E+W

Water Industry Act 1991

1991 CHAPTER 56

An Act to consolidate enactments relating to the supply of water and the provision of sewerage services, with amendments to give effect to recommendations of the Law Commission.

[25th July 1991]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

Modifications etc. (not altering text)

C1A reference to a detention centre within the meaning of Part VIII of the Immigration and Asylum Act 1999 (c. 33) to be construed as a reference to a removal centre within the meaning of that Part (10.2.2003) by virtue of 2002 c. 41, s. 66(4); S.I. 2003/1, art. 2, Sch.

C4Act: transfer of functions (W.) (except ss. 1,14, 15, 17, 24(2)(d), 27(3), 32-35, 152(2), 193(3), 206(3)(e), Schs. 1, 4 and subject to entry in Sch. 1 of the amending S.I.) (1.7.1999) by 1999/672, art. 2, Sch. 1 (as amended by 2003 c. 37, s. 100(2)(4)(6)(7); S.I. 2004/2528, art. 2(s); S.I. 2006/3334, Sch.)

C6Act restricted (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 18(2), 225(2).

C7Act: definitions of "service pipe" and "water main" applied (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 162(6), 225(2).

Act: definition of "sewerage services" applied (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 173, Sch. 20 para. 8(1), s. 207(8), 225(2).

Act: definition of "service pipe" applied (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 176(7) and 195(7), 225(2).

Act: definition of "stopcock" applied (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 176(7) and 221(1), 225(2).

Act: definition of "trunk main" applied (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 186(1), 225(2).

Act: definition of "drain" applied (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 221(1), 225(2).

C8[A table showing the derivation of the provisions of this Consolidation Act will be found at the end of the Act. The table has no official status.]

C10Act: definition of "public sewers" applied (01.12.1991) by Land Drainage Act 1991 (c. 59, SIF 73:1), ss. 72(1), 76(2) (with ss. 67(3)(5)(8), 72(6)(8), 74(3)(4)).

Commencement Information

I1Act wholly in force at 1.12.1991 see s. 223(2)

Part IE+W PRELIMINARY

The Director General of Water ServicesE+W

1 The Director General of Water Services.E+W

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

[F21AWater Services Regulation AuthorityE+W

(1)There shall be a body corporate to be known as the Water Services Regulation Authority (in this Act referred to as “the Authority”) for the purpose of carrying out the functions conferred on or transferred to it by this Act or under or by virtue of any other enactment.

(2)The functions of the Authority are performed on behalf of the Crown.

(3)Schedule 1A to this Act shall have effect with respect to the Authority.

(4)In Welsh the Authority may be known as “Awdurdod Rheoleiddio Gwasanaethau Dŵr”.]

General dutiesE+W

2 General duties with respect to water industry.E+W

(1)This section shall have effect for imposing duties on the Secretary of State and on the Director as to when and how they should exercise and perform the following powers and duties, that is to say—

(a)in the case of the Secretary of State, the powers and duties conferred or imposed on him by virtue of the provisions of this Act relating to the regulation of relevant undertakers [F3and of licensed water suppliers] ; and

(b)in the case of the Director, the powers and duties conferred or imposed on him by virtue of any of those provisions, by the provisions relating to the financial conditions of requisitions or by the provisions relating to the movement of certain pipes.

[F4(2A)The Secretary of State or, as the case may be, the Authority shall exercise and perform the powers and duties mentioned in subsection (1) above in the manner which he or it considers is best calculated—

(a)to further the consumer objective;

(b)to secure that the functions of a water undertaker and of a sewerage undertaker are properly carried out as respects every area of England and Wales;

(c)to secure that companies holding appointments under Chapter 1 of Part 2 of this Act as relevant undertakers are able (in particular, by securing reasonable returns on their capital) to finance the proper carrying out of those functions; and

(d)to secure that the activities authorised by the licence of a licensed water supplier and any statutory functions imposed on it in consequence of the licence are properly carried out.

(2B)The consumer objective mentioned in subsection (2A)(a) above is to protect the interests of consumers, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the provision of water and sewerage services.

(2C)For the purposes of subsection (2A)(a) above the Secretary of State or, as the case may be, the Authority shall have regard to the interests of—

(a)individuals who are disabled or chronically sick;

(b)individuals of pensionable age;

(c)individuals with low incomes;

(d)individuals residing in rural areas; and

(e)customers, of companies holding an appointment under Chapter 1 of Part 2 of this Act, whose premises are not eligible to be supplied by a licensed water supplier,

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(2D)For the purposes of subsection (2C) above, premises are not eligible to be supplied by a licensed water supplier if—

(a)they are household premises (as defined in section 17C below); or

(b)the total quantity of water estimated to be supplied to the premises annually for the purposes of subsection (2) of section 17D below is less than the quantity specified in that subsection.

(2E)The Secretary of State and the Authority may, in exercising any of the powers and performing any of the duties mentioned in subsection (1) above, have regard to—

(a)any interests of consumers in relation to electricity conveyed by distribution systems (within the meaning of the Electricity Act 1989);

(b)any interests of consumers in relation to gas conveyed through pipes (within the meaning of the Gas Act 1986);

(c)any interests of consumers in relation to communications services and electronic communications apparatus (within the meaning of the Communications Act 2003),

which are affected by the exercise of that power or the performance of that duty.]

[F5(3)Subject to subsection (2A) above, the Secretary of State or, as the case may be, the Authority shall exercise and perform the powers and duties mentioned in subsection (1) above in the manner which he or it considers is best calculated—

(a)to promote economy and efficiency on the part of companies holding an appointment under Chapter 1 of Part 2 of this Act in the carrying out of the functions of a relevant undertaker;

(b)to secure that no undue preference is shown, and that there is no undue discrimination in the fixing by such companies of water and drainage charges;

(c)to secure that consumers are protected as respects benefits that could be secured for them by the application in a particular manner of any of the proceeds of any disposal (whenever made) of any of such a company’s protected land or of an interest or right in or over any of that land;

(d)to ensure that consumers are also protected as respects any activities of such a company which are not attributable to the exercise of functions of a relevant undertaker, or as respects any activities of any person appearing to the Secretary of State or (as the case may be) the Authority to be connected with the company, and in particular by ensuring—

(i)that any transactions are carried out at arm’s length;

(ii)that the company, in relation to the exercise of its functions as a relevant undertaker, maintains and presents accounts in a suitable form and manner;

(iii)that, if the person is a licensed water supplier, its licence does not authorise it to carry on any activities in the area of the company;

(e)to contribute to the achievement of sustainable development.

(4)In exercising any of the powers or performing any of the duties mentioned in subsection (1) above in accordance with the preceding provisions of this section, the Secretary of State and the Authority shall have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed).]

(5)In this section the references to water and drainage charges are references to—

(a)any charges in respect of any services provided in the course of the carrying out of the functions of a relevant undertaker; and

(b)amounts of any other description which such an undertaker is authorised by or under any enactment to require any of its customers or potential customers to pay.

[F6(5A)In this section—

  • consumers” includes both existing and future consumers; and

  • the interests of consumers” means the interests of consumers in relation to—

    (a)

    the supply of water by means of a water undertaker’s supply system to premises either by water undertakers or by licensed water suppliers acting in their capacity as such; and

    (b)

    the provision of sewerage services by sewerage undertakers.]

(6)For the purposes of this section—

[F7(a)subject to subsection (6A) below, the reference in subsection (1) above to the provisions of this Act relating to the regulation of relevant undertakers and of licensed water suppliers is a reference to the provisions contained in Part 2 of this Act (except section 27A, and Schedule 3A), or in any of sections 37A to 38, 39, 39B, 39C, 66B, 66D, 66F to 66H, 66K, 66L, 95, 96, 153, 181, 182, 192A, 192B, 195, 195A and 201 to 203 below;

(b)the reference in that subsection to the provisions relating to the financial conditions of requisitions is a reference to the provisions contained in sections 42, 43, 43A, 48, 51C, 99, 100 and 100A below; and]

(c)the reference in that subsection to the provisions relating to the movement of certain pipes is a reference to the provisions of section 185 below.

[F8(6A)[F9Subsections (2A) to (4) above and section 2A below] do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 31(3) below (“Competition Act functions”).

(6B)The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of [F10subsections (2A) to (4) above and section 2A below] , if it is a matter to which [F11 the Office of Fair Trading (in this Act referred to as “the OFT”)] could have regard when exercising that function.]

[F12(7)The duties imposed by subsections (2A) to (4) above and section 2A below do not affect the obligation of the Authority or, as the case may be, the Secretary of State to perform or comply with any other duty or requirement (whether arising under this Act or another enactment, by virtue of any Community obligation or otherwise).]

Annotations:

Amendments (Textual)

F3Words in s. 2(1)(a) inserted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(2), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F4S. 2(2A)-(2E) substituted (1.4.2005) for s. 2(2) by Water Act 2003 (c. 37), ss. 39(3), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F5S. 2(3)(4) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(4), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F8S. 2(6A)(6B) inserted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 54(3), Sch. 10 Pt. II para. 5(4) (with s. 73); S.I. 1998/2750, art. 2(1); S.I. 2000/344, art. 2, Sch.

F9Words in s. 2(6A) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(7), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F10Words in s. 2(6B) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(8), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F11Words in s. 2(6B) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(2); S.I. 2003/766, art. 2, Sch. (with transitional and transitory provisions in art. 3)

[F132AGuidance on social and environmental mattersE+W

(1)Guidance may be issued from time to time—

(a)by the Assembly, with respect to appointment areas which are wholly or mainly in Wales; and

(b)by the Secretary of State, with respect to other appointment areas,

about the making by the Authority of a contribution towards the attainment of any social or environmental policies set out or referred to in the guidance.

(2)In formulating guidance, the Secretary of State and the Assembly shall, where practicable, have regard to the costs and benefits which may be expected to result from the guidance.

(3)The Authority shall, in exercising and performing the powers and duties mentioned in section 2(1) above (subject to section 2(6) above), have regard to any guidance issued under this section.

(4)Before issuing guidance under this section the Secretary of State and the Assembly shall consult—

(a)the Authority;

(b)the Council;

(c)in the case of the Secretary of State, the Assembly and vice versa;

(d)relevant undertakers;

(e)licensed water suppliers; and

(f)such other persons as the Secretary of State or the Assembly considers it appropriate to consult in relation to the guidance.

(5)A draft of any guidance proposed to be issued by the Secretary of State under this section shall be laid before each House of Parliament.

(6)Guidance shall not be issued by the Secretary of State under this section until after the period of forty days beginning with—

(a)the day on which the draft is laid before each House of Parliament; or

(b)if the draft is laid before the House of Lords on one day and the House of Commons on another, the later of those two days.

(7)If, before the end of that period, either House resolves that the guidance should not be issued, the Secretary of State must not issue it.

(8)In reckoning any period of forty days for the purposes of subsection (6) or (7) above, no account shall be taken of any time during which—

(a)Parliament is dissolved or prorogued; or

(b)both Houses are adjourned for more than four days.

(9)The Secretary of State and the Assembly shall arrange for any guidance issued by him or it under this section to be published in such manner as he or it considers appropriate.

(10)In this section, an “appointment area” is an area for which an appointment is held under Chapter 1 of Part 2 of this Act.]

3 General environmental and recreational duties.E+W

(1)It shall be the duty of each of the following, that is to say—

(a)the Secretary of State;

(b)F14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the Director; and

(d)every company holding an appointment as a relevant undertaker,

in formulating or considering any proposals relating to any functions of a relevant undertaker (including, in the case of such a company, any functions which, by virtue of that appointment, are functions of the company itself) to comply with the requirements imposed in relation to the proposals by subsections (2) and (3) below.

(2)The requirements imposed by this subsection in relation to any such proposals as are mentioned in subsection (1) above are—

(a)a requirement, so far as may be consistent—

(i)with the purposes of any enactment relating to the functions of the undertaker; and

(ii)in the case of the Secretary of State and the Director, with their duties under section 2 above,

so to exercise any power conferred with respect to the proposals on the person subject to the requirement as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest [F15and, in the case of the exercise of such a power by a company holding an appointment as a relevant undertaker, as to further water conservation] ;

(b)a requirement to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest; and

(c)a requirement to take into account any effect which the proposals would have on the beauty or amenity of any rural or urban area or on any such flora, fauna, features, buildings, sites or objects.

(3)The requirements imposed by this subsection in relation to any such proposals as are mentioned in subsection (1) above are, subject to the requirements imposed by subsection (2) above—

(a)a requirement to have regard to the desirability of preserving for the public any freedom of access to areas of woodland, mountains, moor, heath, down, cliff or foreshore and other places of natural beauty;

(b)a requirement to have regard to the desirability of maintaining the availability to the public of any facility for visiting or inspecting any building, site or object of archaeological, architectural or historic interest; and

(c)a requirement to take into account any effect which the proposals would have on any such freedom of access or on the availability of any such facility.

(4)Subsections (1) to (3) above shall apply so as to impose duties on the Director and any company holding an appointment as a relevant undertaker in relation to any proposal relating to—

(a)the functions of [F16the Environment Agency]; or

(b)the functions of an internal drainage board,

as they apply in relation to any proposals relating to the functions of such an undertaker; and for the purposes of this subsection the reference in subsection (2)(a) above to the functions of the undertaker shall have effect as a reference to the functions of [F17the Environment Agency] or, as the case may be, of the internal drainage board in question.

(5)Subject to obtaining the consent of any navigation authority, harbour authority or conservancy authority before doing anything which causes navigation which is subject to the control of that authority to be obstructed or otherwise interfered with, it shall be the duty of every company holding an appointment as a relevant undertaker to take such steps as are—

(a)reasonably practicable; and

(b)consistent with the purposes of the enactments relating to the functions of the undertaker in question,

for securing, so long as that company has rights to the use of water or land associated with water, that those rights are exercised so as to ensure that the water or land is made available for recreational purposes and is so made available in the best manner.

(6)It shall be the duty of a company holding an appointment as a relevant undertaker, in determining what steps to take in performance of any duty imposed by virtue of subsection (5) above, to take into account the needs of persons who are chronically sick or disabled.

(7)The obligations under this section of a company holding an appointment as a relevant undertaker shall be enforceable under section 18 below by the Secretary of State.

(8)Nothing in this section or the following provisions of this Act shall require recreational facilities made available by a relevant undertaker to be made available free of charge.

(9)References in this section to the functions of a relevant undertaker shall be construed, without prejudice to section 156(7) below, as if those functions included the management, by a company holding an appointment as such an undertaker, of any land for the time being held by that company for any purpose whatever (whether or not connected with the carrying out of the functions of a relevant undertaker).

(10)In this section “building” includes structure.

Annotations:

Amendments (Textual)

F14S. 3(1)(b) repealed ( 27.3.2002) by The Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002; S.I. 2002/794, art. 5(2), 6, Sch. 2

F16Words in s. 3(4) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 97 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F17Words in s. 3(4) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 97 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

4 Environmental duties with respect to sites of special interest.E+W

(1)Where [F18Natural England] or the Countryside Council for Wales are of the opinion that any area of land in England or, as the case may be, in Wales—

(a)is of special interest by reason of its flora, fauna or geological or physiographical features; and

(b)may at any time be affected by schemes, works, operations or activities of a relevant undertaker,

[F19Natural England or (as the case may be) the Council] shall notify the fact that the land is of special interest for that reason to every relevant undertaker whose works, operations or activities may affect the land.

(2)Where a National Park authority or the Broads Authority is of the opinion that any area of land in a National Park or in the Broads—

(a)is land in relation to which the matters for the purposes of which section 3 above has effect are of particular importance; and

(b)may at any time be affected by schemes, works, operations or activities of a relevant undertaker,

the National Park authority or Broads Authority shall notify the fact that the land is such land, and the reasons why those matters are of particular importance in relation to the land, to every relevant undertaker whose works, operations or activities may affect the land.

(3)Where a relevant undertaker has received a notification under subsection (1) or (2) above with respect to any land, that undertaker shall consult the notifying body before carrying out any works, operations or activities which appear to that undertaker to be likely—

(a)to destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; or

(b)significantly to prejudice anything the importance of which is one of the reasons why the matters mentioned in subsection (2) above are of particular importance in relation to that land.

(4)Subsection (3) above shall not apply in relation to anything done in an emergency where particulars of what is done and of the emergency are notified to [F20Natural England] , the Countryside Council for Wales, the National Park authority in question or, as the case may be, the Broads Authority as soon as practicable after that thing is done.

(5)The obligations under this section of a relevant undertaker shall be enforceable under section 18 below by the Secretary of State.

(6)In this section—

and section 3(9) above shall apply, as it applies in relation to that section, for construing (in accordance with section 6 below) any references in this section to a relevant undertaker.

Annotations:

Amendments (Textual)

F21Definition of “National Park authority” and the word “and” immediately preceding it repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

Marginal Citations

5 Codes of practice with respect to environmental and recreational duties.E+W

(1)The Secretary of State may by order approve any code of practice issued (whether by him or by another person) for the purpose of—

(a)giving practical guidance to relevant undertakers with respect to any of the matters for the purposes of which sections 3 and 4 above have effect; and

(b)promoting what appear to him to be desirable practices by such undertakers with respect to those matters,

and may at any time by such an order approve a modification of such a code or withdraw his approval of such a code or modification.

(2)A contravention of a code of practice as for the time being approved under this section shall not of itself constitute a contravention of any requirement imposed by section 3 or 4 above or give rise to any criminal or civil liability; but the Secretary of State F22. . . shall F23. . . be under a duty to take into account whether there has been or is likely to be any such contravention in determining when and how he should exercise his powers in relation to any relevant undertaker by virtue of this Act, any of the other consolidation Acts or the M2Water Act 1989.

(3)The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(4)The Secretary of State shall not make an order under this section unless he has first consulted—

(a)[F24the Environment Agency];

(b)the [F25Natural England] and the Countryside Council for Wales;

(c)the Historic Buildings and Monuments Commission for England;

(d)the Sports Council and the Sports Council for Wales; and

(e)such relevant undertakers and other persons as he considers it appropriate to consult.

(5)In this section “the other consolidation Acts” means the M3Water Resources Act 1991, the M4Statutory Water Companies Act 1991, the M5Land Drainage Act 1991 and the M6Water Consolidation (Consequential Provisions) Act 1991.

Part IIE+W APPOINTMENTMENT AND REGULATION OF UNDERTAKERS

CHAPTER IE+W APP0INTMENTS

Making of appointmentsE+W

6 Appointment of relevant undertakers.E+W

(1)Subject to the following provisions of this Chapter, a company may be appointed—

(a)by the Secretary of State; or

(b)with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director,

to be the water undertaker or sewerage undertaker for any area of England and Wales.

(2)Without prejudice to the obligation of a company holding an appointment under this Chapter to comply with the conditions of its appointment, the appointment of a company to be the water undertaker or sewerage undertaker for any area shall have the effect, while the appointment remains in force—

(a)of requiring the company to perform any duty imposed by or under any enactment on an undertaker of the relevant description (that is to say, a water undertaker or, as the case may be, sewerage undertaker);

(b)of authorising the company, for the purposes of, or in connection with, the carrying out of any of the functions of an undertaker of the relevant description, to exercise any power conferred by or under any enactment on an undertaker of that description;

(c)of requiring enactments and subordinate legislation authorising or requiring anything to be done in relation to an undertaker of the relevant description to be construed as authorising or requiring that thing to be done in relation to that company; and

(d)of requiring other references in any enactment or subordinate legislation to an undertaker of the relevant description, or to the area of that undertaker, to be construed, so far as necessary for the purposes of, or in connection with, the carrying out by that company of the functions of an undertaker of that description, as references to that company or, as the case may be, to that area.

(3)The appointment of a company to be a relevant undertaker shall be by service on the company of an instrument in writing containing the appointment and describing the area for which it is made.

(4)A single instrument may contain the appointment of a company to be the sewerage undertaker for an area and the appointment of the same company to be the water undertaker for the whole or any part of that area or for an area which includes the whole or any part of that area.

(5)A company shall not be appointed to be a water undertaker unless it is a limited company or a statutory water company and shall not be appointed to be a sewerage undertaker unless it is a limited company.

[F26(5A)A company shall not be appointed to be a relevant undertaker if it is a licensed water supplier.]

(6)As soon as practicable after making an appointment under this Chapter, the Secretary of State shall send a copy of the appointment to the Director.

7 Continuity of appointments, replacement appointments etc.E+W

(1)It shall be the duty of the Secretary of State to secure that such appointments are made under this Chapter as will ensure that for every area of England and Wales there is at all times both—

(a)a company holding an appointment under this Chapter as water undertaker; and

(b)whether or not the same company in relation to the whole or any part of that area, a company holding an appointment as sewerage undertaker.

(2)Subject to the following provisions of this section—

(a)the Secretary of State; and

(b)with the consent of or in accordance with a general authorisation given by the Secretary of State, the Director,

shall have power, by notice to a company holding an appointment under this Chapter, to terminate the appointment or to vary the area to which it relates.

