(A1) The Secretary of State may make regulations under section 95 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) Where 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 95 above if—
(b) the Secretary of State is satisfied that a copy of the application has been served by the Authority—
on every sewerage undertaker specified in the application; . . .
on persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations;
on the Council; and
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 Authority; and
(ii) by any affected sewerage undertaker or person or body on whom a copy of the application has been served under paragraph (b) above,
of representations or objections with respect to the Authority's proposals and any modifications proposed by the Secretary of State; and
(d) the Secretary of State has considered the summary mentioned in subsection (2)(bb) below, the Authority's reasons for its 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has been duly made with respect to those proposals, or any proposed modifications of those proposals, and has not been withdrawn.
(1A) Before making an application to the Secretary of State under this section the Authority shall arrange for such research as it 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 Authority to the Secretary of State complies with this subsection if it—
(a) sets out the Authority’s proposals for the making of regulations under section 95 above;
(b) specifies the sewerage undertaker or undertakers in relation to which it is proposed the regulations should apply
(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 Authority's reasons for its proposals.
(3) The Secretary of State shall not make any regulations on an application by the Authority under this section except where—
(a) the only provisions of the regulations are those 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 Authority's proposals to which effect is given by the regulations is a modification the proposal to make which has been notified—
(i) to the Authority; . . .
(ii) to any sewerage undertaker appearing to the Secretary of State to be likely to be affected by the modifications and
(iii) to any person or body on whom a copy of the Authority’s application was served under subsection (1)(b) above.
(4) Where no such application as is mentioned in subsection (1) above has been made, the Secretary of State may make regulations under section 95 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 95 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 sewerage 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 sewerage 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.
(1) Section 96 applies for the purposes of making regulations under section 95ZA as it applies for the purposes of making regulations under section 95.
(2) In the application of section 96 by virtue of subsection (1), a reference to a sewerage undertaker is to be treated as a reference to a sewerage licensee.
96A Information to be given to customers about overall performance.
(1) Each sewerage undertaker shall, in such form and manner and with such frequency as the Authority may direct, take steps to inform its customers , and, if the direction so specifies, sewerage licensees using the undertaker's sewerage system for the purpose of providing sewerage services to the premises of customers, of—
(a) the standards of overall performance established under section 95(1)(b) above which are applicable to that undertaker; and
(b) that undertaker’s level of performance as respects each of those standards.
(1A) Each sewerage licensee must, in such form and manner and with such frequency as the Authority may direct, take steps to inform the licensee's customers of—
(a) the standards of overall performance established under section 95ZA(1) which are applicable to that licensee;
(b) that licensee's level of performance as regards those standards.
(1B) The Authority may direct that the requirement in subsection (1A) is not to apply to such sewerage licensees as may be specified in the direction.
(2) In giving a direction under subsection (1) or (1A), the Authority shall not specify a frequency of less than once in every period of twelve months.
(2A) The sewerage licensees referred to in subsection (1) shall, if the Authority so directs, pass on the information about the matters mentioned in that subsection to their customers.
(2B) In subsection (1), the reference to the sewerage undertaker's sewerage system is to be construed in accordance with section 17BA(7).
(3) The duty of a sewerage undertaker or sewerage licensee to comply with this section shall be enforceable by the Authority under section 18 above.
96B Nutrient pollution standards to apply to certain sewage disposal works
(1) A sewerage undertaker whose area is wholly or mainly in England must—
(a) in the case of each nitrogen significant plant comprised in its sewerage system—
(i) secure that, by the upgrade date, the plant will be able to meet the nitrogen nutrient pollution standard, and
(ii) on and after the upgrade date, secure that the plant meets that standard;
(b) in the case of each phosphorus significant plant comprised in its sewerage system—
(i) secure that, by the upgrade date, the plant will be able to meet the phosphorus nutrient pollution standard, and
(ii) on and after the upgrade date, secure that the plant meets that standard.
(2) In carrying out the duty under subsection (1), a sewerage undertaker must consider whether nature-based solutions, technologies and facilities relating to sewerage and water could be used to meet the standard.
(3) “Nitrogen significant plant” means a plant in England that—
(a) discharges treated effluent into a nitrogen sensitive catchment area, and
(b) is not an exempt plant in relation to the nitrogen nutrient pollution standard.
(4) “Phosphorus significant plant” means a plant in England that—
(a) discharges treated effluent into a phosphorus sensitive catchment area, and
(b) is not an exempt plant in relation to the phosphorus nutrient pollution standard.
(1) Where the Secretary of State considers that a habitats site that is wholly or partly in England is in an unfavourable condition by virtue of pollution from nutrients in water comprising nitrogen or compounds of nitrogen, the Secretary of State may designate the catchment area for the habitats site as a nitrogen sensitive catchment area.
(2) Where the Secretary of State considers that a habitats site that is wholly or partly in England is in an unfavourable condition by virtue of pollution from nutrients in water comprising phosphorus or compounds of phosphorus, the Secretary of State may designate the catchment area for the habitats site as a phosphorus sensitive catchment area.
(3) In determining—
(a) whether a habitats site is in an unfavourable condition by virtue of pollution from nutrients comprising nitrogen, phosphorus or compounds of nitrogen or phosphorus,
(b) the catchment area for a habitats site, or
(c) whether to exercise the power in subsection (4)(e),
the Secretary of State may take into account, in particular, advice from, or guidance published by, Natural England, the Environment Agency or the Joint Nature Conservation Committee.
(4) A designation under subsection (1) or (2)—
(a) must be in writing,
(b) must be published as soon as practicable after being made,
(c) takes effect—
(i) on the day specified in the designation, or
(ii) if none is specified, on the day on which it is made,
(the “designation date”),
(d) if it takes effect after the end of the initial period, must specify the upgrade date (see section 96E(1)(b)), and
(e) may specify the concentration that applies to a plant (which discharges into the catchment area) in relation to a nutrient pollution standard instead of the standard concentration.
(5) A date specified under subsection (4)(d) as the upgrade date must be at least 7 years after the designation date.
(6) Before specifying a concentration under subsection (4)(e), the Secretary of State must consult the Environment Agency.
(7) A concentration specified under subsection (4)(e) ceases to have effect if, after the day on which the designation is made, the plant becomes an exempt plant.
(8) A designation under this section may not be revoked; and it is immaterial for the purposes of the continued designation of an area whether subsection (1) or (2) continues to be satisfied in relation to it.
(9) In this section “catchment area”, in relation to a habitats site, means the area where water, if released, would drain into the site.
(1) A plant is exempt in relation to a nutrient pollution standard if—
(a) it has a capacity of less than a population equivalent of 2000 when the designation of the associated catchment area takes effect,
(b) it has been designated by the Secretary of State as exempt in relation to the standard, or
(c) it is exempt in relation to the standard under regulations under subsection (8).
This is subject to subsection (2).
(2) The Secretary of State may designate a plant as not being exempt in relation to a nutrient pollution standard, unless—
(a) the plant has a capacity of less than a population equivalent of 250, and
(b) the designation takes effect after the designation of the associated catchment area takes effect.
(3) A designation under subsection (1)(b) or (2)—
(a) must be in writing,
(b) must be published as soon as practicable after being made, and
(c) takes effect—
(i) on the day specified in the designation, or
(ii) if none is specified, on the day on which it is made.
(4) A designation under subsection (2) that takes effect after the designation of the associated catchment area takes effect must specify the upgrade date (see section 96E(2)(a)).
The upgrade date must be at least 7 years after the designation under subsection (2) takes effect.
(5) A designation under subsection (2) may specify the concentration that applies to a plant in relation to a nutrient pollution standard instead of the standard concentration.
(6) Before specifying a concentration under subsection (5), the Secretary of State must consult the Environment Agency.
(7) A concentration specified under subsection (5) ceases to have effect if, after the day on which the designation is made, the plant again becomes an exempt plant.
(8) The Secretary of State may by regulations specify plants or descriptions of plant that are to be exempt in relation to a nutrient pollution standard.
(9) Subsections (10) and (11) apply where a plant that is exempt under regulations under subsection (8) can, by virtue of the regulations, cease to be exempt.
(10) The regulations must specify or provide for determining the upgrade date (see section 96E(2)(b)) in relation to any plant that ceases, by virtue of the regulations, to be an exempt plant in relation to a standard after the designation of the associated catchment area takes effect.
The upgrade date must be at least 7 years after the plant ceases to be exempt in relation to the standard.
(11) The regulations may provide for the Secretary of State to specify the concentration that applies to a plant that ceases, by virtue of the regulations, to be an exempt plant in relation to a nutrient pollution standard instead of the standard concentration; and, if such provision is made, the regulations must—
(a) require that the Secretary of State consult the Environment Agency before specifying a concentration;
(b) provide for any specified concentration to cease to have effect if, after the day on which the plant ceases to be an exempt plant, the plant again becomes an exempt plant.
(12) A designation under subsection (2) in relation to a plant and a nutrient pollution standard is of no effect if the plant ceases, by virtue of regulations under subsection (8), to be exempt in relation to the standard before, or at the same time as, the designation would otherwise take effect.
(13) In this section “population equivalent” has the meaning given by regulation 2(1) of the Urban Waste Water Treatment (England and Wales) Regulations 1994 (S.I. 1994/2841).
(14) References in this section to the designation of an associated catchment area are to its designation as a sensitive catchment area.
(1) The upgrade date, in relation to a nutrient significant plant, is, unless subsection (2) or (3) applies—
(a) 1 April 2030, if the designation of the associated catchment area takes effect during the initial period;
(b) the date specified under section 96C(4)(d), if the designation of the associated catchment area takes effect after the end of the initial period.
