(1) Exit regulations about exit applications must make provision requiring a relevant undertaker to apply to the Secretary of State, and may include—
(a) provision requiring a relevant undertaker to take such steps as the regulations may specify before making an application;
(b) provision as to the form and manner in which an application is to be made and as to the contents of an application;
(c) provision about payment to the Secretary of State of a fee of an amount specified in or determined under the regulations;
(d) provision about the information that is to accompany an application;
(e) provision for the Secretary of State to require a relevant undertaker to provide such further information as the Secretary of State may require in order to make a determination;
(f) provision as to the grounds on which an application may be refused;
(g) provision for the Secretary of State to grant an application subject to conditions.
(2) Provision under subsection (1)(a) may require a relevant undertaker—
(a) to consult—
(i) its non-household customers and its other customers,
(ii) the WSRA,
(iii) the Chief Inspector of Drinking Water,
(iv) the Consumer Council for Water, and
(v) any other person specified in the regulations;
(b) to prepare and publish a report assessing the effect on non-household customers and other customers if the undertaker withdraws from the non-household retail market;
(c) to publish notice of its proposed exit application in such manner as the regulations may specify.
(3) The grounds that may be specified under subsection (1)(f) include—
(a) grounds relating to the public interest or to the interests of a section of the public;
(b) grounds relating to the interests of non-household customers or other customers;
(c) grounds relating to costs associated with a transfer of part of the relevant undertaker's undertaking;
(d) grounds relating to the eligible licensee or licensees to which a transfer of part of the relevant undertaker's undertaking is proposed to be made.
(4) The conditions that may be imposed under subsection (1)(g) include—
(a) conditions as to the persons who are to pay the costs associated with a transfer of a part of the relevant undertaker's undertaking;
(b) conditions as to the application of money received by the relevant undertaker in connection with a transfer of a part of its undertaking;
(c) conditions about the relevant undertaker giving consent to modifications of the undertaker's conditions of appointment;
(d) conditions about an eligible licensee to which a transfer of part of the relevant undertaker's undertaking is proposed to be made giving consent to modifications of the conditions of its water supply licence or sewerage licence;
(e) conditions about the treatment of non-household customers affected by the transfer of part of the relevant undertaker's undertaking.
(5) Exit regulations may make provision about how particular descriptions of customers and premises are affected by a relevant undertaker's withdrawal from the non-household retail market, including in particular any of the following—
(a) premises to which the supply of water has been disconnected,
(b) premises that are to be demolished,
(c) premises that are temporarily unoccupied,
(d) premises in relation to which the owner or occupier has served notice under section 63AA of the Water Industry Act 1991 (supply by water supply licensee: domestic supply),
(e) premises in relation to which the owner or occupier has served notice under section 63AB of the Water Industry Act 1991 (supply by water supply licensee: non-domestic supply), and
(f) premises in relation to which the owner or occupier has served notice under section 110K of the Water Industry Act 1991 (provision by sewerage licensee).
(6) Provision under subsection (5) may include provision about how exit applications deal with particular descriptions of customers and premises.
(7) Exit regulations may make provision about the disclosure by a relevant undertaker of such information as the regulations may specify about—
(a) its non-household customers, and
(b) the charges payable by them (whether payable under a charges scheme under section 143 of the Water Industry Act 1991 or under an agreement).
(8) Exit regulations may specify—
(a) the persons to whom the information may be disclosed;
(b) the purposes for which it may be disclosed.
(1) Exit regulations may—
(a) make provision for a relevant undertaker to specify in its exit application the eligible licensee or licensees to which it proposes to transfer a part of its undertaking;
(b) make provision for the WSRA to direct one or more eligible licensees to accept the transfer of a part of the relevant undertaker's undertaking.
(2) In this Chapter an “eligible licensee” is a company—
(a) that has a water supply licence with a retail authorisation or a sewerage licence with a retail authorisation, or both, and
(b) that has elected to be an eligible licensee for the purposes of this Chapter.
(3) Exit regulations may—
(a) provide for an eligible licensee to be specified in an exit application only if the licensee agrees to be so specified;
(b) provide for the WSRA to give notice before giving a direction under subsection (1)(b);
(c) provide for an eligible licensee to temporarily suspend an election under subsection (2)(b) so that it may not be given a direction under subsection (1)(b).
(4) Exit regulations may make provision about electing to be an eligible licensee, and may in particular—
(a) provide for a company to satisfy such criteria as are set out in a code published by the WSRA before the company may elect to be an eligible licensee;
(b) provide for the WSRA to assess whether a company satisfies those criteria;
(c) provide for the WSRA to publish a code setting out—
(i) the criteria mentioned in paragraph (a), and
(ii) how it conducts such assessments;
(d) provide for the WSRA to comply with the code in making such assessments.
(5) Exit regulations may—
(a) allow an eligible licensee, to which a transfer of a part of a relevant undertaker's undertaking is proposed to be made, to be a company associated with the undertaker,
(b) require the eligible licensee to which such a transfer is made to be such a company, or
(c) prohibit such a transfer being made to such a company.
(6) For the purposes of this section, a relevant undertaker is associated with an eligible licensee if one of them is a subsidiary of the other or both are subsidiaries of the same body corporate.
(1) Exit regulations about the transfer of a part of a relevant undertaker's undertaking may include provision for the making of a scheme to transfer property, rights and liabilities where an exit application has been granted.
(2) Exit regulations about the transfer of a part of a relevant undertaker's undertaking may include provision about arrangements under Chapter 1 of Part 5 of the Water Industry Act 1991 for fixing, demanding and recovering charges.
(3) Provision under subsection (2) may include—
(a) provision for and in connection with treating such arrangements as if they were agreements between the undertaker and the person liable to pay such charges;
(b) provision about the terms and conditions of such agreements.
(4) Exit regulations may make provision for a scheme under subsection (1) to contain—
(a) provision identifying the property, rights and liabilities to be transferred (which may include property, rights and liabilities that would not otherwise be capable of being transferred);
(b) provision for the division of property, rights and liabilities, including—
(i) provision creating an interest in or right over property;
(ii) provision creating new rights and liabilities;
(iii) incidental provision as to the property, rights and liabilities of other persons;
(c) provision about the consideration to be provided (and about the enforcement of such provision).
(5) Subsection (4) is not exhaustive of what a scheme may contain.
(1) Exit regulations about the operation of the water industry in relation to a retail exit area may include such provision as is described in the following subsections.
(2) Exit regulations may make provision for and in connection with requiring a relevant undertaker to impose on an eligible licensee only such charges under a section 66D agreement or a section 117E agreement as would enable the licensee to fulfil its obligations under agreements (including deemed agreements) transferred to the licensee from the undertaker under the regulations.
(3) Exit regulations may make provision for and in connection with requiring a water supply or sewerage licensee, where the licensee is providing services under the licensee's licence in relation to a retail exit area, to provide such services under that licence in relation to that area as the regulations may specify.
(4) Exit regulations may make provision for and in connection with such arrangements between a water supply or sewerage licensee and a relevant undertaker as would enable the licensee to comply with requirements imposed on it under subsection (3).
(5) Exit regulations may make provision as to the functions of a relevant undertaker in relation to a retail exit area and may, in particular, modify or disapply a duty imposed on a relevant undertaker by—
(a) section 63AC(2) (interim duty to supply water), or
(b) section 110L(2) (interim duty to provide sewerage services).
(6) Exit regulations may provide for a water supply or sewerage licensee that—
(a) is a company,
(b) is providing services under its licence in relation to a retail exit area, and
(c) satisfies such criteria as may be specified by the regulations (which may include criteria as to market share),
to be subject to provision for special administration (see section 23 of, and Schedule 2 to, the Water Industry Act 1991) in such circumstances as the regulations may specify.
(7) Exit regulations may include provision—
(a) requiring relevant undertakers, water supply licensees and sewerage licensees to provide such information as the regulations may specify to customers;
(b) requiring relevant undertakers, water supply licensees and sewerage licensees to provide such information as the regulations may specify to the WSRA or the Secretary of State;
(c) requiring the WSRA to record such information as the regulations may specify in the register it maintains under section 195 of the Water Industry Act 1991.
(8) Provision under subsection (7)(b) may in particular specify information about customers and the arrangements under which they receive services.
(1) Exit regulations may make provision for water supply licensees and sewerage licensees, that are providing or proposing to provide services under their water supply or sewerage licences in relation to a retail exit area, to make, and from time to time revise, a scheme containing the terms and conditions which, in the absence of agreed terms and conditions, are to apply to such services.
(2) Provision under subsection (1) may include—
(a) provision for a scheme to make different provision for different purposes, or different areas;
(b) provision about the publication of a scheme or revised scheme;
(c) provision about sending a copy of a scheme or revised scheme to the WSRA;
(d) provision enabling the WSRA to direct that terms or conditions be modified generally or in a particular case;
(e) provision requiring a licensee to comply with a direction under paragraph (d), including provision for enforcing such a duty under section 18 of the Water Industry Act 1991.
(3) Provision under subsection (1) may also include—
(a) provision requiring the WSRA to issue a code about providing services to which a scheme under subsection (1) relates;
(b) provision for the code to include, in particular, provision about—
(i) the terms and conditions contained in such schemes;
(ii) licensees informing owners or occupiers of premises about their schemes before agreeing any terms and conditions for the provision of services;
(c) provision for the WSRA, if it considers that a licensee is not acting as required by such provision as is described in paragraph (b), to give the licensee a direction to do, or not to do, a particular thing specified in the direction;
(d) provision requiring a licensee to comply with a direction under paragraph (c), including provision for enforcing such a duty under section 18 of the Water Industry Act 1991;
(e) provision requiring the WSRA from time to time to review the code and, if appropriate, to issue a revised code.
(4) Exit regulations may make provision for the WSRA to issue and enforce—
(a) rules about charges for services that may be imposed by water supply or sewerage licensees in relation to a retail exit area;
(b) if exit regulations make provision for licensees to make schemes about such charges, rules about such schemes.
