used or likely to be used for holding any such instrument, bait or fish;

(c)may stop and search any boat or other vessel used in [F138fishing in the appropriate agency’s area] or any vessel or vehicle which he has reasonable cause to suspect of containing—

(i)fish F139...;

(ii)any such instrument, bait or container as aforesaid;

(d)may seize any fish[F140 (or a sample of any fish) ] and any instrument, vessel, vehicle or other thing liable to be forfeited in pursuance of this Act.

[F141(e)may disable or destroy any dam, fishing weir, fishing mill dam or fixed engine which he has reasonable cause to suspect of having operated or been used, or of being likely to be used, in contravention of this Act.]

(2)If any person refuses to allow a water bailiff or a person appointed by the Minister to make any entry, search or examination which he is by this section authorised to make, or to seize anything which he is so authorised to seize, or resists or obstructs a water bailiff or person so appointed in any such entry, search, examination or seizure, he shall be guilty of an offence.

Textual Amendments

Modifications etc. (not altering text)

C21S. 31(1) extended (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(1) (with art. 2)

C22By Salmon Act 1986 (c. 62, SIF 52:2), ss. 32(6)(a), 43(4) it is provided that s. 31(1)(b)(c) is amended (E.W. and as mentioned in the said s. 43(4) (border rivers))

C23S. 31(2) excluded (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(9) (with art. 2); S.I. 1998/3178, art. 3

32 Power to enter lands.E+W

(1)Subject to [F142subsections (1A) and] (2) below,—

(a)any water bailiff or other officer of [F143the appropriate agency, under a special order in writing from that agency, and]

(b)any person appointed by the Minister, under an order in writing from him,

may at all reasonable times, for the purpose of preventing any offence against this Act, enter, remain upon and traverse any lands adjoining or near to [F144waters within a water authority area][F144any waters] other than—

(i)a dwelling-house or the curtilage of a dwelling-house, F145...

F145(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F146(1A)The appropriate agency may make an order under subsection (1)(a) for the purpose of preventing any offence being committed in its area.]

(2)An order under subsection (1) above shall not remain in force for more than 12 months.

Textual Amendments

F144Words “any waters” substituted for “waters within a water authority area” (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 141, Sch. 17 para. 7(1)(8) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), 194(9), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

Modifications etc. (not altering text)

C24S. 32 extended (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(1) (with art. 2); S.I. 1998/3178, art. 3

33 Orders and warrants to enter suspected premises.E+W

(1)Where from a statement on oath of a water bailiff or any other [F147officer of the appropriate agency, or any person] appointed by the Minister, it appears to any justice of the peace that the person making the statement has good reason to suspect that any offence against this Act is being or is likely to be committed on any land situate on or near to any waters, the justice may by order under his hand authorise him, during a period not exceeding 24 hours to be specified in the order, to enter upon and remain on the land during any hours of the day or night for the purpose of detecting the persons committing the offence.

(2)Any justice of the peace upon an information on oath that there is probable cause to suspect any offence against this Act to have been committed on any premises, or [F148 or an offence against this Act to have been committed in the taking of any fish ], or any illegal nets or other instruments to be on any premises, by warrant under his hand and seal may authorise any water bailiff or other [F149officer of the appropriate agency, or any person] appointed by the Minister, or any constable, to enter the premises for the purposes of detecting the offence or the fish, nets or other instruments, at such times of the day or night as are mentioned in the warrant, and to

[F150(a)seize any illegal net or other instrument, or any net or other instrument suspected to have been illegally used, that may be found on the premises;

(b)seize any fish suspected to have been illegally taken or sold that may be found on the premises; or

(c)disable or destroy any dam, fishing weir, fishing mill dam or fixed engine suspected to have operated or been used illegally that may be found on the premises.]

(3)A warrant under subsection (2) above shall not continue in force for more than [F151 three months ].

