Part II Water Resources Management
Chapter II ABSTRACTION AND IMPOUNDING
Rights to abstract or impound
26 Rights of navigation, harbour and conservancy authorities.
(1)
The restriction on abstraction shall not apply to any transfer of water from one area of inland waters to another in the course of, or resulting from, any operations carried out by a navigation authority, harbour authority or conservancy authority in the carrying out of their functions as such an authority.
(2)
The restriction on impounding works shall not apply to the construction or alteration of impounding works in the course of the performance by a navigation authority, harbour authority or conservancy authority of their functions as such an authority.
F127 Rights to abstract small quantities.
(1)
The restriction on abstraction shall not apply to any abstraction of a quantity of water not exceeding twenty cubic metres in any period of twenty-four hours, if the abstraction does not form part of a continuous operation, or of a series of operations, by which a quantity of water which, in aggregate, is more than twenty cubic metres is abstracted during the period.
(2)
In the case of any abstraction of water from underground strata which falls within subsection (1) above, the restriction imposed by section 24(2) above shall not apply—
(a)
to the construction or extension of any well, borehole or other work; or
(b)
to the installation or modification of machinery or other apparatus,
if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.
(3)
Where a person is authorised by a licence under this Chapter to carry on a particular abstraction operation (or series of operations), this section does not permit him to carry it on beyond the authorisation conferred by the licence.
27AVariation of small quantity threshold
(1)
The Secretary of State may by order made by statutory instrument provide that section 27(1) above is to have effect in relation to—
(a)
a geographical area; or
(b)
a class of inland waters; or
(c)
a class of underground strata; or
(d)
a class of inland waters or of underground strata within a geographical area,
(in each case as specified in the order) as if for “twenty cubic metres” there were substituted another quantity specified in the order.
(2)
The Secretary of State shall not make such an order except upon the application of the Agency; but he may direct the Agency to make such an application.
(3)
Such an order may—
(a)
make different provision in relation to the different paragraphs in subsection (1) above; and
(b)
make different provision for different areas, waters or underground strata.
(4)
Schedule 6 to this Act shall have effect with respect to applications for orders under subsection (1) above and with respect to the making of such orders.
(5)
An order under subsection (1) above which specifies a greater quantity than the one which previously had effect in relation to the area, waters or strata in question may make provision for a licence to abstract water granted under this Chapter—
(a)
which is for the time being in force; but
(b)
which by virtue of the order has become wholly or partly unnecessary,
to cease to have effect, or to cease to have effect to the extent specified in the order.
(6)
An order under subsection (1) above may include provision for or in relation to the payment by the Agency of compensation, in cases specified in the order, to a person who—
(a)
immediately before the making of an order under subsection (1) above, had been in a position to carry out an abstraction to which, by virtue of section 27(1) above, the restriction on abstraction did not apply;
(b)
following the making of that order, requires a licence under this Chapter in order to carry out that abstraction; and
(c)
has suffered loss or damage as a result of his having been—
(i)
refused such a licence in respect of that abstraction; or
(ii)
granted such a licence, but in respect of an abstraction of more limited extent than the one he had been in a position to carry out.
(7)
Paragraphs (e) and (f) of section 219(2) below apply in relation to orders under subsection (1) above as they apply to regulations made under this Act.
(8)
A statutory instrument containing an order under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
28 Curtailment of rights under section 27.
F2(1)
The provisions of this section shall have effect where a person (“the occupier") is entitled, by virtue of subsection (6) of section 27 above, to a protected right for the purposes of this Chapter by reason of his being the occupier of such a holding as is mentioned in subsection (4) of that section in relation to an abstraction falling within that subsection (“the holding").
(2)
If it appears to the F3Agency that the occupier is entitled, as against other occupiers of land contiguous to the inland waters in question, to abstract water from those waters for use on part of the holding (“the relevant part"), but is not so entitled to abstract water for use on other parts of the holding—
(a)
the F3Agency may serve on him a notice specifying the relevant part of the holding; and
(b)
subject to the following provisions of this section, the notice shall have effect so as to require subsections (3) and (4) of section 27 above to be construed in relation to the holding as if the references in subsection (4) to use on the holding were references to use on the part of the holding specified in the notice.