(2) But, if the plant becomes a nutrient significant plant after the designation of the associated catchment area takes effect, the upgrade date is—
(a) the date specified under section 96D(4), where it becomes a nutrient significant plant by virtue of a designation under section 96D(2);
(b) the date specified by or determined under provision made by virtue of section 96D(10), where it becomes a nutrient significant plant on ceasing, by virtue of regulations under section 96D(8), to be exempt.
(3) Where the associated catchment area has ceased to be a catchment permitting area and a date has been specified under section 96H(4)(c), that date is the upgrade date.
(4) “The initial period” means the period of 3 months beginning with the date on which the Levelling-up and Regeneration Act 2023 is passed.
(5) References in this section to the designation of an associated catchment area are to its designation as a sensitive catchment area.
(1) A nitrogen significant plant meets the nitrogen nutrient pollution standard if—
(a) where the associated catchment area is not a catchment permitting area (see section 96G), the concentration of total nitrogen in treated effluent that the plant discharges is not more than—
(i) 10 mg/l, or
(ii) where a different concentration applies to the plant under section 96C(4)(e) or 96D(5) or by virtue of regulations made under section 96D(11), that concentration;
(b) where the associated catchment area is a catchment permitting area, the sewerage undertaker is complying with any condition in the environmental permit for the plant imposed in pursuance of section 96G(3)(b).
(2) A phosphorus significant plant meets the phosphorus nutrient pollution standard if—
(a) where the associated catchment area is not a catchment permitting area, the concentration of total phosphorus in treated effluent that the plant discharges is not more than—
(i) 0.25 mg/l, or
(ii) where a different concentration applies to the plant under section 96C(4)(e) or 96D(5) or by virtue of regulations made under section 96D(11), that concentration;
(b) where the associated catchment area is a catchment permitting area, the sewerage undertaker is complying with any condition in the environmental permit for the plant imposed in pursuance of section 96G(3)(b).
(3) “Treated effluent”, in relation to a plant, means any effluent discharged by the plant, other than anything discharged—
(a) from a storm overflow, or
(b) by an emergency discharge.
(4) For the purposes of subsection (3), in relation to a plant—
(a) “storm overflow” means any structure or apparatus comprised in the plant which, when the capacity of relevant parts of the sewerage system is exceeded, relieves them by discharging the excess contents into inland waters, underground strata or the sea, where—
“relevant parts of the sewerage system” means—
storage tanks at the plant, and
other parts of the sewerage system downstream of the plant;
“the sewerage system” means the undertaker’s sewerage system of which the plant forms part;
(b) “emergency discharge” means a discharge in circumstances where the plant’s normal treatment process has failed because of—
(i) electrical power failure, or
(ii) mechanical breakdown of duty and standby pumps.
(5) Regulations made by the Secretary of State may specify how the concentration of total nitrogen or concentration of total phosphorus in treated effluent is to be determined.
(6) Regulations under subsection (5) may, in particular—
(a) make provision for requiring regular sampling of the treated effluent that a plant discharges to ascertain the concentration of total nitrogen or concentration of total phosphorus;
(b) make provision for regarding a nutrient pollution standard as being met by a plant if, for example—
(i) it is met, with at least the frequency specified in the regulations, in samples taken in accordance with the regulations, or
(ii) the average concentration, calculated in accordance with the regulations, of total nitrogen or of total phosphorus in samples taken in accordance with the regulations would meet the standard;
(c) make provision for determining generally, or in a particular case, whether anything is, or is not, to be regarded as treated effluent discharged by a plant;
(d) make provision in relation to section 96G, including—
(i) the determination of compliance with conditions in environmental permits imposed in pursuance of section 96G(3)(b);
(ii) in connection with any kind of plant;
(e) confer any function on the Secretary of State, the Authority, the Environment Agency, statutory undertakers or any other person;
(f) make different provision for different purposes or different areas (including different plants within an area).
96G Nutrient pollution standards determined through environmental permitting
(1) The Secretary of State may designate a sensitive catchment area as a catchment permitting area.
(2) In determining whether to make a designation under subsection (1) or to revoke such a designation under section 96H(3)(c), the Secretary of State may take into account, in particular, advice from, or guidance published by, the Environment Agency or Natural England.
(3) Where the Secretary of State makes a designation under subsection (1), the Environment Agency must—
(a) review the environmental permits for the plants that discharge treated effluent into the catchment permitting area that are—
(i) nutrient significant plants, and
(ii) such other plants that the Environment Agency considers appropriate (including such plants within an area that may be determined by the Environment Agency), and
(b) impose conditions on those permits relating to nutrients in treated effluent discharged by those plants—
(i) under Chapter 3 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016, and
(ii) for the relevant purpose.
(4) The “relevant purpose” is ensuring that, on and after the applicable date, the overall effect on the habitats site associated with the catchment permitting area of nutrients in treated effluent discharged by all the plants that discharge treated effluent into the catchment permitting area is less significant or the same as the overall effect on the site of nutrients in treated effluent that would be discharged by those plants if—
(a) the standard concentration applied to nutrient significant plants, and
(b) the nutrient significant plants were (on that basis) meeting the nutrient pollution standard on and after the applicable date.
(5) For that purpose, a condition imposed on an environmental permit in pursuance of subsection (3)(b) may, in particular—
(a) require, or have the effect of requiring, that the concentration of nutrients in treated effluent discharged by a plant is higher or lower than, or equal to, the standard concentration;
(b) relate to any or all of the plants mentioned in subsection (3)(a), including the concentration of nutrients in treated effluent discharged by those plants.
(6) In subsection (4)—
(a) the “applicable date” means—
(i) where the designation under section 96C(1) or (2) of the area that is the catchment permitting area takes effect during the initial period, 1 April 2030, or
(ii) where that designation takes effect after the initial period, the date specified under section 96C(4)(d) in that designation;
(b) a habitats site is “associated” with a catchment permitting area if water released into the area would drain into the site.
(7) The duty in subsection (3) applies in relation to the grant of an environmental permit for a plant that discharges (or will discharge) treated effluent into the catchment permitting area as if—
(a) paragraph (a) were omitted, and
(b) in paragraph (b)—
(i) for “those permits” there were substituted “the permit”;
(ii) for “those plants” there were substituted “the plant”;
(iii) for “Chapter 3” there were substituted “Chapter 2”.
(8) It is for the Environment Agency to determine the overall effect on a habitats site of nutrients in treated effluent.
(9) Regulations made by the Secretary of State may specify how such determinations are to be made.
(10) In this section “nutrients”, in relation to an area designated under—
(a) section 96C(1), means nutrients in water comprising nitrogen or compounds of nitrogen;
(b) section 96C(2), means nutrients in water comprising phosphorus or compounds of phosphorus.
(1) A designation under section 96G(1) or revocation of such a designation under subsection (3)(c)—
(a) must be in writing,
(b) must be published as soon as practicable after being made, and
(c) takes effect in accordance with subsection (3) or (4) (as appropriate).
(2) A designation under section 96G(1) may be made at the same time, or at any time after the time, that the designation under section 96C(1) or (2) of the area as a sensitive catchment area is made.
(3) A designation under section 96G(1)—
(a) if made before the time that the designation under section 96C(1) or (2) takes effect, takes effect at the same time as that designation;
(b) if made after the time that the designation under section 96C(1) or (2) takes effect, takes effect on the day specified in it;
(c) may be revoked.
(4) A revocation under subsection (3)(c)—
(a) takes effect—
(i) on the day specified in the revocation, or
(ii) if none is specified, on the day on which it is made;
(b) has no effect in relation to the designation of the area under section 96C(1) or (2);
(c) may specify the upgrade date that is to apply in relation to nutrient significant plants (see section 96E(3)).
(5) In determining whether an upgrade date should be specified under subsection (4)(c), the Secretary of State may take into account, in particular, advice from, or guidance published by, Natural England or the Environment Agency.
96I Information about catchment areas and nutrient significant plants
(1) The Secretary of State must maintain and publish online a map showing—
(a) all the nitrogen sensitive catchment areas, and
(b) all the phosphorus sensitive catchment areas.
(2) As soon as practicable after making a designation under section 96C (sensitive catchment areas), the Secretary of State must publish the revised map online.
(3) The Secretary of State must maintain and publish online a document listing—
(a) all plants that are or have been—
(i) nitrogen significant plants, or
(ii) phosphorus significant plants;
(b) in relation to each plant listed under paragraph (a)—
(i) the upgrade date that applies for the time being;
(ii) if the plant becomes, or ceases to be, an exempt plant in relation to the related nutrient pollution standard, that fact and the date on which it occurred;
(iii) where the associated catchment area for a plant is not a catchment permitting area, the figure specified in section 96F(1)(a)(i) or (2)(a)(i), under section 96C(4)(e) or 96D(5) or by virtue of regulations made under section 96D(11) (total nitrogen concentration or total phosphorus concentration) that applies to the plant;
(iv) where a direction relating to the plant and the related nutrient pollution standard is made or revoked under regulation 85C or 110B of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) (disapplication of assumption that the plant will meet the standard on and after the upgrade date or applicable date), that fact and the date on which the direction or revocation takes effect;
(c) all catchment permitting areas.
(4) Where any change occurs in the information required to be listed, the Secretary of State must, as soon as practicable, publish a revised document online.
96J Section 96B: enforcement and interaction with other provisions
(1) The duty of a sewerage undertaker under section 96B is enforceable under section 18—
(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 Authority.
(2) The Environment Agency must exercise its functions (whether under environmental permitting regulations or otherwise) so as to secure compliance by sewerage undertakers with the duty imposed by section 96B; those functions include, in particular, functions of determining—
(a) whether to grant or vary any permit under environmental permitting regulations, or
(b) any conditions to be included in any such permit.
(3) The Environment Agency must exercise its functions under the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (S.I. 2015/810) so as to secure compliance by sewerage undertakers with the duties imposed by those regulations to prevent and remediate environmental damage (within the meaning of those regulations) that is treated as occurring by regulation 9A of those regulations (nutrient significant sewage disposal works: environmental damage).