Textual Amendments

Modifications etc. (not altering text)

C25S. 33 extended (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(1) (with art. 2); S.I. 1998/3178, art. 3

C26By Salmon Act 1986 (c. 62, SIF 52:2), ss. 32(6)(b), 43(4) it is provided that s. 33(2) is amended (E.W. and as mentioned in the said s. 43(4) (border rivers))

34 Power to apprehend persons fishing illegally F152....E+W

If any person, F153..., [F154 takes or kills any fish where the taking or killing constitutes an offence under this Act, or is found on or near any waters with intent to take or kill any fish where the taking or killing would constitute an offence under this Act, or having an instrument prohibited by this Act in his possession for the capture of any fish, where the capture would constitute an offence under this Act ], a water bailiff or a person appointed by the Minister, with any assistants, may seize him without warrant and put him as soon as may be into the custody of a police officer.

Textual Amendments

Modifications etc. (not altering text)

C27S. 34 extended (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(1) (with art. 2); S.I. 1998/3178, art. 3

35 Power to require production of fishing licences.E+W

(1)[F155A water bailiff or other officer of the agency, or any constable], may require any person who is fishing, or whom he reasonably suspects of [F156 intending to ] fish or [F157 of having recently ] fished [F158in a water authority area][F158in any area],[F159 in circumstances where the fishing would require a licence or authorisation under this Act or a licence under section 16 of the Wildlife and Countryside Act 1981, ] to produce his licence or other authority to fish and to state his name and address.

[F160(1A)Without prejudice to subsection (1) above, a water bailiff or other officer of the [F161appropriate agency] who on any occasion finds a person who he has reason to believe is committing, or has on that occasion committed, a fixed penalty offence, within the meaning of section 37A below, may require that person to state his name and address.]

F162(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)If any person required to produce his fishing licence or other authority or to state his name and address fails to do so, he shall be guilty of an offence; but if within seven days after the production of his licence was so required he produces the licence or other authority at [F163the office of the water authority][F163the appropriate office of [F164the [F161appropriate agency]]] he shall not be convicted of an offence under this section for failing to produce it.

[F165(4) In subsection (3) above, “ the appropriate office of the [F161appropriate agency] ” means—

(a)in a case where the person requiring the production of the licence or other authority specifies a particular office of the [F161appropriate agency] for its production, that office; and

(b)in any other case, any office of the [F161appropriate agency];

and for the purposes of that subsection where a licence or other authority which any person has been required to produce is sent by post to an office of the [F161appropriate agency] that licence or other authority shall be treated as produced by that person at that office.]

Textual Amendments

F155Words in s. 35(1) substituted (1.4.1996) by 1995 c. 25, s. 104(2) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F158Words “in any area” substituted for “in a water authority area” (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 141, Sch. 17 para. 7(1)(9)(a) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), 194(9), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F160S. 35(1A) inserted (1.4.1996) by 1995 c. 25, s. 104(3) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F163Words “the appropriate office of the National Rivers Authority” substituted for “the office of the water authority” (E.W.) by Water Act 1989 (c. 15, SIF 130), s. 141, Sch. 17 para. 7(1)(9)(c) (with ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 163, 189(4)–(10), 190, 193(1), 194(9), Sch. 26 paras. 3(1)(2), 17, 40(4), 57(6), 58)

F164Words in s. 35(3) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 18(1) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F165S. 35(4) substituted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 18(2) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C28S. 35 excluded (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(9) (with art. 2); S.I. 1998/3178, art. 3

36 Provisions supplementary to sections 31 to 35.E+W

(1)A water bailiff and a person appointed by the Minister shall be deemed to be a constable for the purpose of the enforcement of this Act, or any order or byelaw under it, and to have all the same powers and privileges, and be subject to the same liabilities as a constable duly appointed has or is subject to by virtue of the common law or of any statute.

(2)The production by a water bailiff or a person appointed by the Minister of evidence of his appointment shall be a sufficient warrant for him exercising the powers conferred on him by this Act.

(3)A police constable whose services are provided under paragraph 39(1)(c) of Schedule 3 below shall have all the powers and privileges of a water bailiff.

Modifications etc. (not altering text)

C29S. 36 extended (30.6.1999) by S.I. 1999/1746, arts. 1(1), 8(1) (with art. 2); S.I. 1998/3178, art. 3

C30By Salmon Act 1986 (c. 62, SIF 52:2), ss. 32(6)(b), 43(4) it is provided that s. 36(1) is amended (E.W. and as mentioned in the said s. 43(4) (border rivers))

OffencesE+W

37 Prosecution etc. of offences.E+W

Parts I and II of Schedule 4 to this Act shall have effect with regard to the prosecution and punishment of offences against this Act and the procedure on such prosecutions.

