§ Clause 32, page 31, line 14, leave out from ("and") to end of line 17 and insert ("where such a licence is transferred by virtue of any such order, or by virtue of any other statutory provision, or is included in any sale or lease under section 122 of the Public Health Act 1936, the person to whom it is transferred, sold or leased shall become (in the case of such a transfer, to the extent specified in the statutory provision in question, and, in the case of a lease, for the period of the lease) the holder of the licence for the purposes of this Act.
§ (8) Where any person who becomes the holder of a licence by virtue of the provisions of this section or of regulations made thereunder gives notice to the river authority in accordance with those provisions, or any person who becomes the holder of a licence by virtue of the last preceding subsection 1064 notifies the river authority that he has become the holder of the licence, the river authority shall vary the licence accordingly; and where, by virtue of the provisions of this section or of any such regulations a person ceases to be the holder of a licence in such circumstances that no other person thereupon becomes the holder of it, the licence shall cease to have effect.")
§ Clause 33, page 31, line 44, at end insert:
§ ("(4) Where, in a case falling within subsection (1)(c) of this section, there are in force on the second appointed day two or more separate statutory provisions (other than orders under the Water Act 1958) whereby the same person is entitled to abstract water from the same source of supply at different points or by different means, subsections (1) to (3) of this section and the next following section, shall have effect separately in relation to each of those statutory provisions, and the applicant shall be entitled to two or more licences under this section accordingly:
§ Provided that this subsection shall have effect subject to any regulations made in accordance with the next following subsection.
§ (5) Provision may be made by regulations under this Act for securing that where, on any application under this section, it appears to the river authority—
- (a) that the applicant would, apart from the regulations, be entitled to two or more licences under this section, by reason that he was entitled to abstract water by virtue of two or more separate statutory provisions in force on the second appointed day, whether those statutory provisions relate to different sources of supply or to abstraction from the same source of supply but at different points or by different means, and
- (b) that those sources of supply, or those different points or different means, as the case may be, have been, or are intended to be, used by the applicant in conjunction with each other (whether simultaneously or as alternatives or otherwise), and
- (c) that it is expedient that (instead of two or more licences) there should be granted to the applicant one licence under this section providing for them to be so used in pursuance of the licence,
§ (6) In this section 'separate statutory provision' does not include a statutory provision which only amends or varies a previous statutory provision; but any reference in this or the next following section to a statutory provision (except where the reference is to the coming into operation thereof) shall, in relation to a statutory provision which has been amended or varied, be construed as a reference to that provision in the form in which it is for the time being in force.")
1065§ Clause 34, page 32, leave out lines 26 to 40 and insert ("any quantity specified in the licence as a quantity of water authorised to be abstracted in pursuance of the licence during a period or periods so specified shall, subject to the following provisions of this section, be determined by reference to the requirements of the applicant, as indicated by (and not, except by virtue of the next following subsection, to be taken to exceed) the quantities of water proved to the reasonable satisfaction of the river authority to have been abstracted from the source of supply in question by the applicant or his predecessors from time to time during the relevant period by virtue of the relevant statutory provision.
§
(4) In determining any quantity to be specified in the licence, in a case falling within the last preceding subsection, the river authority shall have regard to the terms of the relevant statutory provision and to such of the following matters as are proved to their reasonable satisfaction (in addition to the quantities of water proved to have been abstracted as mentioned in the last preceding subsection) that is to say—
(a) the seasons of the year during which the quantities of water abstracted during the relevant period, as mentioned in the last preceding subsection, were so abstracted").
§ Page 33, line 5, leave out ("the last preceding subsection") and insert ("subsection (3) of this section").
§ Page 33, line 10, at end insert ("either or both of the following, that is to say").
§ Page 33, line 14, leave out ("or") and insert ("and").
§ Leave out Clause 35.
§ After Clause 35, insert the following new clause:
§ Licences of right for non-statutory users
§ ("(1) The provisions of this section shall have effect where an application under section 33 of this Act is made in a case falling within subsection (1) (b) of that section; and in this section 'the relevant period' means the period of five years ending with the second appointed day or the period beginning with the date on which the applicant or his predecessors began to abstract water from the source of supply in question and ending with the second appointed day, whichever is the shorter.