(4) Nothing in section 96B or 96G or this section affects—
(a) any other obligation of a sewerage undertaker relating to nutrient levels in treated effluent of a plant, or any remedy available in respect of contravention of any such obligation;
(b) any power to impose an obligation relating to nutrient levels in treated effluent of a plant (including by means of a condition included in a permit under environmental permitting regulations); and, in particular, nothing in those sections or this section is to be taken to preclude any such power being exercised so as to require a lower concentration of total nitrogen or lower concentration of total phosphorus in treated effluent of a plant than section 96B requires.
(1) The Secretary of State may by regulations amend any plant capacity for the time being specified in section 96D(1)(a) or (2)(a).
(2) Regulations under subsection (1) may not have effect in relation to an area that is a sensitive catchment area when the regulations are made.
(3) Subject to that, regulations under subsection (1)—
(a) may, in particular, amend section 96D so that different plant capacities are specified in relation to the nitrogen nutrient pollution standard and the phosphorus nutrient pollution standard;
(b) may, where different plant capacities will apply for different purposes or different areas as a result of regulations under subsection (1), amend section 96D so as to specify those capacities and the purposes or areas for which they apply.
(4) The Secretary of State may by regulations—
(a) amend section 96F(1)(a)(i) so as to substitute a different concentration of total nitrogen;
(b) amend section 96F(2)(a)(i) so as to substitute a different concentration of total phosphorus.
(5) Regulations under subsection (4) may not have effect in relation to an area that is a sensitive catchment area when the regulations are made.
(6) Where, as a result of the regulations, different concentrations will apply for different purposes or different areas (including different plants within an area), the regulations may amend section 96F(1)(a)(i) or (2)(a)(i) to specify those concentrations and the purposes or areas for (or plants within an area to) which they apply.
(7) A statutory instrument containing regulations under subsection (1) or (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(8) If a draft of a statutory instrument containing regulations under subsection (1) or (4) would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not a hybrid instrument.
96L Sections 96B to 96K, 96M and 96N: interpretation
(1) This section applies for the purposes of sections 96B to 96K, 96M and 96N.
(2) In those sections (and this section)—
“associated catchment area”—
in relation to a plant that is a nitrogen significant plant or is exempt in relation to the nitrogen nutrient pollution standard, means the nitrogen sensitive catchment area into which it discharges;
in relation to a plant that is a phosphorus significant plant or is exempt in relation to the phosphorus nutrient pollution standard, means the phosphorus sensitive catchment area into which it discharges;
“catchment permitting area” means a sensitive catchment area designated under section 96G(1) for the time being;
“environmental permit” means a permit granted under Chapter 2 of Part 2 of the Environmental Permitting (England and Wales) Regulations 2016; and a reference to a condition imposed on such a permit is to be construed in accordance with those regulations;
“environmental permitting regulations” means—
the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) (as they have effect from time to time), or
any other provision made after the Levelling-up and Regeneration Act 2023 is passed that is, or could have been, made under section 2 of the Pollution Prevention and Control Act 1999;
“exempt plant”, in relation to a nutrient pollution standard, has the meaning given by section 96D;
“habitats site” means a European site within the meaning of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) (see regulation 8);
“the initial period” has the meaning given by section 96E(4);
“nitrogen nutrient pollution standard”, in relation to references to a nitrogen significant plant meeting the standard, has the meaning given by section 96F(1);
“nitrogen sensitive catchment area” means an area designated under section 96C(1);
“nitrogen significant plant” has the meaning given by section 96B(3);
“nutrient pollution standard” means the nitrogen nutrient pollution standard or the phosphorus nutrient pollution standard;
“nutrient significant plant” means—
a nitrogen significant plant, or
a phosphorus significant plant;
“phosphorus nutrient pollution standard”, in relation to references to a phosphorus significant plant meeting the standard, has the meaning given by section 96F(2);
“phosphorus sensitive catchment area” means an area designated under section 96C(2);
“phosphorus significant plant” has the meaning given by section 96B(4);
“plant” means a sewage disposal works;
“related nutrient pollution standard”, in relation to a sensitive catchment area or a plant, means—
if (or so far as) the area is a nitrogen sensitive catchment area or the plant is a nitrogen significant plant, the nitrogen nutrient pollution standard;
if (or so far as) the area is a phosphorus sensitive catchment area or the plant is a phosphorus significant plant, the phosphorus nutrient pollution standard;
“sensitive catchment area” means—
a nitrogen sensitive catchment area, or
a phosphorus sensitive catchment area;
“standard concentration”, in relation to the nutrient pollution standard that applies to a plant, means the concentration specified in section 96F(1)(a)(i) or (2)(a)(i) on the date that the designation of the associated catchment area as a sensitive catchment area takes effect;
“treated effluent” has the meaning given by section 96F(3);
“upgrade date”, in relation to a plant that discharges into a sensitive catchment area, has the meaning given by section 96E.
(3) References to a plant discharging into a sensitive catchment area are to the plant discharging treated effluent into the area.
(4) References to the sewerage system of a sewerage undertaker have the meaning given by section 17BA(7).
(1) The Secretary of State may by regulations provide for sections 96B to 96L to apply with prescribed modifications in relation to any plant that, after the Levelling-up and Regeneration Act 2023 is passed—
(a) operates for the first time, or
(b) is altered.
This is subject to subsection (3).
(2) Regulations under this section may in particular provide for sections 96C(5) and 96D(4) and (10) to apply as if they specified periods other than 7 years.
(3) But regulations under this section may not modify section 96F(1) or (2) or section 96G(4) so as to apply a higher concentration of total nitrogen or higher concentration of total phosphorus than would otherwise apply.
96N Setting and enforcing nutrient pollution standards
(1) The Secretary of State may by regulations make provision about the setting and enforcing of nutrient pollution standards.
(2) The Secretary of State may only exercise the power under subsection (1) if the Secretary of State considers that the provisions about the setting and enforcing of nutrient pollution standards will be at least as effective as the provision already in force under sections 96B to 96M, the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (S.I. 810/2015) or this section as a result of the exercise of this power, including in relation to—
(a) overall environmental protection (within the meaning of section 45 of the Environment Act 2021),
(b) nutrient pollution levels discharged by plants or across catchment areas,
(c) enforcement, or
(d) costs.
(3) The regulations may, in particular—
(a) amend, repeal, revoke or otherwise modify—
(i) sections 96B to 96M,
(ii) the Environmental Damage (Prevention and Remediation) (England) Regulations 2015, or
(iii) provision made under this section;
(b) provide for a sewerage undertaker’s compliance with the duty under section 96B (or an equivalent) to be determined by reference to matters other than the concentration of nitrogen or phosphorous in treated effluent discharged by a plant;
(c) include provision applying or corresponding to any provision in sections 96B to 96M (with or without modifications);
(d) include provision about the establishment of schemes involving sewerage undertakers and others for the purpose of encouraging or requiring sewerage undertakers to arrange or contribute to action in respect of the effect of nitrogen or phosphorous (from any source) on a habitats site;
(e) make different provision for different purposes or different areas.
97 Performance of sewerage undertaker’s functions by local authorities etc.
(1) A relevant authority may, in accordance with any arrangements which it has entered into for the purpose with any sewerage undertaker, carry out sewerage functions on that undertaker’s behalf in relation to such area comprising the whole or any part of that authority’s relevant area, together (where that authority are a local authority or an urban development corporation and the arrangements so provide) with parts of any adjacent relevant areas of other relevant authorities, as may be specified in the arrangements.
(2) Arrangements entered into for the purposes of this section may contain any such provision as may be agreed between the relevant authority and the sewerage undertaker but shall not affect the availability to any person, other than the relevant authority, of any remedy against the undertaker in respect of the carrying out of the undertaker’s sewerage functions or of any failure to carry them out.
(3) It is hereby declared that, if arrangements entered into for the purposes of this section so provide, a relevant authority shall be entitled to exercise on behalf of a sewerage undertaker any power which by or under any enactment is exercisable by the undertaker for the purposes of, or in connection with, the carrying out of the undertaker’s sewerage functions.
(4) Where arrangements entered into for the purposes of this section provide for a local authority to carry out the sewerage functions of a sewerage undertaker on the undertaker’s behalf, section 101 of the Local Government Act 1972 (delegation of functions), so far as it relates to the carrying out of functions by a committee, sub-committee or officer of a local authority, shall have effect in relation to those sewerage functions only in so far as the arrangements do not otherwise provide.
(4A) Where arrangements entered into for the purposes of this section provide for a local authority which are operating executive arrangements to carry out the sewerage functions of a sewerage undertaker on that undertaker’s behalf—
(a) those sewerage functions shall be treated as functions of the authority for the purposes of section 13 of the Local Government Act 2000; and
(b) if or to the extent that those sewerage functions are the responsibility of the executive of that authority—
(i) subsection (4) above shall not apply; and
(ii) sections 14 to 16 of the Local Government Act 2000 and any regulations made under sections 17 to 20 of that Act shall apply in relation to those sewerage functions only in so far as the arrangements do not provide otherwise.
