Water Resources
(Jersey) Law 2007
A LAW to provide for the protection,
management and regulation of water resources in Jersey; the promotion of the
conservation of the fauna and flora that are dependent on inland waters and of
the habitats of such fauna and flora to the extent that those habitats are
themselves dependent on inland waters; the conservation and enhancement of the
natural beauty and amenity of inland waters; and for related purposes.
Adopted by the
States 5th June 2007
Sanctioned by
Order of Her Majesty in Council 10th October 2007
Registered by the
Royal Court 26th
October 2007
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
PART 1
INTRODUCTORY PROVISIONS
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“abstract” means to
remove water from a source of supply;
“alter” includes to
complete and also includes to demolish;
“appointed day”
means the day appointed by the States, by Act, under Article 54(2);
“approved” means
approved in writing by the regulator;
“authorized person”
means a person who is authorized for the purposes of this Law by the regulator
under Article 9(1) and, for the purposes to which paragraph (2) of
that Article refers, also means a person who is authorized by the Company under
that paragraph;
“business”
includes –
(a) a
trade;
(b) an
industrial activity;
(c) a
commercial activity; and
(d) a
profession;
“certificate of confidentiality”
means a certificate of confidentiality that is granted under Article 37;
“coastal waters”
means waters that are within the area that extends landward, from the baselines
from which the breadth of the territorial sea is measured, as far as the limit
of the highest tide;
“Company” means The
Jersey New Waterworks Company Limited registered by Act of the Royal Court
dated 11th February 1882 in accordance with the provisions of the Loi
(1861) sur les Sociétés à Responsabilité
Limitée[1];
“discrete source of supply” means a source of supply that –
(a) is
artificial;
(b) consists
only of surface waters; and
(c) is
constructed so that water does not pass between it and any other source of
supply;
“Drought Order”
means a Drought Order made under Article 26;
“groundwater” means
water that is below the surface of the ground, in the saturation zone and in
direct contact with the ground or with the subsoil;
“impound” means to
construct, alter or use, in a source of supply, any dam, weir or other works,
if to do so would have or is likely to have a significant effect
on –
(a) the
flow or level of water in any source of supply;
(b) the
character of any source of supply; or
(c) any
fauna or flora that is dependent on any source of supply;
“land” –
(a) includes
a house, building or premises; and
(b) also
includes land under water,
and the expression “on any land”
means on, in or under any land;
“licensee” means a
person to whom a water resources licence is issued;
“prescribe” means to
prescribe by Order;
“records” includes
computer records and records that are kept otherwise than in documents;
“regulate” includes
to control, restrict, limit or prohibit;
“regulator” means
the Minister for Planning and Environment;
“representation”
includes an objection;
“stream” includes a
brook, canal, culvert, ditch, lavoir, sluice or spring;
“surface waters”
means the waters of lakes, marshlands, ponds, reservoirs, streams, surface
water sewers, surface water drains and wetlands, but does not mean groundwater;
“suspend”, when
referring to a water resources licence, means to suspend its effect wholly or
partly;
“vary”, when
referring to a water resources licence, means to vary any term or condition of
the licence;
“water resources licence”
means a licence that is issued by the regulator under Article 19 and is in
effect.
(2) For
the purposes of this Law, references to fauna or flora that are dependent on a
source of supply shall be construed as including references to their habitats,
to the extent that those habitats are also dependent on a source of supply.
(3) For
the purposes of this Law, it is immaterial that the removal of water from a
source of supply is permanent or temporary or that the water is removed to be
transferred to another source of supply.
2 Meaning
of “inland waters”
(1) In
this Law, except as otherwise provided, “inland
waters” means –
(a) groundwater;
and
(b) surface
waters,
whether natural or artificial.
(2) “Inland waters” does not mean –
(a) coastal
waters;
(b) water
in a discrete source of supply; or
(c) water
in a foul sewer, or in a drain that drains into a foul sewer.
(3) However,
the States may by Regulations declare that any water described in
paragraph (2)(b) shall be inland waters for the purposes of this Law.
(4) The
Regulations may provide that such water shall be inland waters either for the
purposes of the whole of this Law, or for the purposes of such provisions of
this Law as are specified in the Regulations.
3 Meaning
of “source of supply”
(1) In
this Law, except as otherwise provided, “source
of supply” means a particular source of inland waters.
(2) For
the purposes of paragraph (1), it is immaterial that a source of
supply –
(a) is
affected by the flow of the tide; or
(b) is
for the time being dry.
(3) Water
in a main, or other pipe, that is owned or used by The Jersey New Waterworks
Company Limited is not water comprised in a source of supply.
PART
2
ADMINISTRATION
4 General
objectives
(1) In
carrying out functions under this Law, the regulator shall have regard to the
following general objectives –
(a) the
protection of water resources in Jersey;
(b) the
monitoring, conservation, redistribution and augmenting of those resources, and
the securing of their proper use;
(c) their
sustainable development; and
(d) the
promotion of the conservation of fauna and flora that are dependent on inland
waters, and of their habitats to the extent that those habitats are also
dependent on inland waters.
(2) Where
water quality objectives under Article 12 of the Water Pollution (Jersey)
Law 2000[2] are for the time being set
in respect of any controlled waters (as defined in that Law), the regulator shall
carry out functions under this Law in a manner that ensures as far as
reasonably practicable that those objectives are also achieved.
(3) In
carrying out functions under this Law, the regulator shall also seek to promote
the conservation and enhancement of the natural beauty and amenity of inland
waters and their use for recreational purposes.
5 Operating
considerations
(1) In
carrying out functions under this Law the regulator shall have regard, as far
as is reasonably practicable, to the following considerations –
(a) the
best techniques that are for the time being available and the best
environmental practice that is for the time being recognized;
(b) a
precautionary principle by which, if there are reasonable grounds for concern
that the abstraction or impounding of water or any other activity or omission
in respect of water resources may cause environmental harm, the regulator takes
preventive measures in anticipation of the risk, whether or not there is
conclusive evidence of a causal relationship between that activity or omission
and its effects; and
(c) a
cost principle by which the costs of managing and regulating the abstraction or
impounding of water are borne by the persons who abstract or impound it.
(2) In
carrying out functions under this Law, the regulator shall also have regard to
the obligations imposed on the Company by the Water (Jersey) Law 1972[3].
6 Gathering
of information
(1) For
the purposes of carrying out functions under this Law, the regulator shall
monitor water resources in Jersey and the extent to which this Law is being
complied with, and undertake continuing scientific and technical research.
(2) In
doing so, the regulator shall have regard to the latest developments in
technology.
7 Dissemination
of information
(1) The
regulator shall publish by 30th April in each calendar year a report of the
regulatory activities undertaken by the regulator under this Law during the
previous calendar year.
(2) The
regulator shall also make available the information in the regulator’s
possession that is relevant to the following matters under this
Law –
(a) reports
published under paragraph (1);
(b) representations
made to the regulator under Article 8;
(c) the
registration under Article 12 of the abstracting or impounding of any
water, and consents given under that Article;
(d) applications
for and the grant, variation, transfer, suspension and revocation of water
resources licences;
(e) information
obtained by the regulator in consequence of the requirements of conditions of
licences;
(f) Drought
Orders;
(g) notices
served by the regulator in the exercise of the regulator’s powers under
Article 34;
(h) the
results of civil and criminal proceedings instituted under this Law;
(i) in
respect of certificates of confidentiality, the information to which
Article 39 refers; and
(j) any
other activities, or measures, that affect or are likely to affect water
resources in Jersey or are undertaken under this Law,
but this paragraph is subject to paragraph (6).
(3) The
information to which paragraph (2) applies shall be available for
inspection by any person during reasonable office hours, as soon as possible
after it is requested and in any event within 28 days.
(4) The
regulator shall also provide facilities for copying the information.
(5) The
regulator may make reasonable charges for providing information and facilities
for copying under this Article.
(6) The
regulator may refuse to make available under this Article any information
specified in Schedule 1.