(5) Provision under subsection (4) may include—
(a) provision for the rules to make different provision for different cases;
(b) provision for the WSRA to direct a licensee to comply with the rules;
(c) provision for such directions to be enforceable by the WSRA under section 18;
(d) provision for the Secretary of State to issue guidance as to the content of the rules;
(e) provision for the Secretary of State to prevent rules being issued.
49 Modification of appointment and licence conditions
(1) Exit regulations may provide for the WSRA to modify the conditions of appointment of a relevant undertaker where it considers it necessary or expedient to do so in consequence of the transfer of part of the relevant undertaker's undertaking under the regulations.
(2) Exit regulations may provide for the WSRA to modify the conditions of a licence under Chapter 1A of Part 2 of the Water Industry Act 1991 where it considers it necessary or expedient to do so in consequence of the transfer to the holder of that licence of part of a relevant undertaker's undertaking under the regulations.
(3) Exit regulations may provide for the WSRA, where it modifies conditions under subsection (1) or (2), to make such incidental or consequential modifications of other conditions of the appointment or, as the case may be, other conditions of the licence as it considers necessary or expedient.
(4) Provision made by exit regulations as regards the modification of conditions under this section may include—
(a) provision for the Secretary of State to give consent to a modification proposed by the WSRA;
(b) provision as to the period during which a modification may be made.
(5) Provision under subsection (4)(b) may not allow a modification to be made after the end of the period of one year beginning with the day on which the transfer in question takes place.
(1) Exit regulations may make such provision as the Secretary of State considers appropriate—
(a) for modifying a person's duties and powers, and
(b) for imposing new duties and conferring new powers on a person.
(2) The persons in relation to whom provision under subsection (1) may be made include—
(a) the Secretary of State;
(b) the Chief Inspector of Drinking Water;
(c) the Welsh Ministers;
(d) the Chief Inspector of Drinking Water for Wales if there is one, or the Chief Inspector of Drinking Water if section 86(1B)(b) of the Water Industry Act 1991 applies;
(e) the WSRA;
(f) the CMA;
(g) the Environment Agency;
(h) the NRBW;
(i) the Consumer Council for Water;
(j) relevant undertakers;
(k) water supply licensees and sewerage licensees.
(3) Exit regulations may—
(a) apply enactments, with or without such modifications as the Secretary of State thinks fit;
(b) amend, repeal or revoke enactments.
(4) The provision that may be made by exit regulations includes provision conferring power to make subordinate legislation.
(5) Exit regulations may—
(a) contain such consequential, incidental, supplementary, transitional or saving provisions (including provisions amending, repealing or revoking enactments) as the Secretary of State considers appropriate, and
(b) make different provision for different cases, including different provision in relation to different persons, circumstances or areas.
(6) In this section “enactment”—
(a) includes an Act or Measure of the National Assembly for Wales;
(b) includes an enactment contained in this Act, other than this Chapter.
(1) In this Chapter—
“the CMA” means the Competition and Markets Authority;
“eligible licensee” has the meaning given by section 44;
“exit application” means an application under section 42(1)(a);
“the NRBW” means the Natural Resources Body for Wales;
“non-household customer” means a person who is the customer as regards a service provided in respect of non-household premises;
“non-household premises” means premises other than household premises as defined in section 17C of the Water Industry Act 1991;
“retail exit area” has the meaning given by section 42;
“the WSRA” means the Water Services Regulation Authority.
(2) Except in so far as the context otherwise requires, terms used in this Chapter have the same meaning as in the Water Industry Act 1991.
(1) Before making exit regulations, the Secretary of State is to consult—
(a) the Welsh Ministers;
(b) the WSRA;
(c) the CMA;
(d) the Consumer Council for Water;
(e) relevant undertakers whose areas are wholly or mainly in England;
(f) water supply licensees and sewerage licensees;
(g) persons whom the Secretary of State considers to represent the interests of investors in the water industry.
(2) The power to make exit regulations is to be exercised by statutory instrument.
(3) A statutory instrument containing exit regulations made by the Secretary of State may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
55 Modification of appointment and licence conditions
(1) The Water Services Regulation Authority may modify the conditions of appointment of a company appointed under Chapter 1 of Part 2 of the Water Industry Act 1991 to be a water or sewerage undertaker where it considers it necessary or expedient to do so in consequence of provision made by or under this Part.
(2) The Authority may modify the conditions of a licence under Chapter 1A of Part 2 of the Water Industry Act 1991 where it considers it necessary or expedient to do so in consequence of provision made by or under this Part.
(3) Where the Authority modifies—
(a) conditions of appointment under subsection (1), or
(b) conditions of a licence under subsection (2),
it may make such incidental or consequential modifications of other conditions of the appointment or, as the case may be, other conditions of the licence as it considers necessary or expedient.
(4) Before making a modification under this section, the Authority must consult—
(a) the company holding the appointment or, as the case may be, the person holding the licence;
(b) the Secretary of State;
(c) the Welsh Ministers;
(d) such other persons as the Authority thinks it appropriate to consult.
(5) The power of the Authority to modify—
(a) the conditions of a company's appointment under subsection (1), or
(b) the conditions of a person's licence under subsection (2),
may not be exercised after the end of the period of two years beginning with the day on which the provision in question comes into force.
(6) References in subsections (1) to (5) to provision made by or under this Part are to be treated, where particular provision made by or under this Part comes into force on a particular day for a particular purpose, as references to so much of such provision as comes into force on a particular day.
(7) References in this section to provision made by or under this Part include references to provision made under section 90 or 91 in connection with this Part.
(8) The Minister may give directions to the Authority for the purpose of securing that—
(a) the conditions of appointment of a water or sewerage undertaker are modified under this section;
(b) the conditions of a licence under Chapter 1A of Part 2 of the Water Industry Act 1991 are modified under this section.
(9) The Minister may direct the Authority not to make a modification that it proposes to make under this section.
(10) The Authority must comply with a direction under subsection (8) or (9).
(11) In this section “the Minister” means—
(a) the Secretary of State, in relation to—
(i) a water or sewerage undertaker whose area is wholly or mainly in England;
(ii) a person who holds a licence under Chapter 1A of Part 2 of the Water Industry Act 1991;
(b) the Welsh Ministers, in relation to a water or sewerage undertaker whose area is wholly or mainly in Wales.
(1) The Secretary of State must prepare a report setting out progress made in reforming the arrangements for managing water abstraction in England.
(2) The Secretary of State must lay before Parliament a copy of the report.
(3) The report must be prepared and laid before the end of the period of five years beginning with the day on which this Act is passed.
(1) The Water Resources Act 1991 is amended as follows.
(2) In section 61 (compensation where licence modified on direction of the Secretary of State or Welsh Ministers), in subsection (1), after “Where a licence” there is inserted “ held by a person other than a water undertaker or sewerage undertaker ”.
(3) Section 61A (recovery of compensation from new licence-holder) is repealed.
(1) The Water Resources Act 1991 is amended as follows.
(2) For sections 193 and 194 (maintenance, inspection and amendment of main river maps for areas in England and Wales) there is substituted—
Main river map for England
The main river map for England
193 (1) The Agency must keep the main river map for England.
(2) For the purposes of this Act the main river map for England is a record of areas in England which—
(a) shows the extent to which any watercourse or part of a watercourse is to be treated as a main river or as part of a main river for the purposes of this Act, and
(b) indicates which (if any) of those watercourses are watercourses designated in a scheme made under section 137.
(3) The map is conclusive as to the extent to which a watercourse in England is to be treated as a main river or as part of a main river for the purposes of this Act.
(4) The map must specify the date on which it takes effect.
(5) The Agency must keep the map in electronic form.
(6) In this section and sections 193A to 193E “watercourse” has the same meaning as in Part 4 of this Act.
Inspection and copies
193A (1) The Agency must provide reasonable facilities for inspecting the main river map for England in electronic form.
(2) The Agency must on request provide any person with—
(a) a hard copy of all or part of the map, or
(b) data comprising all or part of the map in electronic form.
(3) The Agency may charge a fee for providing a copy or data under subsection (2), but the fee—
(a) must, in the case of a person appearing to the Agency to have requested a copy or data for commercial purposes, represent a reasonable usage fee, and
(b) in any other case, may not exceed the reasonable costs of providing the copy or data.
(4) The Agency must on request provide a body mentioned in the first column of the following table with a hard copy of, or data comprising, such part of the main river map for England as is described in the second column of the entry for that body.
A local authority in England | The part that relates to the local authority's area
An internal drainage board for an internal drainage district that is wholly or partly in England | The part that relates to its district, so far as that district is in England
A water company that exercises functions in relation to an area in England | The part that relates to that area
A highway authority that exercises functions in relation to highways in England | The part that relates to the area in England in relation to which it exercises functions
A navigation authority that exercises functions in relation to an area in England | The part that relates to that area
(5) The Documentary Evidence Act 1868 has effect as if—
(a) the Agency were mentioned in the first column of the Schedule to that Act;
(b) any member of the staff of the Agency authorised to act on behalf of the Agency were specified in the second column of the Schedule to that Act in connection with the Agency;
(c) the regulation referred to in that Act included the main river map for England kept by the Agency;
(d) references to a copy included references to a print-out of information kept in electronic form.
Replacing the main river map for England
193B (1) The Agency may at any time replace the existing main river map for England for the purpose of including—
(a) a change which, pursuant to section 193(2)(b), is required by the making, amendment or revocation of a scheme under section 137,
(b) a change to give effect to a determination under section 193C, or
(c) a change directed by the Secretary of State under section 193D(5) (following an appeal against a determination).
(2) A replacement map may not include other changes.
(3) A replacement map must specify the date on which it takes effect.
Determinations as to main rivers
193C (1) Subject to the following provisions of this section, the Agency may determine that—
(a) such watercourse or part of a watercourse in England as is specified in the determination is to be treated for the purposes of this Act as a main river or part of a main river;
(b) such watercourse or part of a watercourse in England as is specified in the determination (not being a watercourse designated in a scheme made under section 137) is no longer to be treated for the purposes of this Act as a main river or part of a main river.