(5) In this section—
“executive” and “executive arrangements” have the same meaning as in Part II of the Local Government Act 2000;
“new town” has the same meaning as in the New Towns Act 1981;
“relevant area”—
in relation to a local authority, means the area of the authority and the whole of any new town or urban development area any part of which is situated within the area of the authority;
in relation to the Mayoral development corporation for any Mayoral development area, means that area;
in relation to the English new towns residuary body, means any new town in England;
in relation to the Welsh new towns residuary body, means any new town in Wales;
in relation to the development corporation for any new town, means that new town; and
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
in relation to any urban development corporation for any urban development area, means that area;
“relevant authority” means any of the following, that is to say—
a local authority;
the Mayoral development corporation for any Mayoral development area;
the new towns residuary body, or a development corporation for a new town;
the urban development corporation for any urban development area;
“sewerage functions”, in relation to a sewerage undertaker, means any of the functions of the undertaker by virtue of its appointment under Chapter I of Part II of this Act as a sewerage undertaker, other than its functions relating to sewage disposal and its functions by virtue of Chapter III of this Part;
“urban development area” means any area so designated under Part XVI of the Local Government, Planning and Land Act 1980.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) It shall be the duty of a sewerage undertaker (in accordance with section 101 below) to provide a public sewer to be used for the drainage for domestic purposes of premises in a particular locality in its area if-
(a) the undertaker is required to provide the sewer by a notice served on the undertaker by one or more of the persons who under subsection (2) below are entitled to require the provision of the sewer for that locality;
(b) the premises in that locality the drainage of which would be by means of that sewer are—
(i) premises on which there are buildings; or
(ii) premises on which there will be buildings when proposals made by any person for the erection of any buildings are carried out;
and
(c) the conditions specified in section 99 below are satisfied in relation to that requirement.
(1A) It shall be the duty of a sewerage undertaker (in accordance with section 101 below) to provide a lateral drain to communicate with a public sewer and to be used for the drainage for domestic purposes of premises in its area if—
(a) the undertaker is required to provide the lateral drain by a notice served on the undertaker by one or more of the persons who under subsection (2A) below are entitled to require the provision of the lateral drain;
(b) the premises the drainage of which would be by means of that lateral drain are—
(i) premises on which there are buildings; or
(ii) premises on which there will be buildings when proposals made by any person for the erection of any buildings are carried out; and
(c) the conditions specified in section 99 below are satisfied in relation to that requirement.
(2) Each of the following persons shall be entitled to require the provision of a public sewer for any locality, that is to say—
(a) the owner of any premises in that locality;
(b) the occupier of any premises in that locality;
(c) any local authority within whose area the whole or any part of that locality is situated;
(ca) where the whole or any part of that locality is situated within a Mayoral development area, the Mayoral development corporation;
(d) where the whole or any part of that locality is situated in a new town, within the meaning of the New Towns Act 1981—
(i) the new towns residuary body; and
(ii) . . . the development corporation for the new town . . .;
and
(e) where the whole or any part of that locality is situated within an area designated as an urban development area under Part XVI of the Local Government, Planning and Land Act 1980, the urban development corporation.
(2A) Each of the following persons shall be entitled to require the provision of a lateral drain, that is to say—
(a) the owner of the premises the drainage of which would be by means of that lateral drain;
(b) the occupier of those premises;
(c) any local authority within whose area those premises are situated;
(d) where those premises are situated in a new town, within the meaning of the New Towns Act 1981—
(i) the new towns residuary body; and
(ii) the development corporation for the new town; and
(e) where those premises are situated within an area designated as an urban development area under Part 16 of the Local Government, Planning and Land Act 1980, the urban development corporation.
(2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) The duty of a sewerage undertaker under this section to provide a public sewer or, as the case may be, a lateral drain shall be owed to the person who requires the provision of the sewer or lateral drain or , as the case may be, to each of the persons who joins in doing so.
(4) Where a duty is owed by virtue of subsection (3) above to any person, any breach of that duty which causes that person to sustain loss or damage shall be actionable at the suit of that person; but, in any proceedings brought against a sewerage undertaker in pursuance of this subsection, it shall be a defence for the undertaker to show that it took all reasonable steps and exercised all due diligence to avoid the breach.
(5) In this section the reference to domestic purposes, in relation to the drainage of premises . . . to which a requirement under this section relates, is a reference—
(a) where there are buildings on those premises , to such domestic sewerage purposes as are specified in relation to those buildings in the requirement; and
(b) where any person is proposing to erect buildings on those premises , to such domestic sewerage purposes as are so specified in relation to the buildings and to times after the erection of the buildings.
(1) The conditions mentioned in section 98(1)(c) or 98(1A)(c) above are satisfied in relation to a requirement for the provision of a public sewer or (as the case may be) lateral drain by a sewerage undertaker if—
(a) such undertakings as the undertaker may have reasonably required in accordance with subsection (2) or, as the case may be, subsection (2A) below have been given by the person or persons who have required the provision of the sewer or (as the case may be) lateral drain ; and
(b) such security as charging rules allow and the undertaker may have required has been provided for the discharge of any obligations imposed by those undertakings on any person who, under subsection (3) below, may be required to secure his undertakings.
(2) The undertakings which a sewerage undertaker may require for the purposes of subsection (1) above in respect of any public sewer are undertakings which—
(a) bind the person or persons mentioned in that subsection to pay to the undertaker such charges as the undertaker may impose in accordance with charging rules, and
(b) in the case of undertakings binding two or more persons, bind them either jointly and severally or with liability to pay apportioned in such manner as they may agree.
(2A) The undertakings which a sewerage undertaker may require for the purposes of subsection (1) above in respect of any lateral drain are undertakings which—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) in the case of undertakings binding two or more persons, bind them either jointly and severally or with liability apportioned in such manner as they may agree.
(3) For the purposes of subsection (1)(b) above a person may be required to secure his undertakings in relation to the provision of a public sewer or, as the case may be, a lateral drain if—
(a) it was by virtue of section 98(2)(a) or (b) or (as the case may be) section 98(2A)(a) or (b) above that he required, or joined in requiring, the provision of the sewer or drain; and
(b) he is not a public authority.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Any dispute between a sewerage undertaker and any other person as to—
(a) the undertakings or security required by the undertaker for the purposes of this section; or
(b) the amount or amounts by way of charges required to be paid in pursuance of any such undertaking,
may be referred to the Authority for determination under section 30A above by either party to the dispute.
(7) In this section “relevant deficit” and “discounted aggregate deficit” have the meanings given by sections 100 and 100A below, respectively.
100 Calculation of “relevant deficit” for the purposes of section 99.
(1) For the purposes of section 99 above the relevant deficit for any year on a public sewer is the amount (if any) by which the drainage charges payable for the use during that year of that sewer are exceeded by the annual borrowing costs of a loan of the amount required for the provision of that sewer.
(2) The annual borrowing costs of a loan of the amount required for the provision of a public sewer is the aggregate amount which would fall to be paid in any year by way of payments of interest and repayments of capital if an amount equal to so much of the costs reasonably incurred in providing that sewer as were not incurred in the provision of additional capacity had been borrowed, by the sewerage undertaker providing the sewer, on terms—
(a) requiring interest to be paid and capital to be repaid in twelve equal annual instalments; and
(b) providing for the amount of the interest to be calculated at such rate, and in accordance with such other provision, as may have been determined for the purposes of this subsection.
(3) A determination for the purposes of subsection (2) above shall be made either—
(a) by the undertaker with the approval of the Authority; or
(b) in default of such a determination, by the Authority.
(4) For the purposes of this section the costs reasonably incurred in providing a public sewer (“the new sewer”) shall include—
(a) the costs reasonably incurred in providing such other public sewers and such pumping stations as it is necessary to provide in consequence of the provision of the new sewer; and
(b) such proportion (if any) as is reasonable of the costs reasonably incurred in providing any such additional capacity in an earlier public sewer as falls to be used in consequence of the provision of the new sewer.
(5) In subsection (4) above the reference to an earlier public sewer, in relation to the new sewer, is a reference to any public sewer which—
(a) has been provided in the period of twelve years immediately before the provision of the new sewer; and
(b) was so provided in pursuance of a public sewer requisition.
(6) Any reference in this section to the provision of additional capacity in a public sewer provided in pursuance of a requirement under any enactment is a reference to such works carried out or other things done in connection with the provision of that sewer as are carried out or done for the purpose of enabling that sewer to be used for purposes in addition to those for which it is necessary to provide the sewer in order to comply with the requirement.
(7) Any reference in this section to the drainage charges payable for the use during any year of any sewer provided by a sewerage undertaker is a reference to so much of the aggregate of any charges payable to the sewerage undertaker in respect of services provided in the course of that year as represents charges which—
(a) have been imposed by the undertaker in relation to such of the premises connected with that sewer as are premises where there are buildings; and
(b) are reasonably attributable to the use of that sewer for the drainage for domestic sewerage purposes of those premises or to the disposal of effluent drained for any such purpose from those premises.
(8) An approval or determination given or made by the Authority for the purposes of subsection (2) above—
(a) may be given or made in relation to the provision of a particular public sewer, in relation to the provision of sewers of a particular description or in relation to the provision of public sewers generally; and
(b) may be revoked at any time except in relation to a public sewer in respect of which the conditions referred to in section 99(1) above have already been satisfied.
(9) In this section “public sewer requisition” means—
(a) a requirement under section 98 above (including, by virtue of paragraph 1 of Schedule 2 to the Water Consolidation (Consequential Provisions) Act 1991, a requirement under section 71 of the Water Act 1989);
(b) a requirement under the provisions of section 16 of the Water Act 1973 (sewer requisitions); or
(c) a requirement under any local statutory provision corresponding to section 98 above or to any of the provisions of that section 16.
100A Calculation of “discounted aggregate deficit” for the purposes of section 99
(1) For the purposes of section 99 above the discounted aggregate deficit on a public sewer is the amount equal to the sum of the estimated relevant deficits for each of the twelve years following the provision of the sewer, in each case discounted in accordance with subsection (6) below.
(2) The estimated relevant deficit for any year is the amount (if any) by which the estimated drainage charges payable for the use during that year of that sewer would be exceeded by the annual borrowing costs of a loan of the amount required for the provision of that sewer.
(3) Subsections (2) to (6), (8) and (9) of section 100 above (which relate to the annual borrowing costs of a loan of the amount required for the provision of a public sewer) shall apply for the purposes of this section as they apply for the purposes of that section.