F166[37A Fixed penalty notices for certain offences.E+W

(1) Where on any occasion a water bailiff or other officer of the [F167appropriate agency] finds a person who he has reason to believe is committing, or has on that occasion committed, a fixed penalty offence, he may give to that person a notice (in this section referred to as a “ fixed penalty notice ”) offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.

(2)Where a person is given a fixed penalty notice in respect of a fixed penalty offence—

(a)no proceedings shall be instituted for that offence before the expiration of the period for paying the fixed penalty; and

(b)he shall not be convicted of that offence if the fixed penalty is paid before the expiration of that period.

(3)The [F167appropriate agency] may extend the period for paying the fixed penalty in any particular case if it considers it appropriate to do so in all the circumstances of the case.

(4)If, in any particular case, the [F167appropriate agency] considers that a fixed penalty notice which has been given ought not to have been given, it may give to the person to whom the fixed penalty notice was given a notice withdrawing the fixed penalty notice; and where notice under this subsection is given—

(a)the [F167appropriate agency] shall repay any amount which has been paid by way of fixed penalty in pursuance of the fixed penalty notice; and

(b)no proceedings shall be instituted or continued against that person for the offence in question.

(5)The amount by which the sums received by the Agency by way of fixed penalties exceed the sums repaid by it under subsection (4)(a) above shall be paid into the Consolidated Fund.

[F168(5A)The amount by which the sums received by the Natural Resources Body for Wales by way of fixed penalties exceed the sums repaid by it under subsection (4)(a) above shall be paid into the Welsh Consolidated Fund.]

(6)In any proceedings, a certificate purporting to be signed by or on behalf of the Chief Executive of the [F167appropriate agency] and stating either—

(a)that payment of a fixed penalty was, or (as the case may be) was not, received by the [F167appropriate agency] on or before a date specified in the certificate, or

(b)that an envelope containing an amount sent by post in payment of a fixed penalty was marked as posted on a date specified in the certificate,

shall be received as evidence of the matters so stated and shall be treated, without further proof, as being so signed unless the contrary is shown.

(7)A fixed penalty notice shall give such reasonable particulars of the circumstances alleged to constitute the fixed penalty offence to which the notice relates as are necessary for giving reasonable information of the offence and shall state—

(a)the monetary amount of the fixed penalty which may be paid;

(b)the person to whom and the address at which—

(i)the fixed penalty may be paid, and

(ii)any correspondence relating to the fixed penalty notice may be sent;

(c)the method or methods by which payment of the fixed penalty may be made;

(d)the period for paying the fixed penalty;

(e)the consequences of the fixed penalty not being paid before the expiration of that period.

(8)A fixed penalty notice may also contain such other information relating to, or for the purpose of facilitating, the administration of the fixed penalty system as the [F167appropriate agency] considers necessary or desirable.

(9)Regulations may—

(a)make provision with respect to the giving of fixed penalty notices, including, in particular, provision with respect to—

(i)the methods by which,

(ii)the officers, servants or agents by, to or on whom, and

(iii)the places at which,

fixed penalty notices may be given by, or served on behalf of, a water bailiff or other officer of the [F167appropriate agency];

(b)prescribe the method or methods by which fixed penalties may be paid;

(c)make provision for or with respect to the issue of prescribed documents to persons to whom fixed penalty notices are or have been given.

(10)In this section—

  • “ fixed penalty ” means a penalty of such amount as may be prescribed (whether by being specified in, or made calculable under, regulations);

  • “ fixed penalty offence ” means, subject to subsection (11) below, any offence—

    (a)

    under this Act,

    (b)

    under the M5Salmon Act 1986,

    (c)

    under or by virtue of regulations or orders made under section 115, 116 or 142 of the M6Water Resources Act 1991, or

    (d)

    under section 211(3) of that Act, so far as relating to byelaws made by virtue of paragraph 6 of Schedule 25 to that Act,

    which is for the time being prescribed for the purpose;

  • “ the fixed penalty system ” means the system implementing this section and regulations made under it;

  • “ the Ministers ” means the Secretary of State and the Minister;

  • “ notice ” means notice in writing;

  • “ the period for paying ”, in relation to any fixed penalty, means such period as may be prescribed for the purpose;

  • “ prescribed ” means prescribed by regulations;

  • “ regulations ” means regulations made under this section by the Ministers.