§ (2) Subject to the following provisions of this section, any quantity specified in the licence as a quantity of water authorised to be abstracted in pursuance of the licence during a period of periods so specified shall be determined by reference to the requirements of the applicant, as indicated by (and not, except by virtue of the next following subsection, to be taken to exceed) the quantities of water proved to the reasonable satisfaction of the river authority—
- (a) to have been abstracted from the source of supply in question by the applicant or his predecessors from time to time during the relevant period, and
- (b) to have been so abstracted for use on the land on which, and for the purposes for
1066 which, water abstracted in pursuance of the licence is authorised by the licence to be used:
§ Provided that paragraph (b) of this subsection shall not apply in the case of a licence granted to water undertakers for the purposes of their undertaking as water undertakers.
§ (3) In determining any quantity to be specified in the licence, the river authority shall have regard to such of the following matters as are proved to their reasonable satisfaction (in addition to the quantities of water proved to have been abstracted as mentioned in the last preceding subsection) that is to say—
- (a) the seasons of the year during which the quantities of water abstracted during the relevant period, as mentioned in the last preceding subsection, were so abstracted;
- (b) the extent to which the abstraction of water has during the relevant period been, or is intended to be, limited to special occasions when, by reason of accident or other emergency, there has been, or may be, a temporary deficiency of water from other sources of supply;
- (c) the extent to which works, machinery or apparatus were reasonably provided by the applicant or his predecessors in anticipation of future requirements.
§ (4) Any provision made by the licence as to the quantity of water authorised to be abstracted shall be such as will not permit the abstraction of water in excess of the quantity shown to the reasonable satisfaction of the river authority to be capable of being extracted by means of works, machinery or apparatus which were constructed or installed before the second appointed day, or were in the course of being constructed or installed on that day, not being works, machinery or apparatus provided for use only in the event of an accident or other emergency involving a total or partial failure of other works, machinery or apparatus.
§ (5) Where the purposes specified in the licence as the purposes for which water abstracted in pursuance of the licence is to be used consist of or include spray irrigation, then, unless it is proved to the reasonable satisfaction of the river authority either—
- (a) that the applicant or his predecessors has before the passing of this Act abstracted water from the source of supply in question for the purpose of spray irrigation, or
- (b) that before the passing of this Act the applicant or his predecessors began to construct a reservoir for the storage of water to be abstracted from that source of supply and used for the purpose of spray irrigation, and that reservoir was completed and brought into use for that purpose before the second appointed day,
§ Clause 36, page 34, line 3, after ("begin") insert ("or cause or permit any other person to begin").
§ Clause 36, page 34, line 7, leave out ("he is authorised by").
§ Clause 36, page 34, line 10, after ("works") insert ("is in force").
§ Clause 36, page 34, line 39, leave out from ("in") to second ("authority") in line 41 and insert ("the course of the performance by a navigation authority, harbour authority or conservancy authority of their functions as such an").
§
Clause 37, page 35, leave out lines 21 to 35 and insert—
("(2) In any action brought against a person in respect of any obstruction or impeding of the flow of an inland water at any point by means of impounding works, it shall be a defence for him to prove that the flow was so obstructed or impeded in pursuance of a licence under this Act, and in the manner specified in that licence, and to an extent not exceeding the extent so specified, and that any other requirements of the licence were complied with.")
§ Clause 38, page 36, line 27, leave out subsection (3).
§ Clause 39, page 37, line 12, leave out ("section") and insert ("Part of this Act").
§ After Clause 40, insert the following new Clause:
§ Provisions supplementary to ss. 38 to 40
§ (".—(1) The provisions of this section shall have effect in relation to—
- (a) applications referred to the Minister under section 38 of this Act;
- (b) appeals to the Minister under section 39 of this Act where the application to the river authority was for a licence other than a licence of right; and
- (c) appeals to the Minister under section 39 of this Act where the application to the river authority was for a licence of right.
§ (2) In relation to any application referred to the Minister as mentioned in paragraph (a) of the preceding subsection, the provisions of subsections (1) and (3) of section 28 and of subsection (3) and subsections (5) to (7) of section 29 of this Act shall apply as if in those provisions, except in section 29(3)(a), any reference to the river authority were a reference to the Minister.
§ (3) In determining any application referred to him under section 38 of this Act, and, in particular, in determining what (if any) direction to give under subsection (5) of that section, the Minister shall consider whether any such direction would require the grant of a licence so as to authorise derogation from protected rights.
§ (4) Subject to the provisions of subsections (2) and (3) of this section and of section 30 of this Act, on any such application the Minister—
- (a) may determine that a licence shall be granted containing such provisions as he considers appropriate, or
- (b) if, having regard to the provisions of this Act, he considers it necessary or expedient to do so, may determine that no licence shall be granted.