(4) Any reference in this section to the estimated drainage charges payable for the use during any year of any sewer is a reference to so much of the aggregate of any charges expected to be payable to the sewerage undertaker for the provision of services in the course of that year as would represent charges—
(a) imposed by the undertaker in relation to such of the premises with which the sewer is expected to be connected as are premises where there are buildings; and
(b) reasonably attributable to the use of that sewer for the drainage for domestic sewerage purposes of those premises or to the disposal of effluent drained for any such purposes from those premises.
(5) For the purposes of subsection (4) above, a thing is expected to be the case if, at the time the relevant calculation is made, it is reasonably likely to occur.
(6) The estimated relevant deficit for a year mentioned in subsection (1) above shall be discounted in order to determine its net present value by applying such factor, and in accordance with such other provision, as may be determined by the Authority.
(7) A determination made by the Authority for the purposes of subsection (6) above—
(a) may be made in relation to the provision of a particular public sewer or in relation to the provision of public sewers generally; and
(b) may be revoked at any time except in relation to a public sewer in respect of which the conditions referred to in section 99(1) above have already been satisfied.
101 Determination of completion date and route for requisitioned sewer or lateral drain.
(1) A sewerage undertaker shall not be in breach of a duty imposed by section 98 above in relation to any locality or (in the case of a lateral drain) in relation to any premises unless—
(a) the period of six months beginning with the relevant day has expired; and
(b) the sewerage undertaker has not, before the end of that period, so laid (as the case may be)—
(i) the public sewer to be provided as to enable drains and private sewers to be used for the drainage of premises in the locality to communicate with the public sewer; or
(ii) the lateral drain to be provided as to enable the drain to be used for the drainage of premises to communicate with a public sewer vested in that undertaker,
at the place or places determined under subsection (3) below.
(2) The period mentioned in subsection (1)(a) above may be extended—
(a) by agreement between the undertaker and the person or persons who required the provision of the public sewer or, as the case may be, lateral drain; or
(b) where there is a dispute as to whether the period should be extended, by the Authority on a reference under subsection (4) below.
(3) The places mentioned in subsection (1)(b) above shall be—
(a) such place or places as are determined by agreement between the sewerage undertaker and the person or persons who required the provision of the public sewer or, as the case may be, lateral drain; or
(b) in default of agreement, such place or places as are determined by the Authority on a reference under subsection (4) below to be the place or places at which it is reasonable, in all the circumstances—
(i) in relation to the provision of a public sewer, for drains or private sewers to be used for the drainage of premises in the locality in question to communicate with the public sewer; or
(ii) in relation to the provision of a lateral drain—
(a) for the lateral drain to communicate with a public sewer vested in the undertaker; and
(b) for the remainder of the drain of which the lateral drain forms part to connect with the lateral drain.
(4) A reference for the purposes of subsection (2) or (3) above may be made to the Authority for determination under section 30A above by either party to the dispute.
(5) In this section “relevant day”, in relation to a requirement to provide a public sewer for any locality or, as the case may be, a lateral drain, means the day after whichever is the later of the following—
(a) the day on which the conditions specified in section 99 above are satisfied in relation to the requirement; and
(b) the day on which the place or places where (as the case may be)—
(i) drains or private sewers to be used for the drainage of premises in that locality will communicate with the public sewer; or
(ii) the lateral drain will communicate with a public sewer and the remainder of the drain will connect with the lateral drain,
are determined under subsection (3) above.
(1) Without prejudice to section 98 above, it shall be the duty of a sewerage undertaker to provide a public sewer to be used for the drainage for domestic sewerage purposes of premises in a particular locality in its area if the conditions specified in subsection (2) below are satisfied.
(2) The conditions mentioned in subsection (1) above are—
(a) that the premises in question, or any of those premises, are premises on which there are buildings . . . ;
(b) that the drains or sewers used for the drainage for domestic sewerage purposes of the premises in question do not, either directly or through an intermediate drain or sewer, connect with a public sewer; and
(c) that the drainage of any of the premises in question . . . is giving, or is likely to give, rise to such adverse effects to the environment or amenity that it is appropriate, having regard to any guidance issued under this section by the Secretary of State and all other relevant considerations, to provide a public sewer for the drainage for domestic sewerage purposes of the premises in question.
(3) Without prejudice to the generality of subsection (2)(c) above, regard shall be had to the following considerations, so far as relevant, in determining whether it is appropriate for any sewer to be provided by virtue of this section—
(a) the geology of the locality in question or of any other locality;
(b) the number of premises, being premises on which there are buildings, which might reasonably be expected to be drained by means of that sewer;
(c) the costs of providing that sewer;
(d) the nature and extent of any adverse effects to the environment or amenity arising, or likely to arise, as a result of the premises or, as the case may be, the locality in question not being drained by means of a public sewer; and
(e) the extent to which it is practicable for those effects to be overcome otherwise than by the provision (whether by virtue of this section or otherwise) of public sewers, and the costs of so overcoming those effects.
(4) Guidance issued by the Secretary of State under this section may—
(a) relate to how regard is to be had to the considerations mentioned in paragraphs (a) to (e) of subsection (3) above;
(b) relate to any other matter which the Secretary of State considers may be a relevant consideration in any case and to how regard is to be had to any such matter;
(c) set out considerations, other than those mentioned in paragraphs (a) to (e) of subsection (3) above, to which (so far as relevant) regard shall be had in determining whether it is appropriate for any sewer to be provided by virtue of this section;
(d) relate to how regard is to be had to any such consideration as is mentioned in paragraph (c) above;
(e) without prejudice to paragraphs (a) to (d) above, relate to how a sewerage undertaker is to discharge its functions under this section.
(5) ... the Secretary of State shall arrange for any guidance issued by him under this section to be published in such manner as he considers appropriate.
(6) Subject to the following provisions of this section, the duty of a sewerage undertaker by virtue of subsection (1) above 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 Authority.
(7) Subsections (7A) and (7B) apply where there is a dispute between a sewerage undertaker and an owner or occupier of any premises in its area as to—
(a) whether the undertaker is under a duty by virtue of subsection (1) above to provide a public sewer to be used for any such drainage of those premises as is mentioned in that subsection;
(b) the domestic sewerage purposes for which any such sewer should be provided; or
(c) the time by which any such duty of the undertaker should be performed,
...
(7A) The dispute is to be determined by the appropriate person and may be referred to the appropriate person for determination by either of the parties to the dispute.
(7B) If the dispute is between a sewerage undertaker and an owner or occupier of premises in Wales, the NRBW must provide advice in relation to any of the matters mentioned in subsection (7)(a) to (c) if so requested by—
(a) either of the parties to the dispute, or
(b) the appropriate person.
(7C) Any advice provided by the NRBW under subsection (7B) must be provided to both parties to the dispute and to the appropriate person.
(8) The appropriate person —
(a) shall notify the parties of the reasons for its decision on any dispute referred to it under subsection (7A) above; and
(b) may make any such recommendations, or give any such guidance, relating to or in connection with the drainage of the premises or locality in question as it considers appropriate.
(9) The decision of the appropriate person on any dispute referred to it under subsection (7A) above shall be final.
(10) A sewerage undertaker shall only be taken to be in breach of its duty under subsection (1) above where, and to the extent that, it has accepted, or the appropriate person has determined under this section, that it is under such a duty and where any time accepted by it, or determined by the appropriate person under this section, as the time by which the duty is to that extent to be performed has passed.
(11) In this section “the appropriate person ” means—
(a) the Environment Agency, in relation to disputes between sewerage undertakers and owners or occupiers of premises in England;
(b) the Welsh Ministers , in relation to disputes between sewerage undertakers and owners or occupiers of premises in Wales, or such person as the Welsh Ministers may from time to time appoint as the appropriate person in relation to such disputes.
(12) A person may be appointed as the appropriate person under subsection (11)(b) only if the person is independent of the NRBW.
(13) A person is independent of the NRBW for the purposes of subsection (12) if the person is—
(a) an individual who is not a member of the NRBW or the NRBW's staff, or
(b) a body none of whose members is a member of the NRBW or the NRBW's staff.
101B Power to construct lateral drains following provision of public sewer
(1) Where a sewerage undertaker provides a public sewer pursuant to a duty to do so imposed on it by section 98 or section 101A above, the undertaker may, at the request of the person mentioned in subsection (2) below, also provide at the same time one or more lateral drains to be used for the drainage for domestic purposes of premises in its area and to communicate with that sewer.
(2) A request under subsection (1) above may be made—
(a) in the case of a public sewer to be provided under section 98 above, by the person who requires the provision of the sewer under that section; and
(b) in the case of a public sewer to be provided under section 101A above, by the owner or occupier of any premises in respect of which the duty to provide the sewer arises under that section (but any request may only be for the provision of a lateral drain to his premises).
(3) The person making a request under this section shall pay to the sewerage undertaker, following provision of the lateral drain, such charges as the undertaker may impose in accordance with charging rules.
(3A) The sewerage undertaker may require the person making a request under this section to provide such security for the payment of the charges as charging rules allow.
(4) Any dispute between the sewerage undertaker and the person making a request under this section as to—
(a) whether a lateral drain should be provided pursuant to the request; ...
(b) the amount of any charge imposed,or
(c) the security required to be provided,
may be referred to the Authority for determination under section 30A above by either party to the dispute.
(5) Any lateral drain provided pursuant to a request made to a sewerage undertaker under this section shall belong to the undertaker.
(1) Subject to the following provisions of this section and to sections 103, 105 and 146(3) below, a sewerage undertaker may at any time declare that—
(a) any sewer which is situated within its area or which serves the whole or any part of that area;. . .
(aa) any lateral drain which communicates or is to communicate with a public sewer which—
(i) is so situated or serves the whole or any part of that area; and
(ii) is vested in that undertaker; or
(b) any sewage disposal works which are so situated or which serve the whole or any part of that area,
shall, as from such date as may be specified in the declaration, become vested in the undertaker.