(2) Before making a determination under subsection (1) as regards a watercourse, the Agency must—
(a) publish (in such manner as it considers appropriate) the determination it proposes to make, and
(b) consider representations made within the time and in the manner specified by the Agency when publishing the determination.
(3) The Agency must consult the NRBW before making a determination under subsection (1)—
(a) which affects a watercourse part of which is in England and part of which is in Wales, and
(b) in which it seems to the Agency that the NRBW has an interest.
(4) Having taken such steps as are required by subsections (2) and (3), the Agency may—
(a) decide not to make a determination, or
(b) decide to make a determination in accordance with what was proposed under subsection (2)(a) or otherwise.
(5) The Agency must publish (in such manner as it considers appropriate)—
(a) that decision;
(b) the terms of any determination made;
(c) if a determination is made, the date on which a replacement map will give effect to the determination.
(6) The date specified under subsection (5)(c) may not be before the end of a period of six weeks beginning with the day on which the matters specified in subsection (5) are published.
(7) The Agency must also inform those persons affected by the proposal who made representations in accordance with subsection (2)(b) containing an objection to the proposal as to the matters referred to in subsection (5).
Appeals
193D (1) A person aggrieved by a determination under section 193C may appeal to the Secretary of State.
(2) An appeal must be made before the end of a period of six weeks beginning with the day on which the matters referred to in section 193C(5) are published.
(3) Where an appeal is made against a determination, a replacement map under section 193B may not include a change to give effect to the determination except as specified in this section.
(4) The Secretary of State may appoint a person to make a report to assist the Secretary of State in determining the appeal.
(5) If the Secretary of State allows the appeal in whole or in part, the Secretary of State may by direction to the Agency—
(a) specify a change to be included in a replacement map under section 193B, and
(b) specify the date on which that change is to take effect.
(6) If the Secretary of State dismisses the appeal, the Agency may include a change to give effect to its determination in a replacement map, the replacement map to have effect on such date as the Secretary of State may direct.
(7) The Secretary of State may direct the Agency to publish the Secretary of State's decision in such manner as the direction may specify.
Guidance
193E (1) The Secretary of State may from time to time issue guidance to the Agency about the exercise of its functions under sections 193 to 193D.
(2) The guidance may in particular include guidance as to—
(a) determining whether or not a watercourse or part of a watercourse is suitable to become or to remain a main river or a part of a main river;
(b) what kind of publication is appropriate under section 193C(2) and (5).
(3) The Agency must have regard to the guidance in carrying out its functions under sections 193 to 193D.
Main river map for Wales
The main river map for Wales
194 (1) The NRBW must keep the main river map for Wales.
(2) For the purposes of this Act the main river map for Wales is a record of areas in Wales which—
(a) shows the extent to which any watercourse or part of a watercourse is to be treated as a main river or as part of a main river for the purposes of this Act, and
(b) indicates which (if any) of those watercourses are watercourses designated in a scheme made under section 137.
(3) The map is conclusive as to the extent to which a watercourse in Wales is to be treated as a main river or as part of a main river for the purposes of this Act.
(4) The map must specify the date on which it takes effect.
(5) The NRBW must keep the map in electronic form.
(6) In this section and sections 194A to 194E “watercourse” has the same meaning as in Part 4 of this Act.
Inspection and copies
194A (1) The NRBW must provide reasonable facilities for inspecting the main river map for Wales in electronic form.
(2) The NRBW must on request provide any person with—
(a) a hard copy of all or part of the map, or
(b) data comprising all or part of the map in electronic form.
(3) The NRBW may charge a fee for providing a copy or data under subsection (2), but the fee—
(a) must, in the case of a person appearing to the NRBW to have requested a copy or data for commercial purposes, represent a reasonable usage fee, and
(b) in any other case, may not exceed the reasonable costs of providing the copy or data.
(4) The NRBW must on request provide a body mentioned in the first column of the following table with a hard copy of, or data comprising, such part of the main river map for Wales as is described in the second column of the entry for that body.
A local authority in Wales | The part that relates to the local authority's area
An internal drainage board for an internal drainage district that is wholly or partly in Wales | The part that relates to its district, so far as that district is in Wales
A water company that exercises functions in relation to an area in Wales | The part that relates to that area
A highway authority that exercises functions in relation to highways in Wales | The part that relates to the area in Wales in relation to which it exercises functions
A navigation authority that exercises functions in relation to an area in Wales | The part that relates to that area
(5) The Documentary Evidence Act 1868 has effect as if—
(a) the NRBW were mentioned in the first column of the Schedule to that Act;
(b) any member of the staff of the NRBW authorised to act on behalf of the NRBW were specified in the second column of the Schedule to that Act in connection with the NRBW;
(c) the regulation referred to in that Act included the main river map for Wales kept by the NRBW;
(d) references to a copy included references to a print-out of information kept in electronic form.
Replacing the main river map for Wales
194B (1) The NRBW may at any time replace the existing main river map for Wales for the purpose of including—
(a) a change which, pursuant to section 194(2)(b), is required by the making, amendment or revocation of a scheme under section 137,
(b) a change to give effect to a determination under section 194C, or
(c) a change directed by the Welsh Ministers under section 194D(5) (following an appeal against a determination).
(2) A replacement map may not include other changes.
(3) A replacement map must specify the date on which it takes effect.
Determinations as to main rivers
194C (1) Subject to the following provisions of this section, the NRBW may determine that—
(a) such watercourse or part of a watercourse in Wales as is specified in the determination is to be treated for the purposes of this Act as a main river or part of a main river;
(b) such watercourse or part of a watercourse in Wales as is specified in the determination (not being a watercourse designated in a scheme made under section 137) is no longer to be treated for the purposes of this Act as a main river or part of a main river.
(2) Before making a determination under subsection (1) as regards a watercourse, the NRBW must—
(a) publish (in such manner as it considers appropriate) the determination it proposes to make, and
(b) consider representations made within the time and in the manner specified by the NRBW when publishing the determination.
(3) The NRBW must consult the Agency before making a determination under subsection (1)—
(a) which affects a watercourse part of which is in Wales and part of which is in England, and
(b) in which it seems to the NRBW that the Agency has an interest.
(4) Having taken such steps as are required by subsections (2) and (3), the NRBW may—
(a) decide not to make a determination, or
(b) decide to make a determination in accordance with what was proposed under subsection (2)(a) or otherwise.
(5) The NRBW must publish (in such manner as it considers appropriate)—
(a) that decision;
(b) the terms of any determination made;
(c) if a determination is made, the date on which a replacement map will give effect to the determination.
(6) The date specified under subsection (5)(c) may not be before the end of a period of six weeks beginning with the day on which the matters specified in subsection (5) are published.
(7) The NRBW must also inform those persons affected by the proposal who made representations in accordance with subsection (2)(b) containing an objection to the proposal as to the matters referred to in subsection (5).
Appeals
194D (1) A person aggrieved by a determination under section 194C may appeal to the Welsh Ministers.
(2) An appeal must be made before the end of a period of six weeks beginning with the day on which the matters referred to in section 194C(5) are published.
(3) Where an appeal is made against a determination, a replacement map under section 194B may not include a change to give effect to the determination except as specified in this section.
(4) The Welsh Ministers may appoint a person to make a report to assist them in determining the appeal.
(5) If the Welsh Ministers allow the appeal in whole or in part, they may by direction to the NRBW—
(a) specify a change to be included in a replacement map under section 194B, and
(b) specify the date on which that change is to take effect.
(6) If the Welsh Ministers dismiss the appeal, the NRBW may include a change to give effect to its determination in a replacement map, the replacement map to have effect on such date as the Welsh Ministers may direct.
(7) The Welsh Ministers may direct the NRBW to publish their decision in such manner as the direction may specify.
Guidance
194E (1) The Welsh Ministers may from time to time issue guidance to the NRBW about the exercise of its functions under sections 194 to 194D.
(2) The guidance may in particular include guidance as to—
(a) determining whether or not a watercourse or part of a watercourse is suitable to become or to remain a main river or a part of a main river;
(b) what kind of publication is appropriate under section 194C(2) and (5).
(3) The NRBW must have regard to the guidance in carrying out its functions under sections 194 to 194D.
(3) In section 113 (interpretation of Part 4), in subsection (1), in the definition of “main river”, for “a main river map” there is substituted “ the main river map for England or the main river map for Wales ”.
(4) In section 221 (interpretation of the Act), in subsection (1)—
(a) for the definition of “main river map” there is substituted—
“the main river map for England” has the meaning given by section 193(2);
“the main river map for Wales” has the meaning given by section 194(2);
;
(b) in the definition of “watercourse”, for “and 113(1)” there is substituted “ 113(1), 193(6) and 194(6) ”.
(1) Section 195 of the Water Resources Act 1991 (duty of appropriate agency to keep records of location of waterworks) is repealed.
(2) In Schedule 23 to that Act (mineral rights), in paragraph 7(2) (structures and underground works which comprise appropriate agency's undertaking), for paragraph (b) there is substituted—
(b) any resource mains, discharge pipes or other underground works which are for the time being vested in the appropriate agency.
(1) The Minister may by regulations make provision for any of the purposes listed in Part 1 of Schedule 8; and Part 2 of that Schedule has effect for supplementing Part 1.
(2) Except as provided in Schedule 8, any provision so made is to be provision for or in connection with—
(a) regulating the use of water resources,
(b) securing the drainage of land or the management of flood risk, or
(c) safeguarding the movement of fish through regulated waters.
(3) In making regulations under this section, the Minister is to have regard to the desirability of reducing burdens by ensuring that so far as is reasonably practicable any system established by regulations under this section is combined with, or is consistent with, systems for regulating activities or other matters that cause pollution.
(4) Regulations under this section may—
(a) contain such consequential, incidental, supplementary, transitional or saving provisions (including provisions amending, repealing or revoking enactments) as the Minister considers appropriate, and
(b) make different provision for different cases, including different provision in relation to different persons, circumstances, areas or localities.