§ (5) In relation to any such appeal as is mentioned in paragraph (b) of subsection (1) of this section—
- (a) the provisions of subsection (3) (with the omission of paragraph (a)) and of subsections (5) to (7) of section 29 of this Act shall apply as if in those provisions any reference to the river authority were a reference to the Minister; and
- (b) in determining the appeal, and, in particular, in determining what (if any) direction to give under section 39(6) of this Act, the Minister shall consider whether any such direction would require the grant or variation of a licence so as to authorise derogation from protected rights.
§ (6) In relation to any such appeal as is mentioned in paragraph (c) of subsection (1) of this section, section 33(4) and (5) and section 34 of this Act, or section 35 of this Act, as the case may be, shall apply as if any reference to the river authority were a reference to the Minister.
§ (7) The provisions of this section shall have effect without prejudice to section 38(4) and section 39(4) and (5) of this Act.
§ (8) In subsections (5) to (7) of section 29 of this Act as applied by any enactment contained in this section, any reference to 'the preceding provisions' shall be construed as a reference to—
- (a) subsection (3) of that section as so applied, and
- (b) subsection (3) or subsection (5)(b) of this section, as the case may be.
§ (9) References in this section to section 39 of this Act include references to the provisions of that section as applied by section 40 of this Act; and any reference in this section to authorising derogation from protected rights is a reference to authorising the abstraction of water, or, as the case may be, authorising the flow of an inland water to be obstructed or impeded by means of impounding works, so as to derogate from rights which, at the time when the direction in question is given, are protected rights under this Act.")
§ Clause 41, page 38, line 17, leave out ("40") and insert (("Provisions supplementary to sections 38 to 40")).
§ Clause 41, page 38, line 19, after ("licences") insert ("in pursuance of such applications").
§
Clause 41, page 38, line 20, at end insert:
("Provided that, where the proposed variation is limited to reducing the quantity of water authorised to be abstracted in pursuance of the licence during one or more periods, sections 28 and 39(4) of this Act shall not apply.")
§
Clause 42, page 38, line 24, at end insert:
("(2) Where, either in consequence of representations made to the Minister or otherwise, it appears to the Minister that a licence under this Act granted by a river authority ought to be reviewed, but no proposals for revoking or varying the licence have been formulated by the river authority under the
1069
preceding subsection, the Minister may, as he may consider appropriate in the circumstances,—
§ Clause 42, page 38, line 26, leave out ("the preceding subsection") and insert ("either of the preceding subsections").
§ Clause 42, page 38, line 27, after ("published") insert ("in the London Gazette and").
§ Clause 42, page 38, line 28, after ("newspapers") insert ("(other than the London Gazette)").
§ Clause 42, page 38, line 32, after ("published") insert ("(otherwise than in the London Gazette)").
§ Clause 42, page 38, line 44, leave out from ("during") to end of line 45 and insert ("a period specified in the notice in accordance with the next following subsection").
§
Page 39, line 6, leave out subsection (4) and insert:
("(4) The period specified in a notice in pursuance of the last preceding subsection shall be a period beginning not earlier than the date on which the notice is first published in a newspaper other than the London Gazette, and ending not less than twenty-eight days from that date and not less than twenty-five days from the date on which the notice is published in the London Gazette; and a river authority shall not proceed with any such proposals before the end of the period so specified.")
§
Clause 43, page 40, line 14, at end insert:
("(4) The provisions of subsections (5) to (7) of section 29 of this Act shall apply in relation to any proposals referred to the Minister as mentioned in subsection (1) of this section as if in those provisions any reference to the river authority were a reference to the Minister and any reference to the application were a reference to the proposals.
§ (5) In determining under this section whether a licence should be varied, and, if so, what direction should be given under subsection (3) of this section, the Minister shall consider whether any such direction would require the licence to be varied so as to authorise derogation from protected rights.
§ (6) In subsections (5) to (7) of section 29 of this Act, as applied by subsection (4) of this section, any reference to 'the preceding provisions' shall be construed as a reference to subsections (1) and (5) of this section.
§ (7) Any reference in this section to authorising derogation from protected rights shall be construed in accordance with subsection (9) of section (Provisions supplementary to sections 38 to 40) of this Act.")