(7) Where
the regulator refuses a request for information under this Article, the
regulator shall give the applicant a statement in writing of the reasons for
the refusal.
(8) The
States may by Regulations amend Schedule 1.
(9) This
Article is subject to Article 38.
8 Public
notice of proposals
(1) Before
proceeding on either of the following proposals, namely –
(a) an
application for the grant or variation of a water resources licence; or
(b) a
proposal of the regulator’s own motion to vary a licence,
the regulator shall comply with this Article.
(2) The
regulator shall publish in the Jersey Gazette a notice –
(a) stating
that a copy of the proposal will be available for inspection free of charge at
a place specified in the notice;
(b) specifying
the period for which it will be available for inspection (being a period of not
less than 21 days beginning after the notice is published in the Jersey
Gazette);
(c) specifying
times, during reasonable office hours, when it may be inspected; and
(d) explaining
that anyone may make representations in writing to the regulator in respect of
the proposal at any time before the expiry of the 7 days following the period
for inspection,
and the regulator shall make a copy of the proposal available
accordingly for inspection.
(3) If
the regulator is satisfied on reasonable grounds that the activity to which the
proposal relates is not likely to have any appreciable adverse effect on a
source of supply or on fauna or flora that are dependent on a source of supply,
the regulator need not comply with paragraph (2).
(4) A
person who wishes to make representations in respect of the proposal may do so
by delivering them in writing to the regulator at any time before the expiry of
the 7 days following the period for inspection.
(5) The
regulator shall serve on the applicant or licensee (as the case may be) copies
of all representations made by other persons under paragraph (4) in
respect of the proposal.
(6) Within
14 days after being served under paragraph (5) with a copy of any
representations, the applicant or licensee may deliver to the regulator
representations in writing in reply.
(7) The
regulator shall not proceed to determine the proposal until the time limits for
making representations under this Law have elapsed.
(8) In
determining the proposal, the regulator shall consider all representations made
under this Law in respect of the proposal.
(9) In
this Article, “proposal” includes –
(a) the
information and any representations supporting the proposal; and
(b) in
the case of a proposal of the regulator’s own motion to vary a water
resources licence, all written representations made by the licensee under
Article 21 in respect of the proposal.
9 Authorized
persons
(1) The
regulator may in writing authorize for the purposes of this Law any person who
is employed in the service of the States.
(2) The
Company may in writing authorize any responsible employee of the Company, for
the purposes of the carrying out of any works by it under Article 29(2) in
the exercise of any authorization or power conferred on the Company under Article 28(1)(a)
by a Drought Order.
(3) An
authorized person who is exercising his or her powers under this Law shall
produce on request evidence of his or her authority to do so.
(4) An
authorized person shall also state on request his or her name, and the power
that he or she proposes to exercise.
10 Assistants
(1) In
exercising his or her powers under this Law (including any powers
conferred by a warrant granted under Article 32), an authorized person may
take such other persons, vehicles, equipment and materials with the authorized
person as are reasonably necessary or expedient for the purpose.
(2) A
person who accompanies an authorized person under paragraph (1) may
perform any of the authorized person’s functions under this Law, but only
under the latter’s supervision.
PART
3
PROTECTION
OF WATER RESOURCES
11 Restrictions on
the abstraction or impounding of water
A person shall not cause or knowingly permit –
(a) the
abstracting of water from a source of supply; or
(b) the
impounding of water in a source of supply,
unless he or she is acting in accordance with a water resources
licence.
12 Cases in which
the restrictions do not apply
(1) Article 11
does not apply to –
(a) the
abstracting of surface water on or contiguous to any land, by or on behalf of
the occupier of the land, not exceeding in the aggregate 15 cubic metres in any
period of 24 hours;
(b) the
abstracting of groundwater, by or on behalf of an occupier of land, not
exceeding in the aggregate 15 cubic metres in any period of 24 hours;
(c) the
abstracting of water for the domestic purposes of a household;
(d) the
abstracting or impounding of water, as far as it is reasonably necessary to
prevent interference with or damage to any civil engineering works or
construction works;
(e) the
abstracting or impounding of water, as far as it is reasonably necessary for
the purposes of the Fire Service (Jersey) Law 1959[4] or the safety of aviation,
or for the purpose of testing any machinery or apparatus for any of those
purposes, or for the purpose of training or practice in the use of such
machinery or apparatus;
(f) the
abstracting or impounding of water, for the purposes of exercising a regulatory
power under any enactment or performing a regulatory duty under any enactment;
(g) the
abstracting of groundwater in the course of ascertaining whether it is present,
or to ascertain its level, volume or quality or the effect of its abstraction,
if the activity is carried on with the written consent of the regulator and in
accordance with such conditions (if any) as the regulator imposes in giving
that consent; or
(h) the
alteration or use, on or after the day on which Article 11 comes into
force, of any dam, weir or other works in existence in a source of supply
before the appointed day, where the alteration or use does not have and is not
likely to have any effect described in paragraph (3).
(2) However,
paragraph (1) only applies to an abstracting or impounding of water to
which any of sub-paragraphs (b), (c) and (d) of that paragraph refers if the
abstracting or impounding is registered in the prescribed manner.
(3) Paragraph
(1)(h) refers to any effect –
(a) on
the flow or level of water in any source of supply;
(b) on
the character of any source of supply; or
(c) on
any fauna or flora dependent on any source of supply,
that is materially different from the effect that the works had or
were likely to have had before the appointed day.
(4) The
States may by Regulations amend paragraph (1).
(5) Regulations
made under paragraph (4) may be expressed so as to apply –
(a) generally
throughout Jersey; or
(b) to
any specified part of Jersey.
(6) Regulations
made under paragraph (4) may include transitional provisions.
(7) The
regulator may by Order –
(a) prescribe
the manner in which registration for the purposes of any of
sub-paragraphs (b), (c) and (d) of paragraph (1) may be effected;
(b) prescribe
the time within which registration is to be effected;
(c) specify
the person who is responsible for applying for registration;
(d) prescribe
information that is to be provided to the regulator when applying for
registration; and
(e) prescribe
information that is to be provided to the regulator periodically, the times at
which the information is to be provided and the person by whom it is to be
provided, in respect of the registered abstraction of water.
(8) Registration
is effected on completion of the requirements specified in an Order to which
paragraph (7) refers.
(9) However,
registration will cease to have effect if prescribed information to which
paragraph (7)(e) refers is not provided in accordance with such an Order.
13 Offences in
respect of water resources
(1) A
person who contravenes Article 11 shall be guilty of an offence.
(2) A
licensee who contravenes any condition of his or her licence shall be guilty of
an offence.
(3) A
person who commits an offence under either of paragraphs (1) and (2) shall
be liable to a fine.
14 Statutory defence
of emergency
Where a person is charged with an offence under either of
paragraphs (1) and (2) of Article 13, in respect of a source of
supply, it shall be a defence to prove –
(a) that
the act in respect of which he or she is charged was done in consequence of a
decision to do so in an emergency that arose in circumstances beyond the
person’s control;
(b) that
the decision was reasonable;
(c) that
he or she took all steps that were reasonably practicable for avoiding or
minimizing any harm to the source of supply and to fauna and flora that are
dependent on that source of supply; and
(d) that
he or she gave full details of the matter to the regulator, or ensured that
they were given to the regulator, as soon as was reasonably practicable.
15 Applications in
respect of water resources licences
(1) An
application for the grant, variation, transfer or revocation of a water
resources licence shall be made in writing to the regulator, with such
information (including maps and diagrams) as may be prescribed or as the
regulator may reasonably require in any case.
(2) An
application for the transfer of a water resources licence shall include the
written consent of the proposed transferee to becoming the licensee.
