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.
Commencement
[see endnotes]
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;
“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 the
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]
(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[3] 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[4].
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[5] 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 1st January 2009, 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 1st January
2009.
(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 of level 3 on the standard scale.[6]
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[7].
(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
(1) 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.[8]
(2) This
Article is subject to Article 30(12) of the Road Works and Events (Jersey)
Law 2016[9].[10]
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[11] 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[12] 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 Transitional
and other provisions
This Law shall have effect subject
to the transitional provisions of Schedule 2 and the provisions of Schedule 3.
54 Citation
This Law may be cited as the Water
Resources (Jersey) Law 2007.
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)
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 1st January 2009; 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 1st
January 2009.
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 1st January 2009, 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 3
(Article 53)
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 1st January 2009, 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 1st January
2009.
(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 1st January 2009, 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 1st January 2009.
(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 1st January 2009, 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.