(5) Before making any regulations under this section, the Minister is to consult—
(a) the Environment Agency;
(b) the Natural Resources Body for Wales;
(c) such bodies or persons appearing to the Minister to be representative of the interests of local government, industry, agriculture and small businesses respectively as the Minister may consider appropriate;
(d) such other bodies or persons as the Minister may consider appropriate.
(6) It is immaterial for the purposes of subsection (5) whether consultation is carried out before or after the coming into force of this section.
(7) The Secretary of State's power to make regulations under this section is subject to the consent of the Scottish Ministers so far as the regulations apply as mentioned in subsection (11)(b),
(8) In this section and Schedule 8 a reference to the use of water resources—
(a) includes a reference to taking, diverting or impounding water from any inland waters, or taking water contained in underground strata, and applying it to any purpose, and
(b) includes a reference to wasting water whether by action or omission, but
(c) does not include a reference to the use, by a person other than a water undertaker, of water drawn from a water mains or pipe forming part of a system used by a water undertaker in carrying out a duty under section 37 of the Water Industry Act 1991.
(9) In this section and Schedule 8—
“enactment” includes—
an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;
an enactment contained in, or an instrument made under, an Act of the Scottish Parliament;
an enactment contained in, or in an instrument made under, an Act or Measure of the National Assembly for Wales;
“fish” means freshwater fish and migratory fish;
“flood” has the meaning given in section 1 of the Flood and Water Management Act 2010;
“flood risk” has the meaning given in section 2 of that Act;
“freshwater fish” means any fish habitually living in fresh water;
“inland waters” has the meaning given by section 221(1) of the Water Resources Act 1991;
“migratory fish” means fish of a kind which migrates from fresh to salt water, or from salt to fresh water, in order to spawn;
“the Minister” means—
the Secretary of State, in relation to England and in relation to so much of the River Esk and its banks and tributary streams as is mentioned in subsection (11)(b), and
the Welsh Ministers, in relation to Wales;
“regulated waters” means—
inland waters in England and Wales,
the waters of so much of the River Esk and its tributary streams up to their source as is mentioned in subsection (11)(b), and
waters adjoining the coast of England and Wales to a distance of six nautical miles measured from the baselines from which the breadth of the territorial sea is measured;
“Wales” has the meaning given in section 158(1) of the Government of Wales Act 2006.
(10) The reference in subsection (8)(a) to water contained in underground strata is to be read in accordance with section 221(3) of the Water Resources Act 1991, as if this section formed part of that Act.
(11) Regulations made in reliance on subsection (2)(c)—
(a) are not to apply in relation to the Tweed district (as defined in article 2(1) of the Scotland Act 1998 (River Tweed) Order 2006 (S.I. 2006/2913)), but
(b) may apply in relation to so much of the River Esk, with its banks and tributary streams up to their source, as is situated in Scotland.
(12) Regulations under this section may make provision applying in relation to (and to places above and below) the territorial waters adjacent to any part of England and Wales.
(1) The power to make regulations under section 61 is to be exercised by statutory instrument.
(2) A statutory instrument containing regulations made by the Secretary of State under section 61 is subject to annulment in pursuance of a resolution of either House of Parliament, subject as follows.
(3) A statutory instrument containing regulations made by the Welsh Ministers under section 61 is subject to annulment in pursuance of a resolution of the National Assembly for Wales, subject as follows.
(4) A statutory instrument containing any of the following regulations (whether alone or with other regulations) is subject to the affirmative resolution procedure—
(a) the first regulations to be made by the Secretary of State under section 61;
(b) the first regulations to be made by the Welsh Ministers under section 61;
(c) regulations under section 61 which create an offence or increase a penalty for an existing offence;
(d) regulations under section 61 which amend or repeal any provision of an Act, or an Act or Measure of the National Assembly for Wales.
(5) A statutory instrument containing regulations made by the Secretary of State under both section 61 above and section 2 of the Pollution Prevention and Control Act 1999 is subject to the affirmative resolution procedure if an instrument containing only—
(a) the regulations made by the Secretary of State under section 61 above, or
(b) the regulations made by the Secretary of State under section 2 of the Pollution Prevention and Control Act 1999,
would be subject to the affirmative resolution procedure.
(6) A statutory instrument containing regulations made by the Welsh Ministers under both section 61 above and section 2 of the Pollution Prevention and Control Act 1999 is subject to the affirmative resolution procedure if an instrument containing only—
(a) the regulations made by the Welsh Ministers under section 61 above, or
(b) the regulations made by the Welsh Ministers under section 2 of the Pollution Prevention and Control Act 1999,
would be subject to the affirmative resolution procedure.
(7) A statutory instrument containing regulations made by the Secretary of State that is subject to the affirmative resolution procedure 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) A statutory instrument containing regulations made by the Welsh Ministers that is subject to the affirmative resolution procedure may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, the National Assembly for Wales.
(9) Subsections (11) and (12) apply in relation to a statutory instrument containing both—
(a) regulations under section 61 made or to be made by the Secretary of State, and
(b) regulations under section 61 made or to be made by the Welsh Ministers.
(10) Subsections (11) and (12) also apply in relation to a statutory instrument containing—
(a) regulations under section 61 made or to be made by the Secretary of State,
(b) regulations under section 61 made or to be made by the Welsh Ministers, and
(c) regulations made under section 2 of the Pollution Prevention and Control Act 1999 (whether by the Secretary of State or the Welsh Ministers or both).
(11) If in accordance with subsection (2) or (3) (negative resolution procedure)—
(a) either House of Parliament resolves that an address be presented to Her Majesty praying that an instrument containing regulations made by the Secretary of State be annulled, or
(b) the National Assembly for Wales resolves that an instrument containing regulations made by the Welsh Ministers be annulled,
nothing further is to be done under the instrument after the date of the resolution and Her Majesty may by Order in Council revoke the instrument.
(12) If the statutory instrument contains any regulations which, on their own, would make the instrument subject to the affirmative resolution procedure, the instrument is subject to that procedure.
(13) In section 2 of the Pollution Prevention and Control Act 1999, after subsection (9) there is inserted—
(10) See section 62 of the Water Act 2014 for further provision about the procedure applying to statutory instruments containing both regulations made under this section and regulations made under section 61 of that Act.
The following provisions of the Public Health Act 1936 are repealed—
(a) section 262 (power of local authority to require culverting of watercourses and ditches where building operations in prospect);
(b) section 263 (watercourses in urban districts not to be culverted except in accordance with approved plans).
(1) For the purposes of this Part, the Flood Reinsurance Scheme is a scheme which—
(a) is established for the purpose mentioned in subsection (2), and
(b) is designated for the purposes of this Part by regulations made by the Secretary of State.
(2) The purpose referred to in subsection (1)(a) is the purpose of providing reinsurance to relevant insurers in respect of such risks arising from a flood as are identified by the scheme, in such a way as to—
(a) promote the availability and affordability of flood insurance for household premises while minimising the costs of doing so, and
(b) manage, over the period of operation of the scheme, the transition to risk-reflective pricing of flood insurance for household premises.
(3) The Secretary of State may by regulations make provision as to levels of reinsurance premiums payable by relevant insurers under the FR Scheme, and may make different provision for different purposes.
(4) Regulations under subsection (3) may, in particular, make different provision for different purposes by reference to the value of the household premises insured.
(5) In this section “flood insurance” means insurance in respect of risks arising from a flood.
(6) In this Part, the Flood Reinsurance Scheme is called “the FR Scheme”.
(1) The FR Scheme is to be administered by a body designated by regulations made by the Secretary of State.
(2) The Secretary of State may under subsection (1) designate a company registered under the Companies Act 2006 or a body of another kind.
(3) In this Part, the body designated under subsection (1) is called “the FR Scheme administrator”.
(1) The Secretary of State may, with the consent of the Treasury, make regulations requiring relevant insurers to pay to the FR Scheme administrator—
(a) a levy, the amount and timing of which is to be determined in accordance with the regulations;
(b) such further amounts, by way of levy or contribution, as may be requested by the FR Scheme administrator from time to time in accordance with the FR Scheme.
(2) Regulations under subsection (1) may make provision as to—
(a) the circumstances in which a request under subsection (1)(b) may be made;
(b) the amounts that may be requested under subsection (1)(b).
(3) The Secretary of State may by regulations make provision for amounts payable under subsection (1) to be recoverable summarily (or in Scotland recoverable) as a civil debt.
(4) The Secretary of State may by regulations make provision as to the application of any amounts paid under subsection (1).
(5) The Secretary of State may by regulations provide that, where such conditions as are specified in the regulations as regards the reserves of the FR Scheme are satisfied, the FR Scheme administrator must pay to the Secretary of State an amount of the reserves to be determined in accordance with the regulations.
(6) Regulations under subsection (5) may—
(a) define “reserves”;
(b) make provision about determining the amount of the reserves of the FR Scheme.
(7) Before making regulations under subsection (5), the Secretary of State must obtain the consent of the FR Scheme administrator, which is not to be unreasonably withheld.
(1) The Secretary of State may by regulations make provision in connection with the administration of the FR Scheme.
(2) Regulations under subsection (1) may require the FR Scheme administrator to have regard to the following in discharging its functions—
(a) the need to ensure economy, efficiency and effectiveness in the discharge of those functions,
(b) the need to act in the public interest,
(c) the need to ensure propriety and regularity in the operation of the FR Scheme, and
(d) the need to manage, over the period of operation of the FR Scheme, the transition to risk-reflective pricing of flood insurance for household premises.
(3) Regulations under subsection (1) may require the FR Scheme administrator to produce and publish, in accordance with the regulations, a plan for achieving the transition mentioned in subsection (2)(d).
(4) Regulations under subsection (1) may require the FR Scheme administrator to provide the following information to relevant insurers who have issued insurance policies that are reinsured under the FR Scheme, so that those insurers may supply the information to holders of those policies—
(a) information about how to find out about the levels of flood risk to which an area in which household premises are situated is subject and how any flood risk may be managed;
(b) information about the FR Scheme, including information about the effect of section 64(2)(b) (transition to risk-reflective pricing of flood insurance for household premises).