§ Clause 44, page 40, line 18, leave out ("an inland water") and insert ("a source of supply in a river authority area")
§ Clause 44, page 40, line 22, leave out ("drought") and insert ("shortage of rain")
§ Clause 44, page 40, line 30, leave out from ("be") to end of line 31 and insert 1070 ("abstracted in pursuance of the licence from the source of supply in question for use for that purpose, and, in relation to that period, the licence shall have effect subject to that reduction accordingly:
§ Provided that the river authority shall not serve such a notice in respect of abstraction of water from underground strata unless it appears to them that such abstraction is likely to affect the flow, level or volume of an inland water (not being an inland water falling within section 2(3) of this Act or an inland water comprised in an order under section 25 of this Act)")
§ Clause 44, page 40, line 34, leave out ("inland water") and insert ("source of supply")
§ Clause 44, page 40, line 47, leave out ("used") and insert ("abstracted for use")
§
Clause 45, page 41, line 33, at end insert:
("(6) For the purpose of assessing any compensation under this section, in so far as that compensation is in respect of loss or damage consisting of depreciation of the value of an interest in land, the rules set out in section 5 of the Land Compensation Act 1961 shall, 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.
§ (7) Where the interest in land, in respect of which any compensation falls to be assessed in accordance with the last preceding subsection, is subject to a mortgage—
- (a) the compensation shall be assessed as if the interest were not subject to the mortgage;
- (b) a claim for the compensation may be made by any mortgagee of the interest, but without prejudice to the making of a claim by the person entitled to the interest;
- (c) no such compensation shall be payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage); and
- (d) any such compensation which is payable in respect of the interest which is subject to the mortgage shall be paid to the mortgagee, or, if there is more than one mortgagee, to the first mortgagee, and shall in either case be applied by him as if it were proceeds of sale.")
§ After Clause 45, insert the following new clause:
§ Application by owner of fishing rights for revocation or variation of licence
§ ("(1) Where a licence under this Act, not being a licence of right, authorises abstraction from an inland water in respect of which no minimum acceptable flow has been determined under Part III of this Act, then, at any time after the end of the period of one year beginning with the date on which the licence was granted but before such a minimum acceptable flow has been so determined, any person who is the owner of fishing rights in respect of that inland water may apply to the Minister for the revocation or variation of the licence.
1071§ (2) Any application under this section made by a person as owner of fishing rights in respect of an inland water shall be made on the grounds that, in his capacity as owner of those rights, he has sustained loss or damage which is directly attributable to the abstraction of water in pursuance of the licence in question, and either—
- (a) he is not entitled to a protected right under this Act in respect of that inland water, or
- (b) the loss or damage which he has sustained in his capacity as owner of those rights is not attributable to any such breach of statutory duty as is mentioned in subsection (1) or subsection (2) of section 48 of this Act or is in addition to any loss or damage attributable to any such breach.
§ (3) Where an application is made under this section, the applicant shall serve notice in the prescribed form on the river authority and on the holder of the licence, stating that each of them is entitled, at any time before the end of the period of twenty-eight days beginning with the date of service of the notice, to make representations in writing to the Minister with respect to the application; and the Minister, in determining the application, shall take into account any representations in writing received by him from the river authority or from the holder of the licence within that period.
§ (4) On an application under this section, the Minister shall not determine that the licence in question shall be revoked or varied unless—
- (a) the grounds of the application, as mentioned in subsection (2) of this section, are established to his satisfaction, and
- (b) the Minister is satisfied that the extent of the loss or damage which the applicant has sustained, as mentioned in that subsection, is such as to justify the revocation or variation of the licence,
§ (5) Subsections (2) and (3) of section 43 of this Act shall apply in relation to any matter required to be determined by the Minister under the last preceding subsection as they apply in relation to matters required to be determined by him under that section, but with the modification that an applicant under this section (as well as the holder of the licence) shall have the like rights to request a hearing, and to be heard, as the holder of the licence has under subsection (2) of that section.
1072§ (6) Section 45 of this Act shall have effect in relation to the revocation or variation of a licence under this section as it has effect in relation to the revocation or variation of a licence under section 43 of this Act.
§ (7) Where a licence is revoked or varied on an application under this section, the applicant shall be entitled to compensation from the river authority in respect of the loss or damage which he has sustained as mentioned in subsection (2) of this section.
