Electricity Act 1989

Section 10(5).

SCHEDULE 5E+W+S Water Rights for Hydro-Electric Generating Stations in Scotland

Modifications etc. (not altering text)

C1Sch. 5: transfer of functions (S.) (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1 (with art. 7)

1E+W+SIn Scotland, a person who holds a licence under section 6(1)(a) of this Act may be authorised by the Secretary of State to abstract and divert from any watercourse or loch and to use such water as may be necessary for the purposes of constructing or extending a generation station wholly or mainly driven by water and of operating that generating station after such construction or extension ; but he shall do as little damage as possible in the exercise of the powers conferred by the authorisation and shall make compensation for any damage done in the exercise of those powers.

2E+W+SAuthorisation under paragraph 1 above shall be by order and shall provide for the compulsory acquisition by the person of such rights, as regards the abstraction, diversion and use, as may be specified in the order ; and the order may contain such incidental , consequential and supplementary provisions as the Secretary of State thinks necessary or expedient.

3E+W+SWhere the abstraction, diversion, and use will, in the opinion of the Secretary of State—

(a)substantially reduce the flow of water in any watercourse, he shall in the order prescribe the extent to which and the circumstances in which water may be taken ;

(b)substantially reduce the level of water in any loch, he shall in the order either—

(i)prescribe the extent to which and the circumstances in which water may be taken ; or

(ii)prescribe the quantity of compensation water to be provided by the person ;

(c)impound any watercourse, he shall in the order prescribe the quantity of compensation order to be provided by the person.

4E+W+SIn this Schedule “compensation water” means a flow of water, on such conditions and by such means as the Secretary of State may specify in the order, for the benefit of riparian owners and other owners of land or salmon fishings affected by the compulsory acquisition.

5E+W+S[F1Subject to paragraphs 5A and 5B,] In deciding whether to make the order or in prescribing the quantity of any compensation water to be provided under the order, the Secretary of State shall have regard to all the circumstances of the particular case, including—

(a)the interest of public health ;

(b)the character of the watercourse or loch, and the flow, or as the case may be the level, of water in it ;

(c)the extent to which the watercourse or loch is, or may in future be, used for industrial purposes or for the purposes of any public undertaking or for fisheries, water supply, agriculture, transport and navigation ; and

(d)the effect on land drainage or on any canal or inland navigation of any alteration in the flow of water in the watercourse or level of water in the loch,

and shall secure, so far as practicable, the protection of the rights of riparian owners and of other owners of land or salmon fishings.

Textual Amendments

[F25ASBefore making an order under paragraph 2, and in considering the matters referred to in paragraphs 3 to 5, the Secretary of State shall–

(a)obtain and have regard to the advice of the Scottish Environment Protection Agency on matters relating to the protection of the water environment (and in particular as to the extent to, and the circumstances in, which water may be taken and the quantity of compensation water to be provided); and

(b)have regard to the purposes of Part 1 of the Water Environment and Water Services (Scotland) Act 2003.

Textual Amendments

5BE+W+SIn the event that the provisions of an order made under paragraph 2 on matters relating to the protection of the water environment, and the conditions of an authorisation granted under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 differ and cannot reasonably be reconciled, the relevant provisions of that order shall be treated as modified to the extent necessary to be consistent with the conditions of that authorisation.]

Textual Amendments

6E+W+SAny question of disputed compensation under paragraph 1 above shall be referred to and determined by the Lands Tribunal for Scotland ; and sections 9 and 11 of the M1Land Compensation (Scotland) Act 1963 shall apply to any such determination.

Marginal Citations

7E+W+SAn applicant for authorisation under paragraph 1 above shall submit to the Secretary of State a draft of the order which he desires the Secretary of State to make and shall publish once at least in each of two successive weeks in one or more local newspapers circulating in the area affected by the proposed order a notice—

(a)stating the general effect of the proposed order ;

(b)specifying a place, in or near the said area, where a copy of the draft order and of any relevant map or plan may be inspected by any person free of charge at all reasonable hours during a period of 28 days from the date of the first publication of the notice ; and

(c)stating that within the said period any person may by notice to the Secretary of State object to the application.

8E+W+SNot later than the date on which the said notice is first published, the applicant shall serve a copy thereof—

(a)along with a copy of the draft order, on—

F3(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)the [F4council constituted under section 2 of the Local Government etc. (Scotland) Act 1994] ... [F5; and

(iia)any National Park Authority];

F6(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

for every area affected by the proposed order ;

[F7(aa)along with a copy of the draft order, on Scottish Water;]

(b)on the district salmon fishery board of any salmon fishery district from which water is taken, or into which water is to be discharged, under the rights acquired, on any navigation authority exercising functions in relation to any watercourse or loch from or into which water is to be so taken or discharged, on any public undertakers known by the applicant to be authorised by any enactment to take or use water from any such watercourse or loch and on the [F8Scottish Environment Protection Agency].

Textual Amendments

F4Words in Sch. 5 para. 8(a)(ii) substituted (S.) (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 160(2)(b); S.I. 1996/323, art. 4(1)(b)(c)

F5Sch. 5 para. 8(a)(iia) and word “; and” immediately preceding it inserted (S.) (8.9.2000) by 2000 asp 10, s. 36, Sch. 5 para. 14(1)(b) (with s. 32); S.I. 2000/312, art. 2

F6Sch. 5 para. 8(a)(iii) and preceding word omitted (S.) (1.4.1996) by 1994 c. 39, s. 180(1)(2), Sch. 13 para. 160(2)(c), Sch. 14; S.I. 1996/323, art. 4(1)(b)(c), Sch. 2

F8Words in Sch. 5 para. 8(b) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 41 (with s. 7(6), 115, 117); S.I. 1996/186, art. 3

9E+W+SThe applicant shall also publish in the Edinburgh Gazette a notice stating that he is about to apply for authorisation under paragraph 1 above, F9... specifying a place where a copy of the draft order and of any relevant map or plan may be inspected, and giving the name and date of issue of a local newspaper in which the notice explaining the effect of the order applied for will be found.

Textual Amendments

10E+W+SThe applicant shall, at the request of any person interested, furnish to him a copy of the draft order upon payment of a reasonable charge.

11E+W+SThe Secretary of State may make an order in the terms of the draft submitted to him or in those terms as modified in such manner as he thinks fit ; but, where he proposes to make any modification and considers that persons other than the applicant to give and publish additional notices in such manner as the Secretary of State thinks best adapted for informing all persons so affected of the modification proposed.

12E+W+SIf before the expiration of the 28 days referred to in paragraph 7 above or of 25 days from the publication of the said notice in the Edinburgh Gazette, or before expiration of any period specified in notices give under the last foregoing paragraph, an objection is received by the Secretary of State from [F10Scottish Water or] any authority or board or undertakers on whom a notice is required to be served under paragraph 8 above, or from any other person appearing to him to be affected by the application, or, as the case may be, by the proposed modification, and the objection is not withdrawn, the Secretary of State, before making any order on the application, shall cause a local inquiry to be held.

Textual Amendments

13E+W+SThe expenses incurred by the Secretary of State in connection with the making, notification and confirmation of any order giving authorisation under paragraph 1 above shall be paid by the applicant ; and the Secretary of State may, in a case where there are two or more applicants, apportion such expenses between them.

F1114E+W. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

15E+W+SIn paragraphs 1 to 8 above “watercourse” includes all rivers, streams and passages through which water flows.