(3)The appointment of a company to be a water undertaker or sewerage undertaker shall not be terminated or otherwise cease to relate to or to any part of any area except with effect from the coming into force of such appointments and variations replacing that company as a relevant undertaker as secure either-

(a)that another company becomes the water undertaker or, as the case may be, sewerage undertaker for that area or part or for an area that includes that area or part; or

(b)that two or more companies each become the water undertaker or, as the case may be, sewerage undertaker for one of a number of different areas that together constitute or include that area or part.

(4)An appointment or variation replacing a company as a relevant undertaker shall not be made in relation to the whole or any part of the area to which that company’s appointment as water undertaker or, as the case may be, sewerage undertaker relates except where—

(a)that company consents to the appointment or variation;

(b)the appointment or variation relates only to parts of that area none of the premises in which is served by that [F27company;

(bb)the appointment or variation relates only to parts of that area and the conditions mentioned in subsection (5) below are satisfied in relation to each of the premises in those parts which are served by that company; or]

(c)the appointment or variation is made in such circumstances as may be set out for the purposes of this paragraph in the conditions of that company’s appointment.

[F28(5)The conditions are that—

[F29(a)the premises are, or are likely to be, supplied with not less than the following quantity of water in any period of twelve months:

(i)if the area of the relevant undertaker concerned is wholly or mainly in Wales, 250 megalitres;

(ii)in all other cases, [F3050 megalitres] ; and]]

(b)the person who is the customer in relation to the premises consents in writing to the appointment or variation.

(6)The Secretary of State may, after consulting the Director, make regulations amending subsection (5)(a) above by substituting, for the quantity of water for the time being specified there, such smaller quantity as he considers appropriate.

Annotations:

Amendments (Textual)

F27Words and para. (bb) in s. 7(4) added (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 40(1); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

F28S. 7(5)(6) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 40(2): Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

F29S. 7(5)(a) substituted (17.8.2000) by S.I. 2000/1842, art. 2(2)

8 Procedure with respect to appointments and variations.E+W

(1)An application for an appointment or variation replacing a company as a relevant undertaker shall be made in such manner as may be prescribed.

(2)Within fourteen days after making an application under this section, the applicant shall—

(a)serve notice of the application on the existing appointee [F31the NRA]and on every local authority whose area includes the whole or any part of the area to which the application relates; and

(b)publish a copy of the notice in such manner as may be prescribed.

(3)Before making an appointment or variation replacing a company as a relevant undertaker, the Secretary of State or the Director shall give notice—

(a)stating that he proposes to make the appointment or variation;

(b)stating the reasons why he proposes to make the appointment or variation; and

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed appointment or variation may be made.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the Secretary of State or, as the case may be, the Director considers appropriate for bringing it to the attention of persons likely to be affected by the making of the proposed appointment or variation; and

(b)by serving a copy of the notice on the existing appointee [F31the NRA]and on every local authority whose area includes the whole or any part of the area to which the proposed appointment or variation relates.

(5)As soon as practicable after making an appointment or variation replacing a company as a relevant undertaker, the Secretary of State or the Director shall—

(a)serve a copy of the appointment or variation on the existing appointee; and

(b)serve notice of the making of the appointment or variation on [F32the NRA and on]every local authority whose area includes the whole or any part of the area to which the appointment or variation relates,

and as soon as practicable after exercising any power to vary the area to which an appointment under this Chapter relates, the Secretary of State shall send a copy of the variation to the Director.

(6)In this section “the existing appointee”, in relation to an appointment or variation replacing a company as a relevant undertaker, means the company which is replaced in relation to the whole or any part of the area to which the appointment or variation relates or, where there is more than one such company, each of them.

[F33(7)The Secretary of State may by regulations impose such additional procedural requirements as he considers appropriate for any case where the conditions mentioned in section 7(5) above are required to be satisfied in relation to an application for an appointment or variation replacing a company as a relevant undertaker.]

Annotations:

Amendments (Textual)

F31Words in s. 8(2)(a)(4)(b) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 56(6), Sch. 1 para. 17(a); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992, art. 3, Sch. Pt.I

F32Words in s. 8(5)(b) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 56(6), Sch. 1 para. 17(b); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

F33S. 8(7) added (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 40(3); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

9 Duties affecting making of appointments and variations.E+W

(1)Before making an appointment or variation replacing a company as a relevant undertaker, the Secretary of State or the Director shall consider any representations or objections which have been duly made in pursuance of the notice under section 8(3) above and have not been withdrawn.

(2)Before making an appointment or variation replacing a company as a relevant undertaker, the Secretary of State shall consult the Director.

(3)In determining whether to make an appointment or variation by virtue of section 7(4)(b) [F34or (bb)] above in relation to any part of an area, the Secretary of State or, as the case may be, the Director shall have regard, in particular, to any arrangements made or expenditure incurred by the existing appointee for the purpose of enabling premises in that part of that area to be served by that appointee.

(4)It shall be the duty of the Secretary of State or, as the case may be, of the Director—

(a)in making an appointment or variation replacing a company as a relevant undertaker; and

(b)where he makes such an appointment or variation, in determining what provision is to be made with respect to the fixing by the new appointee of any water or drainage charges,

to ensure, so far as may be consistent with his duties under Part I of this Act, that the interests of the members and creditors of the existing appointee are not unfairly prejudiced as respects the terms on which the new appointee could accept transfers of property, rights and liabilities from the existing appointee.

(5)In this section—

  • existing appointee”, in relation to an appointment or variation replacing a company as a relevant undertaker in relation to any area or part of an area, means the company which is replaced by that appointment or variation;

  • new appointee”, in relation to such an appointment or variation, means the company which by virtue of the appointment or variation becomes a relevant undertaker for the area or part of an area in question;

  • water or drainage charges” means

(a)charges in respect of any services provided in the course of the carrying out of the functions of a water undertaker or sewerage undertaker; or

(b)amounts of any other description which such an undertaker is authorised by or under any enactment to require any person to pay.

Annotations:

Amendments (Textual)

F34Words in s. 9(3) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 40(4); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt.I

10 Transitional provision with respect to replacement appointments.E+W

[(1)]Schedule 2 to this Act shall have effect for enabling provision to be made with respect to cases in which a company is replaced by another as a relevant undertaker by an appointment or variation under this Chapter.

[F35(2)Subsections (3) and (4) below apply where, by such an appointment or variation, one company (“the new undertaker”) is to replace another company as a relevant undertaker, but the appointment or variation has not come into force.

(3)The following provisions of this Act shall (except where they are inapplicable to the kind of undertaker in question) apply in relation to the new undertaker as if the appointment or variation had come into force—

(a)sections 18 to 24 and Schedule 3;

(b)sections 32 to 35;

(c)section 155 and Schedule 9;

(d)sections 156, 158 to 161 and 163 to 167 and Schedule 11;

(e)sections 168 to 171, 173, 174, 178 to 180 and Schedule 12;

(f)sections 181 to 183 and Schedule 13;

(g)sections 184 to 188 and Schedule 14;

(h)sections 189 to 192, 197 to 200, 202, 203, 206, 208, 209, 211, 212 and 217.

(4)Such of the conditions imposed on the new undertaker under section 11 below as the Director may specify in a written notice given by him to the undertaker shall have effect, in relation to the operation of any provision mentioned in subsection (3) above before the appointment or variation comes into force, as if the appointment or variation had come into force.

(5)The Secretary of State may by regulations amend subsection (3) above by adding to, removing or modifying references to provisions of this Act.]

Annotations:

Amendments (Textual)

F35S. 10(2)-(5) added (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 42; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt.I

Modifications etc. (not altering text)

C11 S. 10 renumbered as subsection (1) of s. 10 (1.7.1992 ) by Competition and Service (Utilities) Act 1992 (c. 43), s.42; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

Conditions of appointmentsE+W

11 Power to impose conditions.E+W

(1)An appointment under this Chapter may include—

(a)such conditions as appear to the Secretary of State or, as the case may be, the Director to be requisite or expedient having regard to the duties imposed on him by Part I of this Act;

(b)conditions for the purposes of section 7(4)(c) above; and

(c)conditions requiring the rendering to the Secretary of State of a payment on the making of an appointment, or payments while such an appointment is in force, or both, of such amount or amounts as may be determined by or under the conditions.

(2)Conditions may be included by virtue of subsection (1)(a) above in an appointment under this Chapter whether or not they are connected with the supply of water, the provision of sewerage services or the exercise or performance of any power or duty conferred or imposed by or under any enactment on water undertakers or sewerage undertakers.

(3)Conditions included in an appointment under this Chapter may contain provision for the conditions to cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined by or under the conditions.

(4)Any provision included by virtue of subsection (3) above in an appointment under this Chapter shall have effect in addition to the provision made by this Chapter with respect to the modification of the conditions of an appointment.

(5)For the purposes of this Act where the same instrument contains an appointment of the same company to be both a water undertaker and a sewerage undertaker (whether or not for the same area), all the conditions included in that instrument by virtue of this section shall have effect, irrespective of their subject-matter, as conditions of both appointments.

(6)Where an instrument of appointment has been served under subsection (3) of section 6 above on any company, the coming into force of the appointment for the purposes specified in subsection (2) of that section shall not be affected by any contravention of the requirements of this Act with respect to the provision contained by way of conditions of appointment in that instrument.

(7)If the Secretary of State considers it appropriate to do so in consequence of any legal proceedings with respect to any such provision as is mentioned in subsection (6) above, he may by order made by statutory instrument direct that such conditions as may be specified in the order are to be treated as included in the appointment in question until there is an opportunity for the provision to which the proceedings relate to be replaced by virtue of any of the other provisions of this Chapter.

(8)Any sums received by the Secretary of State in consequence of the provisions of any condition of an appointment under this Chapter shall be paid into the Consolidated Fund.

12 Determinations under conditions of appointment.E+W

(1)Without prejudice to the generality of paragraph (a) of section 11(1) above, conditions included in an appointment by virtue of that paragraph may—

(a)require the appointed company to comply with any direction given by the Director as to such matters as are specified in the appointment or are of a description so specified; and

(b)require the appointed company, except in so far as the Director consents to the company’s doing or not doing them, not to do or to do such things as are specified in the appointment or are of a description so specified.

(2)Without prejudice as aforesaid, such conditions may provide for the reference to and determination by—

(a)the Secretary of State or the Director; or

(b)on a reference by the Director, the [F36Competition Commission],

of such questions arising under the appointment and of such other matters, including (in the case of references to the Commission) disputes as to determinations by the Director, as are specified in the appointment or are of a description so specified.

(3)Where any question or other matter falls to be determined by the [F36Competition Commission] in pursuance of a provision contained in an appointment under this Chapter—

(a)it shall be the duty of the Director, on being required to do so by the company holding that appointment, to refer that question or matter to that Commission; and

(b)it shall be the duty of that Commission to determine any question or other matter referred by virtue of paragraph (a) above in accordance with—

(i)F37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)the principles which apply, by virtue of Part I of this Act, in relation to determinations under this Chapter by the Director.

[F38(3A)For the purposes of subsection (3) above, where—

(a)the question or matter referred to the Commission concerns the review of a price control imposed on the company holding the appointment; and

(b)the Commission is to decide to what extent it is reasonable to take into account in its determination costs incurred or borne by the company in connection with the reference,

the Commission shall also have regard to the extent to which, in its view, its determination is likely to support the company’s (rather than the Authority's) claims in relation to the question or matter referred to it.

(3B)Subsections (4) and (5) of section 14, and sections 16A and 16B, below apply to references to the Competition Commission under this section as they apply to references under section 14.

(3C)A report of the Competition Commission on a reference under this section—

(a)shall be made to the Authority; and

(b)shall include definite conclusions on the questions or other matters comprised in the reference, together with such an account of their reasons for those conclusions as, in the opinion of the Competition Commission, is expedient for facilitating a proper understanding of those questions or other matters and of their conclusions,

and subsections (5) and (6) of section 15 below apply to such a report as they apply to a report on a reference under section 14.]

(4)F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification of appointment conditionsE+W

13 Modification by agreement.E+W

(1)Subject to the following provisions of this section, the Director may modify the conditions of a company’s appointment under this Chapter if the company consents to the modifications.

(2)Before making modifications under this section, the Director shall give notice—

(a)stating that he proposes to make the modifications and setting out their effect;

(b)stating the reasons why he proposes to make the modifications; and

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(3)A notice under subsection (2) above shall be given—

(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the company and on the Secretary of State.

(4)The Director shall not under this section make any modifications which the Secretary of State has, within the time specified in the notice under subsection (2) above, directed the Director not to make.

(5)The Secretary of State shall not give a direction under subsection (4) above in relation to any modification unless—

(a)the modification is a modification of provision contained in the appointment for the purposes of section 7(4)(c) above;

(b)the modification is a modification of a provision of the appointment which relates to the disposal of, or of interests or rights in or over, a company’s protected land and is stated in the appointment to be a provision which cannot be modified; or

(c)it appears to the Secretary of State that the modification should be made, if at all, under section 16 below.

14 Modification references to Monopolies Commission.E+W

(1)The Director may make to the [F40Competition Commission]a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which—

(i)relate to the carrying out of any function which is a function of any company by virtue of an appointment of that company under this Chapter; and

(ii)are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the company’s appointment.

(2)The Director may, at any time, by notice given to the [F40Competition Commission]vary a reference under this section by—

(a)adding to the matters specified in the reference; or

(b)excluding from the reference some or all of the matters so specified;

and on receipt of any such notice the Commission shall give effect to the variation.

(3)The Director may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the [F40Competition Commission]in carrying out the investigation on the reference—

(a)any effects adverse to the public interest which, in his opinion, the matters specified in the reference or variation have or may be expected to have; and

(b)any modifications of the conditions of any appointment mentioned in the reference or variation by which, in his opinion, those effects could be remedied or prevented.

(4)As soon as practicable after making a reference under this section or a variation of such a reference, the Director shall—

(a)serve a copy of the reference or variation on the company whose appointment is mentioned in the reference or variation; and

(b)publish particulars of the reference or variation in such manner as he considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5)It shall be the duty of the Director, for the purpose of assisting the [F40Competition Commission] in carrying out an investigation on a reference under this section [F41or in carrying out functions under section 16A below] , to give to the Commission—

(a)any information in his possession which relates to matters falling within the scope of the investigation [F42or the carrying out of those functions] , and which is either—

(i)requested by the Commission for that purpose; or

(ii)information which, in his opinion, it would be appropriate for that purpose to give to the Commission without any such request;

and

(b)any other assistance which the Commission may require, and which it is within his power to give, in relation to any such matters;

and the Commission, for the purpose of carrying out any such investigation [F43or such functions] , shall take account of any information given to them for that purpose under this subsection.

(6)In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the [F40Competition Commission]shall have regard to the matters as respects which duties are imposed on the Secretary of State and the Director by Part I of this Act.

(7)F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7A)F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8A)F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

F40Words in s. 14(1)-(3)(5)(6) substituted (1.4.1999) by S.I. 1999/506, art. 30(b)

F41Words in s. 14(5) inserted (1.10.2004) by Water Act 2003 (c. 37), ss. 55(2)(a), 105(3); S.I. 2004/2528, art. 2(h) (with savings in art. 4, Sch.)

F42Words in s. 14(5) inserted (1.10.2004) by Water Act 2003 (c. 37), ss. 55(2)(b), 105(3); S.I. 2004/2528, art. 2(h) (with savings in art. 4, Sch.)

F43Words in s. 14(5) inserted (1.10.2004) by Water Act 2003 (c. 37), ss. 55(2)(c), 105(3); S.I. 2004/2528, art. 2(h) (with savings in art. 4, Sch.)

[F4614A References under section 14: time limitsE+W

(1)Every reference under section 14 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2)A report of the Competition Commission on a reference under section 14 above shall not have effect (and no action shall be taken in relation to it under section 16 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under subsection (3) below.

(3)The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4)No more than one extension is possible under subsection (3) above in relation to the same reference.

(5)The Director shall, in the case of an extension made by him under subsection (3) above—

(a)publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b)send a copy of what has been published by him under paragraph (a) above to the company whose appointment is mentioned in the reference.

14B References under section 14: powers of investigationE+W

(1)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 14 above as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2)Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a)subsection (2) were omitted; and

(b)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3)Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a)for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

(b)for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

(c)the words “by this Part” were omitted.

(4)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.

(5)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.]

15 Reports on modification references.E+W

(1)In making a report on a reference under section 14 above, the [F47Competition Commission]

(a)shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as, in their opinion, is expedient for facilitating a proper understanding of those questions and of their conclusions;

(b)where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c)where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of a company’s appointment under this Chapter, shall specify in the report modifications by which those effects could be remedied or prevented.

[F48(1A)For the purposes of section 16 below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(1B)If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 14 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.]

F49(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F50(3)For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 14 above.

(3A)In making any report on a reference under section 14 above the Competition Commission must have regard to the following considerations before disclosing any information.

(3B)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(3C)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(3D)The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.]

(4)A report of the [F47Competition Commission]on a reference under section 14 above shall be made to the Director.

(5)Subject to subsection (6) below, the Director—

(a)shall, on receiving such a report, send a copy of it to the company to whose appointment under this Chapter the report relates and to the Secretary of State; and

(b)shall, not less than fourteen days after that copy is received by the Secretary of State, publish another copy of that report in such manner as he considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(6)If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of fourteen days mentioned in paragraph (b) of subsection (5) above, direct the Director to exclude that matter from every copy of the report to be published by virtue of that paragraph; and the Director shall comply with any such direction.

16 Modification following report.E+W

(1)Where a report of the [F51Competition Commission]on a reference under section 14 above—

(a)includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;

(b)specifies effects adverse to the public interest which those matters have or may be expected to have;

(c)includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of a company’s appointment under this Chapter; and

(d)specifies modifications by which those effects could be remedied or prevented,

the Director shall, subject to the following provisions of this section, make such modifications of the conditions of that appointment as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(2)Before making modifications under this section, the Director shall have regard to the modifications specified in the report.

(3)Before making modifications under this section, the Director shall give notice—

(a)stating that he proposes to make the modifications and setting out their effect;

(b)stating the reasons why he proposes to make the modifications; and

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the company whose appointment it is proposed to modify.

[F52(4A)After considering any representations or objections made in response to proposals set out in a notice under subsection (3) above, the Authority shall give notice to the Competition Commission—

(a)setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and

(b)stating the reasons for making the modifications.

(4B)The Authority shall include with the notice under subsection (4A) above a copy of any representations or objections received in relation to the notice under subsection (3) above.

(4C)If the period of four weeks from the date on which the notice under subsection (4A) above is given elapses without a direction under section 16A(1)(a) below having been given to it, the Authority shall—

(a)make the modifications set out in the notice; or

(b)if a direction under section 16A(1)(b) below has been given, make the modifications which are not specified in the direction.]

(5)The Director shall not under this section make any modification of any provisions of a company’s appointment under this Chapter which—

(a)are contained in that appointment for the purposes of section 7(4)(c) above; or

(b)being provisions relating to the disposal of, or of interests or rights in or over, a company’s protected land, are stated in the appointment to be provisions which cannot be modified.

[F5316ACommission’s power of veto following reportE+W

(1)The Competition Commission (in this section referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under section 16(4A) above, direct the Authority—

(a)not to make the modifications set out in that notice; or

(b)not to make such of the modifications as may be specified in the direction;

and the Authority shall comply with any such direction.

(2)The Secretary of State may, within the period of four weeks after the date on which the Commission is given a notice under section 16(4A) above and on the application of the Commission, direct that the period for giving a direction under subsection (1) above (and, accordingly, the period mentioned in section 16(4C) above) shall be extended by fourteen days.

(3)The power to give a direction under subsection (1) above may only be exercised in respect of such of the modifications set out in the notice under section 16(4A)(a) above as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.

(4)If the Commission gives a direction under subsection (1) above, it—

(a)shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and

(b)shall itself make such modifications as appear to it to be requisite for the purpose of remedying or preventing—

(i)if the direction was given under subsection (1)(a) above, the adverse effects specified in the report as effects which could be remedied or prevented by modifications;

(ii)if the direction was given under subsection (1)(b) above, such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 16(4C)(b) above.

(5)In exercising its power under subsection (4)(b) above, the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a company’s appointment.

(6)Before making modifications under subsection (4)(b) above the Commission shall give notice—

(a)stating that it proposes to make the modifications and setting them out;

(b)stating the reason why it proposes to make them;

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7)A notice under subsection (4)(a) or (6) above shall be given—

(a)by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy on the Authority and the company whose conditions of appointment it is proposed should be modified.

(8)The Commission may not make any modification under this section which the Authority could not make under section 16 above.

(9)After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.

(10)This section does not apply to the modification of the conditions of a company’s appointment following a report of the Commission made before the commencement of section 55 of the Water Act 2003.

16BCommission’s power of veto following report: supplementaryE+W

(1)For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (9) of section 16A above.

(2)In giving any notice under subsection (4)(a) or (6) of section 16A above, or publishing any notice under subsection (9) of that section, the Commission must have regard to the following considerations before disclosing any information.

(3)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

(4)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or

(b)information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

(5)The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) above is necessary for the purposes of the notice.