16 Matters to be
taken into account
(1) In
considering an application in respect of a water resources licence or a
proposal for its variation or revocation, the regulator shall have regard to
all the circumstances, including –
(a) the
reasonable requirements of the applicant or licensee or, if it is an
application for the transfer of a licence, the proposed transferee (as the case
requires);
(b) the quantity and the quality of the water
that is available to be abstracted;
(c) whether
the granting of the application or other proposal would adversely affect to a
significant degree, at the time when it is granted, any right specified in
paragraph (2) and the extent to which it would do so and the effect of
that consequence;
(d) the
result of any test, investigation or survey involving the abstracting of
groundwater in accordance with a consent to which Article 12(1)(g) refers;
(e) the
existing and prospective requirements of existing lawful uses of water that is
abstracted from any source of supply for any purpose;
(f) the
existing and prospective amenity of any source of supply;
(g) any
effect that the granting of the application or other proposal will have or is
likely to have on the flow, level, volume or quality of water in any source of
supply;
(h) any
effect that the granting of the application or other proposal will have or is
likely to have on any existing building or other structure; and
(i) any
effect that the granting of the application or other proposal will have or is
likely to have on the fauna and flora that are dependent on any source of
supply.
(2) Paragraph (1)(c)
refers to a right of a person to abstract water from any source of
supply –
(a) in
the circumstances described in either of sub-paragraphs (b) and (c) of
Article 12(1); or
(b) under
a water resources licence.
17 Determination of
applications for licences
(1) The
regulator shall determine an application for a water resources licence either
by granting it unconditionally or on such conditions as the regulator may
specify in the decision, or by refusing to grant it.
(2) If
the regulator grants the application, the regulator shall specify in the
decision the period for which the water resources licence shall have effect.
(3) The
period that the regulator specifies shall not exceed 10 years from the
date on which the water resources licence is issued, unless –
(a) the
licence is granted to the Company to allow it to fulfil its obligations under
the Water (Jersey) Law 1972; or
(b) there
are exceptional circumstances.
(4) There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator.
18 Conditions of
licences
(1) A
condition of a water resources licence may relate to any of the following
matters –
(a) the
place at which water may be abstracted or impounded;
(b) the
design or construction of any works, apparatus or machinery to be used for that
purpose;
(c) the
quantity of water that may be abstracted;
(d) the
rate at which water may be abstracted;
(e) the
times of the day during which water may be abstracted;
(f) the
periods during which water may be abstracted;
(g) the
minimum flow, level or volume of water that is to be maintained in a source of
supply;
(h) the
augmenting of the flow, level or volume of water in a source of supply;
(i) the
provision or maintenance of approved meters or other approved apparatus, by the
licensee or any other person, for measuring, assessing, determining or
otherwise recording the volume or rate at which water is abstracted;
(j) the
keeping of records, the making of returns or the giving of other information,
by the licensee or any other person to the regulator, in respect of the
abstracting or the impounding of water;
(k) the
purposes for which water that is abstracted is to be or may be used;
(l) the
purposes for which water may be impounded;
(m) the
efficient or effective use of water that is abstracted; and
(n) time
limits for complying with any condition of the licence.
(2) Nevertheless,
paragraph (1) does not limit the kinds of conditions on which the
regulator may grant a water resources licence.
19 Issue of licences
On granting an application for a water resources licence, the
regulator shall issue a licence accordingly to the applicant.
20 Effect of
licences
A water resources licence authorizes the licensee to carry on, in
accordance with the terms and conditions of the licence but subject to the
provisions of any Drought Order, the activity specified in the licence.
21 Variation and
revocation of licences
(1) The
regulator may –
(a) subject
to the other provisions of this Law, vary a water resources licence; or
(b) revoke
a licence,
on the application of the licensee or of the regulator’s own
motion.
(2) The
regulator shall not on any one occasion vary a water resources licence by
extending its term for a period exceeding 10 years from the date of the
regulator’s decision to vary the licence, unless –
(a) the
variation is to allow the Company to fulfil its obligations under the Water
(Jersey) Law 1972; or
(b) there
are exceptional circumstances.
(3) The
regulator shall not vary or revoke a water resources licence of the
regulator’s own motion, unless it is reasonably necessary to do so to
deal with serious harm or the threat of serious harm to –
(a) any
source of supply; or
(b) any
fauna or flora that are dependent on a source of supply.
(4) If
proposing to vary or revoke a water resources licence of the regulator’s
own motion, the regulator shall serve a notice in writing on the licensee,
specifying the proposal and informing the licensee that he or she may make
representations in writing to the regulator in respect of the proposal within
21 days after the notice is served on the licensee.
(5) The
regulator shall consider all representations so made, before proceeding on the
proposal and before complying (where necessary) with Article 8.
(6) A
variation or revocation shall not take effect before it is served on the
licensee.
(7) A
variation or revocation shall take effect when it is served on the licensee,
unless the regulator specifies a later date.
(8) If
the regulator does specify a later date, the variation or revocation shall take
effect on that date.
(9) If
a variation imposes a restriction, obligation or requirement on the licensee,
the regulator must specify a later date and that date must not be sooner than 6
months after the variation is served on the licensee.
(10) The
regulator need not comply with paragraph (9) if there are exceptional
circumstances, and the regulator states those circumstances in the decision.
(11) There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator.
22 Suspension of
licences
(1) Where
it appears to the regulator on reasonable grounds that it is necessary or
expedient to do so because of an emergency –
(a) the
regulator may by serving a notice in writing on a licensee suspend the licence
for any period, not exceeding 14 days, that is specified in the notice; and
(b) the
regulator may extend the suspension from time to time, in the same manner, for
any period not exceeding 14 days.
(2) There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator.
23 Transfer of
licences
(1) With
the written approval of the regulator on an application made in accordance with
Article 15, a licensee may transfer his or her licence to any other
person.
(2) With
effect from the date of approval, or from such later date as the regulator may
specify in the approval, the transferor shall cease to be the licensee and the
transferee shall be the licensee.
(3) There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator.
24 Notice of
decisions
(1) If –
(a) the
regulator grants or refuses an application for a water resources licence, or an
application to vary, transfer or revoke a licence; or
(b) the
regulator varies, suspends or revokes a licence of the regulator’s own
motion,
the regulator shall state the reasons for the decision, and shall
serve a written copy of the decision (including the reasons) within 14 days
on each of the persons specified in paragraph (2).
(2) The
persons to whom paragraph (1) refers are –
(a) the
applicant or the licensee, as the case may be;
(b) every
person who has made representations under Article 8(4) in respect of the
matter, and has provided an address for service in Jersey; and
(c) in
the case of an application to transfer a licence, the proposed transferee.
(3) This
Article does not require the regulator, if suspending a water resources licence
or extending the period of its suspension under Article 22, to give to the
licensee additional notice under this Article.
25 Charges
(1) The
regulator may prescribe –
(a) charges
that shall be payable to the regulator by applicants, licensees and proposed
transferees, in respect of applications for the grant, variation, transfer and
revocation of licences;
(b) charges
that shall be payable to the regulator periodically, by licensees, while their
licences remain in effect; and
(c) charges
that shall be payable to the regulator by persons who apply for consent under
Article 12.
(2) In
prescribing charges under this Article, the regulator shall have regard to the
amounts that are needed to meet the regulator’s expenditure in carrying
out functions under this Law.
(3) Those
functions include the consideration of applications relating to licences, the
granting of licences, the monitoring of activities undertaken by licensees and
the variation, transfer, suspension and revocation of licences, but this
paragraph does not limit the generality of paragraph (2).
(4) In
prescribing charges under this Article, the regulator may impose –
(a) different
charges in respect of different parts of any periods during which licences
remain in effect; and
(b) different
charges according to the kinds or scale of activity, the volumes and rates of
abstraction of water, the localities or circumstances and the number of
different activities to which licences relate.
(5) Where
any charge is prescribed under this Article, the regulator may refuse to do
anything for which it is payable until the charge is paid (without prejudice to
the right of the regulator to recover the money).
