Licence granted by water authority — Abstraction of water causes replacement from canal owned by BWB — Whether licence ultra vires — Whether removal of water from canal — Judgment for the defendant water authority and landowners
The Fossdyke Canal, which lies to the east of Lincoln and was built by the Romans, is vested in and managed by the plaintiff water board. The canal is level with and connects to an outfall channel that itself connects by a pumping station to the Oxpasture Drain. The banks of the Oxpasture Drain and outfall channel are owned by the Upper Witham Internal Drainage Board. The second and third defendants, Mr and Mrs Bell, have the benefit of a licence to abstract water from the Oxpasture Drain for the purpose of crop irrigation. That licence was granted to a predecessor in title under the Water Resources Act 1963 by the defendant water authority (now replaced by the National Rivers Authority) and defines the drain as including the outfall channel.
Water has been abstracted from the channel and gravity ensures that water abstracted is replaced by water from the Fossdyke Canal. The plaintiffs contended that on the true construction of section 131 of the 1963 Act the defendant water authority was not empowered to grant the licence because abstraction of water from the outfall channel amounts to abstraction from the canal and no person other than the plaintiff board may give a licence to abstract from waters owned or managed by the board. The grant of the licence was therefore ultra vires.
Held The licence did not permit the abstraction of water from the canal because the canal was not a specified source of supply in the licence; it was a separate “source of supply” as defined in the 1963 Act. Despite the wide definition of abstraction in section 135 of the Act, the water which flows from the canal into the channel to replace abstracted water is not removed within that definition.
Gareth Williams QC and Anthony Seys Llewellyn (instructed by the solicitor to the British Waterways Board) appeared for the plaintiffs; and Gerard Ryan QC and Philip Petchey (instructed by the regional solicitor to the National Water Authority) appeared for the defendants.