(5) Regulations under subsection (1) may—
(a) limit, to any extent, the power of the FR Scheme administrator to borrow money or otherwise incur debt;
(b) make provision about the reserves of the FR Scheme, including limitations on draw downs and transfers;
(c) require the FR Scheme administrator to take steps to limit the overall net losses that may be incurred by the FR Scheme in any year to an amount specified in or determined in accordance with the regulations;
(d) provide for the form and contents of the FR Scheme's accounts;
(e) provide for a copy of the audited FR Scheme's accounts and a copy of the auditor's report on those accounts to be laid before Parliament;
(f) provide for the Comptroller and Auditor General to examine—
(i) the economy, efficiency and effectiveness with which the FR Scheme administrator has used resources in discharging its functions, and
(ii) the propriety and regularity in the operation of the FR Scheme,
and for a report on any such examination to be laid before Parliament;
(g) provide that for the purposes of an examination under paragraph (f)—
(i) the Comptroller and Auditor General is to have a right of access at all reasonable times to any of the documents relating to the FR Scheme, and
(ii) a person who holds or has control of any of those documents is to give the Comptroller and Auditor General any assistance, information or explanation which the Comptroller and Auditor General requires in relation to any of those documents.
(6) Regulations under subsection (1) may—
(a) require the FR Scheme administrator to designate an individual of a description specified in the regulations as the responsible officer of the FR Scheme;
(b) provide for the responsible officer to have such responsibilities in respect of—
(i) the FR Scheme's finances,
(ii) the FR Scheme's accounts,
(iii) accountability to Parliament for the economy, efficiency and effectiveness with which the FR Scheme uses resources in discharging its functions,
(iv) accountability to Parliament for propriety and regularity in the operation of the FR Scheme, and
(v) examinations and reports under subsection (5)(f),
as are specified in the regulations.
(7) Regulations under subsection (1) may make provision about the disclosure of information required for the purposes of the FR Scheme and may, in particular, require relevant insurers to supply to the FR Scheme administrator such information as it may request in relation to insurance policies issued by them.
(8) Regulations under subsection (1) may provide for the supply by the FR Scheme administrator of information held by it in connection with the FR Scheme to—
(a) the Environment Agency,
(b) the Scottish Environment Protection Agency,
(c) the Natural Resources Body for Wales,
(d) the Department of Agriculture and Rural Development in Northern Ireland, or
(e) such other body as may be specified in the regulations.
(9) Regulations under subsection (1) may provide for the supply by the FR Scheme administrator of information held by it in connection with the FR Scheme to the Secretary of State for purposes relating to government accounting.
(10) Subsections (2) to (9) are not exhaustive of what may be done under subsection (1).
(11) In this section—
“flood insurance” has the meaning given in section 64;
“the FR Scheme's accounts” means the accounts for a financial year of the FR Scheme prepared by the FR Scheme administrator in respect of the FR Scheme.
(1) Where regulations under section 64 replace the FR Scheme by revoking a designation and making a new designation, the regulations may make such provision as the Secretary of State thinks fit in connection with the replacement of the old FR scheme with the new FR scheme.
(2) Where regulations under section 65 replace the FR Scheme administrator by revoking a designation and making a new designation, the regulations may make provision for the transfer of property, rights and liabilities (whether or not otherwise capable of being transferred, and including pension liabilities in respect of staff) relating to the FR Scheme from the old administrator to the new administrator.
(1) The Commissioners for Her Majesty's Revenue and Customs may disclose relevant HMRC council tax information to any person who requires that information for either of the following descriptions of purposes—
(a) purposes connected with such scheme as may be established and designated in accordance with section 64 (in any case arising before any scheme is so designated);
(b) purposes connected with the FR Scheme (in any case arising after the designation of a scheme in accordance with section 64).
(2) A person to whom information is disclosed under subsection (1)(a) or (b)—
(a) may use the information only for the purposes mentioned in subsection (1)(a) or (b), as the case may be;
(b) may not further disclose the information except with the consent of the Commissioners.
(3) In this section—
“HMRC council tax information” means information which is held for council tax purposes by the Valuation Office of Her Majesty's Revenue and Customs;
“relevant HMRC council tax information” means HMRC council tax information relating to premises which are household premises and consisting of any of the following—
the address (including the postcode) of the premises;
the council tax valuation band in which the premises fall;
information about when the premises were constructed;
the National Address Gazetteer unique property reference number for the premises;
the unique address reference number allocated to the premises by the Valuation Office of Her Majesty's Revenue and Customs.
(4) The Secretary of State may by regulations amend the definition of “relevant HMRC council tax information” in subsection (3).
(5) If the Secretary of State by regulations under subsection (4) amends the definition of “relevant HMRC council tax information” to add further descriptions of information, those regulations may include the provision described in subsection (6).
(6) The regulations may provide that if a person discloses, in contravention of subsection (2)(b), information which is relevant HMRC council tax information by virtue of the regulations and which relates to a person whose identity—
(a) is specified in the disclosure, or
(b) can be deduced from it,
section 19 of the Commissioners for Revenue and Customs Act 2005 (wrongful disclosure) applies in relation to that disclosure as it applies in relation to a disclosure, in contravention of section 20(9) of that Act, of revenue and customs information relating to a person whose identity is specified in the disclosure or can be deduced from it.
(7) The Secretary of State must consult the Commissioners for Her Majesty's Revenue and Customs before making regulations under subsection (4).
(1) In this Part “insurer” means—
(a) a person who—
(i) is authorised for the purposes of the Financial Services and Markets Act 2000 (see section 31 of that Act), and
(ii) has permission to carry on the activities specified in Article 10 of the Financial Services and Markets (Regulated Activities) Order 2001 (S.I. 2001/544), or
(b) a member of the Society (within the meaning of the Lloyd's Act 1982).
(2) The Secretary of State may by regulations amend the definition of “insurer” in subsection (1).
(3) The Secretary of State may by regulations define “relevant insurer” for the purposes of this Part.
(4) Before making regulations under subsection (3) as to the meaning of “relevant insurer”, the Secretary of State must consult such persons as the Secretary of State thinks appropriate.
(5) The Secretary of State may by regulations define for the purposes of sections 64 to 69—
“flood”;
“flood risk”;
“household premises”.
(6) The Secretary of State may by regulations define for the purposes of sections 70 to 81—
“flood”;
“flood risk”;
“greater flood risk”;
“household premises”;
“insurance policy”;
“issue”, in relation to an insurance policy;
“the qualifying interest”, in relation to household premises.
(7) Regulations under subsection (5) or (6) as to the meaning of “flood” may specify descriptions of water that are, or are not, to be taken into account.
(8) In sections 70 to 81—
“the FCA” means the Financial Conduct Authority;
“the PRA” means the Prudential Regulation Authority;
“registered premises” means premises registered in the register maintained under section 74;
“risk band” has the meaning given by section 74(2).
(1) Sections 64 to 81 are repealed at the end of the period of 25 years beginning with the day on which this Act is passed.
(2) The Secretary of State may by order amend subsection (1) so as to bring forward the day on which—
(a) sections 64 to 69 are repealed;
(b) sections 70 to 78 are repealed.
(3) The Secretary of State may by order make provision in connection with—
(a) the repeal of—
(i) sections 64 to 69, or
(ii) sections 70 to 78, or
(b) the revocation of a scheme's designation under section 64(1)(b) without a new designation being made under that provision, at any time before sections 64 to 69 are repealed,
including provision amending or repealing an enactment.
(4) Provision made in an order by virtue of subsection (3) may, in particular, include—
(a) such provision for the transfer of property, rights and liabilities (whether or not otherwise capable of being transferred, and including pension liabilities in respect of staff) relating to the FR Scheme as the Secretary of State thinks fit;
(b) provision about legal proceedings relating to anything done in connection with the FR Scheme;
(c) provision about the accounts of the FR Scheme;
(d) provision about information held by the FR Scheme administrator.
(5) Before making an order under subsection (3)(a)(i) or (b) which includes provision for the transfer of an amount of the reserves of the FR Scheme, the Secretary of State must consult the FR Scheme administrator about the amount to be transferred.
(6) The Secretary of State may by regulations define “reserves” for the purposes of subsection (5).
(7) The Treasury may by order amend subsection (1) so as to bring forward the day on which sections 79 to 81 are repealed.
(8) The Treasury may by order make provision in consequence of the repeal of sections 79 to 81, including provision amending or repealing an enactment.
(1) A power to make regulations or an order under this Part is exercisable by statutory instrument.
(2) Subsection (1) does not apply in relation to an order under section 83(3) if the only provision made by the order is provision for, or in connection with, the transfer of property, rights and liabilities.
(3) A power to make regulations or an order under this Part includes power to make different provision for different purposes and different areas.
(4) A power to make regulations or an order under this Part includes power to make incidental, supplementary, consequential, transitional or transitory provision or savings.
(5) Subject to subsection (6), a statutory instrument containing regulations or an order made under this Part is subject to annulment in pursuance of a resolution of either House of Parliament.
(6) A statutory instrument containing—
(a) regulations under section 64 (the Flood Reinsurance Scheme),
(b) regulations under section 65 (scheme administrator),
(c) regulations under section 66 (scheme funding),
(d) regulations under section 67 (scheme administration),
(e) regulations under section 69 (disclosure of HMRC council tax information),
(f) regulations under section 70 (flood insurance obligations),
(g) the first regulations to be made under section 71 (target number),
(h) regulations under section 72 or 73 (information),
(i) the first regulations to be made under section 74 (register of premises subject to greater flood risk),
(j) regulations under section 77 (expenses of relevant bodies),
(k) regulations under section 78 (compliance reports),
(l) regulations under section 79 (functions of FCA),
(m) regulations under section 81 (intervention by FCA or PRA),
(n) regulations under section 82 (interpretation), or
(o) an order under section 83 (period of operation),
may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(7) If a draft of an instrument containing an order under section 83(3) 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.