(6)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8) below, for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under section 16A above, as they apply for the purposes of any investigations on references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(7)Section 110 shall, in its application by virtue of subsection (6) above, have effect as if—

(a)subsection (2) were omitted;

(b)in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted the publication by the Commission of a notice under section 16A(9) of the Water Industry Act 1991 in connection with the reference concerned or, if no direction has been given by the Commission under section 16A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period; and

(c)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(8)Section 111(5)(b) shall, in its application by virtue of subsection (6) above, have effect as if for sub-paragraph (ii) there were substituted—

(ii)if earlier, the day on which a notice is published by the Commission under section 16A(9) of the Water Industry Act 1991 in connection with the reference concerned or, if no direction is given by the Commission under section 16A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.

(9)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (6) above, have effect in relation to those sections as applied by virtue of that subsection.

(10)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.]

17 Modification by order under other enactments.E+W

[F54(1)Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may, subject to subsection (3), also provide for the modification of the conditions of a company’s appointment under this Chapter to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

(2)In subsection (1) above “relevant order” means—

(a)an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the 2002 Act where—

(i)one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was carried on by a relevant undertaker; or

(ii)one or more than one of the enterprises which will or may cease to be distinct enterprises is carried on by a relevant undertaker; or

(b)an order under section 160 or 161 of the 2002 Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition is—

(i)the structure or an aspect of the structure of a market for the supply of goods or services by a relevant undertaker; or

(ii)the conduct of a relevant undertaker or of customers of a relevant undertaker.]

(3)No modification shall be made by virtue of this section of any provisions of a company’s appointment under this Chapter which—

(a)are contained in that appointment for the purposes of section 7(4)(c) above; or

(b)being provisions relating to the disposal of, or of interests or rights in or over, a company’s protected land, are stated in the appointment to be provisions which cannot be modified.

[F55(4)Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the 2002 Act have the same meanings in that subsection as in that Part.]

Annotations:

Amendments (Textual)

F54S. 17(1)(2) substituted (20.6.2003 for all purposes subject to art. 3(1) of the first commencing S.I. and 29.12.2004 "for water purposes") by Enterprise Act 2002 (c. 40), s. 168(9), 279, Sch. 9 para. 7(2); S.I. 2003/1397, art. 2(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F55S. 17(4) substituted (20.6.2003 for all purposes subject to art. 3(1) of the first commencing S.I. and 29.12.2004 "for water purposes") by Enterprise Act 2002 (c. 40), s. 168(9), 279, Sch. 9 para. 7(3); S.I. 2003/1397, art. 2(1), Sch.; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

Modifications etc. (not altering text)

[F56CHAPTER 1AE+W LICENSING OF WATER SUPPLIERS

Annotations:

Amendments (Textual)

F56Pt. 2 Ch. 1A inserted (1.4.2004 for specified provisions and purposes and 1.8.2005 for further specified provisions and purposes and 1.10.2005 for further specified provisions and 1.12.2005 otherwise) by Water Act 2003 (c. 37), ss. 56, 105(3), Sch. 4 para. 2; S.I. 2004/641, art. 3(l), Sch. 1 (with art. 6, Sch. 3); S.I. 2005/968, art. 3(b) (with savings in art. 4, Sch. 1, 2); S.I. 2005/2714, arts. 2(h), 3(a) (with Sch. para. 5)

Granting of licencesE+W

17ALicensing of water suppliersE+W

(1)Subject to the following provisions of this Chapter—

(a)the Secretary of State; or

(b)with the consent of or in accordance with a general authorisation given by the Secretary of State (after consulting the Assembly), the Authority,

may grant to a company a licence (a “water supply licence”) giving it the retail authorisation referred to in subsection (2) below, or both that and the supplementary authorisation referred to in subsection (5) below.

(2)The retail authorisation is an authorisation to the company to use a water undertaker’s supply system for the purpose of supplying water to the premises of customers of the company (subject to subsection (3) below) in accordance with Chapter 2A of Part 3 of this Act.

(3)The following requirements must be satisfied in relation to each of the premises supplied by the company—

(a)the requirement that the premises are not household premises (as defined in section 17C below);

(b)the threshold requirement (construed in accordance with section 17D below); and

(c)the requirement that the premises are not being supplied with water by another company pursuant to a water supply licence,

and those requirements shall be enforceable under section 18 below by the Authority.

(4)A water supply licence which gives a company only the retail authorisation is referred to in this Chapter as a “retail licence”.

(5)The supplementary authorisation is an authorisation to the company to introduce water into a water undertaker’s supply system, by means of which any particular supply of water in accordance with the retail authorisation is to take place, in connection with that supply and in accordance with Chapter 2A of Part 3 of this Act.

(6)A water supply licence which gives a company also the supplementary authorisation is referred to in this Chapter as a “combined licence”.

(7)Before granting a combined licence—

(a)the Secretary of State shall consult the Assembly; and

(b)the Authority shall consult the Secretary of State and the Assembly.

(8)A water supply licence shall not be granted to a company unless—

(a)it is a limited company; and

(b)it is not a relevant undertaker.

(9)The Authority may, with the approval of the Secretary of State, issue guidance as to the factors which are, or are not, to be taken into account in determining the extent of any premises for the purposes of subsection (3) above.

(10)Before giving his approval to any guidance issued under subsection (9) above, the Secretary of State shall consult the Assembly.

17BSection 17A: supplementaryE+W

(1)The Authority shall publish guidance issued under section 17A(9) above in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(2)The Authority may, with the approval of the Secretary of State, revise the guidance so issued.

(3)Before giving his approval to guidance revised under subsection (2) above, the Secretary of State shall consult the Assembly.

(4)Subsection (1) above applies to guidance revised under subsection (2) above as it applies to guidance issued under section 17A(9) above.

(5)In this Chapter, references to the supply system of a water undertaker are to the system comprising the following—

(a)any water mains and other pipes which it is the water undertaker’s duty to develop and maintain by virtue of section 37 below and which are used for the purpose of conveying water from the undertaker’s treatment works to the premises of customers; and

(b)any water mains and other pipes which—

(i)are used by the undertaker for the purpose of conveying non-domestic water from any of its sources to the premises of customers; and

(ii)are not connected to any water mains or pipes falling within paragraph (a) above or to any water mains or other pipes connected to the treatment works mentioned in that paragraph (whether directly or indirectly),

and in sub-paragraph (i) above the reference to non-domestic water is to water supplied other than for domestic or food production purposes.

(6)In subsection (5)(a) above, the reference to treatment works is a reference to the works designated from time to time by the Secretary of State as treatment works for the purposes of this subsection.

(7)Before designating any works for the purposes of subsection (6) above, the Secretary of State shall consult the Assembly.

(8)A list of any works designated for the purposes of subsection (6) above shall be published from time to time by the Secretary of State in such manner as he considers appropriate for the purpose of bringing the designations to the attention of persons likely to be affected by them.

(9)References in this Act to a licensed water supplier are references to a company which is the holder for the time being of a water supply licence.

17CMeaning of household premisesE+W

(1)For the purposes of section 17A(3)(a) above, “household premises” means premises in which, or in any part of which, a person has his home.

(2)The fact that a person has his home in, or in part of, any premises does not mean that the premises are household premises unless the principal use of the premises is as a home.

(3)The Secretary of State may by regulations make provision as to—

(a)the circumstances in which a person is or is not to be treated as having his home in, or in part of, any premises for the purposes of this section; and

(b)the factors which are, or are not, to be taken into account in determining the principal use of any premises for those purposes.

(4)The power to make regulations under subsection (3) above is exercisable by the Assembly (and not by the Secretary of State) in relation to premises supplied with water using the supply system of a water undertaker whose area is wholly or mainly in Wales.

17DThe threshold requirementE+W

(1)This section applies for the purpose of construing the reference to the threshold requirement in section 17A(3)(b) above in relation to the supply of water to any premises.

(2)The requirement is that, at the time when the licensed water supplier first enters into an undertaking with a customer to give the supply, the total quantity of water estimated to be supplied to the premises annually pursuant to the undertaking is not less than 50 megalitres.

(3)Any estimate of the quantity of water to be supplied to any premises for the purposes of subsection (2) above shall be made in accordance with guidance issued by the Authority with the approval of the Secretary of State.

(4)Any guidance issued under subsection (3) above may, in particular—

(a)specify—

(i)the factors to be, and not to be, taken into account;

(ii)the assumptions to be made; and

(iii)the method of calculation to be employed,

in making estimates; and

(b)make provision as to the commencement of the annual periods by reference to which estimates are to be made.

(5)Before giving his approval to any guidance issued under that subsection, the Secretary of State shall consult the Assembly.

(6)Subsections (1) to (4) of section 17B above apply to guidance issued under subsection (3) above as they apply to guidance issued under section 17A(9) above.

(7)The Secretary of State may make provision by regulations as to the circumstances in which a licensed water supplier is not, for the purposes of subsection (2) above, to be treated as entering into an undertaking with a new customer to give a supply of water to any premises (subject to subsection (12) below).

(8)The Secretary of State may by regulations amend subsection (2) above by substituting, for the quantity of water for the time being specified there, a different quantity of water (subject to subsection (12) below).

(9)Regulations under subsection (8) above—

(a)shall include provision for the amendment made by the regulations not to apply in relation to any undertaking entered into before the date on which the regulations come into force; and

(b)may include provision for that amendment not to apply in relation to any undertaking which is proposed, but not entered into, before that date.

(10)A statutory instrument containing regulations under subsection (8) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(11)Before making regulations under subsection (8) above, the Secretary of State shall consult—

(a)the Authority; and

(b)such other persons (if any) as the Secretary of State thinks it appropriate to consult.

(12)The powers to make regulations under subsections (7) and (8) above are exercisable by the Assembly (and not by the Secretary of State) in relation to premises supplied with water using the supply system of a water undertaker whose area is wholly or mainly in Wales.

(13)Subsections (9) and (11) above apply in relation to regulations made by the Assembly under subsection (8) above by virtue of subsection (12) above as they apply in relation to regulations made by the Secretary of State under subsection (8) above.

17EDeterminations by the AuthorityE+W

(1)The Authority may determine, in a case referred to it by a licensed water supplier or a potential customer of a licensed water supplier, whether a proposed supply of water by the supplier to the customer would be in accordance with the retail authorisation given to the supplier in the licence.

(2)The matters which the Authority may determine include the following matters—

(a)the extent of the premises to be supplied for the purposes of section 17A(3) above;

(b)whether the premises to be supplied are household premises (as defined in section 17C above); and

(c)whether the threshold requirement is satisfied in relation to the premises to be supplied (construed in accordance with section 17D above),

and also include any other matter the determination of which is relevant to those matters.

17FProcedure for granting water supply licencesE+W

(1)An application for—

(a)a water supply licence;

(b)the variation of a retail licence so that it gives also the supplementary authorisation; or

(c)the variation of a combined licence so that it gives only the retail authorisation,

shall be made in such form and manner, and shall contain, or be accompanied by, such information and documents and such fee (if any), as may be prescribed.

(2)Within the prescribed period after the making of such an application, the applicant shall publish in the prescribed manner a notice of the application containing such particulars as may be prescribed.

(3)The particulars which may be prescribed by virtue of subsection (2) above include the time within which, and the address at which, representations or objections with respect to the application may be made.

(4)If the Secretary of State or the Authority proposes to refuse the application, he or it shall give to the applicant a notice—

(a)stating that he or it proposes to refuse the application;

(b)stating the reasons why he or it proposes to refuse the application; and

(c)specifying the time within which representations or objections with respect to the proposed refusal may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)The Secretary of State may make provision by regulations disapplying subsections (2) and (3) above in relation to an application under subsection (1) above in such circumstances as may be prescribed.

(6)A licence shall be in writing and, unless revoked or suspended in accordance with any condition contained in it, shall continue in force for such period as may be specified in or determined by or under the licence.

(7)As soon as practicable after granting a licence or variation of a licence, the Secretary of State or the Authority shall serve a copy of the licence or licence as varied—

(a)on the licence holder;

(b)on the Assembly;

(c)on the Chief Inspector of Drinking Water;

(d)on the Environment Agency;

(e)on the Council;

(f)on each relevant undertaker;

(g)on each licensed water supplier (other than the holder of the licence in question);

(h)if the licence or variation is granted by the Secretary of State, on the Authority;

(i)if the licence or variation is granted by the Authority, on the Secretary of State.

(8)Any sums received by the Secretary of State or by the Authority by virtue of this section shall be paid into the Consolidated Fund.

Licence conditionsE+W+S+N.I.

17GWater supply licence conditionsE+W+S+N.I.

(1)A water supply licence may include—

(a)such conditions as appear to the Secretary of State or, as the case may be, the Authority to be requisite or expedient having regard to the duties imposed on him or it by Part 1 of this Act;

(b)conditions requiring the rendering to the Secretary of State of a payment on the grant of a water supply licence, or payments while such a licence is in force, or both, of such amount or amounts as may be determined by or under the conditions.

(2)Conditions may be included by virtue of subsection (1)(a) above in a water supply licence whether or not they are connected with the supply of water or the introduction of water into a water undertaker’s supply system.

(3)Conditions included in a water supply licence may—

(a)require the holder of the licence to comply with any direction given by a specified relevant person as to specified matters or matters which are of a specified description;

(b)require the holder of the licence to do or not to do specified things or things which are of a specified description, except in so far as a specified relevant person consents to the holder’s not doing or doing them; and

(c)provide for the reference to and determination by a specified relevant person of specified questions, or questions which are of a specified description, which arise under or in connection with the licence.

(4)For the purposes of subsection (3) above—

(a)the following are relevant persons—

(i)the Secretary of State;

(ii)the Authority;

(iii)the Assembly;

(iv)the Environment Agency; and

(b)specified” means specified in the licence in question.

(5)Conditions included in a water supply licence may contain provision for the conditions to have effect, cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined in accordance with the conditions.

(6)Any such condition as is referred to in subsection (5) above shall have effect in addition to the provision made by this Chapter with respect to the modification of the conditions of a licence.

(7)Any sums received by the Secretary of State by virtue of this section shall be paid into the Consolidated Fund.

17HStandard conditions of water supply licencesE+W+S+N.I.

(1)Such conditions as may be—

(a)determined by the Secretary of State (after consulting the Assembly); and

(b)published by him in such manner as he considers appropriate,

shall be standard conditions of water supply licences granted by the Secretary of State or the Authority.

(2)The standard conditions which may be determined may be different for—

(a)retail licences; and

(b)combined licences,

and standard conditions relating to the retail authorisation may be different depending on whether they are to relate to retail licences or combined licences.

(3)The power to determine standard conditions in relation to retail licences and combined licences may be exercised only before the grant of (respectively) the first retail licence and the first combined licence (but this is without prejudice to the power to modify standard conditions in accordance with the provisions of this Chapter).

(4)The standard conditions for the purposes of water supply licences of either description may contain provision—

(a)for any standard condition included in a licence of that description not to have effect until brought into operation in such manner and in such circumstances as may be specified in or determined under the standard conditions;

(b)for the effect of any standard condition included in such a licence to be suspended in such manner, and in such circumstances, as may be so specified or determined; and

(c)for any standard condition included in such a licence which is for the time being suspended to be brought back into operation in such manner and in such circumstances as may be so specified or determined.

(5)Subject to subsection (6) below, each condition which is a standard condition shall be incorporated by reference in each water supply licence (or in each such licence to which the standard condition applies).

(6)Subject to the following provisions of this section, the Secretary of State or the Authority may, in granting a licence, exclude or modify any of the standard conditions to such extent as he or it considers requisite to meet the circumstances of a particular case.

(7)Before excluding any standard conditions or making any modifications under subsection (6) above, the Secretary of State or the Authority shall give notice—

(a)stating that he or it proposes to exclude the conditions or make the modifications and setting out the effect of so doing;

(b)stating the reasons why he or it proposes to exclude the conditions or make the modifications; and

(c)specifying the time (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed exclusions or modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(8)A notice under subsection (7) above shall be given—

(a)by publishing the notice in such manner as the Secretary of State or (as the case may be) the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the exclusions or modifications; and

(b)by serving a copy of the notice—

(i)on the Assembly;

(ii)on the Chief Inspector of Drinking Water;

(iii)if the notice is published by the Secretary of State, on the Authority;

(iv)if the notice is published by the Authority, on the Secretary of State.

(9)If, within the time specified in the notice under subsection (7) above, the Secretary of State (after consulting the Assembly) directs the Authority not to exclude or modify any standard condition, the Authority shall comply with the direction.

(10)The Secretary of State or the Authority shall not exclude any conditions, or make any modifications, under subsection (6) above unless he or it is of the opinion that the exclusions or modifications are such that—

(a)the licence holder would not be unduly disadvantaged in competing with other holders of water supply licences; and

(b)no other holder of a water supply licence would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence).

(11)The modification under subsection (6) above of part of a standard condition shall not prevent any other part of the condition from continuing to be treated as a standard condition for the purposes of this Chapter.

17IModification of water supply licences by agreementE+W+S+N.I.

(1)Subject to the following provisions of this section, the Authority may modify the conditions of a particular water supply licence.

(2)The Authority may not make any modifications under this section unless the licence holder has consented to the modifications and, in the case of standard conditions of the licence, the Authority is of the opinion that the modifications—

(a)are requisite to meet the circumstances of the particular case; and

(b)are such that—

(i)the licence holder would not be unduly disadvantaged in competing with other holders of water supply licences; and

(ii)no other holder of a water supply licence would be unduly disadvantaged in competing with other holders of such licences (including the holder of the licence being modified).

(3)Before making modifications under this section, the Authority shall give notice—

(a)stating that it proposes to make the modifications and setting out their effect;

(b)stating the reasons why it proposes to make the modifications; and

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on—

(i)the licence holder;

(ii)the Council;

(iii)the Secretary of State;

(iv)the Assembly; and

(v)the Chief Inspector of Drinking Water.

(5)If, within the period specified in the notice under subsection (3) above, the Secretary of State (after consulting the Assembly) directs the Authority not to make any modification, the Authority shall comply with the direction.

(6)The modification under this section of part of a standard condition of a licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Chapter.

17JModification of standard conditions of water supply licencesE+W+S+N.I.

(1)Subject to the following provisions of this section, the Authority may modify the standard conditions of retail licences or combined licences.

(2)Where at any time the Authority modifies the standard conditions of retail licences or combined licences under this section the Authority may make such incidental or consequential modifications as it considers necessary or expedient of any conditions of any licence of that description.

(3)Before making any modifications under this section, the Authority shall give notice—

(a)stating that it proposes to make the modifications and setting out their effect;

(b)stating the reasons why it proposes to make the modifications; and

(c)specifying the time (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on—

(i)each relevant licence holder;

(ii)the Council;

(iii)the Secretary of State;

(iv)the Assembly; and

(v)the Chief Inspector of Drinking Water.

(5)If, within the time specified in the notice under subsection (3) above, the Secretary of State (after consulting the Assembly) directs the Authority not to make any modification, the Authority shall comply with the direction.

(6)The Authority may not under this section make any modifications of the standard conditions of retail licences or combined licences unless—

(a)no notice of objection to those modifications is given by any relevant licence holder to the Authority within the time specified in the notice under subsection (3) above;

(b)if one or more relevant licence holders give notice of objection to the Authority within that time—

(i)the proportion (expressed as a percentage) of the relevant licence holders who have given notice of objection is less than such percentage as may be specified in an order made by statutory instrument by the Secretary of State; and

(ii)the percentage given by subsection (7) below is less than such percentage as may be so specified; or

(c)subsection (8) below applies to the case.

(7)The percentage given by this subsection is the proportion (expressed as a percentage) of the relevant licence holders who have given notice of objection, weighted according to their market share at such time and in such manner as may be specified in an order under subsection (6) above.

(8)This subsection applies where the Authority is satisfied that—

(a)the effect of the standard conditions is such as to impose a burden affecting relevant licence holders in the carrying on of activities to which the modifications relate;

(b)the modifications would remove or reduce the burden without removing any necessary protection; and

(c)the modifications are such that no holder of a water supply licence would be unduly disadvantaged in competing with other holders of such licences.

(9)An order under subsection (6) above may include such supplemental, consequential and transitional provision as the Secretary of State considers appropriate.

(10)Before making an order under subsection (6) above, the Secretary of State shall consult the Assembly.

(11)A statutory instrument containing an order under subsection (6) above shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(12)Where the Authority modifies the standard conditions of retail licences or combined licences, the Authority shall—

(a)also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that description granted after that time; and

(b)publish the modifications in such manner as it considers appropriate.

(13)In this section “relevant licence holder”, in relation to proposed modifications of standard conditions of retail licences or combined licences, means the holder of a licence of that description—

(a)which is to be modified under the proposals by the inclusion of any new standard condition; or

(b)which includes any standard conditions to which the proposals relate, other than standard conditions which are not in effect (by virtue of anything done under section 17H(4) above) at the time specified in the notice under subsection (3) above.

17KWater supply licences: modification references to Competition CommissionE+W+S+N.I.