§ (8) Where, on an application under this section for the revocation or variation of a licence, the Minister determines that the grounds of the application (as mentioned in subsection (2) of this section) have been established to his satisfaction, but that the licence shall not be revoked or varied in pursuance of that application, he shall certify accordingly; and thereupon, unless within the period of six months from the date on which that certificate is granted either—
- (a) notice to treat for the acquisition of the fishing rights of the applicant, or of an interest in land which includes those rights, has been served by the river authority, or
- (b) an offer has been made by the river authority to the owner of those rights to acquire those rights (or, where they subsist only as rights included in an interest in land, to acquire that interest) on terms that the price payable shall be equal to (and shall, in default of agreement, be determined in like manner as) the compensation which would be payable in respect thereof if the rights or interest were acquired compulsorily by the river authority,
§ (9) The amount of the compensation payable under the last preceding subsection in respect of any fishing rights shall be the amount by which the value of those rights (or, where they subsist only as rights included in an interest in land, the value of that interest) is depreciated by the operation of section 31(1) of this Act in relation to the licence to which the application related.
§ (10) Any question of disputed compensation under subsection (7) or under subsections (8) and (9) of this section shall be referred to and determined by the Lands Tribunal; and in relation to the determination of any such compensation the provisions of sections 2 and 4 of the Land Compensation Act 1961 shall apply, subject to any necessary modifications.
§ (11) In this section 'fishing rights' in relation to an inland water, means any right (whether it is an exclusive right or a right in common with one or more other persons) to fish in that water, where the right in question either constitutes an interest in land or is included in an interest in land or is exercisable by virtue of an exclusive licence granted for valuable consideration; any reference to an owner of fishing rights is a reference to the person for the time being entitled to those rights; and any reference to a right included in an interest in land is a reference to a right which is exercisable only by virtue of, and as a right incidental to, the ownership of that interest.")
1073§ Clause 46, page 41, line 36, leave out from ("persons") to ("are") in line 37.
§ Clause 46, page 41, line 39, leave out from ("not") to end of line 6 on page 42 and insert ("the provisions of this Part of this Act and of section 98 thereof shall have effect (with the necessary modifications) as if any reference in those provisions to a licence under this Act, or to the holder of a licence under this Act, where the reference is to the revocation or variation of such a licence, included a reference to that authorisation, or to those undertakers or other persons, as the case may be").
§ Clause 48, page 42, line 23, at beginning insert ("A breach of").
§ Clause 48, page 42,line 25, after ("Act") insert ("shall not invalidate the grant or variation of a licence; and that duty").
§ Clause 48, page 42,line 25, leave out lines 33 to 45 and insert ("then (without prejudice to the duty of the river authority, as between that authority and the Minister, to comply with that direction) if the licence as granted or varied in compliance with the direction authorises derogation from protected rights—
- (a) the grant or variation of the licence shall, as between the river authority and the person entitled to those rights, have effect as a breach on the part of the river authority of a statutory duty not to authorise derogation from those rights;
- (b) the preceding subsection shall apply in relation to that statutory duty as it applies in relation to the duty imposed by section 29(2) of this Act; and
- (c) the duty of the river authority to comply with the direction of the Minister shall not afford any defence in an action brought in pursuance of that subsection as applied by the last preceding paragraph:
§ Provided that this subsection shall not apply to a direction given in consequence of an appeal against the decision of the river authority on an application for the grant of a licence of right").
§ Clause 48, page 43, line 2, after ("section") insert ("(including that subsection as applied by the last preceding subsection)").
§ Clause 48, page 43, line 8, leave out ("drought") and insert ("shortage of rain").
§
Clause 48, page 43, line 46, at end insert:
("(6) In this section any reference to authorising derogation from protected rights shall be construed in accordance with subsection 9 of section (Provisions supplementary to sections 38 to 40) of this Act.")
§
Clause 49, page 44, line 28, at end insert:
("(3) Where under section (Application by owner of fishing rights for revocation or variation of licence) of this Act—
the last preceding subsection shall have effect in relation to that compensation as it has effect in relation to compensation payable in the circumstances mentioned in the last preceding subsection.")
§ Clause 51, page 45, line 10, at end insert ("and also containing such information as may be so prescribed with respect to persons becoming the holders of licences by virtue of section 32 of this Act or regulations made under that section")
§ Clause 54, page 47, line 36, at end insert ("and for the purposes of those provisions of this Part of this Act any licence granted on the application shall be treated as not having effect until the application has been disposed of")
§ Clause 54, page 48, line 3, after ("29") insert ("and section 52(3)")
§ Clause 54, page 48, line 5, leave out from ("but") to end of line 10 and insert—
- ("(a) section 34(3) to (5) and section (Provisions supplementary to sections 38 to 40) of this Act shall have effect in relation to any such application, or to any appeal against the decision on such an application, as if it were an application for a licence of right, and
- (b) section 48(2) of this Act shall not apply to any direction given in consequence of such an appeal.