85 Internal drainage boards: procedure for orders confirming reorganisation
(1) Schedule 3 to the Land Drainage Act 1991 (procedure for certain orders) is amended as follows.
(2) In paragraph 4 (publication of order after it is made and availability of special parliamentary procedure), after sub-paragraph (1) there is inserted—
(1A) But this paragraph does not apply to an order confirming a scheme under section 3 of this Act.
(3) In paragraph 5 (orders subject to special parliamentary procedure)—
(a) in sub-paragraph (1), for “this Schedule” there is substituted “ paragraph 4 ”;
(b) after sub-paragraph (3) there is inserted—
(3A) But sub-paragraph (3) does not apply to an order confirming a scheme under section 3 of this Act.
86 Internal drainage boards in England: alternative procedure for byelaws
(1) The Land Drainage Act 1991 is amended as follows.
(2) In section 65 (land drainage regulations), at the beginning of subsection (2) there is inserted “Subject to section 66A(4),”.
(3) In section 66 (powers of internal drainage boards and local authorities to make byelaws), after subsection (5) (procedure) there is inserted—
(5A) Subsection (5) is subject to section 66A(1).
(4) After section 66 there is inserted—
Alternative procedure for byelaws made by internal drainage boards
66A (1) The Secretary of State may by regulations —
(a) provide that section 66(5) and Schedule 5 do not apply to byelaws made under section 66 by internal drainage boards for internal drainage districts which are neither wholly nor partly in Wales, and
(b) make provision about the procedure for the making and coming into force of such byelaws.
(2) The regulations may, in particular, include provision about—
(a) consultation to be undertaken before a byelaw is made;
(b) publicising a byelaw after it is made.
(3) The regulations may make such incidental, consequential, transitional or supplemental provision (including provision amending or repealing any provision of this Act) as the Secretary of State considers appropriate.
(4) Regulations may not be made under subsection (1) unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.
(1) The Secretary of State may by order made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of this Act.
(2) The power conferred by subsection (1) includes power—
(a) to make transitional, transitory or saving provision;
(b) to amend, repeal, revoke or otherwise modify any provision made by or under an enactment (whenever passed or made).
(3) A statutory instrument containing (whether alone or with other provision) an order under this section which amends or repeals any provision of an Act of Parliament, or of an Act or Measure of the National Assembly for Wales, is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) A statutory instrument containing any other order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(1) The Secretary of State may by order made by statutory instrument make such transitional, transitory or saving provision as the Secretary of State considers appropriate in connection with the coming into force of any provision of this Act.
(2) Subsection (1) does not apply if or to the extent that subsection (3) or (4) applies.
(3) If a provision of this Act is brought into force to any extent by the Welsh Ministers acting alone under section 94(3), the Welsh Ministers may by order made by statutory instrument make such transitional, transitory or saving provision as the Welsh Ministers consider appropriate in connection with the coming into force of so much of that provision as is so brought into force.
(4) If a provision of this Act is brought into force to any extent by the Secretary of State and the Welsh Ministers acting jointly under section 94(3), the Secretary of State and the Welsh Ministers may, acting jointly, by order made by statutory instrument make such transitional, transitory or saving provision as they, together, consider appropriate in connection with the coming into force of so much of that provision as is so brought into force.
(5) Schedule 11 (further provision about orders under this section) has effect.
There shall be paid out of money provided by Parliament—
(a) expenditure incurred under or by virtue of this Act by the Secretary of State;
(b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.
(1) This Act extends to England and Wales only, subject as follows.
(2) Sections 61 and 62 and Schedule 8 extend also to Scotland, but only so far as required for the purposes of regulations applying as mentioned in section 61(11)(b).
(3) Part 4 and this Part extend to England and Wales, Scotland and Northern Ireland.
(4) An amendment or repeal made by this Act has the same extent as the enactment to which it relates.
(1) The following provisions of this Act come into force on the day on which it is passed—
(a) section 69, so far as relating to the power to disclose information under section 69(1)(a);
(b) section 90;
(c) section 91 and Schedule 11;
(d) sections 92 and 93;
(e) this section and Schedule 12;
(f) section 95.
(2) The following provisions of this Act come into force at the end of the period of two months beginning with the day on which it is passed—
(a) section 3;
(b) section 13;
(c) section 15;
(d) section 21;
(e) section 22, so far as relating to water or sewerage undertakers whose areas are wholly or mainly in England;
(f) section 25(3);
(g) sections 26 to 28;
(h) section 33;
(i) section 34(1) and (2);
(j) sections 35 and 36;
(k) section 57;
(l) section 58;
(m) section 60;
(n) sections 61 and 62 and Schedule 8;
(o) section 63;
(p) sections 85 to 87;
(q) section 88;
(r) section 89 and Schedule 10;
(s) paragraph 8 of Schedule 7 (and section 56 so far as relating to paragraph 8);
(t) paragraph 107 of Schedule 7 (and section 56 so far as relating to paragraph 107).
(3) The remaining provisions of this Act come into force on such day as the appropriate authority may by order appoint.
(4) The power of the Secretary of State or the Welsh Ministers to make an order under subsection (3) is to be exercisable by statutory instrument.
(5) Different days may be appointed for different purposes.
(6) Except as stated in the table in Schedule 12, the appropriate authority for the purposes of subsection (3) is the Secretary of State.
Section 1
SCHEDULE 2A
WATER SUPPLY LICENCES: AUTHORISATIONS
Operation of the authorisations in England and Wales
1 In the descriptions of the following authorisations, a reference to the supply system of a water undertaker is a reference to the supply system of a water undertaker whose area is wholly or mainly in England—
(a) a retail authorisation;
(b) a wholesale authorisation.
2 In the descriptions of the following authorisations, a reference to the supply system of a water undertaker is a reference to the supply system of a water undertaker whose area is wholly or mainly in Wales—
(a) a restricted retail authorisation;
(b) a supplementary authorisation.
Retail authorisation
3 A retail authorisation given by a water supply licence is an authorisation to the water supply licensee to use the supply system of a water undertaker for the purpose of supplying water to the premises of—
(a) the licensee,
(b) persons associated with the licensee, or
(c) the licensee's customers.
4 None of the premises supplied by a water supply licensee under a retail authorisation may be household premises (as defined in section 17C).
Wholesale authorisation
5 A wholesale authorisation given by a water supply licence is an authorisation to the water supply licensee to introduce water into the supply system of a water undertaker—
(a) by means of which system any particular supply in accordance with a retail authorisation (whether the licensee's or another water supply licensee's) is to take place, and
(b) where that introduction is to be made in connection with that intended supply.
Restricted retail authorisation
6 A restricted retail authorisation given by a water supply licence is an authorisation to the water supply licensee to use the supply system of a water undertaker for the purpose of supplying water to the premises of the licensee's customers.
7 The following requirements must be satisfied in relation to each of the premises to be supplied by a water supply licensee under a restricted retail authorisation—
(a) the requirement that the premises are not household premises (as defined in section 17C);
(b) the threshold requirement (construed in accordance with section 17D).
Supplementary authorisation
8 A supplementary authorisation given by a water supply licence is an authorisation to the water supply licensee to introduce water into the supply system of a water undertaker—
(a) by means of which system any particular supply in accordance with the licensee's restricted retail authorisation is to take place, and
(b) where that introduction is to be made in connection with that intended supply.
Enforcement and guidance
9 The requirements in paragraphs 4 and 7 are enforceable by the Authority under section 18.
10 (1) The Authority may from time to time, with the approval of the Secretary of State, issue guidance as to the factors that are, or are not, to be taken into account in determining the extent of any premises for the purposes of paragraphs 4 and 7.
(2) Before giving approval under sub-paragraph (1) the Secretary of State must consult the Welsh Ministers.
Interpretation
11 For the purposes of this Schedule, a person (A) is associated with a water supply licensee (L) if—
(a) where A and L are bodies corporate, one of them is a subsidiary of the other or both are subsidiaries of the same body corporate;
(b) where A or L is an individual or an unincorporated association and the other is a body corporate, that individual or unincorporated association controls the other or a body corporate of which the other is a subsidiary;
(c) A is a partnership of which L is a member.
12 In paragraph 11 “subsidiary” has the meaning given by section 1159 of the Companies Act 2006; and sections 450(1) to (4) and 451(1) to (3) of the Corporation Taxes Act 2010 (control of a company) apply for the purposes of paragraph 11 as they apply for the purposes of Part 10 of that Act.”
SCHEDULE 2 Water undertakers' duties as regards water supply licensees
Section 1
1 For sections 66A to 66C of the Water Industry Act 1991, and the Chapter heading and italic heading preceding section 66A, there is substituted—
Supply duties etc: water supply licensees
Duties of undertakers to supply water supply licensees etc
Use of water undertaker's supply system
66A (1) This section applies where a water supply licensee with a retail authorisation (“L”) requests a water undertaker to permit the use of the undertaker's supply system for the purpose of supplying water to premises that—
(a) L is to supply in accordance with L's retail authorisation, and
(b) are in the area of the undertaker.
(2) This section also applies where a water supply licensee with a restricted retail authorisation (“R”) requests a water undertaker to permit the use of the undertaker's supply system for the purpose of supplying water to premises that—
(a) R is to supply in accordance with R's restricted retail authorisation, and
(b) are in the area of the undertaker.
(3) Where this section applies, the undertaker must in accordance with a section 66D agreement take such steps—
(a) for the purpose of connecting the premises in question with the undertaker's supply system, or
(b) in respect of that system,
as may be provided for in that agreement in order to enable the requested use of the undertaker's supply system.
(4) A water undertaker is not required by this section to permit the use of its supply system, or to take any steps to enable its use, if the first or second ground applies.