(11)The provision that may be made by regulations prescribing fixed penalty offences includes provision for an offence to be a fixed penalty offence—

(a)only if it is committed in such circumstances or manner as may be prescribed; or

(b)except if it is committed in such circumstances or manner as may be prescribed.

(12)Regulations may provide for any offence which is a fixed penalty offence to cease to be such an offence.

(13)An offence which, in consequence of regulations made by virtue of subsection (12) above, has ceased to be a fixed penalty offence shall be eligible to be prescribed as such an offence again.

(14)Regulations may—

(a)make different provision in relation to different cases or classes of case; or

(b)provide for such exceptions, limitations and conditions, or make such incidental, supplemental, consequential or transitional provision, as the Ministers consider necessary or expedient.

(15)Any power to make regulations under this section shall be exercisable by statutory instrument made by the Ministers; and a statutory instrument containing any such regulations shall be subject to annulment pursuant to a resolution of either House of Parliament.]

Textual Amendments

F166S. 37A inserted (1.4.1996) by 1995 c. 25, s. 104(1) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

Marginal Citations

Part VIE+W+S Miscellaneous and Supplementary

38 Works below high water mark.E+W

(1)Any works proposed to be constructed under this Act on, over or under tidal lands below high-water mark of ordinary spring tides shall be constructed only in accordance with such plans and sections and subject to such restrictions and regulations as the Secretary of State approves in writing before they are commenced.

(2)Any alteration or extension of any such works shall be subject to the like approval.

(3)If any such work is commenced or completed contrary to this section, the Secretary of State may abate and remove it and restore its site to its former condition at the cost of the person who commenced or executed it, or (if he is not the owner of the work) of the owner, and the cost shall be summarily recoverable by the Secretary of State.

(4)This section is in addition to and not in derogation of any local Act.

Modifications etc. (not altering text)

C32S. 38 applied (1.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 181(3), 225(2), (with ss. 16(6), 179, 222(3), 224(1), 225(4), Sch. 22 paras. 1, 2, 4, Sch. 23 para. 6).

39 Border rivers and Solway Firth.E+W+S

(1)This Act—

(a)does not apply to the River Tweed, but

(b)[F169except where otherwise indicated,]applies to so much of the River Esk, with its banks and tributary streams up to their source, as is situated in Scotland,

and in this subsection “the River Tweed” [F170means the Tweed district (as defined in article 2(1) of the Scotland Act 1998 (River Tweed) Order 2006 ( S.I.   2006/2913 )).]

[F171(1A) In the application of this Act, under subsection (1)( b ) above, to the River Esk in Scotland, references to this Act in sections 31 to 33 and section 36 shall be construed as including references to sections 1, 3 and 18 to 20 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act M7 1951 as applied to that River by section 21 of that Act. ]

[F172(1B)Sections 31 to 34 and 36(2) of this Act shall, subject to the modifications set out in subsection (1C) below, apply throughout the catchment area of the River Esk in Scotland but a water bailiff shall exercise his powers under those sections as so applied only in relation to an offence—

(a)against this Act;

(b) against section 1 of the M8 Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951; or

(c) which is deemed to be an offence under this Act by virtue of section 211(6) of the M9 Water Resources Act 1991,

which he has reasonable cause to suspect has been committed in a place to which this Act applies by virtue of subsection (1)(b) above.

(1C)The modifications referred to in subsection (1B) above are—

(a) references in sections 31 to 34 of this Act to “ this Act ” shall be construed as including references to section 1 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (as applied to the River Esk by section 21 of that Act); and

(b)in section 33—

(i)references to a justice of the peace shall be construed as including references to a sheriff; and

(ii)in subsection (2), the reference to an information on oath shall be construed as including a reference to evidence on oath.]

(2)Where the minimum size of mesh of nets used for taking salmon prescribed by any provision of this Act or by any byelaw in force in any part of the Solway Firth within England is greater than that which may be lawfully used in the part of the Solway Firth within Scotland, the provision or byelaw shall have effect as if the minimum size of mesh so prescribed in relation to the part of the Solway Firth within England were such as may be so lawfully used as aforesaid in the part of the Solway Firth within Scotland.

