UK Offence Report

Restriction on abstracting or impounding water

regulation 9(4) of The Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003 (revoked)

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

4 A person who contravenes paragraph (1) shall be guilty of an offence and liable— a on summary conviction, to a fine not exceeding the statutory maximum; b on conviction on indictment, to a fine.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 9(4)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where a person contravenes paragraph (1).
  2. Doing the thing the provision prohibits under the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003, whatever the reason for doing it.
  3. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
£5,000
Maximum prison (summary)
Not determined

expressed as the statutory maximum (the prescribed sum): the same words mean £5,000 in England and Wales and £10,000 in Scotland.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
30 January 2003
In force from
1 April 2003
Extent
E+W

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations complete the implementation, in relation to water management projects for agriculture in England and Wales, of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (O.J. No. L175, 5.7.1975, p.40), as amended by Council Directive 97/11/EC (O.J. No. L73, 14.3.1997, p.5). The Regulations impose procedural requirements in relation to the consideration of applications or proposals for an abstraction or impounding licence under Chapter II of Part II of the Water Resources Act 1991 and require consent in other cases. The Environment Agency is the competent authority in England and Wales for these Regulations. Part I of the Regulations contains general provisions. Regulation 3 requires an environmental impact assessment (“EIA”) to be carried out for water management projects for agriculture (including irrigation projects) which would be likely to have significant effects on the environment by virtue inter alia of their nature, size or location. Projects involving the abstraction of water are only included if the amounts abstracted exceed 20 cubic metres in any 24 hours. There is an exclusion for development within the meaning of section 55 of the Town and Country Planning Act 1990 and land drainage improvement works (where there are other arrangements for an EIA to be carried out). Part II of the Regulations provides the procedure for an EIA. Regulations 4 and 5 provide the procedure for determining whether a water management project requires an EIA, and require an environmental statement to be provided where an EIA is required. The Agency determines, at the request of the person applying or proposing to apply, whether the proposed project is a relevant project, using the selection criteria in Schedule 1. If the person who makes the request is dissatisfied with the Agency’s determination, he may apply to the appropriate Minister to make his own determination. The determination must be made public, and must accompany any subsequent application for authorisation of the project. Regulation 6 and Schedule 2 set out the information which an environmental statement must contain. The applicant may enter into consultation with any body to determine whether that body possesses information relevant to the environmental statement. The Agency is required to give an opinion on the content of an environmental statement if so requested. Regulation 7 provides for environmental information to be publicised in the same way as the application. In addition the applicant must send a copy of the application and the environmental information to the consultation bodies defined in regulation 2. Regulation 8 requires the Agency or the appropriate Minister to have regard to the environmental information provided and any representations received in determining the application. A notice of the outcome must be published stating where the relevant documentation is available for public inspection. Part III of the Regulations provides for relevant projects which require consent under these Regulations. Regulation 9 makes it an offence to begin or carry out a relevant project without the Agency’s consent in cases where no abstraction or impounding licence is required. The Agency may grant or refuse such consent taking into account any significant effects the project is likely to have on the environment: regulation 10. Regulations 11 and 12 provide for appeals to be made to the appropriate Minister where the applicant is dissatisfied with the Agency’s decision on an application for consent under regulation 10, and for decisions of the appropriate Minister on such appeals to be challenged in the High Court within 6 weeks. Part IV of the Regulations applies the Regulations with modifications to licence applications called in by the appropriate Minister and proposals for modification of abstraction or impounding licences. Part V of the Regulations requires determinations of whether a project requires EIA, and environmental statements or further information provided under these Regulations, to be kept in the Agency’s register of abstraction and impounding licences. A Regulatory Impact Appraisal has been prepared in connection with these Regulations. It has been placed in the Library of each House of Parliament, and copies may be obtained from WSR5 Division, Department for Environment, Food and Rural Affairs, Ashdown House, 123 Victoria Street, London SW1E 6DE (telephone 020-7944-5368).

Read the full note and every offence in this instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source