Form

Water abstraction & impoundment licences Water Resources Act 1991 (as amended)

Updated 11 May 2021

Applies to England

1. Guidance on the appeals procedure

For appeals in Wales, please forward appeal documents to or contact:

The Planning Inspectorate
Crown Buildings
Cathay’s Park
Cardiff CF10 3NQ

Phone: 0303 444 5940

1.1 Introduction

1.1.1. This guidance covers the procedures for appeals in respect of licences to abstract water and licences to impound the flow of inland waters that have been issued by the Environment Agency. It explains the legislative background, draws together the various publications which are relevant to this process and highlights some of the specific issues which may be the subject of appeal. This information was believed to be correct at the time of publication and relates to procedures in England, but the guidance has no legal status. The procedures to be followed are set out in The Water Resources (Abstraction and Impounding) Regulations 2006, SI 2006 No. 641 and are made under the provisions of Section 43 of the Water Resources Act 1991 as amended by the Environment Act 1995 and Water Act 2003.

1.2 Grounds for Appeal

1.2.1. Applicants for abstraction/impoundment licences may appeal under Section 43 of the Water Resources Act 1991 on the following grounds:

i. if an application has been refused;

ii. if a licence has been granted subject to conditions;

iii. if the Environment Agency has failed to determine the application within the specified period of time (or any extension agreed in writing); or

iv. if the Environment Agency fails to give notice within the specified period (or any extension agreed in writing) that the application has been referred to the Secretary of State in accordance with Section 41 of the Act.

1.3 Before making an appeal

1.3.1. Prospective appellants are advised to try to resolve any difficulties or disagreements with the Environment Agency. Agreement may sometimes be possible by amending the conditions in the licence. An appeal should be treated as a last resort.

1.4 Who decides your appeal

1.4.1. Most appeals are decided by an Inspector appointed from the Planning Inspectorate, but the Secretary of State for Environment, Food and Rural Affairs may take over the case if it is particularly important or controversial If this happens you will be told the reason why. An Inspector would still deal with the case, but would submit a report to Defra, with his/her recommendations.

2. How to make an appeal

2.0.1. Full details of the procedures for making an appeal are contained in Regulations 12 & 13 of The Water Resources (Abstraction and Impoundment) Regulations 2006. For convenience, the main steps are now outlined.

2.1 Time limit for making an appeal

2.1.1. Once an applicant for a licence or an existing licence holder has concluded that it is necessary to make an appeal, the appeal must be lodged within 28 days of the date of the decision which is subject of the appeal. The Agency is required to determine an application within 4 months of the ‘relevant date’ defined under regulation 5 of the 2006 regulations. This period is 3 months for applications which are not advertised. The ‘relevant date’ is set by the Agency, and notified to the applicant, and is generally the date on which the application is considered valid. Where the Agency fails to determine an application within the statutory time period (which can be extended by mutual agreement), an appeal must be made within 28 days from the end of this period (Regulation 12(2)). In very exceptional circumstances, the Secretary of State may allow appeals after this time.

2.2 Notice of Appeal

2.2.1. The notice of appeal must be made on the appropriate form which may be obtained from:

The Environment Team
The Planning Inspectorate
3A Eagle Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN

Phone: 0303 444 5584

2.2.2. The form should be accompanied by:

• a statement of the grounds of appeal;
• a copy of the relevant application and supporting documents;
• a copy of the decision notice or licence (if any);
• any other documents including maps and plans and correspondence between the parties which is relevant to the appeal.

2.2.3. At the same time as sending the notice of appeal to the Inspectorate, a copy should be sent to the relevant office of the Environment Agency.

2.3 The effect of making an appeal

2.3.1. If an appeal is made against either (i) the Agency’s decision to refuse a licence or (ii) the Agency’s failure to determine the application within the specified period, no licence is in force until and unless the appeal is allowed. If a licence is granted subject to conditions and some of the conditions are appealed against, those conditions apply until the appeal is decided and they are either modified or deleted.

2.4 Action on receipt of an appeal

2.4.1. When an appeal is received, the Inspectorate will check the appeal to see if it is valid and then, if everything is in order, give you an appeal timetable start date. We will then write to the Environment Agency informing them that the appeal has been received and, if you have requested that the appeal proceed by way of written representations, ask whether they agree to this or would wish to proceed by way of a hearing or local inquiry. We will also inform the Agency of the start date of the appeal.

2.4.2. We will ask the Agency to notify, within 14 days, anyone who made representations about the application to which the appeal relates that an appeal has been lodged and that any further written representations should be made to the Inspectorate within 21 days of the start date. The Agency will also inform any National Park planning authority who may have been involved in the original application.

2.5 Written Representations

2.5.1. The written method of dealing with an appeal is an exchange of statements between you and the Environment Agency, followed by a visit to the site by an Inspector who will determine the appeal. This is normally the quickest, simplest and cheapest way of deciding an appeal.

2.5.2. You and the Agency will be asked to send 2 copies of any additional appeal statement to the Inspectorate within 6 weeks of the start date. Any interested party may also comment within this period. You and the Agency then have the opportunity to comment on all the representations within 9 weeks of the start date. The Inspector will then visit the site.