PART 4
DROUGHT MEASURES
26 Drought Orders
(1) If
the regulator is satisfied on reasonable grounds that –
(a) a
serious deficiency of supplies of water (whether or not they comprise inland
waters) in any part of Jersey; or
(b) a
deficiency, in the flow, level or volume of water in any source of supply,
posing a significant threat to any fauna or flora that are dependent on a
source of supply,
exists or is threatened, the regulator may make a Drought Order.
(2) However,
the regulator shall consult the Company before making a Drought Order.
(3) A
Drought Order may be expressed so as to apply –
(a) generally
throughout Jersey;
(b) to
any specified part of Jersey;
(c) to
any specified activity or class of activities; or
(d) to
any specified class of persons.
27 Duration of
Drought Orders
(1) Unless
it is sooner revoked by the regulator, a Drought Order shall expire on a day to
be specified in the Order.
(2) The
day to be specified shall not be later than 6 months after the day on
which the Drought Order comes into force.
28 Terms of Drought
Orders
(1) A
Drought Order may –
(a) authorize
or empower the regulator or the Company to abstract water from any source of
supply specified in the Order, or impound water in any source of supply
specified in the Order, subject to any conditions or restrictions specified in
the Order;
(b) regulate
the abstracting, impounding, use or consumption of water from any source of
supply;
(c) regulate
the construction or alteration of any works, machinery or apparatus for the
abstraction of water from any source of supply;
(d) regulate
the supply of water by the Company, or the use or consumption of any water so
supplied (whether or not in either case the water comprises inland waters); and
(e) modify
or suspend any restriction or obligation imposed on the Company by the Water
(Jersey) Law 1972.
(2) The
terms of a Drought Order shall apply notwithstanding –
(a) Article 11
or Article 12; or
(b) the
terms and conditions of a water resources licence.
29 Works under
Drought Orders
(1) While
a Drought Order is in force, the regulator or any person authorized under
Article 9(1) may carry out on any land any works that are reasonably
necessary to enable the regulator to exercise any authorization or power that
is conferred under Article 28(1)(a) by the Order.
(2) While
a Drought Order is in force, the Company or any person authorized by it under
Article 9(2) may carry out on any land any works that are reasonably
necessary for the exercise by the Company of any authorization or power that is
conferred on it under Article 28(1)(a) by the Order.
(3) The
regulator, the Company or an authorized person may for the purpose of carrying
out on any land any works under paragraph (1) or
paragraph (2) –
(a) enter
on the land; or
(b) enter
on any other land to obtain access to the land on which the works are to be
carried out.
30 Breaches of
Drought Orders
(1) Any
person who contravenes a Drought Order shall be guilty of an offence and liable
to a fine.
(2) If
a person fails to comply with a duty imposed on him or her by a Drought Order,
the regulator may after the expiry of a reasonable period of time do all or any
of the things that the person ought to have done to ensure his or her
compliance with that duty.
(3) Any
expenses that are reasonably incurred by the regulator in exercising the powers
under paragraph (2) shall be a civil debt due and payable to the regulator
by the person who has failed to comply with his or her duty, and shall be
recoverable accordingly by the regulator in any court of competent
jurisdiction.
(4) For
the purposes of this Article, the regulator’s reasonable expenses of
exercising the powers under paragraph (2) shall include any expenses
incurred by the regulator in investigating and establishing the identification
of the person who has failed to comply with the duty.
PART 5
ENFORCEMENT
31 Ancillary powers
(1) A
power under paragraph (3) shall only be exercised –
(a) if
there are reasonable grounds for doing so; and
(b) in
a manner that is proportionate and otherwise reasonable.
(2) A
power under paragraph (3) shall not be exercised in respect of residential
land unless –
(a) at
least 48 hours’ notice in writing has been given to the occupier; or
(b) the
power is being exercised in an emergency.
(3) The
regulator or a person authorized under Article 9(1) may, for the purposes
of executing any work or performing any other function or exercising any other
power under or for the purposes of this Law, do any of the following things at
any reasonable hour or in an emergency, namely –
(a) enter
on or board, inspect or search any land or vehicle;
(b) take
or carry out any measurements, surveys, tests, investigations or photographs on
or in the land or vehicle;
(c) install,
construct, maintain or operate any monitoring equipment or other apparatus on
or in the land or vehicle;
(d) carry
out or dig on any such land any experimental borings, trial pits or trial
holes;
(e) take
or remove from the land or vehicle, for analysis, samples of any substance,
article or other thing found there;
(f) take
or remove from the land or vehicle, for the purposes of evidence in any civil
or criminal proceedings under this Law, any substance, article or other thing;
(g) transfer
water from one source of supply to another; or
(h) enter
on any land to obtain access to any other land.
(4) If
a person enters on any land or boards any vehicle in the exercise of a power
under paragraph (3), and it is for the time being unoccupied or unmanned,
the person exercising the power shall leave it secured as effectually as that
person found it.
(5) If
a person has exercised any power under paragraph (3) in respect of any
land or vehicle, and any person specified in paragraph (6) so requests,
the person exercising that power shall as soon as reasonably practicable and in
any event within 21 days inform the other person in writing of –
(a) the
power so exercised; and
(b) everything
taken or removed in the course of its exercise.
(6) The
persons to whom paragraph (5) refers are –
(a) the
owner or occupier of the land concerned;
(b) the
driver or other person in charge of the vehicle concerned; and
(c) any
other person of whom a requirement is made under Article 33 in respect of
the matter.
(7) The
powers conferred on the regulator or an authorized person by this Article are
in addition to any other powers conferred on the regulator or on that person by
this Law.
32 Warrants
(1) If
the Bailiff or a Jurat is satisfied on sworn information –
(a) that
there are reasonable grounds for the exercise of any power under this Law; and
(b) that
in the circumstances of the case it is desirable to grant a warrant under this
paragraph,
he or she may grant a warrant to an authorized person authorizing
that person at any time to enter on or board any land or vehicle specified in
the warrant and there exercise any other powers under this Law, and in doing so
to use such reasonable force as may be necessary.
(2) A
warrant shall continue in force until –
(a) the
purposes for which the warrant is granted have been fulfilled; or
(b) the
expiry of the period of one month following its grant,
whichever event occurs first.
33 Co-operation by
owners and others
(1) An
authorized person who is exercising or seeking to exercise his or her powers
under this Law on or in any land or vehicle may require any person present who
is or appears to the authorized person to be –
(a) the
owner, occupier, driver or person in charge; or
(b) some
other responsible person,
to render such assistance as the authorized person may reasonably require
of the other person in order that the authorized person can carry out more
effectively the purposes for which the authorized person is exercising his or
her powers.
(2) Paragraph (1)
does not empower an authorized person to require a person to do anything that
the regulator may require a person to do under Article 34.
(3) Any
person who intentionally and without reasonable excuse contravenes a
requirement made of a person under this Article shall be guilty of an offence
and liable to imprisonment for a term of 2 years and a fine.
34 Access to
documents and records
(1) Where
it appears to the regulator on reasonable grounds that a person has in his or
her custody or control a document or record (including specification or plan
relating to an impoundment, and a borehole record) that is relevant to the
purposes of this Law, the regulator may require the person to allow the
regulator, or a person who is authorized under Article 9(1), to inspect
and copy it.
(2) A
requirement by the regulator under paragraph (1) shall be made by a notice
in writing served on the person to whom it relates.
(3) The
notice –
(a) shall
specify the document or record to be inspected or copied; and
(b) shall
also specify a period of time (being a reasonable period in the circumstances)
within which the notice is to be complied with.
(4) If
it is reasonably necessary or expedient to do so, the regulator or a person who
is authorized under Article 9(1) may take the document or record away
temporarily, to inspect or copy it.
(5) There
shall be a right of appeal, in accordance with Article 40, against the
making of a requirement by the regulator under this Article.
(6) Any
person who intentionally and without reasonable excuse contravenes a
requirement made of the person under this Article shall be guilty of an offence
and liable to a fine not exceeding level 4 on the standard scale.
