Section 60 Liability of the appropriate agency for derogation from protected right.F1C1
England and Wales
A breach of the duty imposed by subsection (1) of section 39 above (including that duty as applied by section 51(3) or 53(5) above) shall neither invalidate the grant or variation of a licence nor be enforceable by any criminal proceedings, by prohibition or injunction or by action against any person other than the appropriate agency.
Instead, the duty referred to in subsection (1) above shall be enforceable, at the suit of any person entitled to a protected right for the purposes of this Chapter, by an action against the appropriate agency for damages for breach of statutory duty.
Where under any provision of this Chapter, the appropriate agency is directed by the Secretary of State to grant or vary a licence, and the licence, as granted or varied in compliance with the direction, authorises derogation from protected rights, then—
the grant or variation of the licence shall, as between the appropriate agency and the person entitled to those rights, have effect as a breach on the part of the appropriate agency of a statutory duty not to authorise derogation from those rights; and
subsection (2) above shall apply in relation to that statutory duty as it applies in relation to the duty imposed by section 39(1) above.
Subsection (3) above shall be without prejudice to the duty of the appropriate agency, to comply with the direction in question, but that duty shall not afford any defence in an action brought by virtue of paragraph (b) of that subsection.
In any action brought against the appropriate agency in pursuance of this section it shall be a defence for the appropriate agency to show that the fact, as the case may be—
that the abstraction of water authorised by the licence, as granted or varied by the appropriate agency, derogated from the plaintiff’s protected right; or
that the obstruction or impeding of the flow of the inland waters authorised by the licence, as so granted or varied, derogated from the plaintiff’s protected right,
was wholly or mainly attributable to exceptional shortage of rain or to an accident or other unforeseen act or event not caused by, and outside the control of, the appropriate agency.
This section has effect subject to the provision made by Schedule 7 to this Act.
In this section any reference to authorising a derogation from protected rights is a reference to so authorising—
the abstraction of water; or
the flow of any inland waters to be obstructed or impeded by means of impounding works,
as to derogate from rights which, at the time of the authorisation, are protected rights for the purposes of this Chapter.
Annotations
Textual amendments
- F1
Words in s. 60 and heading substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 270(k) (with Sch. 7)
Modifications
- C1
S. 60 applied (with modifications) (1.4.2006) by Water Resources (Abstraction and Impounding) Regulations 2006 (S.I. 2006/641), regs. 1(2), 23
Notes on Part II
Modifications
- C1
Pt. II: transfer of functions to the Environment Agency (1.4.1996) by 1995 c. 25, s. 2(1)(a)(i) (with ss. 115, 117); S.I. 1996/186, art. 3
Notes on Chapter II
Modifications
- C1
Chapter II of Part II excluded (1.4.1996) by 1995 c. 25, s. 6(3) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3
- C2
Chapter II of Part II modified (18.12.1996) by 1996 c. 61, s. 52, Sch. 15 Pt. III para. 11
- C3
Pt. II Ch. II modified (22.3.2005) by Midland Metro (Wednesbury to Brierley Hill and Miscellaneous Amendments) Order 2005 (S.I. 2005/927), Sch. 11 para. 11 (with art. 51)
- C4
Pt. II Ch. II modified (26.8.2005) by River Tyne (Tunnels) Order 2005 (S.I. 2005/2222), art. 1, Sch. 10 para. 14 (with arts. 45(1), 48, Sch. 10 paras. 21, 29)
- C5
Pt. II Ch. II modified (19.3.2007) by Ouseburn Barrage Order 2007 (S.I. 2007/608), art. 1, Sch. 6 para. 18 (with arts. 46-48, Sch. 6 paras. 17(5), 23)
- C6
Pt. II Ch. II modified (22.7.2008) by Crossrail Act 2008 (c. 18), Sch. 17 para. 11
- C7
Pt. II Ch. II modified (9.6.2009) by Nottingham Express Transit System Order 2009 (S.I. 2009/1300), arts. 1, 71(12) (with Sch. 13 para. 14(2), Sch. 14 para. 19, Sch. 16)
- C8
Pt. II Ch. II modified (20.7.2010) by The Network Rail (Nuneaton North Chord) Order 2010 (S.I. 2010/1721), art. 1, Sch. 11 para. 12
- C9
Pt. II Ch. II modified (27.8.2010) by The Llangollen and Corwen Railway Order 2010 (S.I. 2010/2136), art. 1(1), Sch. 4 para. 12
- C10
Pt. II Ch. II modified (1.9.2010) by The Port of Bristol (Deep Sea Container Terminal) Harbour Revision Order 2010 (S.I. 2010/2020), art. 1(2), Sch. 6 para. 11(1) (with arts. 18, 19)
- C11
Pt. II Ch. II modified (1.2.2011) by The River Mersey (Mersey Gateway Bridge) Order 2011 (S.I. 2011/41), art. 1, Sch. 10 para. 41(1) (with art. 51, Sch. 10 paras. 6885)