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The Water and Sewerage Services (Northern Ireland) Order 2006

Status:

This is the original version (as it was originally made).

Contents of transfer scheme

2.—(1) The transfer scheme—

(a)shall specify the assets and liabilities to be transferred to the successor company; and

(b)may make such supplementary, incidental, transitional and consequential provisions in connection with the transfer of those assets and liabilities as the Department considers appropriate.

(2) The provisions of the scheme specifying the assets and liabilities to be transferred may do so—

(a)by specifying them or describing them in particular; or

(b)by identifying them generally by reference to a specified part of the Department’s undertaking, or their connection with the exercise of specified functions of the Department; or

(c)in any other manner appearing to the Department to be appropriate in relation to the assets or liabilities in question;

and the scheme may except assets and liabilities from transfer in any corresponding manner.

(3) The assets and liabilities that may be specified by a transfer scheme for transfer to the successor company include—

(a)assets and liabilities that would not otherwise be capable of being transferred or assigned by the Department;

(b)assets acquired and liabilities arising in the period after the making of the scheme and before the transfer date;

(c)rights and liabilities arising after the transfer date in respect of matters occurring before that date;

(d)property situated anywhere in the United Kingdom or elsewhere and rights and liabilities under the law of any part of the United Kingdom or of any place outside the United Kingdom; and

(e)rights and liabilities under a statutory provision or Community instrument.

(4) The transfer scheme may make provision for the division of any asset or liability between the Department and the successor company; and

(a)where any rights or liabilities under a contract are so divided, the contract shall have effect as from the transfer date as if it constituted two separate contracts separately enforceable by and against the Department and the successor company respectively as respects the part of the rights or liabilities which falls to it as a result of the division; and

(b)where any land is so divided, any rent payable under a lease (or a fee farm grant creating the relationship of landlord and tenant) in respect of that land or charged on that land shall be correspondingly divided so that one part is payable in respect of, or charged on, only one part of the land and the other part is payable in respect of, or charged on, only the other part.

(5) The transfer scheme may include provision for the creation—

(a)in favour of the Department, of rights or liabilities over or in respect of assets transferred to the successor company;

(b)in favour of the successor company, of rights or liabilities over or in respect of assets retained by the Department;

(c)of other rights and liabilities between the Department and the successor body.

(6) The transfer scheme may include provision imposing on the successor company the obligation to enter into specified written agreements with, or execute such other instruments in favour of, the Department or any other specified person: and any obligation so imposed shall be enforceable by civil proceedings for an injunction or other appropriate relief.

(7) The transfers provided for by a transfer scheme, and the rights and liabilities that may be created by virtue of sub-paragraph (5) or an agreement or instrument under sub-paragraph (6), include transfers that are to take effect, and rights and liabilities that are to arise, regardless of any contravention, liability or interference with a right that would otherwise exist by reason of a provision having effect (whether under a statutory provision or an agreement or in any other way) in relation to the terms on which the Department is entitled or subject to any asset or liability.

(8) The transfer scheme may include provision—

(a)for the successor company to be treated as the same person in law as the Department for such purposes or in such circumstances as are specified;

(b)for agreements made, transactions effected or other things done (or treated as made effected or done) by or in relation to the Department to be treated as made, effected or done by or in relation to the successor company;

(c)for references in any agreement, instrument or other document to (or references which are to be treated as references to) the Department or to an officer or employee of the Department to have effect as a reference to, or to an officer or employee of, the successor company;

(d)for proceedings commenced (or treated as commenced) by or against the Department to be continued by or against the successor company.

(9) Paragraph (8) (c) does not apply in relation to references in a statutory provision.

(10) The transfer scheme may include provision—

(a)for treating the Department as having given to the successor company an acknowledgement in writing of the right of that company to production of any document relating in part to the title to, or to the management of, any asset transferred to it and to delivery of copies of that document; and

(b)applying section 9 of the Conveyancing Act 1881 (c. 41) (with any specified modifications) in relation to any such case.

(11) A transfer scheme may include provision for disputes between the Department and the successor company—

(a)as to the effect of the scheme; and

(b)arising at any time after the successor company has ceased to be wholly owned by the Crown,

to be referred to such arbitration as may be specified in or determined under the scheme.

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