35 Obstruction
Any person who without reasonable excuse –
(a) intentionally
obstructs an authorized person who is exercising or seeking to exercise any power
under this Law; or
(b) intentionally
obstructs any person who is lawfully accompanying an authorized person, or
performing any function under the supervision of the authorized person, under
Article 10,
shall be guilty of an offence and liable to imprisonment for a term
of 2 years and a fine.
36 Injunctions
(1) The
regulator or a person who is authorized under Article 9(1) may apply to
the Royal Court for an injunction to enforce compliance by any person with any
requirement of this Law or made under this Law, or to restrain any person from
contravening any provision of this Law.
(2) The
Company or a person who is authorized by the Company under Article 9(2)
may for the purposes to which that paragraph refers apply to the Royal Court
for an injunction to enforce compliance by any person with any requirement of
this Law or made under this Law, or to restrain any person from contravening
any provision of this Law.
PART 6
OTHER PROVISIONS
37 Applications for
protection of trade secrets
(1) A
person specified in paragraph (2) may apply to the regulator in accordance
with this Article for a certificate of confidentiality in respect of any
information described in that paragraph, on the ground that its disclosure will
reveal a trade secret.
(2) The
persons who may apply for certificates of confidentiality, and the information
in respect of which they may so apply, are –
(a) an
applicant for the grant, variation, transfer or revocation of a water resources
licence, in respect of any information that he or she is required or wishes to
give to the regulator in support of the application;
(b) any
person, in respect of any information that he or she wishes to give or is
required to give under any of Articles 12, 18, 31, 33 and 34; and
(c) any
person, in respect of any information relating to the person, or to any
business (including any research or experiment) carried on by the person, that
the regulator, the Company or an authorized person may obtain directly or
indirectly in the course of the exercise of any power under this Law.
(3) An
application under this Article shall be made in writing.
(4) However,
in a case to which either of sub-paragraphs (b) and (c) of
paragraph (2) refers, the application may in the first instance be
made –
(a) orally;
and
(b) either
to the person who has required or obtained the information, or to the regulator
directly,
but in that event, on the expiry of the period of 14 days
following the day on which it was made, it shall cease to be an application
made in accordance with this Article unless the applicant has put it in writing
and delivered the written application to the regulator.
(5) Where
the regulator is satisfied that the disclosure of the information will reveal a
trade secret, the regulator shall grant a certificate of confidentiality in
respect of that information.
(6) Within
14 days after determining an application for a certificate of
confidentiality, the regulator shall serve on the applicant a written copy of
the decision.
(7) There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator.
38 Information that
is protected
(1) While –
(a) an
application for a certificate of confidentiality, having been made in
accordance with Article 37, has not been determined by the regulator;
(b) any
time allowed for appealing to the Royal Court against the decision of the
regulator in respect of the application has not expired, and the Royal Court
has not dismissed such an appeal;
(c) any
time allowed for a further appeal has not expired, and the court concerned has
not dismissed such an appeal; or
(d) any
appeal, having been lodged, has not been determined,
the information in respect of which the application for a
certificate of confidentiality was made shall be confidential, unless it is
information described in Article 39.
(2) Where
a certificate of confidentiality is granted (whether by the regulator, or on
appeal), the information in respect of which it is granted shall be
confidential, unless it is information described in Article 39.
(3) Any
person who knowingly or recklessly –
(a) discloses
to any other person any information that is confidential by virtue of either of
paragraphs (1) and (2); or
(b) uses
that information otherwise than for the purposes of this Law,
shall be guilty of an offence and liable to imprisonment for a term
of 2 years and a fine.
(4) Paragraph
(3) does not apply to any disclosure –
(a) by
the applicant for the certificate of confidentiality, or with his or her
consent;
(b) for
the purposes of this Law, to any Minister of the States or public officer, or
the Company, or any authorized person or other person specified in
Article 10; or
(c) to
a court or to any party in any civil or criminal proceedings under this Law, in
private and for the purposes of those proceedings.
39 Information that
is not protected
Article 38 does not apply to the following
information –
(a) the
name and address of the applicant for the certificate of confidentiality;
(b) the
fact that the applicant has applied for or been granted such a certificate or that
an appeal to the Royal Court, or any further appeal, is pending in respect of
his or her application for it; and
(c) the
site of the activity or proposed activity to which the confidential information
relates.
40 Appeals
(1) The
following persons shall have a right of appeal to the Royal Court under this
Law –
(a) an
applicant for a water resources licence or its variation, transfer or
revocation, against the refusal of the application by the regulator;
(b) an
applicant for a licence, against any term specified or condition imposed by the
regulator in granting the application;
(c) a
licensee, against the variation or revocation of the licence otherwise than on
his or her own application, or against the suspension of the licence or the
extending of the suspension of the licence;
(d) a
person of whom a requirement is made under Article 34, against the making
of the requirement; and
(e) an
applicant for the grant of a certificate of confidentiality, against the
refusal of the application in whole or in part.
(2) An
appeal shall be brought within 21 days after the appellant is served with
a written copy of the decision or the notice in writing of the requirement (as
the case may be), or within such further time as the Royal Court may allow.
(3) In
any matter to which Article 8(4) applies, the regulator shall give notice
in writing of the appeal to every person who has made representations under
that paragraph and has provided an address for service in Jersey, and that
person may appear and be heard.
(4) Unless
the Royal Court so orders, the lodging of an appeal shall not operate to stay
the effect of a decision or requirement pending the determination of the
appeal.
(5) On
hearing the appeal, the Royal Court may confirm, reverse or vary the decision
or requirement against which the appeal is brought, and may make such order as
to the costs of the appeal as it thinks fit.
41 Compensation
(1) Where
any person suffers any loss or damage in consequence of the exercising of any
power under Article 29 or Article 31(3), by the regulator or by any
person authorized under Article 9(1), the regulator shall be liable to pay
compensation to the person for that loss or damage.
(2) Where
any person suffers any loss or damage in consequence of the exercising of any
authorization or power under Article 29, by the Company or by any person
authorized by the Company under Article 9(2), the Company shall be liable
to pay compensation to the person for that loss or damage.
(3) Compensation
shall not be payable under this Law to the extent that –
(a) loss
or damage is attributable to the fault of the claimant; or
(b) such
compensation is payable under any other enactment or rule of law.
(4) Compensation
shall not be payable under this Law unless the claim arises from the exercise
of a power under Article 29 or Article 31(3) directly in respect of
land in which the claimant has an interest or right.
(5) This
Article does not limit any right to compensation under any other enactment or
rule of law.
(6) Any
dispute as to the entitlement of any person to compensation under this Article,
or as to the amount of compensation shall be referred to and determined by the
arbitration of a single arbitrator, who shall be appointed by
agreement –
(a) between
the regulator and the claimant, if the dispute is between them; or
(b) between
the Company and the claimant, if the dispute is between them.
(7) However,
in default of such agreement, the dispute shall be referred to and determined
by the Board of Arbitrators appointed in accordance with Articles 8 and 9
of the Compulsory Purchase of Land
(Procedure) (Jersey) Law 1961[5].
(8) In
the determination of the dispute –
(a) Articles 10
and 20 of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961
shall apply; and
(b) in
their application to this Law, the references in those provisions to the
acquisition of land shall be read as references to the exercise of a power
under Article 29 or Article 31(3) of this Law, as the case requires.
(9) In
the determination of the dispute –
(a) Articles 12,
13, 14, 16 and 17 of that Law shall also apply; and
(b) in
the application of those Articles (other than Article 11) to this Law, the
references in them to the Board of Arbitrators shall be read as including a
reference to a single arbitrator appointed by agreement under
paragraph (6) of this Article.
(10) Interest,
at the rate specified in Article 11(4) of the Compulsory Purchase of Land
(Procedure) (Jersey) Law 1961 and calculated in accordance with that paragraph
from the date on which the loss or damage occurred until the date of payment,
shall be added to the amount of any compensation assessed under this Article.