(3)
Where a notice is served under subsection (2) above and the occupier objects to the notice on the grounds—
(a)
that he is entitled, as against other occupiers of land contiguous to the inland waters in question, to abstract water from those waters for use on every part of the holding; or
(b)
that he is so entitled to abstract water for use on a larger part of the holding than that specified in the notice,
he may, within such period (not being less than twenty-eight days from the date of service of the notice) and in such manner as may be prescribed, appeal to the court against the notice.
(4)
On any appeal under subsection (3) above, the court shall determine the matter in dispute and, in accordance with its decision, confirm, quash or vary the F3Agency’s notice and—
(a)
where the court quashes a notice served under subsection (2) above, paragraph (b) of that subsection shall not have effect; and
(b)
where the court varies such a notice, that paragraph shall have effect, but with the substitution, for the reference to the part of the holding specified in the notice, of a reference to the part specified in the notice as varied by the court.
(5)
In this section—
“the court” means the county court for the district in which the holding, or the part of the holding which is contiguous to the inland waters in question, is situated; and
“entitled” (except in subsection (1) above) means entitled apart from this Chapter or any other statutory provision.
29 Rights to abstract for drainage purposes etc.
(1)
The restriction on abstraction shall not apply to any abstraction of water from a source of supply in the course of, or resulting from, any operations for purposes of land drainage.
(2)
The restriction on abstraction shall not apply to any abstraction of water from a source of supply in so far as the abstraction (where it does not fall within subsection (1) above) is necessary—
(a)
to prevent interference with any mining, quarrying, engineering, building or other operations (whether underground or on the surface); or
(b)
to prevent damage to works resulting from any such operations.
(3)
Where—
(a)
water is abstracted, in the course of any such operations as are mentioned in subsection (2) above, from any excavation into underground strata in a case in which the level of water in the underground strata depends wholly or mainly on water entering it from those strata; and
(b)
the abstraction is necessary as mentioned in that subsection,
the exemption conferred by that subsection shall apply notwithstanding that the water is used for the purposes of the operations.
(4)
In the case of any abstraction of water from underground strata which falls within subsection (1) or (2) above, the restriction imposed by section 24(2) above shall not apply—
(a)
to the construction or extension of any well, borehole or other work; or
(b)
to the installation or modification of machinery or other apparatus,
if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.
(5)
In this section, “land drainage” includes the protection of land against erosion or encroachment by water, whether from inland waters or from the sea, and also includes warping and irrigation other than spray irrigation.
30 Notices with respect to borings not requiring licences.
(1)
Where any person—
(a)
proposes to construct a well, borehole or other work which is to be used solely for the purpose of abstracting, to the extent necessary to prevent interference with the carrying out or operation of any underground works, water contained in underground strata; or
(b)
proposes to extend any such well, borehole or other work,
he shall, before he begins to construct or extend the work, give to the F4Agency a notice of his intention in the prescribed form.
(2)
Where a notice under subsection (1) above is given to the F4Agency by any person, the F4Agency may (subject to section 31 below) by notice to that person require him, in connection with the construction, extension or use of the work to which that person’s notice relates, to take such reasonable measures for conserving water as are specified in the notice.
(3)
The measures that may be specified in a notice under subsection (2) above shall be measures which, in the opinion of the F4Agency, will not interfere with the protection of the underground works in question.
(4)
Any person who contravenes subsection (1) above or fails to comply with a notice under subsection (2) above shall be guilty of an offence and liable—
(a)
on summary conviction, to a fine not exceeding the statutory maximum;
(b)
on conviction on indictment, to a fine.
