Water Resources (Jersey) Law 2007

Revised Edition

27.960

Showing the law as at 1 January 2018

This is a revised edition of the law



Water Resources (Jersey) Law 2007

Arrangement

Article

INTRODUCTORY PROVISIONS  7

1                 Interpretation. 7

2                 Meaning of “inland waters”. 9

3                 Meaning of “source of supply”. 9

ADMINISTRATION   9

4                 General objectives. 10

5                 Operating considerations. 10

6                 Gathering of information. 10

7                 Dissemination of information. 11

8                 Public notice of proposals. 11

9                 Authorized persons. 12

10              Assistants. 13

PROTECTION OF WATER RESOURCES  13

11              Restrictions on the abstraction or impounding of water 13

12              Cases in which the restrictions do not apply. 13

13              Offences in respect of water resources. 15

14              Statutory defence of emergency. 15

15              Applications in respect of water resources licences. 15

16              Matters to be taken into account 15

17              Determination of applications for licences. 16

18              Conditions of licences. 17

19              Issue of licences. 17

20              Effect of licences. 17

21              Variation and revocation of licences. 17

22              Suspension of licences. 18

23              Transfer of licences. 19

24              Notice of decisions. 19

25              Charges. 19

DROUGHT MEASURES  20

26              Drought Orders. 20

27              Duration of Drought Orders. 20

28              Terms of Drought Orders. 21

29              Works under Drought Orders. 21

30              Breaches of Drought Orders. 21

ENFORCEMENT  22

31              Ancillary powers. 22

32              Warrants. 23

33              Co-operation by owners and others. 23

34              Access to documents and records. 24

35              Obstruction. 24

36              Injunctions. 25

OTHER PROVISIONS  25

37              Applications for protection of trade secrets. 25

38              Information that is protected. 26

39              Information that is not protected. 26

40              Appeals. 27

41              Compensation. 27

42              Interference with apparatus. 29

43              False information. 29

44              Criminal liability. 29

45              Remedies to be cumulative. 30

46              Evidence. 30

47              Limitation of liability. 30

48              Service of documents. 30

49              Subordinate legislation. 31

50              Relationship to other enactments. 32

51              Implementation of international obligations. 32

52              Application to Crown. 32

53              Transitional and other provisions. 32

54              Citation. 33

INFORMATION THAT NEED NOT BE DISCLOSED   34

Transitional arrangements for water resources licences  35

Part 1 – Water resources licences to abstract water 35

Part 2 – Water resources licences to impound water 35

Operations by regulator   37

1                 Interpretation of Schedule. 37

2                 Application. 37

3                 Restrictions on operations by regulator 37

4                 Exceptions. 38

5                 Offences. 39

6                 Statutory defence for regulator acting as an operator 39

7                 Public notice. 40

8                 Matters regulator must take into account 40

9                 Issue of water resources certificate. 40

10              Variation of water resources certificate. 40

11              Term of water resources certificate. 40

12              Suspension or revocation of water resources certificate. 41

13              Notice of decision. 41

14              Review of regulator’s decision. 41

15              Information about water resources certificates. 41

16              Effect of Drought Orders. 41

17              Existing operations to abstract water 42

18              Existing operations to impound water 42

19              Right of regulator to take own operations into account in considering applications in respect of water resources licences. 43

20              Transitional arrangements if regulator ceases to perform regulatory functions. 43

 

Supporting Documents

Table of Legislation History. 44

Table of Renumbered Provisions. 44

Table of Endnote References. 44

 


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.

 

 


Endnotes

Table of Legislation History

Legislation

Year and No

Commencement

*Projet No
(
where applicable)

Water Resources (Jersey) Law 2007

L.29/2007

1 January 2009 except Article 11 and paragraph 3 of Schedule 3 (originally 4) in force 1 January 2010 (R&O.110/2008)

P.26/2007

States of Jersey (Transfer of Functions No. 8) (Miscellaneous Transfers) (Jersey) Regulations 2015

R&O.158/2015

1 January 2016

P.46/2015

(re-issue)

Criminal Justice (Miscellaneous Provisions) (Jersey) Law 2016

L.1/2016

20 September 2016

(R&O.98/2016)

P.87/2015

Road Works and Events (Jersey) Law 2016

L.11/2016

1 January 2017

(R&O.121/2016)

1 January 2018

(R&O.118/2017)

P.152/2015

*Projets available at www.statesassembly.gov.je

Table of Renumbered Provisions

Original

Current

53(1)

Spent, omitted

53(2)

53

54(1)

54

54(2) and (3)

Spent, omitted

Schedule 2

Spent, omitted

Schedule 3

Schedule 2

Schedule 4

Schedule 3

Table of Endnote References



[1]                                    L.1/1861

[2] Article 1(1)              amended by R&O.158/2015

[3]                                    chapter 27.800

[4]                                    chapter 27.700

[5]                                    chapter 23.175

[6] Article 34(6)            amended by L.1/2016

[7]                                    chapter 18.135

[8] Article 42(1)            renumbered as paragraph (1) by L.11/2016

[9]                                    chapter 25.600

[10] Article 42(2)          inserted by L.11/2016

[11]                                   chapter 15.360

[12]                                   chapter 07.770


Page Last Updated: 30 Apr 2019