Archive Article: 1997/11/08

8 November 1997

ITS worth understanding your rights when it comes to the details of your abstraction licence.

Negotiation with the Environment Agency (EA) over abstraction licences is not the cat and mouse game that many believe it to be. The Agency is merely trying to fulfil its duty of managing water resources properly.

Thats the view of Richard Buxton, an environmental lawyer, speaking in a seminar at the Water for Farming event in Peterborough. "Im constantly surprised by how very fair the agency is," he added.

Irrigation law has stood the test of time pretty well, given that it mostly dates back to the 1960s and has remained largely unchanged since then. There is currently a review of water resources law within the Department of the Environment, Transport and Regions, but Mr Buxton doesnt expect much to change.

However, despite its constancy, irrigation is an area of the law open to pitfalls, he warned. The first, which has yet to be resolved, is one of definition. "Simply, and rather perversely, irrigation is exempt from licensing requirements – unless its classified as spray irrigation."

Hence the loophole for trickle irrigators. "But the situation is extremely unsatisfactory from a water resource management point of view and its something that wont last for ever," he stressed.

Despite the licence exemption, the EA does have the power to request information about trickle systems. Those who feel constrained by their existing licences are advised to apply for a variation, but this can be quite an involved and time consuming process, often involving complicated and expensive advertising.

The EA may also impose on a variation restrictions that werent there before, so it makes sense to consult them in advance.

A recent policy change now means that, where licences are held but not used, there is no longer the need to invest in an expensive meter – until you come to irrigate.

Mr Buxton describes the legal issue of succession to licences as peculiar. In principle, where your land is covered by an abstraction licence, you are responsible for payments, annual returns and any contraventions committed by a tenant. So you should tie these things up in the tenancy agreement, advised Mr Buxton.

The alternative is for the tenant to apply to take part of the licence, but you might risk not being able to retrieve it unless, again, the tenancy agreement is watertight.

Where a tenant takes over the whole area covered by a licence, then he automatically becomes the licence holder, so consider retaining a small piece of land if you want to keep control.

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