(3)The limits of the Solway Firth for the purposes of this section shall be determined by the Minister.

(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F173

[F174(5)Nothing in this section [F175the Water Resources Act 1991][F176or the Water Act 1989] shall authorise a water authority to take legal proceedings in Scotland in respect of an offence against this Act.]

Textual Amendments

F172S. 39(1B)(1C) inserted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 19 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F175S. 39(5): By Water Consolidation (Consequential Provisions) Act 1991 (c. 60, SIF 130), ss. 2, 4(2), Sch. 1 para. 30(3) it is provided that after the words "this section" there is substituted (E.W.)(1.12.1991) the words "the Water Resources Act 1991"

Modifications etc. (not altering text)

C34By Salmon Act 1986 (c. 62, SIF 52:2), ss. 32(6)(b), 43(4) it is provided that s. 39(1) is amended (E.W. and as mentioned in the said s. 43(4) (border rivers))

Marginal Citations

40 River Severn.E+W

This Act applies to the dams constructed by the Severn Commissioners under the M10Severn Navigation Act 1842 and the M11Severn Navigation Act 1853 and now vested in [F177Canal & River Trust], and to all fish passes in those dams; and it shall accordingly be [F178Canal & River Trust’s] duty, subject to the provisions of this Act and to section 23 of the M12Severn Navigation Act 1881 (by virtue of which they have power to stop up the passes with the [F179agreement of the appropriate agency) to maintain] those passes in an efficient state.

Textual Amendments

Marginal Citations

M101842 c. xxiv (Sess. 2).

M121881 c. ccv.

[F18040APower to specify fishE+W+S

The appropriate national authority may by order specify fish of any description for the purposes of any or all of the following—

(a)section 1, 2, 25 or 27A above;

(b)section 32 of the Salmon Act 1986;

(c)paragraph 6 of Schedule 25 to the Water Resources Act 1991;

(d)section 6(6) of the Environment Act 1995.]

Textual Amendments

F180S. 40A inserted (12.11.2009 for specified purposes, 12.1.2010 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 221(1), 324(1)(c), 324(1)(d); S.I. 2009/3345, art. 2, Sch. para. 12

[F18140BOrders: supplementaryE+W+S

(1)An order under section 1, 25 or 40A above may make different provision for different purposes (and, in particular, different provision in relation to different areas or waters).

(2)Such an order is to be made by statutory instrument.

(3)A statutory instrument containing such an order is subject to annulment in pursuance of a resolution of—

(a)either House of Parliament, in the case of an order made by the Secretary of State;

(b)the National Assembly for Wales, in the case of an order made by the Welsh Ministers.]

Textual Amendments

F181S. 40B inserted (12.11.2009 for specified purposes, 12.1.2010 in so far as not already in force) by Marine and Coastal Access Act 2009 (c. 23), ss. 222, 324(1)(c), 324(1)(d); S.I. 2009/3345, art. 2, Sch. para. 12

41 Interpretation.E+W

(1)In this Act, unless the context otherwise requires—

  • F182[ “ the Agency ” means the Environment Agency; ]

  • [F183“the appropriate agency” means—

    (a)

    the Agency, except in relation to Wales (within the meaning of the Government of Wales Act 2006); and

    (b)

    the Natural Resources Body for Wales, in relation to Wales (within that meaning);]

  • [F184 “ the appropriate national authority ” means—

    (a)

    the Secretary of State, except in relation to Wales (within the meaning of the Government of Wales Act 2006);

    (b)

    in relation to Wales (within that meaning), the Welsh Ministers;]

  • [F183“area”, in relation to the appropriate agency, means the area in relation to which it carries out its functions relating to fisheries by virtue of—

    (a)

    section 6(7) of the Environment Act 1995, in the case of the Agency;

    (b)

    section 6(7A) of that Act, in the case of the Natural Resources Body for Wales;]

  • “authorised officer” means—

    (a)

    any officer of [F185the appropriate agency;] F186 . . .;

    (b)

    any officer of a market authority acting within the area of the jurisdiction of that authority;

    (c)

    any officer appointed by the Minister;

    (d)

    any officer appointed in writing by the Fishmongers Company, or

    (e)

    any police officer;