42 Interference with
apparatus
Any person who maliciously or dishonestly interferes or tampers with
any meter or other apparatus installed on any land or in any
vehicle –
(a) by
the regulator, for the purposes of this Law; or
(b) by
any person, in accordance with a requirement of or under this Law,
shall be guilty of an offence and liable to imprisonment for a term
of 2 years and a fine.
43 False information
Any person who –
(a) in
support of an application for the grant, variation, transfer or revocation of a
water resources licence or under this Law; or
(b) on
being required under a condition of a licence or under any of Articles 12,
31, 33 and 34, to give or deliver any information to the regulator,
knowingly or recklessly makes a statement that is false or
misleading in a material particular shall be guilty of an offence and liable to
imprisonment for a term of 2 years and a fine.
44 Criminal liability
(1) Any
person who aids, abets, counsels or procures the commission of an offence under
this Law shall also be guilty of the offence and liable in the same manner as a
principal offender to the penalty provided for that offence.
(2) Where
an offence under this Law committed by a body corporate is proved to have been
committed with the consent or connivance of or to be attributable to any
neglect on the part of –
(a) a
person who is a director, manager, secretary or other similar officer of the
body corporate; or
(b) any
person purporting to act in any such capacity,
the person shall also be guilty of the offence and liable in the
same manner as the body corporate to the penalty provided for that offence.
(3) Where
the affairs of a body corporate are managed by its members, paragraph (2)
shall apply in relation to acts and defaults of a member in connection with his
or her functions of management as if the member were a director of the body
corporate.
45 Remedies to be
cumulative
The fact that a person is convicted of an offence under this Law
does not preclude the regulator from instituting any civil proceedings against
the person under this Law in respect of the same matter.
46 Evidence
(1) Where
in any civil or criminal proceedings under this Law, evidence is adduced of
information recorded by a meter or other apparatus that is approved by the
regulator, or used by the regulator in carrying out functions under this Law,
it shall be presumed until the contrary is proved that the meter or apparatus
has at all material times recorded information accurately.
(2) In
any civil or criminal proceedings under this Law, information that is provided
by or obtained from any person under any condition of a water resources licence
shall be admissible in evidence against that person.
47 Limitation of liability
Neither the regulator nor any officer nor any of the
regulator’s servants or agents shall incur any civil or criminal
liability for any act or omission relating to any regulatory function under
this Law –
(a) in
respect of the grant, variation, transfer, suspension or revocation of a water
resources licence by the regulator;
(b) in
respect of any activity undertaken in accordance with a licence; or
(c) in
respect of the volume or quality of water abstracted, or available to be
abstracted, in accordance with a licence,
unless it is proved that that person was acting in bad faith.
48 Service of
documents
(1) Without
prejudice to any other mode of service that is permitted under any rule of law,
a document may be served under this Law in any of the following
ways –
(a) on
an individual, by delivering it to him or her personally or by leaving it at
his or her proper address or by sending it by recorded delivery post to the
person at that address;
(b) on
a body corporate, by serving it in accordance with sub-paragraph (a) on
the secretary or clerk of that body;
(c) on
a partnership, by serving it in accordance with sub-paragraph (a) on a
partner or a person having the control or management of the partnership
business; or
(d) on
an unincorporated body or association of persons, by serving it in accordance
with sub-paragraph (a) on any person having the control or management of
its affairs.
(2) For
the purposes of this Article, and of Article 7 of the Interpretation
(Jersey) Law 1954[6] in its application to this
Article, the proper address of any person or body on whom a document is to be
served shall be his, her or its last known address, except that –
(a) in
the case of service on a body corporate or its secretary or clerk, it shall be
the address of the registered or principal office of the body; or
(b) in
the case of service on a partnership or a partner or a person having the
control or management of a partnership business, it shall be the address of the
principal office of the partnership.
(3) In
the case of a company registered outside Jersey or of a partnership carrying
out business outside Jersey, its principal office in Jersey shall be its
principal office for the purposes of paragraph (2).
(4) Where
a person who is to be served under this Law with any document has specified an
address in Jersey other than his or her proper address, as determined in
accordance with paragraph (2), as the one at which the person or someone
on his or her behalf will accept service of documents, that address may be
treated as the proper address for the purposes of this Article.
(5) Where
a document is to be served under this Law on the owner or occupier of any land
or the driver or person in charge of any vehicle, and after reasonable enquiry
he or she cannot be found and his or her name and address cannot be
ascertained, and the document relates to the land or vehicle –
(a) the
document may be served by leaving it with any other responsible person who is
or appears on reasonable grounds to be resident or employed on the land, or
employed in connection with the vehicle; or
(b) it
may be served by affixing it, or a copy, conspicuously to a part of the land or
vehicle.
(6) This
Article shall not apply to any document for which provision for service is made
by Rules of Court.
49 Subordinate
legislation
(1) The
regulator may make Orders relating to any of the following matters –
(a) prescribing
forms of application for the grant, variation, transfer or revocation of water
resources licences, or information to be provided in support of such
applications;
(b) prescribing
standard conditions in licences;
(c) prescribing
forms in which records shall be kept or returns shall be made under this Law;
(d) prescribing
the form of applications for certificates of confidentiality;
(e) providing
for any other matters that may be prescribed under any other provisions of this
Law; and
(f) providing
for such other matters as are reasonably necessary for or incidental to the
purpose of carrying this Law into effect.
(2) For
the purposes of this Law –
(a) a
standard condition that is for the time being prescribed in respect of a water
resources licence; and
(b) a
requirement that is for the time being prescribed as to the form in which
records are to be kept or returns are to be made by a licensee,
are conditions imposed by the regulator in every licence.
(3) The
powers of the Superior Number of the Royal Court to make rules under the Royal
Court (Jersey) Law 1948[7] shall include power to make
rules for the purposes of this Law.
50 Relationship to
other enactments
This Law does not relieve any person from an obligation to obtain
any authorization, consent or permission that is required by or under any other
enactment.
51 Implementation of
international obligations
The States may by Regulations modify this Law to give effect to any
international agreement, or international obligation, that relates to water
resources and is applicable to or binding on Jersey.
52 Application to
Crown
(1) Subject
to this Article, this Law shall bind the Crown.
(2) No
contravention by the Crown of any provision of this Law shall make the Crown
criminally liable.
(3) However –
(a) the
Royal Court may, on the application of the regulator, declare unlawful any act
or omission of the Crown that contravenes a provision of this Law; and
(b) the
provisions of this Law apply in any event to persons in the public service of
the Crown as they apply to other persons.
(4) If
the Lieutenant-Governor certifies that it appears to him or her that it is requisite
or expedient that, in the interests of national security, any powers in or
under this Law that are specified in the certificate should not be exercisable
in relation to any Crown land specified in the certificate, those powers shall
not be exercisable in respect of that land.
(5) This
Law does not apply to Her Majesty in her private capacity.
53 Consequential
amendments, and transitional and other provisions
(1) The
enactments specified in the first column of Schedule 2 shall be amended in
the manner specified in the second column of that Schedule.
(2) This
Law shall have effect subject to the transitional provisions of Schedule 3
and the provisions of Schedule 4.
54 Citation and
commencement
(1) This
Law may be cited as the Water Resources (Jersey) Law 2007.
(2) Except
as provided in paragraph (3), this Law shall come into force on such day
as the States may by Act appoint.
(3) Article 11
and paragraph 3 of Schedule 4 shall come into force on the expiry of
the period of 12 months following the appointed day.
m.n. de la haye
Greffier of the States
SCHEDULE 1
(Article 7(6))
INFORMATION THAT NEED NOT BE DISCLOSED
1. The
regulator shall not be obliged under Article 7 to make available any
information –
(a) affecting
the confidentiality of the deliberations of any public or parish authority;
(b) relating
to international relations, national defence or public security;
(c) relating
to matters that are under enquiry (whether or not the enquiry is of a
disciplinary nature) or to documents that are still in draft form or to any
internal communications of a public or parish authority;
(d) relating
to matters that are or have been the subject of legal or other proceedings
(whether actual or prospective) or to any investigations undertaken with a view
to such proceedings;
(e) relating
to matters to which commercial or industrial confidentiality attaches
(including matters of that character relating to intellectual property);
(f) relating
to matters to which domestic or personal confidentiality attaches;
(g) supplied
to the regulator by a person who was not under a legal obligation to do so;
(h) if
the regulator, reasonably, is not satisfied of the reliability of the
information;
(i) if
the disclosure of the information could lead to damage to the aquatic
environment;
(j) that
cannot be separated, for the purpose of making it available, from information
specified in any of paragraphs (a) to (i) (inclusive); or
(k) if
the request for information is manifestly unreasonable or is formulated in too
general a manner.