(1)The Authority may make to the Competition Commission (in this section and the following provisions of this Chapter referred to as “the Commission”) a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which—

(i)relate to the carrying on of activities authorised or regulated by a particular licence; and

(ii)are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have, or may be expected to have, could be remedied or prevented by modifications of the conditions of the licence.

(2)The Authority may make to the Commission a reference which is so framed as to require the Commission to investigate and report on the questions—

(a)whether any matters which—

(i)relate to the carrying on of activities authorised or regulated by retail licences or combined licences; and

(ii)are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have, or may be expected to have, could be remedied or prevented by modifications of the standard conditions of licences of that description.

(3)The Authority may, at any time, by notice given to the Commission vary a reference under this section by—

(a)adding to the matters specified in the reference; or

(b)excluding from the reference some of the matters so specified,

and on receipt of any such notice the Commission shall give effect to the variation.

(4)The Authority may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the Commission in carrying out the investigation on the reference—

(a)any effects adverse to the public interest which, in its opinion, the matters specified in the reference or variation have or may be expected to have; and

(b)any modifications of the relevant conditions by which, in its opinion, those effects could be remedied or prevented.

(5)As soon as practicable after making a reference under this section or a variation of such a reference, the Authority shall—

(a)publish particulars of the reference or variation in such manner as it considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it; and

(b)serve a copy of the reference or variation on—

(i)the licence holder or, as the case may be, the relevant licence holders;

(ii)the Council;

(iii)the Secretary of State;

(iv)the Assembly; and

(v)the Chief Inspector of Drinking Water.

(6)If, before the end of the period of twenty-eight days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the Commission—

(a)not to proceed with the reference; or

(b)not to give effect to the variation,

the Commission shall comply with the direction.

(7)It shall be the duty of the Authority, for the purpose of assisting the Commission in carrying out an investigation on a reference under this section or in carrying out functions under section 17P below, to give to the Commission—

(a)any information in the Authority’s possession which relates to matters falling within the scope of the investigation or the carrying out of those functions and which is either—

(i)requested by the Commission for that purpose; or

(ii)information which, in the Authority’s opinion, it would be appropriate for that purpose to give to the Commission without any such request; and

(b)any other assistance which the Commission may require, and which it is within the Authority’s power to give, in relation to any such matters,

and the Commission, for the purpose of carrying out any such investigation or such functions, shall take account of any information given to it for that purpose under this subsection.

(8)In this section and the following provisions of this Chapter—

  • relevant conditions”—

    (a)

    in relation to a reference under subsection (1) above, means the conditions of the licence to which the reference relates; and

    (b)

    in relation to a reference under subsection (2) above, means the standard conditions of the licences to which the reference relates; and

  • relevant licence holder” means the holder of a licence to which a reference under subsection (2) above relates.

(9)In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the Commission shall have regard to the matters as respects which duties are imposed on the Secretary of State and the Authority by Part 1 of this Act.

17LReferences under section 17K: time limitsE+W+S+N.I.

(1)Every reference under section 17K above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2)A report of the Commission on a reference under section 17K above shall not have effect (and no action shall be taken in relation to it under section 17O below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.

(3)The Authority may, if it has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4)No more than one extension is possible under subsection (3) above in relation to the same reference.

(5)The Authority shall, in the case of an extension made by it under subsection (3) above—

(a)publish that extension in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b)send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.

17MReferences under section 17K: powers of investigationE+W+S+N.I.

(1)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 17K above as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2)Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a)subsection (2) were omitted; and

(b)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3)Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a)for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted made;

(b)for the words “published (or given)”, in both places where they appear, there were substituted made; and

(c)the words “by this Part” were omitted.

(4)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.

(5)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.

17NWater supply licences: reports on modification referencesE+W+S+N.I.

(1)In making a report on a reference under section 17K above, the Commission—

(a)shall include in the report definite conclusions on the questions comprised in the reference together with such an account of its reasons for those conclusions as in its opinion is expedient for facilitating a proper understanding of those questions and of its conclusions;

(b)where it concludes that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c)where it concludes that any adverse effects so specified could be remedied or prevented by modifications of the relevant conditions, shall specify in the report modifications by which those effects could be remedied or prevented.

(2)For the purposes of section 17O below, a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(3)If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 17K above as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

(4)For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under section 17K above.

(5)In making any report on a reference under section 17K above the Commission must have regard to the following considerations before disclosing any information.

(6)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

(7)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or

(b)information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

(8)The third consideration is the extent to which the disclosure of the information mentioned in subsection (7)(a) or (b) above is necessary for the purposes of the report.

(9)A report of the Commission on a reference under section 17K above shall be made to the Authority.

(10)Subject to subsection (13) below, the Authority shall—

(a)on receiving a report on a reference under section 17K(1) above, serve a copy of it on—

(i)the licence holder;

(ii)the Council;

(iii)the Secretary of State; and

(iv)the Assembly; and

(b)not earlier than the relevant time, publish another copy of the report in such manner as it considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(11)Subject to subsection (13) below, the Authority shall—

(a)on receiving a report on a reference under section 17K(2) above, serve a copy of it on—

(i)the Secretary of State; and

(ii)the Assembly; and

(b)not earlier than the relevant time—

(i)serve another copy on each relevant licence holder; and

(ii)not less than twenty-four hours after complying with sub-paragraph (i) above, publish another copy of the report in such manner as it considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(12)For the purposes of subsections (10) and (11) above, the “relevant time” means—

(a)fourteen days after the copy of the report in question is received by the Secretary of State and the Assembly, or

(b)if copies are received by them on different days, fourteen days after the later day.

(13)Subsection (14) below applies if it appears to the Secretary of State that the publication of any matter in a report on a reference under section 17K(1) or (2) above would be against—

(a)the public interest; or

(b)the commercial interests of any person.

(14)The Secretary of State may, not later than the relevant time for the purposes of subsection (10) or (11) above, direct the Authority to exclude that matter from the copy of the report, or (as the case may be) each copy of the report, to be served and published as mentioned in paragraph (b) of that subsection; and the Authority shall comply with any such direction.

17OWater supply licences: modification following reportE+W+S+N.I.

(1)Where a report of the Commission on a reference under section 17K above—

(a)includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;

(b)specifies effects adverse to the public interest which those matters have or may be expected to have;

(c)includes conclusions to the effect that those effects could be remedied or prevented by modifications of the relevant conditions; and

(d)specifies modifications by which those effects could be remedied or prevented,

the Authority shall, subject to the following provisions of this section, make such modifications of the relevant conditions as appear to it requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(2)Where at any time it modifies under subsection (1) above the standard conditions of retail licences or combined licences in consequence of a reference under section 17K(2) above, the Authority may make such incidental or consequential modifications as it considers necessary or expedient of any conditions of licences of that description.

(3)Before making modifications under this section, the Authority shall have regard to the modifications specified in the report.

(4)Before making modifications under this section, the Authority shall give notice—

(a)stating that it proposes to make the modifications and setting out their effect;

(b)stating the reasons why it proposes to make the modifications; and

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given—

(a)by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications;

(b)by serving a copy of the notice on the holder of the licence in question or, as the case may be, the relevant licence holders; and

(c)by serving a copy of the notice on—

(i)the Council;

(ii)the Secretary of State;

(iii)the Assembly; and

(iv)the Chief Inspector of Drinking Water.

(6)After considering any representations or objections made in response to proposals set out in a notice under subsection (4) above, the Authority shall give notice to the Commission—

(a)setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and

(b)stating the reasons for making the modifications.

(7)The Authority shall include with the notice under subsection (6) above a copy of any representations or objections received in relation to the notice under subsection (4) above.

(8)If the period of four weeks from the date on which the notice under subsection (6) above is given elapses without a direction under section 17P(1)(a) below having been given to it, the Authority shall—

(a)make the modifications set out in the notice; or

(b)if a direction under section 17P(1)(b) below has been given, make the modifications which are not specified in the direction.

(9)The modification under subsection (1) above of part of a standard condition of a particular licence in consequence of a reference under section 17K(1) above shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Chapter.

(10)Where at any time it modifies under subsection (1) above the standard conditions of retail licences or combined licences in consequence of a reference under section 17K(2) above, the Authority shall—

(a)also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that description granted after that time; and

(b)publish the modifications made for those purposes in such manner as it considers appropriate.

17PWater supply licences: Commission’s power of veto following reportE+W+S+N.I.

(1)The Commission may, within the period of four weeks after the date on which it is given a notice under section 17O(6) above, direct the Authority—

(a)not to make the modifications set out in that notice; or

(b)not to make such of the modifications as may be specified in the direction;

and the Authority shall comply with any such direction.

(2)The Secretary of State may—

(a)within the period of four weeks after the date on which the Commission is given a notice under section 17O(6) above; and

(b)on the application of the Commission,

direct that the period for giving a direction under subsection (1) above (and, accordingly, the period mentioned in section 17O(8) above) shall be extended by fourteen days.

(3)The power to give a direction under subsection (1) above may only be exercised in respect of such of the modifications set out in the notice under section 17O(6)(a) above as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.

(4)If the Commission gives a direction under subsection (1) above, it shall—

(a)give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and

(b)make such modifications itself of the relevant conditions as appear to it to be requisite for the purpose of remedying or preventing—

(i)if the direction was given under subsection (1)(a) above, the adverse effects specified in the report as effects which could be remedied or prevented by modifications;

(ii)if the direction was given under subsection (1)(b) above, such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 17O(8)(b) above.

(5)In exercising its power under subsection (4)(b) above the Commission shall have regard to the matters as respects which duties are imposed on the Authority by Part 1 of this Act.

(6)Before making modifications under subsection (4)(b) above the Commission shall give notice—

(a)stating that it proposes to make the modifications and setting them out;

(b)stating the reason why it proposes to make them;

(c)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7)A notice under subsection (4)(a) or (6) above shall be given—

(a)by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications;

(b)by serving a copy of the notice on—

(i)the Authority;

(ii)the holder of the licence in question or, as the case may be, the relevant licence holders;

(iii)the Council;

(iv)the Secretary of State;

(v)the Assembly; and

(vi)the Chief Inspector of Drinking Water.

(8)After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.

(9)The modification under this section of part of a standard condition of a particular licence in consequence of a reference under section 17K(1) above shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Chapter.

(10)Where, in consequence of a reference under section 17K(2) above, the Commission modifies under subsection (4)(b) above the standard conditions of retail licences or combined licences, the Authority may make such incidental or consequential modifications as it considers necessary or expedient of any conditions of licences of that description.

(11)Where, in consequence of a reference under section 17K(2) above, the Commission modifies under subsection (4)(b) above the standard conditions of retail licences or combined licences, the Authority shall—

(a)make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that description granted after that time, and

(b)publish the modifications made for those purposes in such manner as it considers appropriate.

17QSection 17P: supplementaryE+W+S+N.I.

(1)For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (8) of section 17P above.

(2)In giving any notice under subsection (4)(a) or (6) of section 17P above, or publishing any notice under subsection (8) of that section, the Commission must have regard to the following considerations before disclosing any information.

(3)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.

(4)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or

(b)information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual’s interests.

(5)The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) above is necessary for the purposes of the notice.

(6)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8) below, for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under section 17P above, as they apply for the purposes of any investigation on references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(7)Section 110 shall, in its application by virtue of subsection (6) above, have effect as if—

(a)subsection (2) were omitted,

(b)in subsection (4), for the words “the publication of the report of the Commission on the reference concerned” there were substituted the publication by the Commission of a notice under section 17P(8) of the Water Industry Act 1991 in connection with the reference concerned or, if no direction has been given by the Commission under section 17P(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period; and

(c)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(8)Section 111(5)(b) shall, in its application by virtue of subsection (6), have effect as if for sub-paragraph (ii) there were substituted—

(ii)if earlier, the day on which a notice is published by the Commission under section 17P(8) of the Water Industry Act 1991 in connection with the reference concerned or, if no direction is given by the Commission under section 17P(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.

(9)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (6) above, have effect in relation to those sections as applied by virtue of that subsection.

(10)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection.

17RWater supply licences: modification by order under other enactmentsE+W+S+N.I.

(1)Where the OFT, the Commission or the Secretary of State (the “relevant authority”) makes a relevant order, the order may also provide for the modification of—

(a)the conditions of a particular retail licence or combined licence; or

(b)the standard conditions of retail licences or combined licences,

to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

(2)In subsection (1) above “relevant order” means—

(a)an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

(i)one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the carrying on of activities authorised or regulated by a retail licence or combined licence; or

(ii)one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the carrying on of activities authorised or regulated by a retail licence or combined licence; or

(b)an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to activities authorised or regulated by a retail licence or combined licence.

(3)The modification under subsection (1)(a) above of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Chapter.

(4)Where at any time the relevant authority modifies under subsection (1)(b) above the standard conditions of retail licences or combined licences, the relevant authority—

(a)shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that description granted after that time; and

(b)may, after consultation with the Authority, make such incidental or consequential modifications as the relevant authority considers necessary or expedient of any conditions of licences of that description granted before that time.

(5)Where at any time the relevant authority modifies standard conditions of retail licences or combined licences under subsection (4)(a) above for the purposes of their incorporation in licences, the relevant authority shall publish those modifications in such manner as the relevant authority considers appropriate.

(6)Expressions used in subsection (2) above and in Part 3 or 4 of the Enterprise Act 2002 have the same meaning in that subsection as in that Part.]

CHAPTER IIE+W ENFORCEMENT OF INSOLVENCY

Enforcement ordersE+W

18 Orders for securing compliance with certain provisions.E+W

(1)Subject to subsection (2) and sections 19 and 20 below, where in the case of any company holding an appointment under Chapter I of this Part [F57or a licence under Chapter 1A of this Part] the Secretary of State or the Director is satisfied—

(a)that that company is contravening—

(i)any condition of the company’s appointment [F58or licence] in relation to which he is the enforcement authority; or

(ii)any statutory or other requirement which is enforceable under this section and in relation to which he is the enforcement authority;

or

(b)that that company [F59is likely to contravene any such condition or requirement] ,

he shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

[F60(1A)Subject to subsection (2) and sections 19 and 20 below, where—

(a)in the case of any company holding an appointment under Chapter 1 of this Part, the Secretary of State or the Authority is satisfied that the company—

(i)is causing or contributing to a contravention of a condition or requirement such as is referred to in paragraph (a)(i) or (ii) of subsection (1) above by a company holding a licence under Chapter 1A of this Part; or

(ii)is likely to cause or contribute to any such contravention; or

(b)in the case of any company holding a licence under Chapter 1A of this Part, the Secretary of State or the Authority is satisfied that the company—

(i)is causing or contributing to a contravention of a condition or requirement such as is referred to in paragraph (a)(i) or (ii) of subsection (1) above by a company holding an appointment under Chapter 1 of this Part; or

(ii)is likely to cause or contribute to any such contravention,

he or it shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.]

(2)Subject to section 19 below, where in the case of any company holding an appointment under Chapter I of this Part [F61or a licence under Chapter 1A of this Part]

(a)it appears to the Secretary of State or the Director as mentioned in paragraph (a) or (b) of subsection (1) [F62or (1A)] above; and

(b)it appears to him that it is requisite that a provisional enforcement order be made,

he may (instead of taking steps towards the making of a final order) by a provisional enforcement order make such provision as appears to him requisite for the purpose of securing compliance with the condition or requirement in question.

(3)In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional enforcement order be made, the Secretary of State or, as the case may be, the Director shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of any condition or of any statutory or other requirement enforceable under this section, is likely to be done, or omitted to be done, before a final enforcement order may be made.

(4)Subject to sections 19 and 20 below, where the Secretary of State or the Director has made a provisional enforcement order, he shall confirm it, with or without modifications, if—

(a)he is satisfied that the company to which the order relates—

(i)is contravening any condition or statutory or other requirement in relation to which he is the enforcement authority; or

[F63(ii)is likely to contravene any such condition or requirement;][F64or

(iii)is causing or contributing to a contravention of any such condition or requirement; or

(iv)is likely to cause or contribute to any such contravention;]

and

(b)the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.

(5)An enforcement order—

(a)shall require the company to which it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

(b)shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

(c)may be revoked at any time by the enforcement authority who made it.

(6)For the purposes of this section and the following provisions of this Act—

(a)the statutory and other requirements which shall be enforceable under this section in relation to a company holding an appointment under Chapter I of this Part [F65or a licence under Chapter 1A of this Part] shall be such of the requirements of any enactment or of any subordinate legislation as—

(i)are imposed in consequence of that appointment [F66or licence] ; and

(ii)are made so enforceable by that enactment or subordinate legislation;

(b)the Director shall be the enforcement authority in relation to the conditions of an appointment under Chapter I of this Part [F67or of a licence under Chapter 1A of this Part] ; and

(c)the enforcement authority in relation to each of the statutory and other requirements enforceable under this section shall be the Secretary of State, the Director or either of them, according to whatever provision is made by the enactment or subordinate legislation by which the requirement is made so enforceable.

(7)In this section and the following provisions of this Chapter—

  • enforcement order” means a final enforcement order or a provisional enforcement order;

  • final enforcement order” means an order under this section other than a provisional enforcement order;

  • provisional enforcement order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order.

[F68(8)Where any act or omission—

(a)constitutes a contravention of a condition of an appointment under Chapter 1 of this Part or of a condition of a licence under Chapter 1A of this Part or of a statutory or other requirement enforceable under this section; or

(b)causes or contributes to a contravention of any such condition or requirement,

the only remedies for, or for causing or contributing to, that contravention (apart from those available by virtue of this section) shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting, or causing or contributing to, such a contravention.]

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

C18S. 18: power to extend conferred (01.12.1991) by Water Resources Act 1991 (c. 57, SIF 130), ss. 219(2)(a), 225(2).

19 Exceptions to duty to enforce.E+W

(1)[F69Subject to the Drinking Water (Undertakings) (England and Wales) Regulations 2000]Neither the Secretary of State nor the Director shall be required to make an enforcement order in relation to any company, or to confirm a provisional enforcement order so made, if he is satisfied—

(a)that the contraventions were, or the apprehended contraventions are, of a trivial nature;

[F70(aa)that the extent to which the company caused or contributed to, or was likely to cause or contribute to, a contravention was trivial;]

(b)that the company has given, and is complying with, an undertaking to take all such steps as it appears to him for the time being to be appropriate for the company to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or

(c)that the duties imposed on him by Part I of this Act preclude the making or, as the case may be, the confirmation of the order.

F71[(1A)The Director shall not be required to make an enforcement order, or to confirm a provisional enforcement order, if he is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.]

(2)The requirement to comply with an undertaking given for the purposes of subsection (1)(b) above shall be treated as a statutory requirement enforceable under section 18 above—

(a)by the Secretary of State; or

(b)with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

(3)Where the Secretary of State or the Director, having notified a company that he is considering the making in relation to the company of an enforcement order or the confirmation of a provisional enforcement order so made, is satisfied as mentioned in paragraph (a), [F72(aa),](b) or (c) of subsection (1) above [F73or, in the case of the Director, is satisfied as mentioned in subsection (1A) above,] he shall—

(a)serve notice that he is so satisfied on the company;

[F74(b)publish in such manner as the Secretary of State or the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them—

(i)a copy of the notice, and

(ii)where the Secretary of State or the Authority is satisfied as mentioned in paragraph (b) of subsection (1), a summary of the undertaking describing the steps to be taken under it; and]

(c)in a case where the Secretary of State is satisfied as mentioned in the said paragraph (b), serve a copy of the notice and of the undertaking given for the purposes of that paragraph on the Director.

[F75(3A)In a case where notice under subsection (3)(a) falls to be served by the Welsh Ministers, references to the Secretary of State in subsection (3)(b) are to be read as references to the Welsh Ministers.]

(4)The requirements of subsection (3) above shall not apply, in the case of any proposed order or confirmation in respect of a direction under section 208 below, to the extent that the Secretary of State directs that they should not be complied with in the interests of national security.

Annotations:

Amendments (Textual)

F69Words in s. 19(1) inserted (14.6.2000) by S.I. 2000/1297, art. 8

F73Words in s. 19(3) inserted (1.3.2000) by 1998 c. 41, s. 54(3), Sch. 10 Pt. IV para. 13(7) (with s. 73); S.I. 2000/344, art. 2 Sch.

Modifications etc. (not altering text)

C23S. 19(1)(b) restricted (14.6.2000) by S.I. 2000/1297, art. 2

C24S. 19(4): functions exercisable by the Assembly concurrently with the Ministers of the Crown (W.) (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

20 Procedure for enforcement orders.d1>E+W

(1)Before making a final enforcement order [F76under section 18(1) above] or confirming a provisional enforcement order [F77in a case in which section 18(4)(a)(i) or (ii) above applies] , the Secretary of State or the Director shall give notice—

(a)stating that he proposes to make or confirm the order and setting out the effect of the order;

(b)setting out—

(i)the condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed;

(ii)the acts or omissions which, in his opinion, constitute or would constitute contraventions of that condition or requirement; and

(iii)the other facts which, in his opinion, justify the making or confirmation of the order;

and

(c)specifying the period (not being less than [F78twenty-one] days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

[F79(1A)Before making a final enforcement order under section 18(1A) above or confirming a provisional enforcement order in a case in which section 18(4)(a)(iii) or (iv) above applies, the Secretary of State or the Authority shall give notice—

(a)stating that he or it proposes to make or confirm the order and setting out the effect of the order;

(b)setting out—

(i)the condition or requirement for the purposes of securing compliance with which the order is to be made or confirmed;

(ii)the acts or omissions which, in his or its opinion, cause or contribute to or would cause or contribute to the contravention of that condition or requirement; and

(iii)the other facts which, in his or its opinion, justify the making or confirmation of the order; and

(c)specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.]