§ (4) Section (Application by owner of fishing rights of revocation or variation of licence) of this Act shall not apply to a licence granted in pursuance of an application under subsection (2) of this section.")
§ Clause 54, page 48, line 11, leave out subsection (4) and insert:
§ ("(4) Subsection (1) of section 31 of this Act shall not afford any defence to an action brought before the end of the relevant transitional period if the licence referred to in that subsection is a licence of right granted to a person as being entitled to it by virtue only of section 33(1)(b) of this Act; and that subsection as applied by subsection (1) of this section shall not afford any defence to such an action if the application in question was made by a person as being entitled to a licence of right by virtue only of the said section 33(1)(b).
§ In this subsection 'the relevant transitional period', in relation to a licence granted by a river authority, means the period beginning with the second appointed day and ending with the coming into operation of a charging scheme prepared by that river authority under Part V of this Act.")
§ Clause 54, page 48, line 23, leave out from ("in") to end of line 24 and insert ("an 1075 action in respect of which the last preceding subsection has effect or in any proceedings in consequence of such an action")
§ Clause 54, page 48, line 26, leave out from ("of") to end of line 31 and insert ("on (but not before) the occurrence of whichever of the following events last occurs, that is to say—
- (a) on the determination of the application by the river authority, a licence is granted and the provisions of that licence are in accordance with the proposals contained in the application;
- (b) on a reference of the application to the Minister under section 38 of this Act, the Minister refuses to grant a licence;
- (c) the period (if any) within which the applicant is entitled to give notice of appeal against the decision on the application expires without such a notice having been given;
- (d) an appeal against that decision is determined or withdrawn;
- (e) in compliance with a direction given by the Minister in consequence of such an appeal or (in the case of an application referred to the Minister under section 38 of this Act) in consequence of a decision of the Minister on the application, the river authority grant, vary or revoke a licence under this Act")
§ 3.51 p.m.
§ LORD HASTINGSMy Lords, in this group of Amendments, which are to the second half of Part IV, there are a number of some substance. Under Nos. 74 and 75, the quantity authorised by a licence of right for statutory users—and this is in Clause 34—is to be based primarily on the past performance. This, of course, will be very welcome to statutory water undertakers, because the previous provisions of the clause were considered to be not specific enough, and to leave too much discretion in the hands of the river authorities. But now the licence of right will, as I say, be based mainly on past performance before other matters are taken into consideration.
Amendments Nos. 78 and 79 follow out the same sort of thing in respect of non-statutory users. This new clause, after Clause 35, spells out the terms of the licences of right for such users instead of relying on references to Clause 34, as it did previously. Likewise, the quantities authorised will, in the main, be based on past performance. This was the point which specially exercised my noble friend Lord Merrivale. In addition in these two Amendments, there is a very important provision referring to spray irrigation, which says that unless water had been abstracted or a reservoir 1076 had been constructed for the purpose of spray irrigation before the passing of this Act, then the application is to depend on the minimum acceptable flow as though it were an ordinary licence application. That will effectively prevent people from climbing on to the bandwagon, as it were, not always with strictly honourable intentions. Therefore, this should bring a good deal of relief, I think, to the minds of other users of water.
Then we come to Amendment No. 98, and here I think I must refer at greater length to the notes on the Amendment. This is a matter in which my noble friend Lord Colville of Culross is particularly interested. It deals with Clause 43. Clause 42, subsection (5), provides that where a licence holder objects to proposals formulated by a river authority under that clause for varying or revoking his licence, the proposals are to be referred to the Minister for determination. Clause 43 at present outlines the procedure to be followed by the Minister in doing so, but what it does not do—and it is the purpose of this Amendment to correct the omission—is to prescribe the considerations which the Minister must have in mind in making his determination. The Amendment thus does, in respect of proposals referred to him under this clause, what the new clause after Clause 40 (and here I must bring in Amendment No. 87) does in respect of applications referred to the Minister under Clauses 38 and 39, and is virtually consequential on that new clause, Clause 40. The essence of the new provisions sought to be inserted in this clause is that the Minister will be under a duty to have regard to the minimum acceptable flow, and to consider whether any direction he gives to a river authority as a result of his determination of the proposals would require the licence to be varied so as to authorise derogation from protected rights.
