2017 No. 1047
The Water Abstraction (Transitional Provisions) Regulations 2017
Made
Laid before Parliament
Laid before National Assembly for Wales
Coming into force
The Secretary of State, in relation to England, and the Welsh Ministers in relation to Wales, make the following Regulations in exercise of the powers conferred by—
PART 1Introduction
Citation and commencement1
These Regulations may be cited as the Water Abstraction (Transitional Provisions) Regulations 2017 and come into force on 1st January 2018.
Interpretation2
1
In these Regulations—
“the 2006 Regulations” means the Water Resources (Abstraction and Impounding) Regulations 20063;
“the appropriate authority” means—
- a
in relation to England, the Secretary of State;
- b
in relation to Wales, the Welsh Ministers;
- a
“licence” means a licence to abstract water under Chapter 2 of Part 2.
2
In these Regulations—
a
any reference to a provision is, unless the context otherwise requires, a reference to a provision of the Water Resources Act 1991;
b
any reference to an application for a licence includes a reference to an application for a variation of an existing licence;
c
any reference to the grant or refusal of a licence includes a reference to a grant or refusal of a variation of an existing licence.
PART 2Transitional licence provisions
Scope of this Part3
1
This Part applies to a person who—
a
in the seven years prior to 1st January 2018 abstracted water—
i
from a source of supply, or
ii
from any of the inland waters of the Rivers Tweed, Esk or Sark (or their tributaries) in England,
and who did not require a licence for that abstraction, or
b
is a successor to such a person.
2
In paragraph (1)(b), “successor” means a person to whom a person described in paragraph (1)(a) transfers title, where the transfer of title—
a
is a transfer of title to the property from which water was abstracted as described in paragraph (1)(a),
b
includes irrevocable transfer of the right to abstract water as described in paragraph (1)(a) from that property, and
c
has effect on any date during the period beginning 1st January 2018 and ending 31st December 2019.
Transitional procedures for applications by persons other than the appropriate agency4
1
This regulation applies where a person to whom this Part applies, other than the appropriate agency4, applies for a licence before 31st December 2019.
2
Where the licence application relates to the abstraction described in regulation 3(1)(a), the application must be made and determined in accordance with the Schedule to these Regulations instead of in accordance with Part 2 of the 2006 Regulations.
3
Where the licence application relates to an abstraction other than the one described in regulation 3(1)(a), in addition to complying with the requirements of Part 2 of the 2006 Regulations, that person must—
a
disclose to the appropriate agency when so applying that they have abstracted water as described in regulation 3(1)(a), and
b
provide such additional information as the appropriate agency may reasonably require to perform its functions under the 2006 Regulations.
Transitional procedure for applications by the appropriate agency5
1
Paragraph (2) applies where—
a
this Part applies to an appropriate agency by virtue of regulation 3(1), and
b
that appropriate agency applies for a transfer licence before 31st December 2019.
2
The 2006 Regulations apply to that transfer licence application as if the reference in paragraph 2(3)(b)(iv) of Schedule 2 to the 2006 Regulations requiring the specification of the quantity of water to be abstracted were omitted.
Continuation of abstraction during transitional period6
Notwithstanding the restriction on abstraction, a person may continue to carry out an abstraction of water described in regulation 3(1)(a)—
a
if the person applies for a licence in respect of that abstraction, until the date on which that application (including any appeal under section 435) is determined, or
b
if no such application is submitted, until 31st December 2019.
Register of licences7
1
The register required to be kept by the appropriate agency under section 189 must contain, for each application for a licence submitted in accordance with this Part—
a
the name and address of the applicant;
b
the date of the application and brief particulars of its proposals;
c
particulars of any decision of the appropriate agency or the appropriate authority on the application (including the decision on any appeal) and the date of that decision;
d
the date of any licence granted;
e
the date on which that licence expires;
f
the particulars of any notice of appeal.
3
4
If any of the information in paragraph (1) falls to be determined under section 191B (exclusion from registers of certain confidential information)7 and is determined not to be commercially confidential, the appropriate agency must enter it in the register—
a
if no notice of appeal is served, within 28 days of the end of the period within which notice of appeal against that determination may be served;
b
if a notice of appeal is served, within 28 days of the date on which the appropriate agency receives notification of the determination or withdrawal of the appeal.
5
The appropriate agency must record in the register the date each entry is made.
6
The appropriate agency may keep the register, or any part of it, electronically.
PART 3Compensation
Scope of this Part8
1
This Part applies to a person who applies for a licence under these Regulations.
2
Paragraph (1) does not apply to—
a
a Minister of the Crown, where “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 19758;
b
the Welsh Ministers;
c
a public body (including a government department, a local authority and a local planning authority);
d
a person holding an office—
i
under the Crown,
ii
created or continued in existence by a public general Act, or
iii
the remuneration in respect of which is paid out of money provided by Parliament;
e
a person who is or is deemed to be a statutory undertaker for the purposes of any provision of Part 11 of the Town and Country Planning Act 19909.