(2)A notice under subsection (1) [F80or (1A)] above shall be given—

(a)by publishing the notice in such manner as the Secretary of State or, as the case may be, the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b)by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the company to which the order relates and, where the notice is given by the Secretary of State, on the Director.

(3)Neither the Secretary of State nor the Director shall make a final enforcement order with modifications, or confirm a provisional enforcement order with modifications, except—

(a)with the consent to the modifications of the company to which the order relates; or

(b)after complying with the requirements of subsection (4) below.

(4)The requirements mentioned in subsection (3) above are that the Secretary of State or, as the case may be, the Director shall—

(a)serve on the company to which the order relates such notice as appears to him to be requisite of his proposal to make or confirm the order with modifications;

(b)in that notice specify the period (not being less than [F81twenty-one] days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(c)consider any representations or objections which are duly made and not withdrawn.

(5)As soon as practicable after making an enforcement order or confirming a provisional enforcement order, the Secretary of State or, as the case may be, the Director shall—

(a)serve a copy of the order on the company to which the order relates and, where this subsection applies in the case of an order made or confirmed by Secretary of State, on the Director; and

(b)publish such a copy in such manner as he considers appropriate for the purpose of bringing the order to the attention of persons likely to be affected by it.

(6)Before revoking an enforcement order, other than an unconfirmed provisional order, the Secretary of State or the Director shall give notice—

(a)stating that he proposes to revoke the order and setting out its effect; and

(b)specifying the period (not being less than twenty-eight days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7)If, after giving a notice under subsection (6) above, the Secretary of State or the Director decides not to revoke the order to which the notice relates, he shall give notice of that decision.

(8)A notice under subsection (6) or (7) above shall be given—

(a)by publishing the notice in such manner as the Secretary of State or, as the case may be, the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b)by serving a copy of the notice on the company to which the order relates and, where the notice is given by the Secretary of State, on the Director.

(9)The requirements of the preceding provisions of this section shall not apply, in the case of any order in respect of a contravention of a direction under section 208 below, to the extent that the Secretary of State directs that they should not be complied with in the interests of national security.

Annotations:

Amendments (Textual)

Modifications etc. (not altering text)

C25S. 20(9): functions exercisable by the Assembly concurrently with the Ministers of the Crown (W.) (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

21 Validity of enforcement orders.E+W

(1)If the company to which an enforcement order relates is aggrieved by the order and desires to question its validity on the ground—

(a)that its making or confirmation was not within the powers of section 18 above; or

(b)that any of the requirements of section 20 above have not been complied with in relation to it,

the company may, within forty-two days from the date of service on it of a copy of the order, make an application to the High Court under this section.

(2)On any such application the High Court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the company have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.

(3)Except as provided by this section, the validity of an enforcement order shall not be questioned in any legal proceedings whatsoever.

22 Effect of enforcement order.E+W

(1)The obligation to comply with an enforcement order shall be a duty owed to any person who may be affected by a contravention of the order.

(2)Where a duty is owed by virtue of subsection (1) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.

(3)In any proceedings brought against any company in pursuance of subsection (2) above, other than proceedings in respect of so much of a contravention of any order as consists in a breach of the duty imposed by virtue of section 68(1)(a) [F82or (1A)(a)] below, it shall be a defence for the company to show that it took all reasonable steps and exercised all due diligence to avoid contravening the order.

(4)Without prejudice to any right which any person may have by virtue of subsection (1) above to bring civil proceedings in respect of any contravention or apprehended contravention of an enforcement order, compliance with any such order shall be enforceable by civil proceedings by the relevant enforcement authority for an injunction or for any other appropriate relief.

(5)In subsection (4) above “the relevant enforcement authority”, in relation to any enforcement order, means the Secretary of State or the Director or either of them according to who is the enforcement authority in relation to the condition or requirement compliance with which was to be secured by the order.

[F83Financial penaltiesE+W

Annotations:

Amendments (Textual)

F83Ss. 22A-22F and preceding cross-heading inserted (1.10.2004 for specified purposes and otherwise 1.4.2005) by Water Act 2003 (c. 37), ss. 48(1), 105(3); S.I. 2004/2528, art. 2(e) (with savings in art. 4); S.I. 2005/968, art. 2(i) (with savings in art. 4, Sch. 1, 2)

22APenaltiesE+W

(1)Where the Authority is satisfied—

(a)in the case of any company holding an appointment under Chapter 1 of this Part, that the company—

(i)has contravened or is contravening any condition of the appointment;

(ii)has caused or contributed to, or is causing or contributing to, a contravention by a company holding a licence under Chapter 1A of this Part of any condition of the licence; or

(iii)has failed or is failing to achieve any standard of performance prescribed under section 38(2) or 95(2) below; or

(b)in the case of any company holding a licence under Chapter 1A of this Part, that the company—

(i)has contravened or is contravening any condition of the licence; or

(ii)has caused or contributed to, or is causing or contributing to, a contravention by a company holding an appointment under Chapter 1 of this Part of any condition of the appointment,

the Authority may, subject to section 22C below, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.

(2)Where the Authority, the Secretary of State or the Assembly is satisfied—

(a)in the case of any company holding an appointment under Chapter 1 of this Part, that the company—

(i)has contravened or is contravening any statutory or other requirement which is enforceable under section 18 above and in relation to which he or it is the enforcement authority; or

(ii)has caused or contributed to, or is causing or contributing to, a contravention by a company holding a licence under Chapter 1A of this Part of any such requirement; or

(b)in the case of any company holding a licence under Chapter 1A of this Part, that the company—

(i)has contravened or is contravening any statutory or other requirement which is enforceable under section 18 above and in relation to which he or it is the enforcement authority; or

(ii)has caused or contributed to, or is causing or contributing to, a contravention by a company holding an appointment under Chapter 1 of this Part of any such requirement,

he or it may, subject to section 22C below, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.

(3)In a case in which—

(a)subsection (1) above applies by virtue of paragraph (a)(ii) or (b)(ii) of that subsection, or

(b)subsection (2) above applies by virtue of paragraph (a)(ii) or (b)(ii) of that subsection,

references in the following provisions of this section and sections 22B and 22C below to a contravention include references to causing or contributing to a contravention.

(4)Before imposing a penalty on a company under subsection (1) or (2) above the Authority, the Secretary of State or the Assembly (the “enforcement authority”) shall give notice—

(a)stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;

(b)setting out the condition, requirement or standard of performance in question;

(c)specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of a penalty and the amount of the penalty proposed; and

(d)specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)Before varying any proposal stated in a notice under subsection (4)(a) above the enforcement authority shall give notice—

(a)setting out the proposed variation and the reasons for it; and

(b)specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(6)As soon as practicable after imposing a penalty, the enforcement authority shall give notice—

(a)stating that he or it has imposed a penalty on the company and its amount;

(b)setting out the condition, requirement or standard of performance in question;

(c)specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of the penalty and its amount; and

(d)specifying a date, no earlier than the end of the period of forty-two days from the date of service of the notice on the company, by which the penalty is required to be paid.

(7)The company may, within twenty-one days of the date of service on it of a notice under subsection (6) above, make an application to the enforcement authority for him or it to specify different dates by which different portions of the penalty are to be paid.

(8)Any notice required to be given under this section shall be given—

(a)by publishing the notice in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;

(b)by serving a copy of the notice on the company;

(c)by serving a copy of the notice on the Council; and

(d)where the notice is given by the Secretary of State or the Assembly, by serving a copy of the notice on the Authority.

(9)Any sums received by the enforcement authority by way of penalty under this section shall be paid into the Consolidated Fund.

(10)The power of the enforcement authority to impose a penalty under this section is not exercisable in respect of any contravention or failure before the commencement of this section.

(11)No penalty imposed by an enforcement authority under this section may exceed 10% of the turnover of the company (determined in accordance with provisions specified in an order made, after consulting the Assembly, by the Secretary of State).

(12)The power of the Secretary of State to make an order under subsection (11) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(13)An enforcement authority shall not impose a penalty under this section where it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.

22BStatement of policy with respect to penaltiesE+W

(1)Each enforcement authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.

(2)In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure an enforcement authority shall have regard to his or its statement of policy most recently published at the time when the contravention or failure occurred.

(3)An enforcement authority may revise his or its statement of policy and where he or it does so shall publish the revised statement.

(4)Publication under this section shall be in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.

(5)An enforcement authority shall undertake such consultation as he or it considers appropriate when preparing or revising his or its statement of policy.

22CTime limits on the imposition of financial penaltiesE+W

(1)Where no final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure later than the end of the period of twelve months from the time of the contravention or failure, unless before the end of that period—

(a)the notice under section 22A(4) above relating to the penalty is served on the company under section 22A(8) above; or

(b)a notice relating to the contravention or failure is served on the company under section 203(2) below.

(2)Where a final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 22A(4) above was served on the company under section 22A(8) above—

(a)within three months from the confirmation of the provisional order or the making of the final order; or

(b)where the provisional order is not confirmed, within six months from the making of the provisional order.

22DInterest and payment of instalmentsE+W

(1)If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838.

(2)If an application is made under subsection (7) of section 22A above in relation to a penalty, the penalty is not required to be paid until the application has been determined.

(3)If the enforcement authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the enforcement authority under that subsection, the enforcement authority may where he or it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.

22EAppealsE+W

(1)If the company on which a penalty is imposed is aggrieved by—

(a)the imposition of the penalty;

(b)the amount of the penalty; or

(c)the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,

the company may make an application to the court under this section.

(2)An application under subsection (1) above must be made—

(a)within forty-two days from the date of service on the company of a notice under section 22A(6) above; or

(b)where the application relates to a decision of an enforcement authority on an application by the company under section 22A(7) above, within forty-two days from the date the company is notified of the decision.

(3)On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4) below, the court—

(a)may quash the penalty;

(b)may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or

(c)in the case of an application under subsection (1)(c) above, may substitute for the date or dates imposed by the enforcement authority an alternative date or dates.

(4)The grounds falling within this subsection are—

(a)that the imposition of the penalty was not within the power of the enforcement authority under section 22A above;

(b)that any of the requirements of subsections (4) to (6) or (8) of section 22A above have not been complied with in relation to the imposition of the penalty and the interests of the company have been substantially prejudiced by the non-compliance; or

(c)that it was unreasonable of the enforcement authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.

(5)If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined.

(6)Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.

(7)Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.

(8)Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.

(9)In this section “the court” means the High Court.

22FRecovery of penaltiesE+W

Where a penalty imposed under section 22A(1) or (2) above, or any portion of it, has not been paid by the date on which it is required to be paid and—

(a)no application relating to the penalty has been made under section 22E above during the period within which such an application can be made; or

(b)an application has been made under that section and determined,

the enforcement authority may recover from the company, as a civil debt due to him or it, any of the penalty and any interest which has not been paid.]

Special administration ordersE+W

23 Meaning and effect of special administration order.E+W

(1)A special administration order is an order of the High Court made in accordance with section 24 or 25 below in relation to a company holding an appointment under Chapter I of this Part [F84or which is a qualifying licensed water supplier] and directing that, during the period for which the order is in force, the affairs, business and property of the company shall be managed, by a person appointed by the High Court—

(a)for the achievement of the purposes of such an order; and

(b)in a manner which protects the respective interests of the members and creditors of the company.

(2)The purposes of a special administration order made in relation to any company [F85holding an appointment under Chapter 1 of this Part] shall be-

(a)the transfer to another company, or (as respects different parts of the area to which the company’s appointment relates, or different parts of its undertaking) to two or more different companies, as a going concern, of so much of the company’s undertaking as it is necessary to transfer in order to ensure that the functions which have been vested in the company by virtue of its appointment may be properly carried out; and

(b)the carrying out of those functions pending the making of the transfer and the vesting of those functions in the other company or companies (whether by virtue of the transfer or of an appointment or variation which replaces the former company as a relevant undertaker).

[F86(2A)The purposes of a special administration order made in relation to any company which is a qualifying licensed water supplier shall be—

(a)the transfer to another company or companies, as a going concern, of so much of the company’s undertaking as it is necessary to transfer in order to ensure that activities relating to the introduction or introductions of water mentioned in subsection (6)(b) below may be properly carried on; and

(b)the carrying on of those activities pending the making of the transfer.]

(3)Schedule 3 to this Act shall have effect for applying provisions of the M7Insolvency Act 1986 where a special administration order is made.

(4)Schedule 2 to this Act shall have effect for enabling provision to be made with respect to cases in which

[F87(a)a company is replaced by another as a relevant undertaker without an appointment or variation under Chapter 1 of this Part; or

(b)a company carries on activities relating to the introduction or introductions of water mentioned in subsection (6)(b) below formerly carried on by another company,

in pursuance of a special administration order.]

(5)In this section “business” and “property” have the same meanings as in the M8Insolvency Act 1986.

[F88(6)For the purposes of this section, sections 24 to 26 below and Schedule 2 to this Act, a licensed water supplier is a qualifying licensed water supplier if—

(a)it is the holder of a combined licence (within the meaning of Chapter 1A of this Part); and

(b)the introduction of water by it which is permitted under section 66B or 66C below is designated as a strategic supply under section 66G below or the introductions of water by it which are so permitted are designated as a collective strategic supply under section 66H below.]

24 Special administration orders made on special petitions.E+W

(1)If, on an application made to the High Court by petition presented—

(a)by the Secretary of State; or

(b)with the consent of the Secretary of State, by the Director,

that Court is satisfied in relation to any company which holds an appointment under Chapter I of this Part that any one or more of the grounds specified in subsection (2) below is satisfied in relation to that company, that Court may make a special administration order in relation to that company.

[F89(1A)If on an application made to the High Court by petition presented—

(a)by the Secretary of State (after consulting the Assembly); or

(b)with the consent of the Secretary of State (after consulting the Assembly), the Authority,

the Court is satisfied in relation to any company which is a qualifying licensed water supplier that any one or more of the grounds specified in subsection (2) below is satisfied in relation to that company, that Court may make a special administration order in relation to that company.]

(2)The grounds mentioned in [F90subsections (1) and (1A)] above are, in relation to any company—

(a)that there has been, is or is likely to be such a contravention by the company of any principal duty, not being a contravention in respect of which a notice has been served under subsection (3) of section 19 above, as is serious enough to make it inappropriate for the company to continue to hold its appointment [F91or licence] ;

(b)that there has been, is or is likely to be such a contravention by the company of the provisions of any enforcement order which—

(i)is not for the time being the subject-matter of proceedings brought by virtue of section 21(1) above; and

(ii)if it is a provisional enforcement order, has been confirmed,

as is serious enough to make it inappropriate for the company to continue to hold its appointment [F91or licence] ;

[F92(bb)in the case of a company which is a qualifying licensed water supplier, that—

(i)action taken by the company has caused a contravention by a water undertaker of any principal duty; and

(ii)that action is serious enough to make it inappropriate for the company to continue to hold its licence;]

(c)that the company is or is likely to be unable to pay its debts;

(d)that, in a case in which the Secretary of State has certified that it would be appropriate, but for section 25 below, for him to petition for the winding up of the company under section 440 of the M9Companies Act 1985 (petition by the Secretary of State following inspectors’ report etc.), it would be just and equitable, as mentioned in that section, for the company to be wound up if it did not hold an appointment under Chapter I of this Part [F93or was not a qualifying licensed water supplier] ; or

(e)[F94in the case of a company holding an appointment under Chapter 1 of this Part,]that the company is unable or unwilling adequately to participate in arrangements certified by the Secretary of State or the Director to be necessary by reason of, or in connection with, a proposal for the making by virtue of section 7(4)(c) above of any appointment or variation replacing a company as a relevant undertaker.

(3)Notice of any petition under this section for a special administration order shall be given forthwith to such persons and in such manner as may be prescribed by rules made under section 411 of the M10Insolvency Act 1986 (“the 1986 Act”); and no such petition shall be withdrawn except with the leave of the High Court.

(4)Subsections (4) and (5) of section 9 of the 1986 Act (powers on application for administration order) shall apply on the hearing of the petition for a special administration order in relation to any company as they apply on the hearing of a petition for an administration order.

(5)Subsections (1), (2) and (4) of section 10 of the 1986 Act (effect of petition) shall apply in the case of a petition for a special administration order in relation to any company as if—

(a)the reference in subsection (1) to an administration order were a reference to a special administration order;

(b)paragraph (b) of that subsection did require the leave of the court for the taking of any of the steps mentioned in paragraphs (b) and (c) of subsection (2) (appointment of, and exercise of functions by, administrative receiver); and

(c)the reference in paragraph (c) of subsection (1) to proceedings included a reference to any proceedings under or for the purposes of section 18 above.

(6)For the purposes of this section a company is unable to pay its debts if—

(a)it is a limited company which is deemed to be so unable under section 123 of the 1986 Act (definition of inability to pay debts); or

(b)it is an unregistered company which is deemed, by virtue of any of sections 222 to 224 of that Act, to be so unable for the purposes of section 221 of that Act (winding up of unregistered companies).

[F95(7)In this section “principal duty” means—

(a)in relation to a company holding an appointment under Chapter 1 of this Part, a requirement imposed on the company by section 37 or 94 below;

(b)in relation to a company which is a qualifying licensed water supplier, any condition of its licence or any statutory requirement imposed on it in consequence of its licence.]

25 Power to make special administration order on winding-up petition.E+W

On an application made to any court for the winding up of a company which holds an appointment under Chapter I of this Part [F96or is a qualifying licensed water supplier]

(a)the court shall not make a winding-up order in relation to the company; but

(b)if the court is satisfied that it would be appropriate to make such an order if the company were not a company holding such an appointment [F97or a qualifying licensed water supplier] , it shall, instead, make a special administration order in relation to the company.

Annotations:

Amendments (Textual)

Restrictions on voluntary winding up and insolvency proceedingsE+W

26 Restrictions on voluntary winding up and insolvency proceedings.E+W

(1)Where a company holds an appointment under Chapter I of this Part [F98or is a qualifying licensed water supplier]

(a)the company shall not be wound up voluntarily;

(b)no administration order shall be made in relation to the company under Part II of the M11Insolvency Act 1986; and

(c)no step shall be taken by any person to enforce any security over the company’s property except where that person has served fourteen days’ notice of his intention to take that step on the Secretary of State and on the Director.

(2)In this section “security” and “property” have the same meanings as in Parts I to VII of the M12Insolvency Act 1986.

Annotations:

Amendments (Textual)

Marginal Citations

CHAPTER IIIE+W PROTECTION OF CUSTOMERS ETC..

General provisionsE+W

27 General duty of Director to keep matters under review.E+W

(1)It shall be the duty of the Director, so far as it appears to him practicable from time to time to do so, to keep under review the carrying on both in England and Wales and elsewhere of activities connected with the matters in relation to which

[F99(a)water undertakers or sewerage undertakers carry out functions; and

(b)licensed water suppliers carry on activities authorised by their licences.]

(2)It shall also be the duty of the Director, so far as it appears to him practicable from time to time to do so, to collect information with respect to—

(a)the carrying out by companies appointed under Chapter I of this Part of the functions of relevant undertakers; or

[F100(aa)the carrying on by companies holding licences under Chapter 1A of this Part of the activities authorised by their licences; or]

(b)any [F101company mentioned in paragraph (a) or (aa) above] ,

with a view to his becoming aware of, and ascertaining the circumstances relating to, matters with respect to which any power or duty is conferred or imposed on him by or under any enactment.

(3)The Secretary of State may give general directions indicating—

(a)considerations to which the Director should have particular regard in determining the order of priority in which matters are to be brought under review in performing his duty under subsection (1) or (2) above; and

(b)considerations to which, in cases where it appears to the Director that any of his powers under Parts II to V and VII of this Act are exercisable, he should have particular regard in determining whether to exercise those powers;

and it shall be the duty of the Director to comply with any such directions.

(4)It shall be the duty of the Director, where either he considers it expedient or he is requested by the Secretary of State or [F102the OFT] to do so, to give information, advice and assistance to the Secretary of State or that Director with respect to any matter relating to—

(a)the functions of either description of relevant undertaker; or

(b)the carrying out of any such functions by a company holding an appointment under Chapter I of this Part[F103 or

(c)the activities authorised by retail licences or combined licences (within the meanings of Chapter 1A of this Part); or

(d)the carrying on of any such activities by a company holding any such licence.]