  • “byelaw” means a byelaw under this Act;

  • “dam” includes any weir or other fixed obstruction used for the purpose of damming up water;

  • [F187 “ eels ” means any fish of the species Anguilla anguilla , and includes elvers and the fry of eels; ]

  • [F188 “ fish ” includes crustaceans and molluscs; ]

  • [F189“fish farm”—

    (a)

    means a pond, stew, hatchery or other place used for keeping, with a view to their sale or to their transfer to other waters (including another fish farm), live fish, live eggs of fish, or foodstuff of fish, and

    (b)

    includes any buildings used in connection with a place mentioned in paragraph (a) and the banks and margins of any water in such a place;]

  • “fishing licence” has the meaning assigned to it by section 25(2) above;

  • “fishing mill dam” means a dam used or intended to be used partly for the purpose of taking or facilitating the taking of fish, and partly for the purpose of supplying water for milling or other purposes;

  • “fishing weir” means any erection, structure or obstruction fixed to the soil either temporarily or permanently, across or partly across a river or branch of a river, and used for the exclusive purpose of taking or facilitating the taking of fish;

  • “Fishmongers Company” means the wardens and commonalty of the Mystery of Fishmongers in the City of London;

  • “fixed engine” includes—

    (a)

    a stake net, bag net, putt or putcher;

    (b)

    any fixed implement or engine for taking or facilitating the taking of fish;

    (c)

    any net secured by anchors and any net or other implement for taking fish fixed to the soil, or made stationary in any other way; and

    (d)

    any net placed or suspended in any inland or tidal waters unattended by the owner or a person duly authorised by the owner to use it for taking [F190 fish ], and any engine, device, machine or contrivance, whether floating or otherwise, for placing or suspending such a net or maintaining it in working order or making it stationary;

  • “foreshore” includes the shore and bed of the sea and of every channel, creek, bay, estuary and navigable river as far up it as the tide flows;

  • [F191 “ freshwater crayfish ” means any freshwater decapod crustacean of the Families Astacidae, Cambaridae or Parastacidae; ]

  • [F192 “ freshwater fish ” means any fish habitually living in fresh water, exclusive of—

    (a)

    salmon, trout, eels, lampreys, smelt and any other fish of a kind which migrates from fresh to salt water, or from salt to fresh water, in order to spawn;

    (b)

    any kind of crustacean other than freshwater crayfish and Chinese mitten crabs ( Eriocheir sinensis ); and

    (c)

    any kind of mollusc;]

  • “general licence” means a licence granted under section 25(7) above;

  • [F193 “ historic installation ” has the meaning given by section 25 above; ]

  • F194. . .

  • “immature” in relation to salmon means that the salmon is of a length of less than 12 inches, measured from the tip of the snout to the fork or cleft of the tail, and in relation to any other fish means that the fish is of a length less than such length (if any) as may be prescribed by the byelaws applicable to the water in which the fish is taken;

  • F195[ “inland water” means any area of inland waters within the meaning of the Water Resources Act 1991;]

  • [F196 “ licensable means of fishing ” has the meaning given by section 25 above; ]

  • “market authority” includes any corporation, local authority, body of trustees or other persons having power to maintain or regulate any market;

  • “migratory trout” means trout which migrate to and from the sea;

  • “mill” includes any erection for the purpose of developing water power, and “milling” has a corresponding meaning;

  • “the Minister” means, F197 . . ., the Minister of Agriculture, Fisheries and Food;

  • “occupier” in relation to a fishery or premises includes any person for the time being in actual possession of the fishery or premises;

  • “owner” includes any person who is entitled to receive rents from a fishery or premises;

  • “river” includes a stream;

  • “rod and line” means single rod and line;

  • “salmon” means all fish of the salmon species and includes part of a salmon;

  • [F198 “ screen ” means a grating or other device which, or any apparatus the operation of which, prevents—

    (a)

    the passage of salmon or migratory trout, and

    (b)

    if the screen is required in connection with a fish farm, the passage of any fish farmed at that fish farm,

    or any combination of devices or apparatus which, taken together, achieve that result;]

  • [F199 “ smelt ” means any fish of the species Osmerus eperlanus ; ]

  • “trout” means any fish of the salmon family commonly known as trout, including migratory trout and char, and also includes part of a trout;

  • “unclean” in relation to any fish means that the fish is about to spawn, or has recently spawned and has not recovered from spawning.