2. In
this Schedule, a reference to a public authority includes a reference to the
Council of Ministers, the Chief Minister and any Minister of the States.
SCHEDULE 2
(Article 53(1))
Consequential amendments
|
(1)
|
(2)
|
|
Short title
|
Extent of amendment
|
|
1. Water
(Jersey) Law 1972[8]
|
In Article 5(6), by substituting for the words
“Article 24 of this Law” the words “Article 11 of
the Water Resources (Jersey) Law 2007 or by a Drought Order made under
that Law”.
By inserting, after Article 20 but before Part IV, the
following Article –
“20A Restrictions of
supply
Nothing in
any of Articles 7, 8, 9 and 20 of this Law shall be construed as
imposing on the Company any obligation to supply water in contravention of
any restriction imposed by or under the Water Resources (Jersey)
Law 2007.”.
By repealing Article 24.
By repealing Article 26.
|
|
2. Queen’s Valley Reservoir
(Jersey) Law 1988[9]
|
In Article 8, by substituting for the word “The”
the words “Subject to Article 11 of the Water Resources (Jersey)
Law 2007, the”.
|
|
3. Water
Pollution (Jersey) Law 2000[10]
|
In Article 2, by substituting for paragraph (1)(d) the
following sub-paragraph –
“(d) groundwater,
being water that is below the surface of the ground, in the saturation zone
and in direct contact with the ground or with the subsoil.”.
|
SCHEDULE 3
(Article 53(2))
Transitional arrangements for water
resources licences
Part 1 – Water resources licences
to abstract water
1. Notwithstanding
Article 11 –
(a) if
a person has lawfully abstracted water from a source of supply at any time
within the period of 3 years immediately preceding the appointed day; and
(b) he
or she applies at least 9 months before Article 11 comes into force
for a water resources licence to abstract water from that source of supply
after that Article comes into force,
the regulator shall grant and issue to the person a licence to
undertake that activity for a period of 5 years commencing on the day on
which Article 11 comes into force, subject to the provisions of this
Schedule and to the other provisions of this Law.
2. The
regulator shall grant the licence subject to the condition that the quantities
of water to be abstracted shall not exceed those specified by the regulator in
the licence.
3. The
quantities to be so specified shall be those which it was reasonable for the applicant
(and his or her predecessors, if any) to have abstracted from the source of
supply during the period of 3 years immediately preceding the appointed
day.
4. Articles 8
and 16 shall not apply to an application for a water resources licence that is
made by virtue of paragraph 1.
5. After
granting a water resources licence by virtue of paragraph 1, the regulator
shall not of the regulator’s own motion subsequently vary the licence in
a way that is inconsistent with any of paragraphs 1, 2 and 3, unless there are
exceptional circumstances.
6. There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator on an application made by virtue of this Part of this
Schedule.
Part 2 – Water resources licences
to impound water
1. Notwithstanding
Article 11 –
(a) if
a person has obtained planning permission, before the appointed day, to impound
water in any source of supply;
(b) the
planning permission is in force; and
(c) the
person applies at least 9 months before Article 11 comes into force
for a water resources licence to impound water in that source of supply in
accordance with the planning permission after that Article comes into force,
the regulator shall grant and issue to the person a licence to
undertake that activity in accordance with the planning permission for a period
of 5 years commencing on the day on which Article 11 comes into
force, subject to the provisions of this Schedule and to the other provisions
of this Law.
2. Articles 8
and 16 shall not apply to an application for a water resources licence that is
made by virtue of paragraph 1.
3. After
granting a water resources licence by virtue of paragraph 1, the regulator
shall not of the regulator’s own motion subsequently vary the licence in
a way that is inconsistent with that paragraph unless there are exceptional
circumstances.
4. There
shall be a right of appeal, in accordance with Article 40, against the
decision of the regulator on an application made by virtue of this Part of this
Schedule.
SCHEDULE 4
(Article 53(2))
Operations by regulator
Introductory provisions
1 Interpretation
of Schedule
(1) In
this Schedule –
(a) references
to the regulator as an operator, or acting as an operator, are references to
the regulator acting otherwise than in the capacity described in clause (b);
and
(b) all
other references to the regulator are references to the regulator in the
capacity of the person responsible for exercising and performing the functions,
powers and duties that are for the time being conferred and imposed on the
regulator by the provisions of this Law other than this Schedule.
(2) In
this Schedule –
“suspend”, when
referring to a water resources certificate, means to suspend its effect wholly
or partly;
“vary”, when
referring to a water resources certificate, means to vary any term or condition
of the certificate;
“water resources certificate”
means a water resources certificate that is issued by the regulator under this
Schedule and is in effect.
2 Application
(1) While
any person who is for the time being the regulator is also charged with the
administration (otherwise than as regulator) of public services that involve
the abstracting of water from a source of supply or the impounding of water in
a source of supply –
(a) Articles 11,
13 and 14 shall not apply to the regulator in respect of those other public
services; and
(b) the
provisions of this Schedule shall apply instead in respect of those other
public services.
(2) If
paragraph (1) ceases to apply, this Schedule shall expire.
Operations by regulator
3 Restrictions
on operations by regulator
The regulator as an operator shall not cause or knowingly
permit –
(a) the
abstracting of water from a source of supply; or
(b) the
impounding of water in a source of supply,
unless acting in accordance with a water resources certificate that
is issued under this Schedule.
4 Exceptions
(1) Paragraph
3 does not apply to –
(a) the
abstracting of surface water on or contiguous to any land, by or on behalf of
the regulator as the occupier of the land, not exceeding in the aggregate 15
cubic metres in any period of 24 hours;
(b) the
abstracting of groundwater, by or on behalf of the regulator as an occupier of
land, not exceeding in the aggregate 15 cubic metres in any period of 24 hours;
(c) the
abstracting of water for the domestic purposes of a household;
(d) the
abstracting or impounding of water, as far as it is reasonably necessary to
prevent interference with or damage to any civil engineering works or
construction work;
(e) the
abstracting or impounding of water, for the purposes of exercising a regulatory
power under any enactment or performing a regulatory duty under any enactment;
(f) the
abstracting of groundwater in the course of ascertaining whether it is present,
or to ascertain its level, volume or quality or the effect of its abstraction;
(g) the
alteration or use, on or after the day on which paragraph 3 comes into force,
of any dam, weir or other works in existence in a source of supply before the
appointed day, where the alteration or use does not have and is not likely to
have any effect described in sub-paragraph (4).
(2) However,
sub-paragraph (1) only applies to an abstracting or impounding of water to
which any of clauses (b), (c), (d) and (f) of that sub-paragraph refers if the
regulator as an operator complies with the condition in sub-paragraph (3)
in respect of the abstracting or impounding of the water.
(3) The
condition to which sub-paragraph (2) refers is that the regulator as an
operator keeps a written record of the abstracting or impounding of water to
which it relates containing the same information as any other person would be
required to provide to the regulator (as regulator) –
(a) if
that other person were applying to register that activity under
Article 12; and
(b) if
that activity by that other person were registered.
(4) Sub-paragraph
(1)(g) refers to any effect –
(a) on
the flow or level of water in any source of supply;
(b) on
the character of any source of supply; or
(c) on
any fauna or flora dependent on any source of supply,
that is materially different from the effect that the works had or
were likely to have had before the appointed day.