Annotations:

Amendments (Textual)

F102Words in s. 27(4) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(7); S.I. 2003/766, art. 2, Sch. (with transitional and transitory provisions in art. 3)

Modifications etc. (not altering text)

C27S. 27(4): functions exercisable by the Assembly concurrently with the Ministers of the Crown (W.) (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

[F104The Consumer Council for WaterE+W

Annotations:

Amendments (Textual)

F104Ss. 27A, 27B and preceding cross-heading inserted (1.8.2005 for specified provisions and purposes and 1.10.2005 for further specified provisions and purposes and 1.4.2006 otherwise) by Water Act 2003 (c. 37), ss. 35(1), 105(3); S.I. 2005/968, art. 3(a); S.I. 2005/2714, arts. 2(a), 4(b) (with Sch. para. 8)

27AEstablishment of the Council and committeesE+W

(1)There shall be a body corporate to be known as the Consumer Council for Water (in this Act referred to as “the Council”) for the purpose of carrying out the functions of the Council under this Act.

(2)In Welsh the Council may be known as “Cyngor Defnyddwyr Dŵr”.

(3)The Council shall not be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

(4)The Council shall establish such committees of the Council—

(a)as the Assembly may direct, for relevant undertakers whose areas are wholly or mainly in Wales; and

(b)as the Secretary of State may direct, for other relevant undertakers.

(5)A direction under subsection (4) above may provide for the allocation of each relevant undertaker to a committee specified in the direction.

(6)The power to give a direction under subsection (4) above may not be exercised after the end of the period of six months beginning with the commencement of section 35 of the Water Act 2003.

(7)After the end of the period mentioned in subsection (6) above the Council may (subject to paragraph 11 of Schedule 3A to this Act)—

(a)establish such committees for relevant undertakers as it considers appropriate; or

(b)alter the allocation of a relevant undertaker to a committee established under this section.

(8)The Council shall ensure that each relevant undertaker is allocated to a committee established under this section.

(9)A committee established under this section is referred to in this Act as a “regional committee”.

(10)The purposes of a regional committee shall be—

(a)the provision of advice and information to the Council on consumer matters affecting the areas of the relevant undertakers allocated to that committee;

(b)such other purposes as the Council may determine.

(11)The provisions of Schedule 3A to this Act (which makes further provision about the Council and regional committees) shall have effect.

(12)The Council shall exercise and perform its powers and duties in the manner which it considers is best calculated to contribute to the achievement of sustainable development.

(13)In this Chapter—

  • consumers” includes both existing and future consumers;

  • the interests of consumers” means the interests of consumers in relation to—

    (a)

    the supply of water by means of a water undertaker’s supply system to premises either by water undertakers or by licensed water suppliers acting in their capacity as such; and

    (b)

    the provision of sewerage services by sewerage undertakers; and

  • consumer matter” means any matter connected with the interests of consumers.

27BCo-operation between Council and other authoritiesE+W

(1)This section imposes duties on—

(a)the Authority and the Council;

(b)the Council and the Secretary of State; and

(c)the Council and the Assembly.

(2)It shall be the duty of the bodies mentioned in each paragraph of subsection (1) above to make arrangements with a view to securing—

(a)co-operation and the exchange of information between them; and

(b)the consistent treatment of matters which affect both of them.

(3)As soon as practicable after agreement is reached on any arrangements required by this section, the parties shall prepare a memorandum setting them out.

(4)Arrangements under this section shall be kept under review by the parties.

(5)As soon as practicable after agreement is reached on any changes to arrangements under this section, the parties shall revise their memorandum.

(6)Parties to arrangements required by this section shall send a copy of their memorandum, and any revised memorandum, to each other person mentioned in subsection (1) above who is not a party to the arrangements set out in the memorandum (or revised memorandum).

(7)The Secretary of State shall lay a copy of every memorandum or revised memorandum under this section before each House of Parliament.]

[F105General functions of the CouncilE+W

Annotations:

Amendments (Textual)

F105Ss. 27C-27G and preceding cross-heading inserted (1.10.2005) by Water Act 2003 (c. 37), ss. 43(1), 105(3); S.I. 2005/2714, art. 2(c) (with Sch. 2 para. 8)

27CThe interests of consumersE+W

(1)In considering the interests of consumers, the Council shall have regard to the interests of—

(a)individuals who are disabled or chronically sick;

(b)individuals of pensionable age;

(c)individuals with low incomes;

(d)individuals residing in rural areas; and

(e)customers, of companies holding an appointment under Chapter 1 of Part 2 of this Act, whose premises are not eligible to be supplied by a licensed water supplier,

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(2)For the purposes of subsection (1) above, premises are not eligible to be supplied by a licensed water supplier if—

(a)they are household premises (as defined in section 17C above); or

(b)the total quantity of water estimated to be supplied to the premises annually for the purposes of subsection (2) of section 17D above is less than the quantity specified in that subsection.

27DAcquisition and review of informationE+W

The Council shall have the function of obtaining and keeping under review—

(a)information about consumer matters (including matters affecting consumers in different areas); and

(b)information about the views of consumers on such matters (including the views of consumers in different areas).

27EProvision of advice and information to public authoritiesE+W

(1)The Council shall have the function of—

(a)making proposals, or providing advice and information, about consumer matters (including matters affecting consumers in different areas); and

(b)representing the views of consumers on such matters (including the views of consumers in different areas),

to public authorities, companies holding an appointment under Chapter 1 of this Part, licensed water suppliers and other persons whose activities may affect the interests of consumers.

(2)Subject to subsection (7) below, information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be disclosed in the exercise of the Council’s function under this section unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.

(3)Information relating to a particular individual or body may be disclosed if—

(a)the individual or body has consented to the disclosure;

(b)it is information that is available to the public from some other source; or

(c)it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.

(4)Before deciding to disclose any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—

(a)consult that individual or body; and

(b)have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its disclosure;

and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

(5)Subject to subsection (7) below, the Council shall not in the exercise of its function under this section disclose any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.

(6)In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.

(7)Subsections (2) to (5) above do not apply to a disclosure of information which is made to the Authority, the Secretary of State, the Assembly, the Competition Commission or any other public authority.

(8)The disclosure by the Council of information in the exercise of its function under this section does not contravene section 206 below (restriction on disclosure of information).

27FProvision of information to consumersE+W

(1)The Council has the function of providing information to consumers about consumer matters in such form as appears to the Council to be most useful to the recipients.

(2)That function may be exercised by—

(a)publishing information in any manner the Council thinks appropriate for the purpose of bringing it to the attention of those likely to be interested; or

(b)furnishing information to any consumer (whether in response to a request or otherwise).

(3)Information may only be disclosed in the exercise of that function if it is information that is available to members of the public from some other source.

(4)The Council shall maintain at least one office in each of England and Wales at which consumers may apply for information.

27GPower to publish information and advice about consumer mattersE+W

(1)If it appears to the Council that the publication of any advice and information about consumer matters (including information about the views of consumers on such matters) would promote the interests of consumers, the Council may publish that advice or information in such manner as it thinks fit.

(2)Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be published in the exercise of the Council’s function under this section unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.

(3)Information relating to a particular individual or body may be published if—

(a)the individual or body has consented to the publication;

(b)it is information that is available to the public from some other source; or

(c)it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.

(4)Before deciding to publish any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—

(a)consult that individual or body; and

(b)have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its publication;

and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

(5)The Council shall not in the exercise of its function under this section publish any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.

(6)In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.

(7)The publication of information under this section does not contravene section 206 below (restriction on disclosure of information).

[F10627HProvision of information to the CouncilE+W

(1)The Council may direct—

(a)the Authority;

(b)a company holding an appointment under Chapter 1 of this Part; or

(c)a licensed water supplier,

to supply to it, in such form as it may reasonably specify, such information specified or described in the direction as it may require for the purpose of exercising its functions.

(2)A body to whom a direction under this section is given shall, if the information specified or described in the direction is in its possession, comply with the direction as soon as reasonably practicable.

(3)Before giving a direction under this section and in specifying the form in which any information is to be supplied, the Council shall have regard to the desirability of minimising the costs, or any other detriment, to the body to whom the direction is given.

(4)If a body to whom a direction under this section is given fails to comply with the direction it shall, if so required by the Council, give notice to the Council of the reasons for its failure.

27IPublication of notice of reasonsE+W

(1)Subject to the following provisions of this section, the Council may publish a notice given to it under section 27H(4) above.

(2)Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be published under subsection (1) above unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.

(3)Information relating to a particular individual or body may be published if—

(a)that individual or body has consented to the publication;

(b)it is information that is available to the public from some other source; or

(c)it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.

(4)Before deciding to publish any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—

(a)consult that individual or body; and

(b)have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its publication;

and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

(5)The Council shall not in the exercise of its function under this section publish any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.

(6)In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.

(7)The publication by the Council of information under this section does not contravene section 206 below (restriction on disclosure of information).

27JProvision of information by the CouncilE+W

(1)Any of—

(a)the Authority;

(b)the Secretary of State; or

(c)the Assembly,

may direct the Council to supply to him or it, in such form as he or it may reasonably specify, such information specified or described in the direction as he or it may require for the purpose of exercising his or its functions.

(2)The Council shall, if the information specified or described in the direction is in its possession, comply with a direction under this section as soon as reasonably practicable.

(3)Where the Council fails to comply with a direction given under subsection (1) above it must give to the person who gave the direction notice of its reason for the failure, and that person may publish that notice in such manner as he considers appropriate.

(4)A person publishing a notice under this section shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.

27KSections 27H to 27J: supplementaryE+W

(1)The Secretary of State may make regulations prescribing—

(a)descriptions of information which a person to whom a direction is given under section 27H or 27J above may refuse to supply; or

(b)circumstances in which such a person may refuse to comply with a direction given under either of those sections.

(2)The Council may, if no person is prescribed for the purpose under subsection (3) below, refer a failure by a company holding an appointment or a licensed water supplier to comply with a direction under section 27H above to the Authority.

(3)The Secretary of State may make regulations for the purpose of enabling a failure to comply with a direction under section 27H or 27J above to be referred by the person who gave the direction to such person (other than the Authority) as may be prescribed by the regulations.

(4)A person to whom such a failure is referred (whether under subsection (2) above or regulations under subsection (3) above) shall—

(a)consider any representations made by either party;

(b)determine whether the person failing to comply with the direction is entitled to refuse to do so, and, if not, order him to comply with the direction; and

(c)give notice of his determination and any order under paragraph (b), with reasons, to both parties.

(5)The duty of a company holding an appointment and a licensed water supplier to comply with an order under this section shall be enforceable by the Authority under section 18 above.

(6)A notice under subsection (4) above may be published by either party to the reference.

(7)Subsections (2) to (7) of section 27I above apply to the publication of a notice under this section as they apply to the publication of a notice given to the Council under section 27H(4) above.]

X128 Customer service committees.E+W+S+N.I.

F107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Editorial Information

X1The insertion of the new cross-heading "General functions of the Council" in Pt. II Chapter III gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new heading.

Amendments (Textual)

[F108X229 Consumer complaintsE+W+S+N.I.

(1)This section applies to a complaint which any person (“the complainant”) has against a relevant undertaker or a licensed water supplier in relation to any matter connected with the functions of that undertaker or the services provided by that licensed water supplier.

(2)Where a complaint to which this section applies (other than one appearing to the Council to be frivolous or vexatious) is referred to the Council by or on behalf of the complainant, the Council shall (subject to subsections (3) and (8) below) investigate the complaint for the purpose of determining whether it is appropriate to take any action under subsection (9) below.

(3)Where it appears to the Council that the complaint is one the Authority would be required to investigate under section 181 below, the Council shall, instead of investigating the matter to which it relates, refer the complaint to the Authority.

(4)Where it appears to the Council that the complaint relates to a matter in respect of which a function under section 18 or 22A above is or may be exercisable by any person, the Council shall (unless it considers that that person already has notice of the matter) refer the matter to that person.

(5)Where it appears to the Council that the complaint relates to a matter which constitutes or might constitute an offence, the Council shall refer the matter—

(a)to the Assembly, if the matter relates to a relevant undertaker whose area is wholly or mainly in Wales or to services provided by a licensed water supplier using the supply system of a water undertaker whose area is wholly or mainly in Wales; or

(b)to the Secretary of State, in any other case.

(6)Where it appears to the Council that the complaint relates to a matter which constitutes a dispute of a kind which can be referred to the Authority for determination under any provision of this Act, the Council shall, if the complainant consents, refer the matter to the Authority.

(7)A referral under subsection (6) above shall have effect for the purposes of section 30A below as if it were a referral by the complainant of a dispute for determination by the Authority.

(8)The Council is not required to investigate any matter if it appears to the Council that—

(a)it is unlikely that the complaint could be resolved by action taken by the relevant undertaker or the licensed water supplier;

(b)the relevant undertaker or the licensed water supplier has not been given a reasonable opportunity to deal with the complaint; or

(c)in a case mentioned in subsection (4) or (5) above or (where the complainant does not consent to the matter being referred to the Authority) subsection (6) above, it is inappropriate to do so.

(9)Where it appears to the Council to be appropriate to do so with a view to assisting in reaching a satisfactory resolution of a complaint referred to it under this section, the Council shall make representations on behalf of the complainant to the relevant undertaker or the licensed water supplier about anything to which the complaint relates.

(10)After investigating a complaint the Council may make a report to the Authority, the Secretary of State or the Assembly.

(11)A report under subsection (10) above may include information about—

(a)any representations made by the Council under subsection (9) above; and

(b)the response of the relevant undertaker or the licensed water supplier to the complaint or any such representations.

(12)No report under subsection (10) above or information about a complaint referred to the Council under this section, from which the complainant may be identified, shall be published or disclosed by the Council, the Authority, the Secretary of State or the Assembly in the exercise of any power under this Act without the consent of the complainant.

(13)Where a representation made to the Authority, the Secretary of State or the Assembly about any matter (other than a representation appearing to the person to whom it is made to be frivolous or vexatious) appears to that person—

(a)to be about a matter which is or amounts to a complaint to which this section applies (other than one which, in the case of the Authority, it is its duty to investigate under section 181 below); and

(b)to have been made by or on behalf of the complainant,

that person shall refer the matter to the Council.]

Annotations:

Editorial Information

X2The insertion of the new cross-heading "General functions of the Council" in Pt. II Chapter III gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new heading.

Amendments (Textual)

[F10929APower of Council to investigate other mattersE+W

(1)The Council may investigate any matter (not being a matter which it is its duty to investigate under this Part) which appears to it to be a matter relating to the interests of consumers.

(2)Before undertaking an investigation under this section the Council shall consult the Authority, the Secretary of State and the Assembly.

(3)Where the Council has investigated a matter under this section it may make a report on that matter to the Authority, the Secretary of State, the OFT, the Assembly or any other public authority whose functions appear to the Council to be exercisable in relation to that matter.

(4)Subject to subsection (5) below, the Council may—

(a)send a report on any matter investigated under this section to any person who appears to the Council to have an interest in that matter; and

(b)publish any such report in such manner as the Council thinks appropriate.

(5)Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate)—

(a)shall not be included in a report which is to be sent to any person under subsection (4)(a) above, unless one or more of paragraphs (a) to (c) of subsection (6) below applies; and

(b)shall be excluded from any such report which is to be published under subsection (4)(b) above, unless one or more of paragraphs (a) to (c) of subsection (7) below applies.

(6)Information relating to a particular individual or body may be included in a report to be sent under subsection (4)(a) above if—

(a)that individual or body has consented to the disclosure;

(b)it is information that is available to the public from some other source; or

(c)it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.

(7)Information relating to a particular individual or body may be included in a report to be published under subsection (4)(b) above if—

(a)that individual or body has consented to the publication;

(b)it is information that is available to the public from some other source; or

(c)it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of that individual or body.

(8)Before deciding to include in such a report any information relating to a particular individual or body in pursuance of subsection (6)(c) or (7)(c) above, the Council shall—

(a)consult that individual or body; and

(b)have regard to any opinion expressed by the Authority as to the application of subsection (6)(c) or (7)(c) above to the information or as to the desirability or otherwise of its inclusion in the report;

and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

(9)The Council shall not include in any report to be sent under subsection (4)(a) above or published under subsection (4)(b) above any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.

(10)In considering whether information relates to any matter as mentioned in subsection (9) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.]

X330 Duties of Director with respect to complaintsE+W+S+N.I.

F110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Annotations:

Editorial Information

X3The insertion of the new cross-heading "General functions of the Council" in Pt. II Chapter III gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new heading.

Amendments (Textual)

[F111Further functions of AuthorityE+W

Annotations:

Amendments (Textual)

F111Ss. 30ZA, 30ZB and preceding cross-heading inserted (1.10.2005) by Water Act 2003 (c. 37), ss. 43(2), 105(3); S.I. 2005/2714, art. 2(c) (with Sch. 2 para. 8)

30ZADuty to consult CouncilE+W

(1)It shall be the duty of the Authority to consult the Council in relation to the exercise of each of its functions, except where—

(a)the Council has indicated to the Authority (whether specifically or generally) that it does not wish to be consulted; or

(b)the Authority considers that it would be clearly inappropriate to consult the Council.

(2)That duty is in addition to any duty on the Authority to consult the Council which is provided for elsewhere.

30ZBCopies of noticesE+W

Where the Authority is required by any provision of this Act to publish a notice or any other document, it shall send a copy of the document to the Council.

[X430AF112Determination of disputes by the Director.E+W+S+N.I.

(1)In this section “relevant dispute” means a dispute which, by virtue of any provision of this Act, may be referred to the Director for determination under this section.

(2)The practice and procedure to be followed in connection with the reference to the Director of any relevant dispute shall be such as he considers appropriate.

(3)Where the Director determines any dispute under this section he shall give his reasons for reaching his decision with respect to the dispute.

(4)On making a determination under this section the Director may include such incidental, supplemental and consequential provision (including provision requiring either party to pay a sum in respect of the costs or expenses incurred by the Director) as he considers appropriate.

(5)A determination under this section—

(a)shall be final; and

(b)shall be enforceable as if it were a judgment of a county court, in so far as it includes such provision as to costs or expenses as is mentioned in subsection (4) above.

(6)The Director shall not determine any relevant dispute which is the subject of proceedings before, or with respect to which judgment has been given by, any court.

(7)In including in any determination under this section any provision as to costs or expenses, the Director shall have regard to the conduct and means of the parties and any other relevant circumstances.]]

Annotations:

Editorial Information

X4The insertion of the new cross-heading "Further functions of Authority" in Pt. II Chapter III gives rise to a change in the structure of this legislation on SLD which breaks the continuity of historical versions of the existing provisions which are now brought under that new heading.

Amendments (Textual)

F112S. 30A inserted (1.9.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s.34; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 4, Sch. Pt.II

Provisions with respect to competitionE+W

31 Functions of Director with respect to competition.E+W

(1)F113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F114(2)The functions to which subsection (2A) below applies shall be concurrent functions of the Director and the OFT.

(2A)This subsection applies to the functions of the OFT under Part 4 of the 2002 Act (other than sections 166 and 171) so far as relating to commercial activities connected with the supply of water or the provision of sewerage services.]

[F115(3)The Director shall be entitled to exercise, concurrently with the OFT, the functions of the OFT under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to —

(a)agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b)conduct of the kind mentioned in section 18(1) of that Act,

(c)agreements, decisions or concerted practices of the kind mentioned in Article 81(1) of the treaty establishing the European Community, or

(d)conduct which amounts to abuse of the kind mentioned in Article 82 of the treaty establishing the European Community,

which relate to commercial activities connected with the supply of water or securing a supply of water or with the provision or securing of sewerage services.]

[F116(4)So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the 2002 Act to the OFT (including references in provisions of that Act applied by that Part) shall be construed as including references to the Director (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).]

[F117(4A)So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to [F118the OFT] are to be read as including a reference to the Director ([F119except in sections 31D(1) to (6), 38(1) to (6)] , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).]

[F120(5)Before the OFT or the Director first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other.

(6)Neither the OFT nor the Director shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.]

(7)It shall be the duty of the Director, for the purpose of assisting the [F121Competition Commission] in carrying out an investigation on a reference made to them by the Director by virtue of subsection (2) F122. . . above, to give to the Commission—

(a)any information which is in his possession and which relates to matters falling within the scope of the investigation, and which is either requested by the Commission for that purpose or is information which in his opinion it would be appropriate for that purpose to give to the Commission without any such request; and

(b)any other assistance which the Commission may require, and which it is within his power to give, in relation to any such matters;

and the Commission shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

(8)If any question arises as to whether subsection (2) or (3) above F123. . . applies to any particular case, that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a)[F124Part 4 of the 2002 Act]; or

[F125(b)Part I of the Competition Act 1998 ([F126other than sections 31D(1) to (6), 38(1) to (6)] and 51),]

by or in relation to the Director on the ground that it should have been done by or in relation to [F127the OFT] .

[F128(8A)Section 117 of the 2002 Act (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by the Director by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the OFT included references to the Director.]