F200(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F200(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Except so far as provision is made by paragraph 13 of Schedule 3 below, nothing in this Act shall be construed as [F201authorising the appropriate agency or any other] person to take or use land or other property belonging to the Crown.

(4)In any byelaw made under an enactment repealed by the M13Salmon and Freshwater Fisheries Act 1923 “salmon” and “trout” have the meanings assigned to them by subsection (1) above.

Textual Amendments

F182S. 41(1): definition of “the Agency” inserted (1.4.1996) by 1995 c. 25, s. 104(4)(with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F194S. 41(1): definition of “grating” repealed (1.1.1999) by 1995 c. 25, ss. 105, 120(3), Sch. 15 para. 20, Sch. 24 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 4

F198S. 41(1): definition of “screen” inserted (1.1.1999) by 1995 s. 105, Sch. 15 para. 20(b) (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 4

Marginal Citations

42 Repeals etc.E+W+S

(1)The enactments specified in Schedule 5 to this Act are hereby repealed to the extent specified in the third column of that Schedule.

(2)In section 18(1) of the M14Sea Fish (Conservation Act 1967 (enforcement of orders in relation to salmon and migratory trout) for paragraph (a) there shall be substituted the following paragraph:—

“(a)section 31 (1)(d) of the Salmon and Freshwater Fisheries Act 1975 (which confers power of seizure)shall apply as if the reference in it to that Act included a reference to this Act, and sections 36(1) and (2) of that Act, and paragraph 8 of Schedule 4 (all of which contain ancilliary provisions), shall be construed accordingly as including references to that Act as applied by this subsection;”

(3)In so far as any instrument made or other thing whatsoever done under any enactment repealed by this Act could have been made or done under a corresponding enactment in this Act, it shall not be invalidated by the repeal of that enactment but shall have effect as if made or done under that corresponding enactment; and for the purposes of this provision anything which under section 93(2) of the M15Salmon and Freshwater Fisheries Act 1923 had effect as if done under any enactment in that Act shall, so far as may be necessary for the continuity of the law, be treated as done under the corresponding enactment in this Act.

(4)Any enactment or other document referring to an enactment repealed by this Act or by the M16Salmon and Freshwater Fisheries Act 1923 shall, so far as may be necessary for preserving its effect, be construed as referring, or as including a reference, to the corresponding enactment in this Act.

(5)Nothing in this Act shall affect the admissibility in evidence of any instrument made under the M17Salmon Fishery Act 1865.

(6)Section 254(2)(c) of the M18Local Government Act 1972 (power of Secretary of State to amend, etc., enactments by order) shall apply to this Act as if it had been passed before 1st April 1974.

[F202(7)The M19Water Act 1973 shall have effect as if the functions conferred on water authorities by section 28(1) and (2) above were conferred by it.]

(8)Nothing in this Act shall affect the legal right of any conservators, directors, commissioners, undertakers or other persons to dredge, scour, cleanse or improve any navigable river, canal or other inland navigation.

(9)Nothing in this Act shall be taken as prejudicing the operation of section 38 of the M20Interpretation Act 1889 (which relates to the effect of repeals).

Textual Amendments

Modifications etc. (not altering text)

C35The text of s. 42(1)(2), Sch. 5 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991

Marginal Citations

43 Citation etc.E+W

(1)This Act may be cited as the Salmon and Freshwater Fisheries Act 1975.

(2)Subject to section 39 above and subsection (3) below, this Act extends only to England and Wales.

(3)The following provisions of this Act, namely—

  • section 28(1) and (2) above,

  • section 39(1) [F203,(1A)][F204, (1B),(1C)][F205(4) and (5)] above,

  • section 42(1) above, so far as it relates to the repeal of section 15 of the M21Salmon and Freshwater Fisheries Act 1972 and section 18 of the M22Water Act 1973,

  • paragraph 3 of Schedule 4 below,

extend to Scotland.

(4)This Act shall come into force on 1st August 1975.

Textual Amendments

F204Words in s. 43(3) inserted (1.4.1996) by 1995 c. 25, s. 105, Sch. 15 para. 21 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Marginal Citations

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