Amendment No. 87, the new clause after Clause 40, deals with the same problem of minimum acceptable flows and protected rights when the Minister is handling an application or an appeal. The river authority, of course, is under a matter of obligation to respect those two matters. The Minister was not under an obligation, strictly speaking, to consider them. Now they are specified; 1077 he must actually take them into consideration as one of his major duties. But that does not prevent him, of course, from authorising a derogation from protected rights should it in his opinion prove to be necessary, in which case river authorities are of course indemnified against any damages which they may incur as a result of direction by the Minister. I think that does go a good deal of the way towards fulfilling what my noble friend Lord Colville of Culross was asking for.
The provisions of Clause 42 do, of course, enable any person to make representations to the river authority about the proposed revocation or variation, as in the case of an ordinary licence under the Bill to impound. The only thing which we have not been able to do, but which my noble friend asked us, is to enable a third party opposed to the licence holder to secure an inquiry or hearing into the proposals. This is because we feel that the other protective provision already mentioned should be adequate, and that there is no real reason to distinguish between the revocation or variation of an ordinary licence and that of a licence for a relevant statutory authorisation under this clause.
I will pass on to No. 105, which goes with No. 114. That deals with the application by an owner of fishing rights for the revocation or variation of a licence. The difficulty here, the real root of the problem, was that, although the fishing interests do now accept that the determination of a minimum acceptable flow and its observance will be an adequate protection for them, they are still unconvinced that, in the period between the second appointed day and the fixing of a minimum acceptable flow for any particular stream, the requirements of Clause 29, subsection (5), would be a sufficient protection. Really, the present additions and Amendments, although they seem to be very long, are being made not because of any doubt as to the adequacy of the minimum acceptable flow system, but to fill the gap until it has got into its stride.
Finally, there is only one thing I would say to my noble friend Lord Albemarle in respect of Clause 48. He in fact brought it up in connection with the previous group, but it belongs to this 1078 group. We were not able to meet the point he wanted there, or what the River Boards Association wanted, because it would mean, really, that the river authorities could simply not take any notice of Clause 29, subsection (2), and could not regard at all protected rights. Obviously, that would be quite impossible to allow. My Lords, I beg to move that this House doth agree with this series of Amendments.
§ Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Hastings.)
§ LORD LINDGRENMy Lords, on this group of Amendments I have only three points to raise. Two of those are complimentary, and one is a little critical. First of all, let me get the compliments out of the way—though that is not because we in any way want to minimise the compliments that we are giving this afternoon, for I think this Bill has been very materially improved. The first comment concerns Amendment No. 74 and the licence of right: to put it in rough and ready language, the Amendment gives the undertaker the right of abstraction as at present. This was the point we were worried about in Committee, and I would say that in this regard the Amendment gives everything that the water abstracter, the statutory water undertaker, would have liked. Or, if it is not quite all that they would have liked, it is certainly a considerable improvement on the original Bill. Amendments Nos. 78 and 79, as the noble Lord, Lord Hastings, has said, deal with licences of right of the non-statutory users. During Committee stage I expressed the particular concern of quite a number of statutory water undertakers in regard to the establishment of rights after the passing of the Bill and before the appointed day—and there was particular concern over spray irrigation. As the noble Lord, Lord Hastings, has said, this new Clause 35, is an improvement and I think it meets all the points that one has cause to expect to be met, in so far as the licences are concerned.
When we come to Amendment No. 105, we find that it is somewhat complicated; and when one tries to reduce a complicated clause into comparatively few words one sometimes becomes rather more complicated than the original. But 1079 this deals with the right of fishing interests to apply for a variation or revocation of a licence, other than a licence of right granted by a river authority. That opportunity to apply for variation or revocation continues until the minimum acceptable flow has been fixed. That may be a very long time—perhaps five, ten, fifteen or twenty years; and for some rivers a minimum acceptable flow may never be fixed. This is giving a right to the fishing interests to apply for a variation or revocation for an unknown period or, at least, for a period until a minimum flow has been fixed.
One should point out that before a licence to abstract is granted the application must go to the river authority and notice must be published in the London Gazette. The application is considered by the river authority on which the fishing interests are represented, and the authority will take into consideration all the possible aspects and effects of the abstraction, including the rights of the fishing interests. So I think one can say that the river authority would never give a right of abstraction to agriculture, to industry or to the statutory water undertaker unless they were satisfied that it would not injure the fishing interests. It is, of course, true that the fishing interests have the right of notification in the London Gazette and to make their representations, and all the rest.