(9)F129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations:

Amendments (Textual)

F113S. 31(1) ceases to have effect (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, {Sch. 25 para. (8)(a)}, {Sch. 26}; S.I. 2003/766, art. 2, Sch. (with transitional and transitory provisions in art. 3)

F114S. 31(2)(2A) substituted (20.6.2003) for s. 31(2) by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(2); S.I. 2003/ 1397, {art. 2(1)}, Sch.

F116S. 31(4) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(3); S.I. 2003/ 1397, {art. 2(1)}, Sch.

F117S. 31(4A) inserted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 54(3), Sch. 10 Pt. II para. 5(5)(8) (with s. 73); S.I. 1997/2750, art. 2(1); S.I. 2000/344, art. 2 Sch.

F118Words in s. 31(4A) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(8)(c); S.I. 2003/766, art. 2, Sch. (with transitional and transitory provisions in art. 3)

F120S. 31(5)(6) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(4); S.I. 2003/ 1397, {art. 2(1)}, Sch.

F121Words in s. 31(7) substituted (1.4.1999) by S.I. 1999/506, art. 30(b)

F122Words in s. 31(7) repealed (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, ss. 54(3), 74(3), Sch. 10 Pt. II para. 5(5)(11), Sch. 14 Pt. I (with s. 73); S.I. 1998/2750, art. 2(1); S.I. 2000/344, art. 2 Sch.

F124Words in s. 31(8) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(5)(b); S.I. 2003/ 1397, {art. 2(1)}, Sch.

F125S. 31(8)(b) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 54(3), Sch. 10 Pt. II para. 5(5)(12) (with s. 73); S.I. 1998/2750, art. 2(1); S.I. 2000/344, art. 2 Sch.

F127Words in s. 31(8) substituted (1.4.2003) by Enterprise Act 2002 (c. 40), ss. 278, 279, Sch. 25 para. 25(8)(d); S.I. 2003/766, art. 2, Sch. (with transitional and transitory provisions in art. 3)

F128S. 31(8A) substituted (20.6.2003) by Enterprise Act 2002 (c. 40), ss. 168(9), 279, Sch. 9 para. 19(6); S.I. 2003/ 1397, {art. 2(1)}, Sch.

Modifications etc. (not altering text)

C28S. 31(3) restricted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 54(3), Sch. 10 para. 5(1) (with s. 73); S.I. 1998/2750, art. 2(1); S.I. 2000/344, art. 2 Sch.

S. 31(3) amended (1.3.2000) by 1998 c. 41, ss. 54, 66(5), Sch. 10 Pt. I para. 5(1) (with s. 73); S.I. 2000/344, art. 2 Sch.

[F13032 Duty to refer merger of water or sewerage undertakings.E+W

Subject to section 33 below, it shall be the duty of the OFT to make a merger reference to the Competition Commission if the OFT believes that it is or may be the case—

(a)that arrangements are in progress which, if carried into effect, will result in a merger of any two or more water enterprises; or

(b)that such a merger has taken place otherwise than as a result of the carrying into effect of arrangements that have been the subject of a reference by virtue of paragraph (a) above.]

Annotations:

Amendments (Textual)

F130Ss. 32-35 substituted (29.12.2004) by Enterprise Act 2002 (c. 40), ss. 70(1), 279; S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)

[F13133 Exclusion of small mergers from duty to make reference.E+W

(1)The OFT shall not make a merger reference under section 32 above in respect of any actual or prospective merger of two or more water enterprises if it appears to the OFT—

(a)that the value of the turnover of the water enterprise being taken over does not exceed or, as the case may be, would not exceed £10 million; or

(b)that the only water enterprises already belonging to the person making the take over are enterprises each of which has a turnover the value of which does not exceed or, as the case may be, would not exceed £10 million.

(2)For the purposes of subsection (1)(a) above, the value of the turnover of the water enterprise being taken over shall be determined by taking the total value of the turnover of the water enterprises ceasing to be distinct enterprises and deducting—

(a)the turnover of any water enterprise continuing to be carried on under the same ownership and control; or

(b)if there is no water enterprise continuing to be carried on under the same ownership and control, the turnover which, of all the turnovers concerned, is the turnover of the highest value.

(3)For the purposes of subsection (1)(b) above—

(a)every water enterprise ceasing to be a distinct enterprise and whose turnover is to be deducted by virtue of subsection (2)(a) or (b) above shall be treated as a water enterprise belonging to the person making the take over; and

(b)water enterprises shall be treated as separate enterprises so far as they are carried on by different companies holding appointments under Chapter 1 of this Part.

(4)For the purposes of this section the turnover of a water enterprise shall be determined in accordance with such provisions as may be specified in regulations made by the Secretary of State.

(5)Regulations under subsection (4) above may, in particular, make provision as to—

(a)the amounts which are, or which are not, to be treated as comprising an enterprise’s turnover; and

(b)the date or dates by reference to which an enterprise’s turnover is to be determined.

(6)Regulations under subsection (4) above may, in particular, make provision enabling the Secretary of State or the OFT to determine matters of a description specified in the regulations (including any of the matters mentioned in paragraphs (a) and (b) of subsection (5) above).

(7)The Secretary of State may by regulations amend subsection (1) above so as—

(a)to alter the sum for the time being mentioned in paragraph (a) of that subsection or otherwise to modify the condition set out in that paragraph; or

(b)to alter the sum for the time being mentioned in paragraph (b) of that subsection or otherwise to modify the condition set out in that paragraph.

(8)Regulations under subsection (7) above—

(a)shall not make any modifications in relation to mergers on or before the coming into force of the regulations; and

(b)may, in particular, include supplemental, consequential or transitional provision amending or repealing any provision of this section.

(9)References in this section to enterprises being carried on under the same ownership and control shall be construed in accordance with Part 3 of the 2002 Act.]

Annotations:

Amendments (Textual)

F131Ss. 32-35 substituted (29.12.2004) by Enterprise Act 2002 (c. 40), ss. 70(1), 279; S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)

[F13234 Application of provisions of Enterprise Act 2002E+W

The provisions of Schedule 4ZA to this Act shall have effect with respect to mergers of water enterprises.]

Annotations:

Amendments (Textual)

F132Ss. 32-35 substituted (29.12.2004) by Enterprise Act 2002 (c. 40), ss. 70(1), 279; S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)

[F13335 Construction of merger provisions.E+W

(1)In this Chapter (including Schedule 4ZA)—

(2)References in this Chapter (including Schedule 4ZA), in relation to any two or more enterprises, to the merger of those enterprises are references to those enterprises ceasing, within the meaning of Part 3 of the 2002 Act, to be distinct enterprises; and sections 27 and 29 of that Act and any provision made under section 34 of that Act (time at which enterprises cease to be distinct) shall have effect for the purposes of this Chapter (including Schedule 4ZA) as they have effect for the purposes of that Part.

(3)Nothing in sections 32 to 34 above (including Schedule 4ZA) shall prejudice any power of the OFT or the Secretary of State, in a case in which, or to any extent to which, the OFT is not required to make a reference under section 32 above, to make a reference under Part 3 of the 2002 Act in respect of any actual or prospective merger of two or more water enterprises.

(4)Where two or more enterprises have merged or will merge as part of transactions or arrangements which also involve an actual or prospective merger of two or more water enterprises, Part 3 of the 2002 Act shall apply in relation to the actual or prospective merger of the enterprises concerned excluding the water enterprises; and references in that Part to the creation of a relevant merger situation shall be construed accordingly.

(5)Subject to subsections (3) and (4), Part 3 of the 2002 Act shall not apply in a case in which the OFT is required to make a reference under section 32 above except as applied by virtue of Schedule 4ZA.]

Annotations:

Amendments (Textual)

F133Ss. 32-35 substituted (29.12.2004) by Enterprise Act 2002 (c. 40), ss. 70(1), 279; S.I. 2004/3233, art. 2, Sch. (with transitional provisions and savings in arts. 3-5)

F134S. 35(1): words in definition of "water enterprise" substituted (29.12.2004) by Water Act 2003 (c. 37), ss. 101(1), 105(3), Sch. 7 para. 27(2); S.I. 2004/2528, art. 3 (with savings in art. 4)

[F135Disclosure of arrangements for remunerationE+W

Annotations:

Amendments (Textual)

F135S. 35A and preceding cross-heading inserted (1.10.2004) by Water Act 2003 (c. 37), ss. 50, 105(3); S.I. 2004/2528, art. 2(g)

35ARemuneration and standards of performanceE+W

(1)This section applies to any company holding an appointment under Chapter 1 of this Part.

(2)As soon as reasonably practicable after the end of each financial year of the company it must make a statement to the Authority—

(a)disclosing whether or not remuneration has been paid or become due during that financial year to the directors of the company as a result of arrangements falling within subsection (3) below; and

(b)where such remuneration has been paid or become due, describing the arrangements and the remuneration.

(3)Arrangements fall within this subsection if they are arrangements for linking the remuneration of the directors of the company to standards of performance in connection with the carrying out by the company of the functions of a relevant undertaker.

(4)A description under subsection (2)(b) above must include in particular—

(a)a statement of when the arrangements were made;

(b)a description of the standards of performance in question;

(c)an explanation of the means by which the standards of performance are assessed; and

(d)an explanation of how the remuneration was calculated.

(5)The statement required by subsection (2) above must also state—

(a)whether or not there are in force in respect of the financial year during which the statement is made arrangements falling within subsection (3) above; or

(b)if not, whether the company intends that such arrangements will be in force at some time during that financial year,

and if there are, or it is intended that there will be, such arrangements in force the statement must describe those arrangements.

(6)A description under subsection (5) above must—

(a)include in particular the matters listed in subsection (4)(a), (b) and (c) above; and

(b)where the arrangements described are different from any arrangements described under subsection (2)(b) above, state the likely effect of those differences on the remuneration of each director of the company.

(7)The statement required by subsection (2) above must be made to the Authority in such manner as may be required by the Authority.

(8)The statement required by subsection (2) above—

(a)must be published by the company making the statement in such manner as it reasonably considers will secure adequate publicity for it; and

(b)may be published by the Authority in such manner as it may consider appropriate.

(9)The duty of a company under this section applies in respect of any person who has at any time been a director of the company.

(10)In this section—

  • remuneration” in relation to a director of a company—

    (a)

    means any form of payment, consideration or other benefit (including pension benefit), paid or due to or in respect of the director; and

    (b)

    includes remuneration in respect of any of his services while a director of the company;

  • standards of performance”, in relation to any company, include any standards which are—

    (a)

    set by or under any conditions of the company’s appointment under Chapter 1 of this Part;

    (b)

    contained in or prescribed by regulations made under section 38(1)(b) or (2) or section 95(1)(b) or (2) below; or

    (c)

    set or agreed to by the company.

(11)Any requirement imposed by this section shall be treated as a statutory requirement enforceable under section 18 above by the Authority.]

chapter IVE+W INTERPRETATION OF PART II

36 Interpretation of Part II.E+W

(1)In this Part—

  • [F136the 1973 Act” means the M13Fair Trading Act 1973; and]

  • the 1980 Act” means the M14Competition Act 1980.

  • [F137the 2002 Act” means the Enterprise Act 2002;]

(2)References in this Part to an appointment or variation replacing a company as a relevant undertaker are references to the following, that is to say—

(a)the appointment of a company to be the water undertaker or sewerage undertaker for any area which is or includes the whole or any part of any area for which another company already holds an appointment as water undertaker or, as the case may be, sewerage undertaker; or

(b)a variation by virtue of which the area for which a company holds an appointment under Chapter I of this Part is modified so as to include the whole or any part of an area for which another company already holds an appointment as water undertaker or, as the case may be, sewerage undertaker.

(3)For the purposes of this Part premises in a part of an area are served by a company holding an appointment under Chapter I of this Part—

(a)in relation to an appointment or variation by virtue of which that company would be replaced as the water undertaker for that part of that area, if those premises—

(i)are supplied with water by means of a connection with a distribution main of that company; or

F138(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and

(b)in relation to an appointment or variation by virtue of which that company would be replaced as the sewerage undertaker for that part of that area, if those premises—

(i)are drained by means of a relevant sewer [F139or drain] ; or

F140(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In this section—

  • distribution main” means a water main that is not a trunk main; and

  • [F141relevant sewer or drain”, in relation to any appointment or variation which would replace a company as a sewerage undertaker, means any of the following, that is to say—

    (a)

    a public sewer or lateral drain vested in that company;

    (b)

    a sewer or lateral drain in relation to which that company has made a declaration of vesting under section 102 below which has not yet taken effect;

    (c)

    a sewer or lateral drain in relation to which that company has entered into an agreement under section 104 below.]

Annotations:

Amendments (Textual)

F136Words in s. 36(1) ceased to have effect (29.12.2004) and repealed (prosp.) by Enterprise Act 2002 (c. 40), ss. 168(9), 278, 279, Sch. 9 para. 8(a), Sch. 26; S.I. 2004/3233, art. 2, Sch. (with arts. 3-5)

F138S. 36(3)(a)(ii) repealed (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), ss. 40(5)(a), 56(7), Sch. 2; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992, art. 3, Sch. Pt. I

F140S. 36(3)(b)(ii) repealed (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), ss. 40(5)(b), 56(7), Sch.2; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992, art. 3, Sch. Pt.I

F141S. 36(4): definition substituted (28.5.2004) by Water Act 2003 (c. 37), ss. 97(2)(b), 105(3); S.I. 2004/641, art. 4(b) (with art. 6, Sch. 3)

Marginal Citations

Part IIIE+W WATER SUPPLY

chapter IE+W GENERAL DUTIES OF WATER UNDERTAKERS

37 General duty to maintain water supply system etc.E+W

(1)It shall be the duty of every water undertaker to develop and maintain an efficient and economical system of water supply within its area and to ensure that all such arrangements have been made—

(a)for providing supplies of water to premises in that area and for making such supplies available to persons who demand them; and

(b)for maintaining, improving and extending the water undertaker’s water mains and other pipes,

as are necessary for securing that the undertaker is and continues to be able to meet its obligations under this Part.

(2)The duty of a water undertaker under this section shall be enforceable under section 18 above—

(a)by the Secretary of State; or

(b)with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

(3)The obligations imposed on a water undertaker by the following Chapters of this Part, and the remedies available in respect of contraventions of those obligations, shall be in addition to any duty imposed or remedy available by virtue of any provision of this section or section 38 below and shall not be in any way qualified by any such provision.

[F14237AWater resources management plans: preparation and reviewE+W

(1)It shall be the duty of each water undertaker to prepare and maintain a water resources management plan.

(2)A water resources management plan is a plan for how the water undertaker will manage and develop water resources so as to be able, and continue to be able, to meet its obligations under this Part.

(3)A water resources management plan shall address in particular—

(a)the water undertaker’s estimate of the quantities of water required to meet those obligations;

(b)the measures which the water undertaker intends to take or continue for the purpose set out in subsection (2) above (also taking into account for that purpose the introduction of water into the undertaker’s supply system by or on behalf of licensed water suppliers);

(c)the likely sequence and timing for implementing those measures; and

(d)such other matters as the Secretary of State may specify in directions.

(4)The procedure for preparing a water resources management plan (including a revised plan) is set out in section 37B below.

(5)Before each anniversary of the date when its plan (or revised plan) was last published, the water undertaker shall —

(a)review its plan; and

(b)send a statement of the conclusions of its review to the Secretary of State.

(6)The water undertaker shall prepare a revised plan in each of the following cases—

(a)following conclusion of its annual review, if the review indicated a material change of circumstances;

(b)if directed to do so by the Secretary of State;

(c)in any event, not later than the end of the period of five years beginning with the date when the plan (or revised plan) was last published,

and shall follow the procedure in section 37B below (whether or not the revised plan prepared by the undertaker includes any proposed alterations to the previous plan).

(7)The Secretary of State may give directions specifying—

(a)the form which a water resources management plan must take;

(b)the planning period to which a water resources management plan must relate.

(8)Before preparing its water resources management plan (including a revised plan), the water undertaker shall consult—

(a)the Environment Agency;

(b)the Authority;

(c)the Secretary of State; and

(d)any licensed water supplier which supplies water to premises in the undertaker’s area via the undertaker’s supply system.

(9)The Secretary of State shall consult the Environment Agency before giving a direction under subsection (6)(b) above.

(10)In this section, in relation to a water resources management plan, “published” means published in accordance with section 37B(8)(a) below.

Annotations:

Amendments (Textual)

F142Ss. 37A-37D inserted (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2006 for specified provisions and further purposes and 1.4.2007 otherwise) by Water Act 2003 (c. 37), ss. 62, 105(3); S.I. 2004/2528, art. 2(j) (with art. 4); S.I. 2005/2714, art. 2(i) (with Sch. paras. 6, 8); S.I. 2006/984, art. 2(q) (with art. 3, Sch.); S.I. 2007/1021, art. 2(a)

Modifications etc. (not altering text)

C32Ss. 37A-37D modified (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2007 otherwise) by S.I. 1999/672, Sch. 2 (as amended by Water Act 2003 (c. 37), ss. 100(3)(7), 105(3); S.I. 2004/2528, art. 2(s) (with savings in art. 4); S.I. 2005/2714, art. 2(k) (with Sch. 2 para. 8); S.I. 2007/1021, art. 2(c)

37BWater resources management plans: publication and representationsE+W

(1)A water undertaker shall—

(a)send a draft water resources management plan to the Secretary of State;

(b)state whether it appears to the undertaker that any information contained in that plan is or might be commercially confidential (as regards itself or another person); and

(c)give the Secretary of State the name of each such other person and his address for service of a notice under subsection (2)(a) below.

(2)If the water undertaker states that it so appears in relation to any such information, the Secretary of State shall—

(a)if the person to whom or to whose business the information relates is not the water undertaker, give that person notice that the information is included in a draft water resources management plan and, unless subsection (10) below applies, is required to be published under this section; and

(b)give each person (including the water undertaker) to whom any such information relates a reasonable opportunity—

(i)of objecting to the publication of the information relating to him on the ground that it is commercially confidential; and

(ii)of making representations to the Secretary of State for the purpose of justifying any such objection,

and shall determine, taking any objections and representations under paragraph (b) into account, whether the information is or is not commercially confidential.

(3)A water undertaker shall—

(a)(subject to subsection (10) below) publish the draft water resources management plan in the prescribed way or, if no way is prescribed, in a way calculated to bring it to the attention of persons likely to be affected by it;

(b)publish with it a statement—

(i)whether any information has been excluded from the published draft plan by virtue of subsection (10) below and, if it has, the general nature of that information; and

(ii)that any person may make representations in writing about the plan to the Secretary of State before the end of a period specified in the statement; and

(c)send a copy of the published draft plan and accompanying statement to such persons (if any) as may be prescribed.

(4)The Secretary of State shall send to the water undertaker a copy of any representations he receives following publication of the draft plan under subsection (3) above and shall give it a reasonable period of time within which to comment on the representations.

(5)The Secretary of State may in regulations prescribe how such representations and any comments by the water undertaker on them are to be dealt with.

(6)Regulations under subsection (5) above—

(a)may provide for the Secretary of State to cause an inquiry or other hearing to be held in connection with the draft water resources management plan; and

(b)if they do so provide, may provide for subsections (2) to (5) of section 250 of the Local Government Act 1972 (local inquiries: evidence and costs) to apply with prescribed modifications to such an inquiry or hearing as they apply to inquiries under that section.

(7)The Secretary of State may direct a water undertaker that its water resources management plan must differ from the draft sent to him under subsection (1) above in ways specified in his direction, and (subject to subsection (9) below) it shall be the duty of the water undertaker to comply with the direction.

(8)The water undertaker shall—

(a)(subject to subsection (10) below) publish the water resources management plan in the prescribed way or, if no way is prescribed, in a way calculated to bring it to the attention of persons likely to be affected by it; and

(b)publish with it a statement whether any information has been excluded from the published plan by virtue of subsection (10) below and, if it has, the general nature of that information.

(9)If the water undertaker considers that publishing a water resources management plan complying with a direction under subsection (7) above would mean including in the published plan any information (other than any information in relation to which the Secretary of State has already made a determination under subsection (2) above) which might be commercially confidential (as regards itself or another person)—

(a)the water undertaker shall send the Secretary of State a notice saying so, and giving the Secretary of State the name of any such other person and his address for service of a notice under subsection (2)(a) above as applied by paragraph (b) below; and

(b)subsection (2) above shall apply in relation to that information as it applies in relation to the information referred to there;

and the Secretary of State may either confirm his direction under subsection (7) above (which is to be treated as a new direction under subsection (7)) or revoke the previous such direction (or the previous one so treated) and give a new one.

(10)The published version of a draft water resources management plan published under subsection (3)(a) above, and a water resources management plan published under subsection (8)(a) above, shall exclude any information which the Secretary of State—

(a)has determined under subsection (2) above (or that subsection as applied by subsection (9) above) is commercially confidential; or

(b)directs the water undertaker to exclude on the ground that it appears to him that its publication would be contrary to the interests of national security.

(11)Any steps to be taken by a water undertaker under this section shall be completed by such time or within such period as the Secretary of State may direct.