2.5.3. It is normal practice for the Inspector to be accompanied at the site visit by a representative of both parties, in order to gain access to the site. However, the Inspector will not allow any discussion about the merits of the case and will restrict questions to the physical features of the site itself.

2.6 Hearings

2.6.1. A hearing allows the parties to present their case in a more relaxed and less formal atmosphere than at an inquiry (see below). It usually takes the form of a discussion led by the Inspector, followed by a site visit. If the Inspector so decides, the discussion may be extended to the site.

2.6.2. Either party may request a hearing or the Inspectorate may decide a hearing is needed if comparatively complex issues are involved. The timetable for the submission of evidence is the same as that for written representations i.e. within 6 and 9 weeks of the start date. Local residents and other interested people are allowed to attend a hearing and at the discretion of the Inspector, give their views.

2.6.3. However, there may be occasions when particularly complex issues are raised or which give rise to considerable controversy where a more formal procedure would be appropriate. In such cases the hearing would be more akin to a public inquiry, including any appropriate pre-hearing procedures. The Inspector will decide which procedure is to be adopted at the hearing after considering all the material on the file.

2.7 Inquiries

2.7.1. Either party may ask for a public inquiry, or the Inspectorate may decide that one is needed, but this procedure should only apply to exceptional cases. For example, where particularly complex technical evidence is submitted or cross examination may be needed, or where there are a large number of submissions or a considerable amount of public interest.

2.7.2. Within 6 weeks of the start date, you and the Agency must submit a statement to the Inspectorate giving full details of the case to be put forward at the inquiry. At 9 weeks both parties will have a chance to submit final comments on each others statements. Not later than 4 weeks before the inquiry, proofs of evidence and a statement of common ground should also be submitted. A proof of evidence is a written statement of the evidence a witness intends to give at the inquiry and, if it is more than 1,500 words long, there should also be a summary that is no more than 10% of the length of the proof. A statement of common ground is a list of all the matters that you and the Agency are agreed about.

2.7.3. An inquiry is more formal than a hearing and usually begins with brief opening statements from both the main parties. They then call their witnesses to give their evidence, which can be cross-examined by the other side. The Agency will normally present its case first. Other interested parties may also attend the inquiry and will usually be allowed to give their views.

3. Decisions on appeals

a) Inspector’s decision: The Inspector’s decision will be sent to the appellant and the Agency at the same time. Copies will be sent to interested persons where they have requested one, unless confidentiality is involved. The decision will include the important and relevant points which give effect to the Inspector’s decision.

b) Secretary of State decisions: In these cases, the Inspector will send a report to the Secretary of State. The report will describe the site and give a summary of the arguments and evidence presented. The Inspector will also make a recommendation as to whether or not the appeal should be allowed. The Secretary of State will then consider all the issues involved and his decision will be sent to the appellant and the Agency with a copy of the Inspector’s report.

4. Other points

4.1 Withdrawal of appeals

4.1.1. An appellant may withdraw the appeal at any time, as long as written notification is sent to the Planning Inspectorate, and a copy sent to the Agency.

4.2 Confidentiality

4.2.1. In cases where the appellant considers that matters of confidentiality will arise during the appeal, the case may be recovered for decision by the Secretary of State. However, if these are minor points in the appeal then the Inspector will decide the appeal but deal with these points in confidence.

4.3 Assessors

4.3.1 Exceptionally, in some inquiry cases an assessor may be appointed by the Planning Inspectorate on behalf of the Secretary of State to advise the Inspector on specific technical issues. The assessor will sit alongside the Inspector and consider the representations made. The assessor will write a report to the Inspector, the contents of which will be made public (unless issues of confidentiality are involved) when the decision is issued.

4.3.2. Where an assessor is appointed, everyone entitled to appear at the inquiry will be notified of the assessor’s name and the matters on which he or she is to advise the Inspector.

4.4 Costs

4.4.1. You and the Agency normally have to pay your own expenses for an appeal. However, if the appeal is to be decided by a hearing or an inquiry, you can ask that the Agency be ordered to pay all or part of your costs. The Agency has the same right to ask you to pay some or all of their costs. Applications for costs are normally heard towards the end of the proceedings and will only be allowed if the party claiming them can show that the other side behaved unreasonably and put them to unnecessary expense.

4.5 Complaints about the Decision

4.5.1. Once the decision notice has been sent to the appellant, either by the Secretary of State or the Inspector, the decision is final. The Secretary of State, or the Inspector, can no longer consider further representations or make any further comments on the merits or otherwise of the case.

4.6 Complaints about the Planning Inspectorate

4.6.1. The letters acknowledging receipt of the appeal will give the name of the Case Officer. The Case Officer should be the first person contacted with any queries or complaints about the handling of the appeal. If this is not satisfactory, the Complaints Officer can be contacted at the following address:

Customer Quality
The Planning Inspectorate
3H Hawk Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN

4.7 Privacy Statement

4.7.1. This privacy notice provides information about our processing of personal information in respect of water abstraction casework in England.