3
In paragraph (2)—
“local authority” means—
- a
in relation to England, a county council, a district council, a parish council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly;
- b
in relation to Wales, a county council, a county borough council or a community council;
- a
“local planning authority” has the same meaning as in Part 1 of the Town and Country Planning Act 199010.
Payment of compensation9
1
The appropriate agency must pay compensation to any person falling within the scope of this Part—
a
whose application for a licence is—
i
refused by the appropriate agency, or
ii
granted by the appropriate agency but in respect of an abstraction of more limited extent than that of the abstraction the person was carrying out in the seven years before the coming into force of these Regulations,
b
whose appeal under section 43 in respect of a decision referred to in sub-paragraph (a) is dismissed by the appropriate authority,
c
who has suffered loss and damage as a result, and
d
who applies to the appropriate agency for compensation within the deadline specified in regulation 10.
2
Paragraph (1) does not apply where the reason for a decision referred to in paragraph (1)(a) is that it is necessary—
a
in order to protect from serious damage—
i
any inland waters,
ii
any water contained in any underground strata,
iii
any underground strata themselves, or
iv
any flora or fauna dependent on any of paragraphs (i) to (iii), or
b
to comply with any relevant legal requirement.
3
In paragraph (1), an abstraction of more limited extent does not include a Qn95 hands-off flow constraint or 75% of Qn99 hands-off flow constraint on a licence where the licensed abstraction is from a body of inland waters or a body of groundwater where the recent actual flow or quantitative status of the source of supply does not support good ecological potential, good ecological status or good quantitative status.
4
In paragraph (3)—
“75% of Qn99 hands-off flow constraint” means a licence condition which provides that the licence holder must cease the abstraction if—
- a
the flow in the source of supply to which the licence relates, or
- b
in the case of groundwater to which the licence relates, the flow in inland waters dependent on that groundwater,
is equal to or falls below 75% of the natural flow that is exceeded 99% of the time in that source of supply or inland waters;
- a
“good ecological potential” means the ecological status of a heavily modified or an artificial body of water, which meets the classification in Annex V to the Directive;
“good ecological status” means the ecological status of a body of surface water which meets the classification in Annex V to the Directive;
“good quantitative status” means the quantitative status of a body of groundwater which meets the status defined in table 2.1.2 of Annex V to the Directive;
“Qn95 hands-off flow constraint” means a licence condition which provides that the licence holder must cease the abstraction if—
- a
the flow in the source of supply to which the licence relates, or
- b
in the case of groundwater to which the licence relates, the flow in inland waters dependent on that groundwater,
is equal to or falls below the natural flow that is exceeded 95% of the time in that source of supply or inland waters.
- a
5
In paragraph (4), “the Directive” means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy11.
Deadline for receipt of applications10
An application for compensation must be made to the appropriate agency within six years of the determination of the appeal by the appropriate authority under section 44.
Disputed compensation11
1
Any question of disputed compensation must be referred by the person who made the application for compensation in regulation 10 to the Upper Tribunal for determination.
2
The provisions of section 4 of the Land Compensation Act 196112 apply, subject to any necessary modifications, in relation to the determination of any such compensation.
Calculation of compensation12
1
For the purpose of assessing compensation in respect of loss or damage consisting of depreciation of the value of an interest in land, the rules in sections 5 and 5A of the Land Compensation Act 196113, so far as applicable and subject to any necessary modifications, have effect as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.
2
Where an interest in land is subject to a mortgage—
a
compensation is to be assessed as if the interest were not subject to the mortgage;
b
a claim for compensation may be made by any mortgagee of the interest, but without prejudice to the making of a claim by the mortgagor;
c
compensation is only payable to any mortgagee of the interest in respect of the interest which is subject to the mortgage;
d
compensation which is payable in respect of the interest which is subject to the mortgage is to be paid to the mortgagee or, if there is more than one mortgagee, to the first mortgagee, and must in either case be applied by that mortgagee as if it were the proceeds of sale of the interest.
SCHEDULEApplication for, and determination of, licences
PART 1Application for a licence
Submission of licence applications1
An application for a licence must be submitted to the appropriate agency.
Information to be included in an application2
An application must include—
a
details of any abstraction from the source of supply that is the subject of the application carried out in the seven years prior to 1st January 2018;
b
such other information, including maps, as the appropriate agency may reasonably require to determine the application.
Manner of application3
An application must be—
a
made on a form issued by the appropriate agency for the purpose of the application being made or electronically in a form accessible by the appropriate agency;
b
accompanied by any fee payable under section 41(1)(a) of the Environment Act 199514.
Type of application4
The appropriate agency may decide that—
a
an application for a new licence ought to be for a variation of an existing licence, or
b
an application for a variation of an existing licence ought to be for a new licence,
and may proceed with the application accordingly.
PART 2Determination of applications
Interpretation5
In this Part, “valid application” means an application that complies with the provisions of paragraphs 1 to 3.
Provision of additional information in support of the application6
The appropriate agency may, following receipt of a valid application, require the applicant to submit any further information or reports that it considers necessary to determine that application.