Annotations:

Amendments (Textual)

F142Ss. 37A-37D inserted (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2006 for specified provisions and further purposes and 1.4.2007 otherwise) by Water Act 2003 (c. 37), ss. 62, 105(3); S.I. 2004/2528, art. 2(j) (with art. 4); S.I. 2005/2714, art. 2(i) (with Sch. paras. 6, 8); S.I. 2006/984, art. 2(q) (with art. 3, Sch.); S.I. 2007/1021, art. 2(a)

Modifications etc. (not altering text)

C33Ss. 37A-37D modified (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2007 otherwise) by S.I. 1999/672, Sch. 2 (as amended by Water Act 2003 (c. 37), ss. 100(3)(7), 105(3); S.I. 2004/2528, art. 2(s) (with savings in art. 4); S.I. 2005/2714, art. 2(k) (with Sch. 2 para. 8); S.I. 2007/1021, art. 2(c)

37CWater resources management plans: provision of informationE+W

(1)It shall be the duty of each licensed water supplier to provide the water undertaker with such information as the water undertaker may reasonably request for the purposes of preparing or revising its water resources management plan.

(2)In the event of any dispute between a water undertaker and a licensed water supplier as to the reasonableness of the water undertaker’s request under subsection (1) above, either party may refer the matter for determination by the Secretary of State, and any such determination shall be final.

(3)For the purposes of paragraph (b) of section 37B(1) above, the water undertaker shall identify in its statement under that paragraph any information—

(a)provided by a licensed water supplier pursuant to subsection (1) above; and

(b)contained in the water undertaker’s draft water resources management plan,

which the licensed water supplier has (at the time of providing it to the water undertaker) specifically identified as being, in the licensed water supplier’s opinion, commercially confidential.

(4)The water undertaker shall not use any unpublished information save for the purpose of facilitating the performance by it of any of the duties imposed on it by or under this Act, any of the other consolidation Acts or the Water Act 1989.

(5)In subsection (4) above—

(a)unpublished information” means confidential information which—

(i)is provided to the water undertaker by a licensed water supplier under this section;

(ii)relates to the affairs of any individual or to any particular business; and

(iii)by virtue of section 37B above, is not published;

(b)the other consolidation Acts” has the same meaning as in section 206 below.

Annotations:

Amendments (Textual)

F142Ss. 37A-37D inserted (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2006 for specified provisions and further purposes and 1.4.2007 otherwise) by Water Act 2003 (c. 37), ss. 62, 105(3); S.I. 2004/2528, art. 2(j) (with art. 4); S.I. 2005/2714, art. 2(i) (with Sch. paras. 6, 8); S.I. 2006/984, art. 2(q) (with art. 3, Sch.); S.I. 2007/1021, art. 2(a)

Modifications etc. (not altering text)

C34Ss. 37A-37D modified (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2007 otherwise) by S.I. 1999/672, Sch. 2 (as amended by Water Act 2003 (c. 37), ss. 100(3)(7), 105(3); S.I. 2004/2528, art. 2(s) (with savings in art. 4); S.I. 2005/2714, art. 2(k) (with Sch. 2 para. 8); S.I. 2007/1021, art. 2(c)

37DWater resources management plans: supplementaryE+W

(1)Directions given under section 37A or 37B above may be—

(a)general directions applying to all water undertakers; or

(b)directions applying only to one or more water undertakers specified in the directions,

and shall be given by an instrument in writing.

(2)It shall be the duty of each water undertaker to whom directions apply to comply with the directions.

(3)The duties of—

(a)a water undertaker under sections 37A to 37C above and under this section; and

(b)a licensed water supplier under section 37C above,

shall be enforceable by the Secretary of State under section 18 above.]

Annotations:

Amendments (Textual)

F142Ss. 37A-37D inserted (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2006 for specified provisions and further purposes and 1.4.2007 otherwise) by Water Act 2003 (c. 37), ss. 62, 105(3); S.I. 2004/2528, art. 2(j) (with art. 4); S.I. 2005/2714, art. 2(i) (with Sch. paras. 6, 8); S.I. 2006/984, art. 2(q) (with art. 3, Sch.); S.I. 2007/1021, art. 2(a)

Modifications etc. (not altering text)

C35Ss. 37A-37D modified (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2007 otherwise) by S.I. 1999/672, Sch. 2 (as amended by Water Act 2003 (c. 37), ss. 100(3)(7), 105(3); S.I. 2004/2528, art. 2(s) (with savings in art. 4); S.I. 2005/2714, art. 2(k) (with Sch. 2 para. 8); S.I. 2007/1021, art. 2(c)

38 Standards of performance in connection with water supply.E+W

(1)For the purpose-

(a)of facilitating the determination of the extent to which breaches of the obligations imposed by the following provisions of this Part are to amount to breaches of the duty imposed by section 37 above; or

(b)of supplementing that duty by establishing overall standards of performance in relation to that duty,

the Secretary of State may, in accordance with section 39 below, by regulations provide for contraventions of such requirements as may be prescribed to be treated for the purposes of this Act as breaches of that duty.

(2)The Secretary of State may, in accordance with section 39 below, by regulations prescribe such standards of performance in connection with the provision of supplies of water as, in his opinion, ought to be achieved in individual cases.

(3)Regulations under subsection (2) above may provide that if a water undertaker fails to meet a prescribed standard it shall pay such amount as may be prescribed to any person who is affected by the failure and is of a prescribed description.

(4)Without prejudice to the generality of the power conferred by subsection (2) above, regulations under that subsection may—

(a)include in a standard of performance a requirement for a water undertaker, in prescribed circumstances, to inform a person of his rights by virtue of any such regulations;

(b)provide for any dispute under the regulations to be referred by either party to the dispute to the Director;

(c)make provision for the procedure to be followed in connection with any such reference and for the Director’s determination on such a reference to be enforceable in such manner as may be prescribed;

(d)prescribe circumstances in which a water undertaker is to be exempted from requirements of the regulations.

[F143(5)Where the Director determines any dispute in accordance with regulations under this section he shall, in such manner as may be specified in the regulations, give his reasons for reaching his decision with respect to the dispute.]

Annotations:

Amendments (Textual)

F143S. 38(5) added (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 56(6), Sch. 1 para. 18; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt.I

[38AF144Information with respect to levels of performance.E+W

(1)The Director shall from time to time collect information with respect to—

(a)the compensation paid by water undertakers under regulations under section 38(2) above; and

(b)the levels of overall performance achieved by water undertakers in connection with the provision of water supplies.

(2)At such times as the Director may direct, each water undertaker shall give the following information to the Director—

(a)as respects each standard prescribed by regulations under section 38(2) above, the number of cases in which compensation was paid and the aggregate amount or value of that compensation; and

(b)as respects each standard established by regulations under section 38(1)(b) above, such information with respect to the level of performance achieved by the undertaker as may be so specified.

(3)A water undertaker who without reasonable excuse fails to do anything required of him by subsection (2) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4)The Director shall, at least once in every year, arrange for the publication, in such form and in such manner as he considers appropriate, of such of the information collected by or given to him under this section as it may appear to him expedient to give to customers or potential customers of water undertakers.

(5)In arranging for the publication of any such information the Director shall have regard to the need for excluding, so far as practicable—

(a)any matter which relates to the affairs of an individual, where publication of that matter would or might, in the opinion of the Director, seriously and prejudicially affect the interests of that individual; and

(b)any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporate, where publication of that matter would or might, in the opinion of the Director, seriously and prejudicially affect the interests of that body.]

Annotations:

Amendments (Textual)

F144S. 38A inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s.27; Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992, art. 3, Sch. Pt. I

[F14538BPublication of statistical information about complaintsE+W

(1)It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to complaints made by consumers about any matter relating to the activities of water undertakers or licensed water suppliers and the handling of such complaints.

(2)In subsection (1) above, “complaints” includes complaints made directly to water undertakers or licensed water suppliers (or anyone carrying on activities on their behalf) and complaints to the Authority, the Council, the Assembly or the Secretary of State.]

39 Procedure for regulations under section 38.E+W

[F146(A1)The Secretary of State may make regulations under section 38 above—

(a)on an application by the Authority, in accordance with subsections (1) to (3) below; or

(b)otherwise than on such an application, in accordance with subsections (4) to (8) below.]

(1)[F147Where the Authority has made to the Secretary of State a written application complying with subsection (2) below, the Secretary of State may make regulations under section 38 above if—]

[F148(b) the Secretary of State is satisfied that a copy of the application has been served by the Director—

(i)on every water undertaker specified in the application;F149. . .

(ii)on persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations;]

[F150(iii)on the Council; and

(iv)on such other persons or bodies as the Secretary of State may consider appropriate;]

(c)such period as the Secretary of State considers appropriate has been allowed for the making—

(i)by the Director; and

(ii)by any affected water undertaker [F151or person or body on whom a copy of the application has been served under paragraph [F152(b)] above],

of representations or objections with respect to the Director’s proposals and any modifications proposed by the Secretary of State; and

(d)the Secretary of State has considered [F153the summary mentioned in subsection (2)(bb) below,] the Director’s reasons for his proposals and every representation or objection which has been duly made with respect to those proposals, or any proposed modifications of those proposals, and has not been withdrawn.

[F154(1A)Before making an application to the Secretary of State under this section the Director shall arrange for such research as he considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected and consider the results.]

(2)An application made by the Director to the Secretary of State complies with this subsection if it—

(a)sets out [F155the Authority’s proposals for the making of] regulations under section 38 above;

(b)specifies the water undertaker or undertakers in relation to which it is proposed [F156the regulations] should apply

[F157(bb) is accompanied by a written summary of the results of the research carried out in accordance with subsection (1A) above;] ; and

(c)summarises the Director’s reasons for his proposals.

(3)The Secretary of State shall not make any regulations [F158on an application by the Authority under this section] except where—

(a)the only provisions of the regulations are [F159those which in the opinion of the Secretary of State give effect to the proposals set out in the Authority’s application or to those proposals] with such modifications as the Secretary of State considers appropriate; and

(b)each of the modifications (if any) of the Director’s proposals to which effect is given by the regulations is a modification the proposal to make which has been notified—

(i)to the Director;F160. . .

(ii)to any water undertaker appearing to the Secretary of State to be likely to be affected by the modifications [F161and

(iii)to any person or body on whom a copy of the Authority’s application was served under subsection (1)(b) above.]

[F162(4)Where no such application as is mentioned in subsection (1) above has been made, the Secretary of State may make regulations under section 38 above only if he considers—

(a)that the regulations will contribute towards the attainment of policies relating to public health or the environment; or

(b)(if he does not consider that they will so contribute) that there are exceptional reasons why it is otherwise in the public interest that the regulations should be made.

(5)Before making regulations under section 38 above by virtue of subsection (4) above, the Secretary of State shall—

(a)give notice of his proposals;

(b)consider the results of the research carried out in accordance with subsection (7) below; and

(c)consider every representation or objection with respect to the proposals which has been duly made and not withdrawn.

(6)A notice under subsection (5)(a) above must—

(a)summarise the Secretary of State’s reasons for his proposals;

(b)specify the water undertaker or undertakers in relation to which it is proposed the regulations should apply; and

(c)specify the period within which objections or representations with respect to the proposals may be made.

(7)Before giving notice under subsection (5)(a) above the Secretary of State shall arrange for such research as he considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected.

(8)A notice under subsection (5)(a) above shall be given by serving a copy on—

(a)the Authority;

(b)the Council;

(c)every water undertaker to which the regulations will apply;

(d)persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations; and

(e)such other persons or bodies as the Secretary of State may consider appropriate.]

Annotations:

Amendments (Textual)

F147S. 39(1): words substituted (1.4.2005) for para. (a) and preceding words by virtue of Water Act 2003 (c. 37), ss. 41(3)(a), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

F148S. 39(1)(b) substituted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 56(6), Sch. 1 para. 19(2); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt.I

F151Words in s. 39(1)(c)(ii) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 56(6), Sch. 1 para. 19(3); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

F152Words in s. 39(1)(c)(ii) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 41(3)(c), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

F153Words in s. 39(1)(d) substituted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 26(2); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt.I

F154S. 39(1A) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 26(3); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt. I

F155Words in s. 39(2)(a) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 41(4)(a), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

F156Words in s. 39(2)(b) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 41(4)(b), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

F157S. 39(2)(bb) inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 26(4); Competition and Service (Utilities) Act 1992 (Commencement No. 1) Order 1992 , art. 3, Sch. Pt.I

F158Words in s. 39(3) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 41(5)(a), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

F159Words in s. 39(3)(a) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 41(5)(b), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

F161S. 39(3)(b)(iii) and preceding word inserted (1.4.2005) by Water Act 2003 (c. 37), ss. 41(5)(c), 105(3); S.I. 2005/968, art. 2(h) (with savings in art. 4, Sch. 1, 2)

[39AF163Information to be given to customers about overall performance.E+W

(1)Each water undertaker shall, in such form and manner and with such frequency as the Director may direct, take steps to inform its customers [F164, and, if the direction so specifies, licensed water suppliers using the undertaker’s supply system for the purpose of supplying water to the premises of customers or those customers,] of—

(a)the standards of overall performance established under section 38(1)(b) above which are applicable to that undertaker; and

(b)that undertaker’s level of performance as respects each of those standards.

(2)In giving any such direction, the Director shall not specify a frequency of less than once in every period of twelve months.

[F165(2A)The licensed water suppliers referred to in subsection (1) above shall, if the Authority so directs, pass on the information about the matters mentioned in that subsection to their customers.

(2B)In subsection (1) above, the reference to the water undertaker’s supply system shall be construed in accordance with section 17B(5) above.]

(3)The duty of a water undertaker [F166or licensed water supplier] to comply with this section shall be enforceable by the Director under section 18 above.]

Annotations:

Amendments (Textual)

F163S. 39A inserted (1.7.1992) by Competition and Service (Utilities) Act 1992 (c. 43), s. 28; Competition and Service (Utilities) Act. 1992 (Commencement No. 1) Order 1992, art. 3, Sch. Pt.I

[F16739BDrought plans: preparation and reviewE+W

(1)It shall be the duty of each water undertaker to prepare and maintain a drought plan.

(2)A drought plan is a plan for how the water undertaker will continue, during a period of drought, to discharge its duties to supply adequate quantities of wholesome water, with as little recourse as reasonably possible to drought orders or drought permits under Chapter 3 of Part 2 of the Water Resources Act 1991.

(3)The duties referred to in subsection (2) above include in particular those imposed under or by virtue of—

(a)section 37 above;

(b)sections 67 to 69 below.

(4)A drought plan shall address, in particular, the following matters—

(a)what measures the water undertaker might need to take to restrain the demand for water within its area;

(b)what measures the water undertaker might need to take to obtain extra water from other sources (also taking into account for that purpose the introduction of water into the undertaker’s supply system by or on behalf of licensed water suppliers);

(c)how the water undertaker will monitor the effects of the drought and of the measures taken under the drought plan;

(d)such other matters as the Secretary of State may specify in directions.

(5)Section 37B above (water resources management plans: publication and representations), including any power in that section to make regulations or give directions, applies in relation to drought plans (including revised plans) as it applies in relation to water resources management plans.

(6)Each water undertaker shall review (or further review) its drought plan and prepare a revised plan in each of the following cases—

(a)if there is a material change of circumstances;

(b)if directed to do so by the Secretary of State;

(c)in any event, not later than the end of the period of three years beginning with the date when the plan (or revised plan) was last published in accordance with section 37B(8)(a) above as applied by subsection (5) above,

and shall follow the procedure in section 37B above as applied by subsection (5) above (whether or not the revised plan prepared by the undertaker includes any proposed alterations to the previous plan).

(7)Before preparing its drought plan (including a revised plan), the water undertaker shall consult—

(a)the Environment Agency;

(b)the Authority;

(c)the Secretary of State; and

(d)any licensed water supplier which supplies water to premises in the undertaker’s area via the undertaker’s supply system.

(8)The Secretary of State may give directions specifying the form which a drought plan must take.

(9)Directions given under this section (including directions given under section 37B above as applied by subsection (5) above) may be—

(a)general directions applying to all water undertakers; or

(b)directions applying only to one or more water undertakers specified in the directions,

and shall be given by an instrument in writing.

(10)It shall be the duty of each water undertaker to whom directions apply to comply with the directions.

(11)The Secretary of State shall consult the Environment Agency before giving a direction under subsection (6)(b) above.

(12)The duty of a water undertaker under this section shall be enforceable by the Secretary of State under section 18 above.

Annotations:

Amendments (Textual)

F167Ss. 39B, 39C inserted (1.10.2004 for specified purposes and otherwise 1.10.2005) by Water Act 2003 (c. 37), ss. 63, 105(3); S.I. 2004/2528, art. 2(j) (with savings in art. 4); S.I. 2005/2714, art. 2(j) (with Sch. 2 para. 8)

Modifications etc. (not altering text)

C36S. 39B modified (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2007 otherwise) by S.I. 1999/672, Sch. 2 (as amended by Water Act 2003 (c. 37), ss. 100(3)(7), 105(3); S.I. 2004/2528, art. 2(s) (with savings in art. 4); S.I. 2005/2714, art. 2(k) (with Sch. 2 para. 8); S.I. 2007/1021, art. 2(c)

39CDrought plans: provision of informationE+W

(1)It shall be the duty of each licensed water supplier to provide the water undertaker with such information as the water undertaker may reasonably request for the purposes of preparing or revising its drought plan.

(2)In the event of any dispute between a water undertaker and a licensed water supplier as to the reasonableness of the water undertaker’s request under subsection (1) above, either party may refer the matter for determination by the Secretary of State, and any such determination shall be final.

(3)For the purposes of paragraph (b) of section 37B(1) above as applied by section 39B(5) above, the water undertaker shall identify in its statement under that paragraph any information—

(a)provided by a licensed water supplier pursuant to subsection (1) above; and

(b)contained in the water undertaker’s draft drought plan,

which the licensed water supplier has (at the time of providing it to the water undertaker) specifically identified as being, in the licensed water supplier’s opinion, commercially confidential.

(4)The water undertaker shall not use any unpublished information save for the purpose of facilitating the performance by it of any of the duties imposed on it by or under this Act, any of the other consolidation Acts or the Water Act 1989.

(5)In subsection (4) above—

(a)unpublished information” means confidential information which—

(i)is provided to the water undertaker by a licensed water supplier under this section;

(ii)relates to the affairs of any individual or to any particular business; and

(iii)by virtue of section 37B above as applied by section 39B(5) above, is not published;

(b)the other consolidation Acts” has the same meaning as in section 206 below.

(6)The duties of a licensed water supplier and a water undertaker under this section shall be enforceable by the Secretary of State under section 18 above.]

Annotations:

Amendments (Textual)

F167Ss. 39B, 39C inserted (1.10.2004 for specified purposes and otherwise 1.10.2005) by Water Act 2003 (c. 37), ss. 63, 105(3); S.I. 2004/2528, art. 2(j) (with savings in art. 4); S.I. 2005/2714, art. 2(j) (with Sch. 2 para. 8)

Modifications etc. (not altering text)

C37S. 39C modified (1.10.2004 for specified purposes and 1.10.2005 for further specified purposes and 1.4.2007 otherwise) by S.I. 1999/672, Sch. 2 (as amended by Water Act 2003 (c. 37), ss. 100(3)(7), 105(3); S.I. 2004/2528, art. 2(s) (with savings in art. 4); S.I. 2005/2714, art. 2(k) (with Sch. 2 para. 8); S.I. 2007/1021, art. 2(c)

chapter IIE+W SUPPLY DUTIES

Major suppliesE+W

[40F168Bulk supplies.E+W

(1)Where, on the application of any qualifying person—

(a)it appears to the Director that it is necessary or expedient for the purposes of securing the efficient use of water resources, or the efficient supply of water, that the water undertaker specified in the application (“the supplier”) should give a supply of water in bulk to the applicant, and

(b)the Director is satisfied that the giving and taking of such a supply cannot be secured by agreement,

the Director may by order require the supplier to give and the applicant to take such a supply for such period and on such terms and conditions as may be provided in the order.

(2)In this section “qualifying person” means—

(a)a water undertaker; or

(b)a person who has made an application for an appointment or variation under section 8 above which has not been determined.

(3)Where the application is made by a person who is a qualifying person by virtue of subsection (2)(b) above, an order made under this section in response to that application shall be expressed not to come into force until the applicant becomes a water undertaker for the area specified in the order, or for an area which includes that area.

(4)Subject to subsection (3) above, an order under this section shall have effect as an agreement between the supplier and the applicant.

(5)The Director shall not make an order under this section unless he has first consulted [F169the Environment Agency]].

(6)In exercising his functions under this section, the Director shall have regard to the desirability of—

(a)facilitating effective competition within the water supply industry;

(b)the supplier’s recovering the expenses of complying with its obligations by virtue of this section and securing a reasonable return on its capital;

(c)the supplier’s being able to meet its existing obligations, and likely future obligations, to supply water without having to incur unreasonable expenditure in carrying out works;

(d)not putting at risk the ability of the supplier to meet its existing obligations, or likely future obligations, to supply water.