Citation and commencement
1. These Regulations may be cited as the Water Supply Licence (New Customer Exception) Regulations 2005 and shall come into force on 1st December 2005.
Interpretation
2.—(1) In these Regulations—
“the Act” means the Water Industry Act 1991;
“the Authority” means, until the coming fully into force of section 36(1) of the Water Act 2003(1) (transfer to the Authority and the Consumer Council for Water of functions, property etc) the Director, and thereafter, the Water Services Regulation Authority; and
“subsidiary” has the meaning given by section 736 of the Companies Act 1985(2).
(2) For the purposes of these Regulations—
(a)“business” includes any business of managing premises for the purposes of letting or licensing its several parts for use by other persons as separate units, and, where any such business is carried on by a person in relation to those premises, he shall be treated as occupying those premises for that purpose; and
(b)for the purposes of whether activities constitute a business, it is immaterial whether or not they are carried on–
(i)for gain or reward; or
(ii)with one or more other persons.
(3) For the purposes of these Regulations any two bodies corporate are interconnected if—
(a)one of them is a body corporate of which the other is a subsidiary, or
(b)both of them are subsidiaries of the same body corporate,
and in these Regulations “interconnected bodies corporate” shall be construed accordingly and “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of whom are interconnected with each other.
New customer exception
3.—(1) Where a licensed water supplier who has entered into an undertaking with a person (A) to give a supply of water to any premises subsequently enters into an undertaking with another person (B) to give a supply of water to those premises, the licensed water supplier is not, for the purposes of section 17D(2) of the Act, to be treated as entering into an undertaking with a new customer to give a supply of water to those premises if—
(a)in a case where A and B are interconnected bodies corporate, the condition in paragraph (2) is satisfied or the condition referred to in sub-paragraph (b) is satisfied; or
(b)in any other case, the condition in paragraph (3) is satisfied.
(2) The condition referred to in paragraph (1)(a) is that—
(a)at the time the undertaking was entered into with A, the whole of the premises was occupied for the purposes of a business by a member of the group of interconnected bodies corporate of which A and B are members; and
(b)at the time that the undertaking is entered into with B–
(i)the whole of the premises is occupied for the purposes of a business by a member of the group of interconnected bodies corporate of which A and B are members;
(ii)the business referred to in sub-paragraph (i) is the same as that which was being carried on immediately before the undertaking with A ceased to apply;
(iii)the member referred to in sub paragraph (i) intends to carry on that business for at least the duration of the undertaking with B; and
(iv)the volume of water estimated to be supplied to the premises annually pursuant to the undertaking with B is the same as, or more than, that which was supplied under the undertaking with A in the year ending when that undertaking ceased to apply.
(3) The condition referred to in paragraph (1)(b) is that—
(a)the whole of the premises is occupied by B, and immediately before B’s occupation was occupied by A, for the purposes of a business; and
(b)at the time that the undertaking is entered into with B–
(i)B’s business referred to in sub-paragraph (a) is the same as that which was being carried on by A immediately before A ceased to occupy the premises;
(ii)B intends to carry on that business for at least the duration of that undertaking; and
(iii)the volume of water estimated to be supplied to the premises annually pursuant to that undertaking is the same as, or more than, that which was supplied under the undertaking with A in the year ending when that undertaking ceased to apply.
Guidance issued by the Authority
4. Any guidance issued by the Authority with the approval of the Secretary of State under section 17D(3) of the Act shall apply to any estimate of the quantity of water to be supplied to any premises for the purposes of regulation 3 as it does to any estimate for the purposes of section 17D(2) of the Act.
Determinations by the Authority
5.—(1) The Authority may determine, in a case referred to it by a licensed water supplier or an actual or potential customer of a licensed water supplier, whether that licensed water supplier is, pursuant to regulation 3, not to be treated as entering into an undertaking with a new customer to give a supply of water to any premises.
(2) Section 195(2)(bc) (the Authority’s register)(3) of the Act shall have effect as if, at the end, there were inserted “or regulation 5(1) of the Water Supply Licence (New Customer Exception) Regulations 2005”.
(3) Section 195A (reasons for decisions)(4) of the Act shall apply to the making of a determination under paragraph (1) as it applies to the making of a determination under section 17E of the Act.
Elliot Morley
Minister of State,
Department for Environment, Food and Rural Affairs
2nd November 2005
Signed on behalf of the National Assembly for Wales,
D.Elis-Thomas
Presiding Officer
1st November 2005