(2) The owner, or any of the owners, of any sewer , lateral drain or sewage disposal works with respect to which a sewerage undertaker might make a declaration under this section may make an application to that undertaker requesting it to make a declaration under this section with respect to the sewer , lateral drain or works.
(3) A declaration or application under this section may be made with respect to a part only of a sewer.
(4) A sewerage undertaker which proposes to make a declaration under this section—
(za) shall give notice of its proposal to any sewerage licensee which uses, or removes matter from, the undertaker's sewerage system in accordance with a retail, wholesale or disposal authorisation;
(a) shall give notice of its proposal to the owner or owners of the sewer , lateral drain or works in question; and
(b) shall take no further action in the matter until two months have elapsed without an appeal against the proposal being lodged under section 105 below or, as the case may be, until any appeal so lodged has been determined.
(5) A sewerage undertaker, in deciding whether a declaration should be made under this section, shall have regard to all the circumstances of the case and, in particular, to the following considerations, that is to say—
(a) whether the sewer or works in question is or are adapted to, or required for, any general system of sewerage or sewage disposal which the undertaker has provided, or proposes to provide, for the whole or any part of its area;
(b) whether the sewer or lateral drain is constructed under a highway or under land reserved by a planning scheme for a street;
(c) the number of buildings which the sewer or lateral drain is intended to serve, and whether, regard being had to the proximity of other buildings or the prospect of future development, it is likely to be required to serve additional buildings;
(d) the method of construction and state of repair of the sewer , lateral drain or works; and
(e) in a case where an owner objects, whether the making of the proposed declaration would be seriously detrimental to him.
(6) Any person who immediately before the making of a declaration under this section was entitled to use the sewer or lateral drain in question shall be entitled to use it, or any sewer or lateral drain substituted for it, to the same extent as if the declaration had not been made.
(7) No declaration may be made under this section in respect of any sewer or works the construction of which was completed before 1st October 1937.
(1) Where a sewerage undertaker is about to take into consideration the question of making a declaration under section 102 above with respect to—
(a) any sewer which is situated within the area of another sewerage undertaker or which, though situated within its own area, serves the whole or any part of the area of another sewerage undertaker; . . .
(aa) any lateral drain which is situated within the area of another sewerage undertaker or which, though situated within its own area, communicates or is to communicate with a public sewer which is situated within or serves the whole or any part of the area of another sewerage undertaker; or
(b) any sewage disposal works which are situated within the area of another sewerage undertaker or which, though situated within its own area, serve the whole or any part of the area of another sewerage undertaker,
it shall give notice to the other undertaker.
(2) Where a sewerage undertaker is required to give notice under subsection (1) above to another undertaker, no declaration under section 102 above shall be made by the former undertaker until either—
(a) the other undertaker has consented to the declaration; or
(b) the Secretary of State, on an application made to him, has dispensed with the necessity for such consent, either unconditionally or subject to such conditions as he may think fit to impose.
(3) Where—
(a) a sewer (or part of a sewer) or a lateral drain is vested, or any sewage disposal works are vested, in a relevant body; and
(b) in the case of a sewer, part of a sewer, lateral drain or works vested in railway undertakers or dock undertakers, the sewer, part or lateral drain in question is, or the works are, situated in or on land belonging to those undertakers and held or used by them for the purposes of their undertaking,
a sewerage undertaker shall not make a declaration under section 102 above with respect to (as the case may be) the sewer, or part of it, or the lateral drain or the works, except on the application of the relevant body concerned.
(4) Where a sewerage undertaker makes a declaration under section 102 above with respect to—
(a) a sewer or lateral drain which is situated within the area of another sewerage undertaker; or
(b) any sewage disposal works which are so situated,
it shall forthwith give notice of the fact to that other undertaker.
(5) In this section “relevant body” means any sewerage undertaker, any local authority or county council or any railway undertakers or dock undertakers.
104 Agreements to adopt sewer, drain or sewage disposal works, at future date
(1) Subject to subsection (7) and section 146(3) below, a sewerage undertaker may agree with—
(a) any person constructing or proposing to construct—
(i) any sewer;
(ii) any drain which is intended to communicate with a public sewer vested in that undertaker; or
(iii) any sewage disposal works; or
(b) any person at whose expense the undertaker is, by virtue of an agreement under section 160 below, to carry out work in connection with the construction of such a drain or sewer,
that, if the sewer, drain or sewage disposal works is or are constructed in accordance with the terms of the agreement, the undertaker will, upon completion of the work, at some specified date or on the happening of some future event, declare the sewer or such part of the drain as constitutes the lateral drain or the works (as the case may be) to be vested in that undertaker.
(2) A person mentioned in paragraph (a) or (b) of subsection (1) above may request a sewerage undertaker to make an agreement under this section.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Any agreement made under this section by a sewerage undertaker shall be enforceable against the undertaker by the owner or occupier for the time being of any premises served by the sewer , lateral drain or works to which it relates.
(5A) The reference in subsection (5) to an agreement made under this section includes a reference to—
(a) an order under section 105ZA which is deemed to be an agreement by virtue of section 105ZA(5), and
(b) any agreement which has been varied by order under section 105ZB(1).
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) A sewerage undertaker shall not make an agreement under this section with respect to—
(a) a sewer, drain or sewage disposal works situated within the area of another sewerage undertaker; or
(b) a drain which is intended to communicate with a sewer which—
(i) is so situated; or
(ii) is vested in another sewerage undertaker,
until one of the conditions mentioned in subsection (8) below is satisfied.
(8) The conditions are—
(a) that other undertaker has consented to the making of the agreement; or
(b) the Secretary of State, on an application made to him, has dispensed with the necessity for such consent, either unconditionally or subject to such conditions as he may think fit to impose.
(9) Undertakers shall have regard to any guidance about agreements under this section issued by—
(a) the Secretary of State, in relation to undertakers whose areas are wholly or mainly in England, or
(b) the Welsh Ministers, in relation to undertakers whose areas are wholly or mainly in Wales.
(1) An owner of any sewer , lateral drain or sewage disposal works may appeal to the Authority if—
(a) he is aggrieved by the proposal of a sewerage undertaker to make a declaration under section 102 above; or
(b) he is aggrieved by the refusal of a sewerage undertaker to make such a declaration.
(2) A person who has entered or wants to enter an agreement under section 104 may appeal to the Authority about any matter concerning the agreement (including whether it is concluded, its terms and its operation).
(3) The time for the making of an appeal under subsection (1) above by the owner of any sewer , lateral drain or sewage disposal works shall be-
(a) in the case of an appeal by virtue of paragraph (a) of that subsection, any time within two months after notice of the proposal is served on that owner; and
(b) in the case of an appeal by virtue of paragraph (b) of that subsection, any time after receipt of notice of the undertaker’s refusal or, if no such notice is given, at any time after the end of two months from the making of the application for the declaration.
(4) On the hearing of an appeal under this section, the Authority may—
(a) in the case of an appeal under subsection (1) above, allow or disallow the proposal of the sewerage undertaker or, as the case may be, make any declaration which the sewerage undertaker might have made; or
(b) in the case of an appeal under subsection (2) above—
(i) uphold the refusal of the undertaker to grant the application or to modify the terms offered; or
(ii) on behalf of the undertaker, refuse the application or enter into any agreement into which the undertaker might have entered on the application;
and any declaration made under paragraph (a) above shall have the same effect as if it had been made by the undertaker in question.
(5) Where the Authority makes a declaration under subsection (4)(a) above, it may, if it thinks fit—
(a) specify conditions, including conditions as to the payment of compensation by the sewerage undertaker; and
(b) direct that its declaration shall not take effect unless any conditions so specified are accepted.
(6) Where the Authority makes an agreement under subsection (4)(b) above on behalf of a sewerage undertaker, it may do so on such terms as he considers reasonable or, as the case may be, on the terms offered by the undertaker subject to such modifications as it considers appropriate for ensuring that the terms of the agreement are reasonable.
(7) The Authority, in deciding, on an appeal under this section, whether any declaration or agreement should be made, shall have regard to all the circumstances of the case and, in particular, to the considerations specified in section 102(5) above; and for the purposes of this subsection, in its application in relation to an appeal under subsection (2) above, paragraphs (a) to (e) of section 102(5) above shall have effect with the necessary modifications.
105ZA Adoption at a future date: orders by Authority
(1) This section applies where a person mentioned in section 104(1)(a) or (b) makes a request to a sewerage undertaker under section 104(2).
(2) The person or the sewerage undertaker may apply to the Authority for an order under subsection (4) if the person and the sewerage undertaker have not made such agreement as was requested by the person.
(3) The Authority may, on the application of the person or the sewerage undertaker, make an order under subsection (4) if the Authority is satisfied that—
(a) where the person is such person as is mentioned in section 104(1)(a), it is appropriate for work proposed to be done by a person other than the sewerage undertaker to be so done, and
(b) the person and the sewerage undertaker cannot reach agreement within a reasonable time.
(4) The Authority may by order—
(a) require the sewerage undertaker to give such undertakings as to the vesting of the sewer, such part of the drain as constitutes the lateral drain or the works in the undertaker as the Authority may specify, and
(b) impose such terms and conditions as regards taking the benefit of the undertakings as the Authority may specify.
(5) An order under subsection (4) has effect as an agreement under section 104 between the person and the sewerage undertaker.
(6) The Authority may not make an order under subsection (4) with respect to—
(a) a sewer, drain or sewage disposal works situated in the area of another undertaker, or
(b) a drain which is intended to communicate with a sewer which—
(i) is so situated, or
(ii) is vested in another sewerage undertaker,
until one of the conditions mentioned in subsection (7) is satisfied.
