Part II Water Resources Management
chapter II ABSTRACTION AND IMPOUNDING
Appeals with respect to decisions on licence applications
43 Appeals to the Secretary of State.
(1)
Where an application has been made to the F1Agency for a licence under this Chapter, the applicant may by notice appeal to the Secretary of State if—
(a)
the applicant is dissatisfied with the decision of the F1Agency on the application; or
F2(1A)
This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).
(2)
The period mentioned in subsection (1)(b) above is—
(a)
except in a case falling within paragraph (b) below, such period as may be prescribed; and
(b)
where an extended period is at any time agreed in writing between the applicant and the F1Agency, the extended period.
(3)
A notice of appeal under this section shall be served—
(a)
in such manner as may be prescribed; and
(b)
within such period as may be prescribed, being a period of not less than twenty-eight days from, as the case may be—
(i)
the date on which the decision to which it relates was notified to the applicant; or
(ii)
the end of the period which, by virtue of subsection (2) above, is applicable for the purposes of subsection (1)(b) above.
(4)
Where a notice is served under this section in respect of any application, the applicant shall, within the period prescribed for the purposes of subsection (3)(b) above, serve a copy of the notice on the F1Agency.
(5)
Where any representations in writing with respect to an application were made within the period specified F3in any such notice as is referred to in section 37(4)(b) above, the Secretary of State shall, before determining an appeal under this section in respect of the application, require the F1Agency to serve a copy of the notice of appeal on each of the persons who made those representations.
44 Determination of appeals.
(1)
Subject to the following provisions of this Chapter, where an appeal is brought under section 43 above, the Secretary of State—
(a)
may allow or dismiss the appeal or reverse or vary any part of the decision of the F4Agency, whether the appeal relates to that part of the decision or not; and
(b)
may deal with the application as if it had been made to him in the first instance;
and for the purposes of this section an appeal by virtue of section 43(1)(b) above shall be taken to be an appeal against a refusal of the application.
(2)
Before determining an appeal under section 43 above, the Secretary of State may, if he thinks fit—
(a)
cause a local inquiry to be held; or
(b)
afford to the applicant and the F4Agency an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose;
and the Secretary of State shall act as mentioned in paragraph (a) or (b) above if a request is made by the applicant or the F4Agency to be heard with respect to the appeal.
(3)
The Secretary of State, in determining an appeal under section 43 above, shall take into account—
(a)
any further representations in writing received by him, within the prescribed period, from the persons mentioned in section 43(5) above; and
(b)
the requirements of the applicant, in so far as they appear to the Secretary of State to be reasonable requirements.
(4)
F5Subject to subsection (4A) below, in determining any appeal under section 43 above and, in particular, in determining what (if any) direction to give under subsection (6) below, the Secretary of State shall consider whether any such direction would require such a grant or variation of a licence as would so authorise—
(a)
the abstraction of water; or
(b)
the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from rights which, at the time when the direction in question is given, are protected rights for the purposes of this Chapter.
F6(4A)
Subsection (1A) of section 39 above applies in relation to subsection (4) above as it applies in relation to section 39(1) above.
(5)
The provisions of sections 39(2) and 40 above shall apply in relation to any appeal under section 43 above as if—
(a)
any reference in those provisions to the F4Agency, were a reference to the Secretary of State; and
(b)
the references to sections 38(3) and 39(1) above were references to subsections (3) and (4) above.
(6)
Where the decision on an appeal under section 43 above is that a licence is to be granted or to be varied or revoked, the decision shall include a direction to the F4Agency, as the case may be—
(a)
to grant a licence containing such provisions as may be specified in the direction;
(b)
to vary the licence so as to contain such provisions as may be so specified; or
(c)
to revoke the licence.
(7)
The decision of the Secretary of State on any appeal under section 43 above shall be final.
45 Regulations with respect to appeals.
(1)
The Secretary of State may by regulations make provision as to the manner in which appeals against decisions F7of the Agency under section 36A above or on applications for the grant, revocation or variation of licences under this Chapter are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such appeals or decisions on any such appeals.
(2)
Without prejudice to the generality of subsection (1) above, provision shall be made by regulations under this section for securing that, in prescribed circumstances (being circumstances in which it appears to the Secretary of State that applications for licences under this Chapter would be of special concern to National Park F8. . . authorities)—
(a)
notice of any appeal against the decision on such an application, will be served on any National Park F8. . . authority who made representations falling within paragraph (b) of section 34(3) above; and
(b)
the Secretary of State, in determining the appeal, will take account of any further representations made by such an authority within such period and in such manner as may be prescribed.
F9(2A)
Subsection (2) above does not apply in relation to appeals against decisions of the Agency under section 36A above.
(3)
Subsections (4) F8. . . of section 34 above shall apply for the purposes of this section as they apply for the purposes of that section.