Part IIE+W Water Resources Management

Modifications etc. (not altering text)

C1Pt. II: transfer of functions to the Environment Agency (1.4.1996) by 1995 c. 25, s. 2(1)(a)(i) (with ss. 115, 117); S.I. 1996/186, art. 3

chapter IIE+W ABSTRACTION AND IMPOUNDING

Modifications etc. (not altering text)

C2Chapter II of Part II excluded (1.4.1996) by 1995 c. 25, s. 6(3) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

C3Chapter II of Part II modified (18.12.1996) by 1996 c. 61, s. 52, Sch. 15 Pt. III para. 11

C7Pt. II Ch. II modified (22.7.2008) by Crossrail Act 2008 (c. 18), Sch. 17 para. 11

Consideration of licence applicationsE+W

39 Obligation to have regard to existing rights and privileges.E+W

(1)[F1Subject to subsection (1A) below,] the [F2Agency] shall not, except with the consent of the person entitled to the rights, grant a licence so authorising—

(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 any rights which, at the time when the application is determined by the [F2Agency], are protected rights for the purposes of this Chapter.

[F3(1A)Subsection (1) above does not apply when—

(a)the application to be determined is one which does not fall within subsection (1A) of section 38 above only because paragraph (b) of that subsection is not satisfied; or

(b)the determination of an application is being concluded in accordance with subsection (1C) of that section.]

(2)In a case where an application for a licence under this Chapter relates to abstraction from underground strata, the [F2Agency], in dealing with the application, shall have regard to the requirements of existing lawful uses of water abstracted from those strata, whether for agriculture, industry, water supply or other purposes.

F4(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any reference in this Chapter, in relation to the abstraction of water or obstructing or impeding the flow of any inland waters by means of impounding works, to derogating from a right which is a protected right for the purposes of this Chapter is a reference to, as the case may be—

(a)abstracting water; or

(b)so obstructing or impeding the flow of any such waters,

in such a way, or to such an extent, as to prevent the person entitled to that right from abstracting water to the extent mentioned in [F5(as the case may be) section 39A(2) or (7), 48(1) or 59C(10) below or section 102(3) of the Water Act 2003, or in a provision made in an order by virtue of section 10(5)(b) of that Act, in each case subject to any limitations mentioned there] .

(5)For the purposes of subsection (2) above the [F2Agency] shall be entitled (but shall not be bound) to treat as lawful any existing use of water from underground strata unless—

(a)by a decision given in any legal proceedings, it has been held to be unlawful; and

(b)that decision has not been quashed or reversed.

Textual Amendments

F1Words in s. 39(1) inserted (1.4.2004) by Water Act 2003 (c. 37), ss. 16(2), 105(3); S.I. 2004/641, art. 3(e) (with Sch. 3 para. 7)

F2Words in s. 39 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F5Words in s. 39(4) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 16(5), 105(3); S.I. 2005/968, art. 2(c)

Modifications etc. (not altering text)