(7) The conditions are that—
(a) the other sewerage undertaker has consented in writing to the making of the order, or
(b) the Minister, on an application made to the Minister, has disapplied paragraph (a), either unconditionally or subject to such conditions as the Minister thinks fit.
(8) “The Minister” means—
(a) the Secretary of State, as regards the consent of a sewerage undertaker whose area is wholly or mainly in England;
(b) the Welsh Ministers, as regards the consent of a sewerage undertaker whose area is wholly or mainly in Wales.
(9) Neither the CMA nor the Authority may exercise, in respect of an agreement for the vesting of a sewer, drain or sewage disposal works in a sewerage undertaker at a future date or on a future event, the powers conferred by—
(a) section 32 of the Competition Act 1998 (directions in relation to agreements);
(b) section 35(2) of that Act (interim directions).
(10) Subsection (9)(b) does not apply to the exercise of powers in respect of conduct—
(a) which is connected with an agreement for the vesting of a sewer, drain or sewage disposal works in a sewerage undertaker at a future date or on a future event, and
(b) in respect of which section 35(1) of the Competition Act 1998 applies because of an investigation under section 25 of that Act relating to a suspected infringement of the Chapter 2 prohibition imposed by section 18(1) of that Act.
(11) In exercising its functions under this section, the Authority must have regard to the desirability of—
(a) facilitating effective competition within the sewerage services industry;
(b) the recovery by the sewerage undertaker of the expenses of complying with its obligations by virtue of this section and securing a reasonable return on its capital;
(c) the ability of the sewerage undertaker to meet its existing obligations, and likely future obligations, to provide sewerage services without having to incur unreasonable expenditure in carrying out works;
(d) not putting at risk the ability of the sewerage undertaker to meet its existing obligations, or likely future obligations, to provide sewerage services.
105ZB Variation and termination of section 104 agreements
(1) On the application of a party to a section 104 agreement to vary (or terminate) the agreement, the Authority may—
(a) if it appears to the Authority that it is necessary or expedient that the section 104 agreement should be varied (or terminated),
(b) if the Authority is satisfied, in the case of an application to vary the agreement involving such person as is mentioned in section 104(1)(a), that it is appropriate for work proposed to be done by a person other than the sewerage undertaker to be so done, and
(c) if the Authority is satisfied that variation (or termination) cannot be achieved by agreement within a reasonable time,
by order vary (or terminate) the section 104 agreement.
(2) If an order under subsection (1) is made in relation to a section 104 agreement, the agreement—
(a) has effect subject to the provision made by the order, or
(b) ceases to have effect, as the case may be.
(3) An order under subsection (1) may require any party to the agreement to pay compensation to any other party.
(4) Neither the CMA nor the Authority may exercise, in respect of an agreement to vary or terminate a section 104 agreement, the powers conferred by—
(a) section 32 of the Competition Act 1998 (directions in relation to agreements);
(b) section 35(2) of that Act (interim directions).
(5) Subsection (4)(b) does not apply to the exercise of powers in respect of conduct—
(a) which is connected with an agreement to vary or terminate a section 104 agreement, and
(b) in respect of which section 35(1) of the Competition Act 1998 applies because of an investigation under section 25 of that Act relating to a suspected infringement of the Chapter 2 prohibition imposed by section 18(1) of that Act.
(6) In exercising its functions under this section, the Authority must have regard to the expenses incurred by the sewerage undertaker in complying with its obligations under the section 104 agreement in question and to the desirability of—
(a) facilitating effective competition within the sewerage services industry;
(b) the recovery by the sewerage undertaker of the expenses of complying with its obligations by virtue of this section and securing a reasonable return on its capital;
(c) the ability of the sewerage undertaker to meet its existing obligations, and likely future obligations, to provide sewerage services without having to incur unreasonable expenditure in carrying out works;
(d) not putting at risk the ability of the sewerage undertaker to meet its existing obligations, or likely future obligations, to provide sewerage services.
(7) In this section and sections 105ZC to 105ZI “section 104 agreement” means an agreement with a sewerage undertaker for the vesting of a sewer, drain or sewage disposal works in a sewerage undertaker at a future date or on a future event and includes—
(a) an order under section 105ZA which is deemed to be an agreement by virtue of section 105ZA(5), and
(b) any agreement which has been varied by order under subsection (1).
(1) The Authority must issue a code in respect of section 104 agreements.
(2) The code may make provision about—
(a) procedures in connection with making an agreement under section 104;
(b) procedures in connection with varying or terminating a section 104 agreement;
(c) procedures to be followed by the Authority in determining whether to make an order under section 105ZA(4) or 105ZB(1);
(d) the circumstances in which it is, or is not, appropriate for work to be done by a person other than a sewerage undertaker;
(e) the terms and conditions of a section 104 agreement;
(f) principles for determining the terms and conditions that should or should not be incorporated into a section 104 agreement;
(g) the steps to be taken by the Authority in determining whether a person is complying with the code.
(3) Provision under subsection (2)(d) may include in particular provision about circumstances relating to—
(a) the nature of the work;
(b) the kind of premises supplied or to be supplied.
(4) Provision under subsection (2)(e) may include in particular provision about terms and conditions as regards—
(a) constructing associated infrastructure;
(b) vesting associated infrastructure in a sewerage undertaker;
(c) making a communication with public sewers.
(5) If the Authority considers that a sewerage undertaker is not acting as required by the code, the Authority may give the undertaker a direction to do, or not to do, a particular thing specified in the direction.
(6) The Authority may not give a direction under subsection (5) requiring a person to enter into, vary or terminate an agreement.
(7) It is the duty of a sewerage undertaker to comply with a direction under subsection (5), and this duty is enforceable by the Authority under section 18.
(8) The code may make different provision for different persons or descriptions of person.
(9) The Authority must from time to time review the code and, if appropriate, issue a revised code.
(10) A revised code may include provision for applying any of its revisions to section 104 agreements made before the revised code comes into force.
(1) Before issuing a code under section 105ZC, the Authority must—
(a) prepare a draft of the proposed code under section 105ZC, and
(b) consult such persons about the proposed code as it considers appropriate.
(2) The Authority must specify the period (“the consultation period”) within which a person may make representations about the proposed code.
(3) Before a code under section 105ZC prepared by the Authority is issued, the Minister may direct the Authority—
(a) not to issue the code, or
(b) to issue the code with specified modifications.
(4) Subsection (3) is subject to subsections (6) and (7).
(5) In this section “the Minister” means—
(a) the Secretary of State, so far as the code relates to section 104 agreements for the vesting of sewers, drains or sewage disposal works in sewerage undertakers whose areas are wholly or mainly in England;
(b) the Welsh Ministers, so far as the code relates to section 104 agreements for the vesting of sewers, drains or sewage disposal works in sewerage undertakers whose areas are wholly or mainly in Wales.
(6) The power under subsection (3) may not be exercised more than once by the Secretary of State or the Welsh Ministers.
(7) If the power under subsection (3) is not exercised by the Secretary of State or the Welsh Ministers on the first occasion on which it may be exercised by the Secretary of State or (as the case may be) the Welsh Ministers, it may not be exercised by the Secretary of State or (as the case may be) the Welsh Ministers on a later occasion.
(8) A direction under subsection (3) must be given within the period of 28 days beginning with the day after the end of the consultation period, and a code in relation to which a direction may be given may not be issued before that period of 28 days has expired.
(9) This section is subject to section 105ZE.
105ZE Codes under section 105ZC: minor or urgent revisions
(1) This section applies if the Authority proposes to issue a revised code under section 105ZC and, in the view of the Authority, the revision or each of the revisions proposed to be made is—
(a) a revision for which consultation is unnecessary, or
(b) a revision that it is necessary or desirable to make without delay.
(2) Section 105ZD does not apply to the proposed revised code.
(3) Once the Authority has issued the revised code, it must give notice as soon as reasonably practicable of—
(a) the issuing of the revised code, and
(b) as regards each revision contained in it, whether in the view of the Authority the revision falls within paragraph (a) or (b) of subsection (1).
(4) Notice under subsection (3) is to be given to such persons as the Authority considers appropriate.
(5) Unless the Authority gives notice that a revision in a revised code is in the view of the Authority a revision falling within subsection (1)(a), the revision ceases to have effect at the end of the period of six months beginning with the day after that on which the revised code is issued.
105ZF Rules about charges in connection with a section 104 agreement
(1) The Authority may issue rules about charges that may be imposed by a sewerage undertaker under a section 104 agreement.
(2) The rules may in particular make provision about—
(a) what types of charge may be imposed;
(b) the amount or the maximum amount, or a method for determining the amount or maximum amount, of any type of charge;
(c) principles for determining what types of charge may or may not be imposed;
(d) principles for determining the amount of any charge that may be imposed;
(e) publication of the charges that may be imposed.
(3) The rules may require a sewerage undertaker, upon declaring a sewer, drain or sewage disposal works to be vested in the undertaker in accordance with a section 104 agreement, to pay to the other party to the agreement an amount (which may be nil) determined in accordance with the rules.
(4) Rules made by virtue of subsection (3) may, in particular, provide for the determination to take into account—
(a) revenue that might be derived from the sewer, drain or sewage disposal works in question;
(b) costs that might have been incurred in providing such a sewer, drain or sewage disposal works.
(5) The rules may also make provision as to—
(a) the amount of security that may be required by a sewerage undertaker for the purposes of any charges imposed by the sewerage undertaker under a section 104 agreement;
(b) the type of security that may be required;
(c) the payment of interest on a sum deposited with a sewerage undertaker by way of security.
(6) If the Authority considers that a sewerage undertaker is not acting as required by rules under this section, the Authority may give the undertaker a direction to do, or not to do, a particular thing specified in the direction.
(7) It is the duty of a sewerage undertaker to comply with a direction under subsection (6), and this duty is enforceable by the Authority under section 18.
(8) The rules may make different provision for different sewerage undertakers or descriptions of undertaker.