(5) The first ground is that—
(a) in the case of a request under subsection (1), the water supply licensee has not secured by means of—
(i) a request under section 66AA(1) made by the licensee,
(ii) a request under section 66B(1) or 66C(1), (2) or (3) made by the licensee or another water supply licensee, or
(iii) a combination of such requests,
a supply of water, or the introduction of a supply of water, in connection with which the premises in question are to be supplied;
(b) in the case of a request under subsection (2), the water supply licensee has not secured by means of—
(i) a request under section 66AA(2), 66B(2) or (3) or 66C(4), or
(ii) a combination of such requests,
a supply of water, or the introduction of a supply of water, in connection with which the premises in question are to be supplied.
(6) The second ground is that there is, in relation to the water fittings used or to be used in connection with—
(a) the supply of water to the premises in question, or
(b) the use of water in those premises,
a contravention of such of the requirements of regulations under section 74 as are prescribed for the purposes of this subsection.
(7) Where—
(a) a request has been made by a water supply licensee for the purposes of subsection (1) or (2), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 66D agreement provides for such liability as regards those steps.
(8) For the purposes of this section and sections 66AA to 66C—
(a) premises which are outside a water undertaker's area are to be treated as being within that area if they are supplied with water using the undertaker's supply system, and
(b) any pipes of the water undertaker which are used for the purpose of supplying premises as mentioned in paragraph (a) are to be treated as being part of the undertaker's supply system (if they would not otherwise be part of it).
(9) In this section and sections 66AA to 66C—
(a) “prescribed” means, in relation to a water undertaker whose area is wholly or mainly in Wales, prescribed by regulations made by the Welsh Ministers by statutory instrument, which is subject to annulment in pursuance of a resolution of the Assembly;
(b) a reference to the supply system of a water undertaker is to be construed in accordance with section 17B;
(c) references to a retail authorisation or a restricted retail authorisation are to be construed in accordance with Schedule 2A.
Water supply from water undertaker
66AA (1) This section applies where a water supply licensee with a retail authorisation (“L”) requests a water undertaker to provide L with a supply of water for the purpose of supplying water to premises that—
(a) L is to supply in accordance with L's retail authorisation, and
(b) are in the area of the undertaker.
(2) This section also applies where a water supply licensee with a restricted retail authorisation (“R”) requests a water undertaker to provide R with a supply of water for the purpose of supplying water to premises that—
(a) R is to supply in accordance with R's restricted retail authorisation, and
(b) are in the area of the undertaker.
(3) Where this section applies, the undertaker must in accordance with a section 66D agreement—
(a) take such steps in respect of the undertaker's supply system as may be provided for in that agreement in order to enable the use of the undertaker's supply system for the purpose in subsection (1) or, as the case may be, subsection (2), and
(b) having taken such steps, provide the requested supply of water.
(4) A water undertaker is not required by this section to provide a supply of water if both of the first and second grounds apply.
(5) The first ground is that—
(a) the premises to be supplied by L or, as the case may be, R do not consist in the whole or any part of a building, or
(b) the supply to be made by L or, as the case may be, R to those premises is for purposes other than domestic purposes.
(6) The second ground is that provision of a supply of water by the water undertaker would—
(a) require the undertaker, in order to meet all its existing obligations to supply water for domestic or other purposes, together with its probable future obligations to supply buildings and parts of buildings with water for domestic purposes, to incur unreasonable expenditure in carrying out works, or
(b) otherwise put at risk its ability to meet any of the existing or probable future obligations mentioned in paragraph (a).
(7) Where—
(a) a request has been made by a water supply licensee for the purposes of subsection (1) or (2), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 66D agreement provides for such liability as regards those steps.
Introduction of water into water undertaker's supply system
66B (1) This section applies where—
(a) a water supply licensee with a wholesale authorisation (“L”) requests a water undertaker to permit L to introduce water into the undertaker's supply system, with a view to the use of that system, in connection with that introduction of water, to supply water to particular premises in accordance with a retail authorisation (whether L's or another's), and
(b) the premises in issue are in the area of the undertaker.
(2) This section also applies where—
(a) a water supply licensee with a supplementary authorisation (“R1”) requests a water undertaker to permit R1 to introduce water into the undertaker's supply system, with a view to the use of that system, in connection with that introduction of water, to supply water to particular premises in accordance with R1's restricted retail authorisation, and
(b) the premises in issue are in the area of the undertaker.
(3) This section also applies where—
(a) a water undertaker agrees to permit a water supply licensee with a supplementary authorisation (“R2”) to introduce water into the undertaker's treatment works,
(b) in connection with that introduction, R2 requests the undertaker to permit R2 to introduce water into the undertaker's supply system, with a view to the use of that system to supply water to particular premises in accordance with R2's restricted retail authorisation, and
(c) the premises in issue are in the area of the undertaker.
(4) Where this section applies, the undertaker must in accordance with a section 66D agreement—
(a) in a case falling within subsection (1), take such steps—
(i) for the purpose of connecting L's source of water with the undertaker's supply system, or
(ii) in respect of the undertaker's supply system,
as may be provided for in that agreement in order to enable L to make the requested introduction of water into the supply system;
(b) in a case falling within subsection (2), take such steps—
(i) for the purpose of connecting R1's treatment works with the undertaker's supply system,
(ii) for the purpose of connecting with the undertaker's supply system any source used by R1 for the purpose of supplying water other than for domestic or food purposes, or
(iii) in respect of the undertaker's supply system,
as may be provided for in that agreement in order to enable R1 to make the requested introduction of water into the supply system;
(c) in a case falling within subsection (3), take such steps in respect of the undertaker's supply system as may be provided for in that agreement in order to enable R2 to make the requested introduction of water into the supply system;
(d) having taken steps under paragraph (a), (b) or (c) (as the case may be), permit the requested introduction of water into that supply system.
(5) A water undertaker is not required by this section to permit the introduction of water into its supply system, or to take any steps to enable such an introduction of water, if permitting the introduction of water into the undertaker's supply system would—
(a) require the undertaker, in order to meet all its existing obligations to supply water for domestic or other purposes, together with its probable future obligations to supply buildings and parts of buildings with water for domestic purposes, to incur unreasonable expenditure in carrying out works, or
(b) otherwise put at risk its ability to meet any of the existing or probable future obligations mentioned in paragraph (a).
(6) Where—
(a) a request has been made by a water supply licensee for the purposes of subsection (1), (2) or (3), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 66D agreement provides for such liability as regards those steps.
(7) In this section “treatment works” means—
(a) in relation to a water undertaker whose area is wholly or mainly in Wales, the works designated as treatment works by the Secretary of State for the purposes of section 17B(6);
(b) in relation to a water supply licensee, the works designated from time to time by the Welsh Ministers as treatment works for the purposes of this paragraph.
(8) A list of any works designated for the purposes of subsection (7)(b) must be published from time to time by the Welsh Ministers in such manner as the Welsh Ministers consider appropriate for the purpose of bringing the designations to the attention of persons likely to be affected by them.
(9) A pipe laid because of subsection (4)(a)(i) or (b)(i) or (ii) is to be regarded as a water main for the purposes of this Act, subject to any provision to the contrary.
(10) In this section and section 66C—
(a) a reference to a wholesale authorisation is to be construed in accordance with Schedule 2A;
(b) a reference to a supplementary authorisation is to be construed in accordance with Schedule 2A.
Introduction of water provided by secondary water undertaker
66C (1) This section applies where a water supply licensee with a wholesale authorisation (“L1”)—
(a) requests a water undertaker other than L1's primary water undertaker (the “secondary water undertaker”) to provide a supply of water so that water may be supplied to particular premises, using the primary water undertaker's supply system and in accordance with a retail authorisation (whether L1's or another's), and
(b) requests L1's primary water undertaker to permit L1 to introduce that water into the primary water undertaker's supply system,
and the premises in issue are in the area of the primary water undertaker.
A request under paragraph (a) may only be made to a water undertaker whose area is wholly or mainly in England.
(2) This section also applies where a water supply licensee with a wholesale authorisation (“L2”)—
(a) requests a water undertaker whose area is wholly or mainly in Wales and which is not L2's primary water undertaker (the “secondary water undertaker”) to provide a supply of water so that L2 may supply water to particular premises, using the primary water undertaker's supply system and in accordance with L2's retail authorisation so far as that authorisation relates to L2's customers, and
(b) requests L2's primary water undertaker to permit L2 to introduce that water into the primary water undertaker's supply system,
and the premises in issue are in the area of the primary water undertaker.
(3) This section also applies where a water supply licensee with a wholesale authorisation (“L3”)—
(a) agrees with a water undertaker whose area is wholly or mainly in Wales and which is not L3's primary undertaker (the “secondary water undertaker”) for the secondary water undertaker to provide a supply of water so that water may be supplied to particular premises, using the primary water undertaker's supply system and in accordance with—
(i) L3's retail authorisation except so far as that authorisation relates to L3's customers, or
(ii) a retail authorisation other than L3's, and
(b) requests L3's primary water undertaker to permit L3 to introduce that water into the primary water undertaker's supply system,
and the premises in issue are in the area of the primary water undertaker.
(4) This section also applies where a water supply licensee with a supplementary authorisation (“R”)—
(a) requests a water undertaker other than R's primary water undertaker (the “secondary water undertaker”) to provide a supply of water so that R may supply water to particular premises, using the primary water undertaker's supply system and in accordance with R's restricted retail authorisation, and
(b) requests R's primary water undertaker to permit R to introduce that water into the primary water undertaker's supply system,
and the premises in issue are in the area of the primary water undertaker.
A request under paragraph (a) may be made to a water undertaker whose area is wholly or mainly in England or Wales.
(5) Where this section applies by virtue of subsection (1), (2) or (4), the secondary water undertaker must in accordance with a section 66D agreement—
(a) take such steps in respect of its supply system as may be provided for in that agreement in order to enable it to provide the requested supply, and
(b) having taken such steps, provide that supply.