31 Appeals against conservation notices under section 30.
(1)
The person on whom a notice under section 30(2) above (“a conservation notice") is served may, by notice to the Secretary of State, appeal to him against the conservation notice on either or both of the following grounds, that is to say—
(a)
that the measures required by the conservation notice are not reasonable;
(b)
that those measures would interfere with the protection of the underground works in question.
(2)
Any notice of appeal against a conservation notice shall be served within such period (not being less than twenty-eight days from the date of service of the conservation notice) and in such manner as may be prescribed.
(3)
Before determining an appeal against a conservation notice, the Secretary of State may, if he thinks fit-
(a)
cause a local inquiry to be held; or
(b)
afford to the appellant and the F5Agen cy 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 appellant or the F5Agency to be heard with respect to the appeal.
(4)
On an appeal against a conservation notice the Secretary of State may confirm, quash or vary the notice as he may consider appropriate.
(5)
The decision of the Secretary of State on any appeal against a conservation notice shall be final.
(6)
The Secretary of State may by regulations make provision as to the manner in which appeals against conservation notices 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.
32 Miscellaneous rights to abstract.
(1)
The restriction on abstraction shall not apply to any abstraction by machinery or apparatus installed on a vessel, where the water is abstracted for use on that, or any other, vessel.
(2)
The restriction on abstraction and the other restrictions imposed by section 24 above shall not apply to the doing of anything—
(a)
for F6extinguishing fires or protecting life and property in the event of fire ; or
(b)
for the purpose of testing apparatus used for F7either of those purposes or of training or practice in the use of such apparatus.
(3)
The restriction on abstraction and the other restrictions imposed by section 24 above shall not apply—
(a)
to any abstraction of water;
(b)
to the construction or extension of any well, borehole or other work; or
(c)
to the installation or modification of machinery or other apparatus,
(4)
The purposes mentioned in subsection (3) above are—
(a)
the purpose of ascertaining the presence of water in any underground strata or the quality or quantity of any such water; and
(b)
the purpose of ascertaining the effect of abstracting water from the well, borehole or other work in question on the abstraction of water from, or the level of water in, any other well, borehole or other work or any inland waters.
F933 Power to provide for further rights to abstract.
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F1033APower to provide for further exemptions
(1)
The Secretary of State may make regulations providing for further cases in which—
(a)
the restriction on abstraction (and, in the case of abstractions from underground strata, the other restrictions imposed by section 24 above); or
(b)
the restriction on impounding works,
shall not apply; and in this section such a case is referred to as an “exemption”.
(2)
The regulations may, in particular, make provision, in relation to an exemption—
(a)
for the exemption to apply only for a prescribed period;
(b)
for the exemption not to apply unless prescribed conditions are satisfied, or continue to be satisfied;
(c)
for the Agency to be notified, or its consent obtained—
(i)
before any particular abstraction operation or series of such operations begins; or
(ii)
in connection with such an operation or series of operations relating to the abstraction of water in underground strata, before any other thing which is mentioned in section 24(2) above is done; or
(iii)
before any impounding works are constructed or altered,
in reliance on the exemption.
(3)
The regulations may provide for an exemption to apply generally or to relate to—
(a)
a prescribed geographical area;
(b)
a prescribed source of supply (in the case of an exemption from the restriction on abstraction or the other restrictions imposed by section 24 above); or
(c)
prescribed inland waters (in the case of an exemption from the restriction on impounding works).
(4)
Subject to subsection (5) below, if regulations under this section provide for an exemption falling within subsection (1)(a) above, the regulations shall—
(a)
if appropriate, make provision for the exemption not to permit a person who is authorised by a licence under this Chapter to carry on an abstraction operation (or series of operations) to carry it on beyond the authorisation conferred by the licence; and
(b)
make provision as to whether or not, in relation to any abstraction, the exemption provided for by the regulations is to be counted cumulatively with any other exemption which a person has by virtue of this section or section 27 above.
(5)
The regulations may make provision for a licence granted under this Chapter and which is for the time being in force to cease to have effect, or to cease to have effect to the extent specified in the regulations, if it authorises an activity which falls to any extent within the exemption provided for by the regulations.