(9) The Authority may from time to time revise rules issued under this section and issue revised rules.
(10) The Authority must issue revised rules if—
(a) guidance is issued under section 105ZI, and
(b) the Authority, having regard to that guidance, considers that it is appropriate to revise the rules.
(11) Revised rules may include provision for applying any of their revisions to section 104 agreements made before the revised rules come into effect.
(1) Before issuing rules under section 105ZF, the Authority must—
(a) prepare a draft of the proposed rules, and
(b) consult the relevant persons about the draft.
(2) The relevant persons are—
(a) the Secretary of State;
(b) the Welsh Ministers;
(c) the Council;
(d) any sewerage undertakers or other persons likely to be affected by the rules;
(e) such other persons as the Authority thinks appropriate.
(3) The Authority must specify the period (“the consultation period”) within which the relevant persons may make representations about the proposed rules.
(4) The Authority must have regard to guidance issued under section 105ZI in making rules under section 105ZF.
(5) Before rules under section 105ZF prepared by the Authority are issued, the Minister may direct the Authority not to issue the rules.
(6) In subsection (5) “the Minister” means—
(a) the Secretary of State, so far as the rules relate to section 104 agreements for the vesting of sewers, drains or sewage disposal works in sewerage undertakers whose areas are wholly or mainly in England;
(b) the Welsh Ministers, so far as the rules relate to section 104 agreements for the vesting of sewers, drains or sewage disposal works in sewerage undertakers whose areas are wholly or mainly in Wales.
(7) A direction under subsection (5) must be given within the period of 28 days beginning with the day after the end of the consultation period, and rules may not be issued before that period of 28 days has expired.
(8) This section is subject to section 105ZH.
105ZH Rules under section 105ZF: minor or urgent revisions
(1) This section applies if the Authority proposes to issue revised rules under section 105ZF and, in the view of the Authority, the revision or each of the revisions proposed to be made is—
(a) a revision for which consultation is unnecessary, or
(b) a revision that it is necessary or desirable to make without delay.
(2) Section 105ZG does not apply to the proposed revised rules.
(3) Before issuing the revised rules, the Authority must give notice to the Minister of its intention to issue revised rules.
(4) Before the revised rules are issued, the Minister may direct the Authority not to issue the revised rules.
(5) A direction under subsection (4) must be given within the period of 14 days beginning with the day after the day on which notice is given under subsection (3), and the Authority may not issue the revised rules in question before—
(a) that period of 14 days expires, or
(b) the Minister notifies the Authority that no direction under subsection (4) will be given in relation to the revised rules,
whichever is the sooner.
(6) Once the Authority has issued the revised rules, it must give notice as soon as reasonably practicable of—
(a) the issuing of the revised rules, and
(b) as regards each revision contained in them, whether in the view of the Authority the revision falls within paragraph (a) or (b) of subsection (1).
(7) Notice under subsection (6) is to be given to such persons as the Authority considers appropriate.
(8) Unless the Authority gives notice that a revision in revised rules is in the view of the Authority a revision falling within subsection (1)(a), the revision ceases to have effect at the end of the period of six months beginning with the day after that on which the revised rules are issued.
(9) In this section “the Minister” has the meaning given by section 105ZG.
(1) The Minister may issue guidance as to the content of rules under section 105ZF.
(2) Before issuing the guidance, the Minister must—
(a) prepare a draft of the proposed guidance;
(b) consult the relevant persons about the draft.
(3) The relevant persons are—
(a) the Secretary of State;
(b) the Welsh Ministers;
(c) such other persons as the Minister thinks appropriate.
(4) The Minister may from time to time revise the guidance and issue revised guidance.
(5) Subsections (2) and (3) apply to revised guidance as they apply to the original guidance.
(6) The Minister must arrange for the publication of guidance issued under this section.
(7) In this section “the Minister” means—
(a) the Secretary of State, so far as the guidance is as to the content of rules relating to section 104 agreements for the vesting of sewers, drains or sewage disposal works in sewerage undertakers whose areas are wholly or mainly in England;
(b) the Welsh Ministers, so far as the guidance is as to the content of rules relating to section 104 agreements for the vesting of sewers, drains or sewage disposal works in sewerage undertakers whose areas are wholly or mainly in Wales.
105A Schemes for the adoption of sewers, lateral drains and sewage disposal works
(1) The Secretary of State may by regulations provide for him to make schemes for the adoption by sewerage undertakers of sewers, lateral drains and sewage disposal works of the descriptions set out in paragraphs (a), (aa) and (b) of section 102(1) above.
(2) The regulations may require sewerage undertakers to prepare draft schemes and to submit them to the Secretary of State.
(3) Each scheme shall relate to—
(a) the area of a sewerage undertaker, or part or parts of it; or
(b) the areas of more than one sewerage undertaker, or part or parts of them.
(4) It shall be the duty of a sewerage undertaker, in specified circumstances, to exercise its powers under section 102 above with a view to making the declaration referred to in subsection (1) of that section in relation to sewers, lateral drains or sewage disposal works which—
(a) fall within the area to which a scheme relates; and
(b) satisfy specified criteria.
(5) The circumstances and the criteria shall each be—
(a) specified in the regulations; or
(b) determined in accordance with the regulations and specified in the scheme.
(6) In relation to the exercise of those powers pursuant to that duty—
(a) section 102 above shall have effect—
(i) with the omission of subsections (2), (5) and (7);
(ii) as if in subsection (1) the words “sections 103, 105 and 146(3) below” read “section 105B below”;
(iii) with the omission of the words “or application” in subsection (3);
(iv) as if for subsection (4)(a) there were substituted—
(a) shall give notice of its proposal to the owner or owners of the sewer, lateral drain or works in question unless, after diligent enquiry, he or they cannot be traced;
(aa) shall publish notice of its proposal in the prescribed manner; and
;
(v) as if in subsection (4)(b) “two months” read “two months or, if longer, the period specified by virtue of section 105B(5) below” and “section 105 below” read “section 105B(4) or (5) below, or”; and
(vi) as if section 96(3) of the Water Act 2003 did not apply;
(b) sections 103 and 105 above shall not apply; and
(c) if the regulations so provide, section 146(3) below shall not apply in circumstances or cases specified in the regulations.
(7) A duty imposed on a sewerage undertaker under subsection (4) above shall be enforceable by the Secretary of State under section 18 above.
(8) A statutory instrument containing regulations under subsection (1) 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.
(1) Any person falling within subsection (2) below may appeal to the Authority if he is aggrieved by—
(a) the proposal of a sewerage undertaker to make a declaration under section 102 above in relation to a sewer, lateral drain or sewage disposal works, pursuant to the undertaker’s duty to do so under section 105A(4) above (the “relevant duty”); or
(b) the failure of a sewerage undertaker to make such a proposal pursuant to that duty.
(2) The persons referred to are—
(a) an owner of a sewer, lateral drain or sewage disposal works;
(b) any other person affected by the proposal, or the failure, in question.
(3) The grounds upon which a person may appeal are—
(a) in a subsection (1)(a) case, that the relevant duty is not owed in relation to the sewer, lateral drain or sewage disposal works, or that the making of the proposed declaration would be seriously detrimental to him;
(b) in a subsection (1)(b) case, that the relevant duty is owed in relation to the sewer, lateral drain or sewage disposal works; or
(c) any other prescribed ground.
(4) An appeal under subsection (1)(a) above shall be made within two months after notice of the proposal is—
(a) served on the owner of the sewer, lateral drain or sewage disposal works; or
(b) published in accordance with section 102(4) above as modified by section 105A(6) above,
(or, if both occur, within two months after whichever is the later).
(5) An appeal under subsection (1)(b) above shall be made within such period as is specified in the scheme (not being less than two months).
(6) On the hearing of an appeal under subsection (1) above, the Authority may—
(a) in a subsection (1)(a) case, allow or disallow the proposal of the sewerage undertaker; or
(b) in a subsection (1)(b) case, determine that the undertaker was not under the relevant duty in relation to the sewer, lateral drain or sewage disposal works in question,
or, in either case, make any declaration that the sewerage undertaker might have made, unless the proposal is disallowed.
(7) If, in a subsection (1)(a) case, the Authority finds that the making of the proposed declaration would be seriously detrimental to the appellant, it shall disregard any duty on the part of the sewerage undertaker to make the proposal for the purpose of determining whether to allow or disallow the proposal.
(8) If, in a subsection (1)(a) case, the Authority disallows the proposal of the sewerage undertaker, the scheme pursuant to which it was made shall have effect as if there were no duty under section 105A(4) above on the sewerage undertaker in relation to the sewer, lateral drain or sewage disposal works in question.
(9) Where the Authority makes a declaration under subsection (6) above, it may, if it thinks fit—
(a) specify conditions, including conditions as to the payment of compensation by the sewerage undertaker; and
(b) direct that its declaration shall not take effect unless any conditions so specified are accepted.
(10) A declaration made under subsection (6) above shall have the same effect as if it had been made by the undertaker.
(11) The Secretary of State may by regulations make further provision in connection with appeals under this section.
(12) The regulations may, in particular, require the Authority to have regard to prescribed matters when determining an appeal under this section.
(1) The Secretary of State may vary any scheme, or revoke it.
(2) Before making regulations or any scheme under section 105A above, and before amending or revoking the regulations or varying or revoking a scheme, the Secretary of State shall consult—
(a) each sewerage undertaker which would be affected;
(aa) any sewerage licensee which uses, or removes matter from, the sewerage system of any such sewerage undertaker in accordance with a retail, wholesale or disposal authorisation;
(b) the Authority;
(c) the Council;
(d) such other persons as the Secretary of State considers appropriate.
(3) The Secretary of State shall publish each scheme he makes, and any such scheme as varied, in the way he considers best for the purpose of bringing it to the attention of those likely to be affected by it.