Provision of information to the applicant7
1
The appropriate agency must, by 30th June 2021, provide the applicant with the following information in relation to a valid application—
a
whether a notice of the application has been or is to be published in accordance with section 37(1)15;
b
the date by which the applicant must be notified of the appropriate agency’s decision on the application;
c
the applicant’s entitlement to appeal, in accordance with section 43(1)(b), against any failure by the appropriate agency to give notice, within the time period prescribed by paragraph 10(1), of its decision on the application.
2
But if, when it receives the application, the appropriate agency serves a notice on the applicant under section 36A16, and the applicant appeals against that notice, the appropriate agency must provide the information referred to in sub-paragraph (1) by 30th June 2021 or within 28 days of the final determination of that appeal, whichever is the later.
Publication of an application8
1
For the purposes of section 37(1), notice of an application must be published in at least one newspaper circulating in the locality of the proposed point of abstraction and on the appropriate agency’s website.
2
The notice must be published by—
a
30th June 2021, or
b
if there is an appeal under section 36A in relation to the application, within 28 days of the determination of that appeal or by 30th June 2021, whichever is the later.
3
The notice must specify—
a
the name of the applicant;
b
the type of licence being applied for;
c
the purpose of the abstraction;
d
the point of abstraction;
e
the period over which abstraction will take place;
f
in the case of an application for a full licence, the quantity of water to be abstracted;
g
where and when the application documents and the register containing details of the application may be inspected, and that such inspection is free of charge;
h
the address to which any representations in relation to the application should be sent.
4
The notice must not include any information that is to be excluded from a register by virtue of section 191A or 191B17.
5
The requirements of section 37(1) and (2) do not apply to any application if the appropriate authority notifies the appropriate agency that complying with those requirements in relation to that application would be contrary to the interests of national security.
6
The requirements of section 37(1) and (2) may be dispensed with if it appears to the appropriate agency that the proposed abstraction would have no appreciable adverse effect on the environment.
Abstraction in National Parks or the Broads9
1
This paragraph applies in the case of a valid application relating to abstraction in the area of a National Park or the Norfolk or Suffolk Broads.
2
The appropriate agency must serve notice in writing of that application on the National Park authority for that Park or the Broads Authority, as the case may be, by 30th June 2021.
3
The notice must include—
a
a copy of the application;
b
a statement that the National Park authority or the Broads Authority may make representations in writing to the appropriate agency in relation to the application within three months, beginning on the date on which the notice is served.
4
The appropriate agency—
a
must not decide on the application before the end of the three month period referred to in sub-paragraph (3)(b);
b
must have regard to any representations made by the National Park authority or the Broads Authority when deciding on the application.
5
This paragraph does not apply if the appropriate authority notifies the appropriate agency that giving such notice would be contrary to the interests of national security.
Notification of a decision10
1
The appropriate agency must, by 31st December 2022, notify the applicant in writing of its decision on an application for a licence.
2
If the appropriate agency grants a licence on terms that are different in any material respect from the application, or refuses an application, the notification must—
a
include a statement of the appropriate agency’s reasons for doing so;
b
state the applicant’s entitlement to appeal under section 43(1).
PART 3Appeals procedure
Appeals to the Secretary of State or the Welsh Ministers under section 36A(4) (decision on type of abstraction licence)11
1
The period within which any notice of appeal under section 36A(4) must be served is 28 days from the date on which notice of the decision to which the appeal relates is served on the applicant.
2
A notice of appeal under section 36A(4) must state the grounds of appeal and be accompanied by a copy of—
a
the application to which the appeal relates;
b
any information or report submitted to the appropriate agency with the application;
c
the notice of the decision on the application;
d
all other relevant correspondence with the appropriate agency.
Appeals to the Secretary of State or the Welsh Ministers under section 43 (decision on licence application)12
1
For the purposes of section 43(3)(b), the prescribed period for serving a notice of appeal is 28 days.
2
A notice of appeal under section 43 must state the grounds of appeal and be accompanied by a copy of—
a
the application to which the appeal relates;
b
any information or report submitted to the appropriate agency with the application;
c
the notice of the decision on the application, if any;
d
all other relevant correspondence with the appropriate agency.
3
The appropriate agency must, within 14 days of receiving a notice of appeal under section 43, serve a copy of that notice on—
a
any person who within the period referred to in section 37(4)(b) made representations in writing in relation to the application;
4
When serving a copy of a notice of appeal, the appropriate agency must notify the recipient in writing—
a
that the recipient may make further representations in writing in relation to the appeal;
b
of where any such representations must be sent;
c
of the date by which those representations must be received.
Prescribed periods13
1
The prescribed period for the purposes of section 44(3)(a) is 21 days from the date on which notice of appeal is served on the persons referred to in section 43(5).
2
The prescribed period for the purposes of section 45(2)(b) is 21 days from the date on which notice of appeal is served on the National Park authority or the Broads Authority.
(This note is not part of these Regulations)