(5) The
States may by Regulations amend sub-paragraph (1).
(6) Regulations
made under sub-paragraph (5) may be expressed so as to apply –
(a) generally
throughout Jersey; or
(b) to
any specified part of Jersey.
(7) Regulations
made under sub-paragraph (5) may include transitional provisions.
5 Offences
(1) If
the regulator acting as an operator contravenes paragraph 3, the regulator
shall be guilty of an offence.
(2) If
the regulator acting as an operator contravenes any condition of a water
resources certificate, the regulator shall be guilty of an offence.
(3) Any
person who –
(a) in
connection with the issue, variation, suspension or revocation of a water
resources certificate; or
(b) on
being required under a condition of a certificate to give any information to
any person,
knowingly or recklessly makes a statement that is false or
misleading in a material respect shall be guilty of an offence.
(4) If
the regulator acting as an operator commits an offence under any of
sub-paragraphs (1), (2) and (3), the regulator shall be liable to a fine.
(5) A
person (other than the regulator acting as an operator) who commits an offence
under sub-paragraph (3) shall be liable to imprisonment for a term of 2
years and a fine.
6 Statutory
defence for regulator acting as an operator
Where the regulator as an operator is charged with an offence under
either of sub-paragraphs (1) and (2) of paragraph 5, in respect of a
source of supply, it shall be a defence to prove –
(a) that
the act in respect of which the regulator is charged was done in consequence of
a decision to do so in an emergency that arose in circumstances beyond the
regulator’s control;
(b) that
the decision was reasonable; and
(c) that
the regulator as an operator took all steps that were reasonably practicable
for avoiding or minimizing any harm to the source of supply and to fauna and
flora that are dependent on that source of supply.
7 Public
notice
(1) Before
issuing or varying a water resources certificate, the regulator shall comply
with Article 8 as if the proposal to issue or vary it were an application
for the grant or variation of a water resources licence, as the case may be.
(2) Paragraphs
(2), (3), (4), (7), (8) and (9) of that Article shall apply accordingly.
8 Matters
regulator must take into account
In deciding whether or not to issue or vary a water resources
certificate, the regulator shall have regard to the matters specified in
Article 16 as if the regulator were considering an application for a water
resources licence.
9 Issue
of water resources certificate
(1) If
the regulator issues a water resources certificate, the regulator shall specify
in the certificate –
(a) the
activity that is to be carried on under the certificate;
(b) the
period for which the certificate shall have effect; and
(c) the
conditions (if any) on which the activity will be undertaken.
(2) In
any civil or criminal proceedings under this Law, information that is provided
by or obtained from any person under any condition of a water resources
certificate shall be admissible in evidence against the person.
10 Variation
of water resources certificate
Subject to the other provisions of this Schedule, the regulator may
vary a water resources certificate.
11 Term
of water resources certificate
(1) A
water resources certificate or its variation shall take effect from a date to
be specified in the certificate by the regulator (being not sooner than
21 days after the regulator complies with paragraph 13 in respect of
the decision).
(2) The
regulator shall not –
(a) issue
a water resources certificate for a term exceeding 10 years from the date
of the decision to issue the certificate; or
(b) on
any one occasion vary a certificate by extending its term for a period
exceeding 10 years from the date of the decision to vary the certificate,
unless there are exceptional circumstances.
12 Suspension
or revocation of water resources certificate
The regulator may at any time suspend or revoke a water resources
certificate.
13 Notice
of decision
If the regulator issues or varies a water resources certificate, the
regulator shall state the reasons for the decision, and shall serve a written
copy of the decision (including the reasons) within 14 days on every
person who has made representations under Article 8(4) (as applied by
paragraph 7 of this Schedule) in respect of the matter and has provided an
address for service in Jersey.
14 Review
of regulator’s decision
(1) If
the regulator issues or varies a water resources certificate, any person who
has made representations under Article 8(4) (as applied by
paragraph 7 of this Schedule) in respect of the proposal to issue or vary
it, and has provided an address for service in Jersey, may apply to the Royal
Court to review the decision.
(2) An
application under sub-paragraph (1) shall be made within 21 days
after the applicant is served with a written copy of the regulator’s
decision (or within such further time as the Royal Court may allow).
(3) An
application under sub-paragraph (1) must be made on notice to the
regulator.
(4) If
the regulator issues or varies a water resources certificate, the Attorney
General may apply to the Royal Court at any time, on notice to the regulator,
to review the decision.
(5) Rules
of the Royal Court may provide for the manner in which applications for review
under this paragraph shall be brought, heard and determined.
(6) Unless
the Royal Court so orders, the lodging of an application for review under this
paragraph shall not operate to stay the effect of a decision pending the
determination of the application.
(7) On
hearing an application for review, the Royal Court may in its own judgment
confirm, reverse or vary the decision of the regulator, and may make such order
as to the costs of the review as it thinks fit.
15 Information
about water resources certificates
The information to be made available by the regulator under
Article 7 shall include proposals relating to and the issue, variation,
suspension and revocation of water resources certificates.
16 Effect
of Drought Orders
The terms of a Drought Order shall apply notwithstanding either of
paragraphs 3 and 4 or the terms and conditions of a water resources certificate.
Other provisions
17 Existing
operations to abstract water
(1) Notwithstanding
paragraph 3, if the regulator as an operator has lawfully abstracted water
from a source of supply at any time within the period of 3 years
immediately preceding the appointed day, the regulator as regulator may issue a
water resources certificate for the undertaking of that activity by the
regulator as an operator for a period of 5 years commencing on the day on
which paragraph 3 comes into force, subject to the provisions of this
Schedule and to the other provisions of this Law.
(2) The
regulator shall issue the certificate subject to the condition that the
quantities of water to be abstracted shall not exceed those specified by the
regulator in the certificate.
(3) The
quantities to be so specified shall be those that it was reasonable for the
regulator as an operator to have abstracted from the source of supply during
the period of 3 years immediately preceding the appointed day.
(4) Paragraphs
7, 8 and 14 shall not apply to the issue of a water resources certificate by
virtue of sub-paragraph (1).
(5) After
issuing a water resources certificate by virtue of sub-paragraph (1), the
regulator shall not subsequently vary the certificate in a way that is
inconsistent with any of sub-paragraphs (1), (2) and (3), unless there are
exceptional circumstances.
18 Existing
operations to impound water
(1) Notwithstanding
paragraph 3 –
(a) if
the regulator as an operator has obtained planning permission, before the
appointed day, to impound water in a source of supply; and
(b) the
planning permission is in force,
the regulator as regulator may issue a water resources certificate
for the undertaking of that activity by the regulator as an operator in
accordance with the planning permission for a period of 5 years commencing
on the day on which paragraph 3 comes into force, subject to the
provisions of this Schedule and to the other provisions of this Law.
(2) Paragraphs
7, 8 and 14 shall not apply to the issue of a water resources certificate by
virtue of sub-paragraph (1).
(3) After
issuing a water resources certificate by virtue of sub-paragraph (1), the
regulator shall not subsequently vary the certificate in a way that is
inconsistent with that sub-paragraph unless there are exceptional circumstances.
19 Right
of regulator to take own operations into account in considering applications in
respect of water resources licences
In considering an application in respect of a water resources
licence or a proposal for its variation or revocation, the regulator may take
into account (in addition to the other matters to which regard must be had
under Article 16) the regulator’s own right to abstract water from
any source of supply –
(a) in
the circumstances described in either of clauses (b) and (c) of paragraph 4(1)
of this Schedule; or
(b) under
a water resources certificate.
20 Transitional
arrangements if regulator ceases to perform regulatory functions
(1) Notwithstanding
paragraph 2(2), on the expiry of this Schedule every water resources
certificate that is in effect immediately before its expiry shall continue in
effect according to the certificate’s tenor, subject to the provisions of
this Law, as if it were a water resources licence.
(2) The
expiry of this Schedule by the operation of paragraph 2(2) shall not
relieve the regulator of the duty to comply with paragraph 15.