There is, however, a new principle in this clause that I do not like. Under the Bill's general construction the rights of proposal for variation or revocation are left with the river authority. They consider the position in the light of the circumstances of the river, and so on; and if they feel it necessary they can vary a given right of abstraction, or revoke it. Before they do so, they must get the Minister's approval; and the Minister takes into account the consequences of the variation or revocation, and the compensation—and I think I am right in saying that in some instances the Minister can pay the compensation. Here is a complete reversal of that process. The fishing interests are given a privileged position; because, ignoring the river board, they can go direct to the Minister, who considers it and can then vary or revoke. I am not anti-fishing interests. Fishing is not one of my hobbies; 1080 it is too slow for me. What fishing I have seen seems to consist of sitting on the bank of the Serpentine or Highgate Ponds and never seeming to catch anything. I am not prejudiced for or against the fishing interests; but it seems to me quite wrong that when industry has been given a right of abstraction by a river board (who have taken into consideration all the factors in the case) and has had that right for five, ten or fifteen years, a fishing interest can come along, suddenly, and apply for a variation or revocation.
I know that compensation is payable to industrial interests when they lose their licence, but compensation is not everything. In the case of say, a papermill situated on a river bank it may well be that 20, 50, 100 or 200 or more men's jobs may be affected. Surely there ought to be a time limit in the grant of facilities likely to affect somebody else's interests. There is always a right of appeal, and we should, of course, object if this were not so. But the right of appeal ought not, I think, to be held over a person's head for a very long time or even, in some cases, for ever, if no minimum acceptable flow is fixed for a particular river.
Therefore, while at this stage one would hesitate to do anything to delay the Bill (because it is a big improvement on what already exists in regard to water conservancy and we welcome it as a whole), I feel that this introduction of a new clause is putting fishing interests into a privileged position. It is making it difficult for river boards, and making it more difficult for industrialists, agriculturists or statutory water undertakers who, although they may have been given the right of abstraction for an unlimited period of time, may yet have their plans upset and their arrangements scrapped; or may lose capital which has been put into industry, or a reservoir or container. I think such a state of affairs is unusual. Surely the Minister would agree that there ought to be a time limit on the right of appeal.
This point was raised in another place and, with all due respect to the Parliamentary Secretary who replied for the Government there, it seems to me, in reading his speech, that he entirely missed the point. He seemed to take it that the honourable Members of another place 1081 who raised the point were asking for a limit on the operation of a clause. It is nothing of the kind. What we suggest is that there ought to be a time limit on the right of the fishing interests to apply for the variation of the licence. After all, we must always remember that the amount to be astracted is determined in the licence; so the fishing interests know at the start how much is going to be abstracted; and the fee that they have to pay for the water is also included in the licence. We know that every abstracter will be abstracting up to the limit, and that, in any case, the river authority would not give a licence to abstract more than they felt was reasonable. Therefore, if that abstraction has been going on to the limit of the licences for, say, three years then, surely, that is sufficient time for the fishing organisations to know whether or not their interests have been damaged. I should be grateful if the noble Lord, Lord Hastings, would try to give us his views in regard to this; and whether or not there can be some regulation at a later date under which the limit can be fixed in regard to their right to apply for revocation or variation.
§ LORD HASTINGSMy Lords, with the leave of the House, I should like to make one or two brief remarks in reply to the noble Lord, whom I thank for his kind remarks in respect of other Amendments and of the Bill in general. It is true, as the noble Lord said, that this clause will operate so long as a minimum acceptable flow has not been fixed. Perhaps there will be a few cases, but not many, where it may not have to be necessary to fix a minimum acceptable flow, in which cases I should have thought it hardly likely that fishing would be damaged. Even so, there is obviously a limit to fixing a minimum accessible flow in cases where it is necessary.
Before that has been done, however, the owner of fishing rights has to prove that the damage he has suffered is directly attributable to the abstraction made by an industrialist or whoever it may be. If abstraction has been going on for a period and the owner of fishing rights has suffered no damage, it is hardly likely that four or five years later he will suffer damage directly attributable to that abstraction. It would be difficult to prove. Perhaps the noble Lord has overlooked—although I feel sure he cannot have done 1082 so—that the Minister is under no obligation to grant a revocation or variation. The suggestion that he may vary or revoke a licence which would damage, for example, a paper pulp mill, in order to look after the rights of an owner of fishing, is highly hypothetical. I should have thought that it would be much more likely that he would refuse to vary or revoke and then the owner of fishing rights would get compensation, rather than the other way round. I hope that after these brief comments the noble Lord will not feel so distressed about this clause.
§ On Question, Motion agreed to.