(6) Where this section applies, the primary water undertaker must in accordance with a section 66D agreement—
(a) take such steps—
(i) for the purpose of connecting the secondary water undertaker's supply system with the primary water undertaker's supply system, or
(ii) in respect of its supply system,
as may be provided for in that agreement in order to enable L1, L2, L3 or R to make the requested introduction of water into the primary undertaker's supply system, and
(b) having taken such steps, permit the requested introduction.
(7) A secondary water undertaker is not required by this section to provide a supply of water to L1, L2 or R if providing the supply of water would—
(a) require the secondary undertaker, in order to meet all its existing obligations to supply water for domestic or other purposes, together with its probable future obligations to supply buildings and parts of buildings with water for domestic purposes, to incur unreasonable expenditure in carrying out works, or
(b) otherwise put at risk its ability to meet any of the existing or probable future obligations mentioned in paragraph (a).
(8) A primary water undertaker is not required by this section to permit the introduction of water into its supply system, or to take any steps to enable such an introduction of water, if permitting the introduction of a supply of water would—
(a) require the primary undertaker, in order to meet all its existing obligations to supply water for domestic or other purposes, together with its probable future obligations to supply buildings and parts of buildings with water for domestic purposes, to incur unreasonable expenditure in carrying out works, or
(b) otherwise put at risk its ability to meet any of the existing or probable future obligations mentioned in paragraph (a).
(9) Where—
(a) a request has been made by a water supply licensee to a water undertaker for the purposes of subsection (1), (2), (3) or (4), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 66D agreement provides for such liability as regards those steps.
(10) A pipe laid because of subsection (6)(a)(i) is to be regarded as a water main for the purposes of this Act, subject to any provision to the contrary.
(11) For the purposes of this section, a water undertaker is the primary water undertaker of a water supply licensee if the undertaker's supply system is to be used for the purpose of making the supply to the premises mentioned in subsection (1), (2), (3) or (4).
2 After section 66C (substituted by paragraph 1) there is inserted—
Determinations by Authority
66CA (1) The Authority may determine, in a case referred to it by a water supply licensee, whether any condition specified in the following provisions is satisfied—
(a) section 66A(5) and (6);
(b) section 66AA(5) and (6);
(c) section 66B(5);
(d) section 66C(7) and (8).
(2) Before the Authority determines whether a condition specified in section 66B(5) is satisfied, it must consult the Secretary of State.
(3) If a determination as to a condition specified in section 66B(5) relates to the introduction of water into the supply system of a water undertaker whose area is wholly or mainly in Wales, the Authority must consult the Welsh Ministers, not the Secretary of State.
(4) Before the Authority determines whether a condition specified in section 66C(7) or (8) is satisfied, it must consult the Secretary of State and the appropriate agency.
(5) If the case in which a determination as to a condition specified in section 66C(7) or (8) is made relates to—
(a) the supply of water by a water undertaker whose area is wholly or mainly in Wales, and
(b) the introduction of water into the supply system of a water undertaker whose area is wholly or mainly in Wales,
the Authority must consult the Welsh Ministers, not the Secretary of State.
(6) If the case in which a determination as to a condition specified in section 66C(7) or (8) is made relates to the supply of water by one water undertaker, and the introduction of water into the supply system of another water undertaker, and only one of those undertakers has an area wholly or mainly in Wales, the Authority must consult the Welsh Ministers as well as the Secretary of State.
(7) In subsection (4), “the appropriate agency”, in relation to a determination as to a condition specified in section 66C(7) or (8) relating to the supply of water by one water undertaker, and the introduction of water into the supply system of another water undertaker means—
(a) the Environment Agency, in a case where the areas of both undertakers are wholly in England;
(b) the NRBW, in a case where the areas of both undertakers are wholly in Wales;
(c) both the Environment Agency and the NRBW, in any other case.
3 For section 66D of the Water Industry Act 1991 (determinations and agreements) there is substituted—
Agreements as to duties under sections 66A to 66C
66D (1) On the application of—
(a) a water supply licensee that has made a request under sections 66A to 66C, or
(b) a water undertaker to which such a request has been made,
the Authority may by order require a water undertaker to perform the duty in question under sections 66A to 66C, for such period and on such terms and conditions as may be specified in the order.
(2) The Authority may make an order under subsection (1) only if—
(a) in the case of an application relating to a duty under section 66A, 66AA, 66B or 66C, it appears to the Authority that the water undertaker is required to perform that duty under that section, or
(b) in the case of an application relating to duties under section 66C, it appears to the Authority that both water undertakers in question are required to perform duties under that section,
and it is satisfied that the parties cannot reach agreement within a reasonable time.
(3) An order under subsection (1) has effect as an agreement between—
(a) the water supply licensee, and
(b) the water undertaker required to perform the duty in question.
(4) On the application of a party to a section 66D agreement, and if the Authority is satisfied that the parties cannot reach agreement on the variation or termination of the agreement within a reasonable time, the Authority may by order vary or terminate the agreement.
(5) If an order under subsection (4) is made in relation to a section 66D 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.
(6) An order under subsection (4) may require one party to the agreement to pay compensation to the other.
(7) Neither the CMA nor the Authority may exercise, in respect of an agreement for the performance of a duty under sections 66A to 66C by a water undertaker, 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).
(8) Subsection (7)(b) does not apply to the exercise of powers in respect of conduct—
(a) which is connected with an agreement for the performance of a duty under sections 66A to 66C by a water undertaker, 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.
(9) In this Chapter a reference to a section 66D agreement is a reference to—
(a) an agreement for the performance of a duty under sections 66A to 66C by a water undertaker, or
(b) an order deemed to be such an agreement under subsection (3), or
(c) an agreement varied by order under subsection (4).
4 After section 66D of the Water Industry Act 1991 (as substituted by paragraph 3) there is inserted—
Codes in respect of section 66D agreements
66DA (1) The Authority may issue one or more codes in respect of section 66D agreements.
(2) A code may make provision about—
(a) procedures in connection with making a section 66D agreement;
(b) procedures in connection with varying or terminating a section 66D agreement;
(c) the terms and conditions of a section 66D agreement, including terms as to the duration of such an agreement;
(d) principles for determining the terms and conditions that should or should not be incorporated into a section 66D agreement.
(3) A code may make provision about the steps to be taken by the Authority in determining for the purposes of section 66D(2) whether a water undertaker is, in the particular case, required to perform a duty under sections 66A to 66C.
(4) If the Authority considers that a water undertaker or a water supply licensee is not acting as required by a code, the Authority may give the undertaker or the licensee a direction to do, or not to do, a thing specified in the direction.
(5) The Authority may not give a direction under subsection (4) requiring a person to enter into, vary or terminate an agreement.
(6) It is the duty of a water undertaker or a water supply licensee to comply with a direction under subsection (4), and this duty is enforceable by the Authority under section 18.
(7) A code may make—
(a) different provision for different persons or descriptions of person;
(b) different provision for different duties under sections 66A to 66C.
(8) The Authority may from time to time revise a code issued under this section and issue a revised code.
(9) A revised code may include provision for applying any of its revisions to section 66D agreements made before the revised code comes into effect.
Codes under section 66DA: procedure
66DB (1) Before issuing a code under section 66DA, the Authority must—
(a) prepare a draft of the proposed code under section 66DA;
(b) consult persons in accordance with subsections (2) to (4).
(2) If the proposed code relates to section 66D agreements made with water undertakers whose areas are wholly or mainly in England, the Authority must consult the following about the proposed code—
(a) the Secretary of State;
(b) the Chief Inspector of Drinking Water;
(c) the appropriate agency;
(d) the Council;
(e) any relevant undertakers likely to be affected by the proposed code;
(f) any water supply licensees likely to be affected by the proposed code;
(g) such other persons as the Authority thinks appropriate.
(3) If the proposed code relates to section 66D agreements made with water undertakers whose areas are wholly or mainly in Wales, the Authority must consult the following about the proposed code—
(a) the Welsh Ministers;
(b) the Chief Inspector of Drinking Water for Wales if there is one, or the Chief Inspector of Drinking Water if section 86(1B)(b) applies;
(c) the appropriate agency;
(d) the Council;
(e) any relevant undertakers likely to be affected by the proposed code;
(f) any water supply licensees likely to be affected by the proposed code;
(g) such other persons as the Authority thinks appropriate.
(4) The Authority must specify the period (“the consultation period”) within which a person may make representations about the proposed code.
(5) Before a code under section 66DA 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.
(6) Subsection (5) is subject to subsections (8) and (9).
(7) In subsection (5) “the Minister” means—
(a) the Secretary of State, so far as a code prepared by the Authority relates to section 66D agreements affecting only the supply systems of water undertakers whose areas are wholly or mainly in England;
(b) the Welsh Ministers, so far as a code prepared by the Authority relates to section 66D agreements affecting only the supply systems of water undertakers whose areas are wholly or mainly in Wales;
(c) the Secretary of State and the Welsh Ministers acting jointly, so far as a code prepared by the Authority relates to section 66D agreements not falling within paragraph (a) or (b).
(8) If the power under subsection (5) is exercised to give a direction in respect of such section 66D agreements as are referred to in paragraph (a), (b) or (c) of subsection (7), it may not be exercised again in respect of such section 66D agreements as are referred to in that paragraph.
(9) If the power under subsection (5) to give a direction in respect of such section 66D agreements as are referred to in paragraph (a), (b) or (c) of subsection (7) is not exercised on the first occasion on which it may be so exercised, it may not be exercised in respect of such section 66D agreements as are referred to in that paragraph on a later occasion.
(10) 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 a code prepared by the Authority in relation to which a direction may be given may not be issued before that period of 28 days has expired.
(11) In this section “the appropriate agency” means—
(a) the Environment Agency, in relation to section 66D agreements made with water undertakers whose areas are wholly in England;
(b) the NRBW, in relation to section 66D agreements made with water undertakers whose areas are wholly in Wales;
(c) both the Environment Agency and the NRBW, in relation to section 66D agreements made with water undertakers whose areas are partly in England and partly in Wales.
(12) This section is subject to section 66DC.
Codes under section 66DA: minor or urgent revisions
66DC (1) This section applies if the Authority proposes to issue a revised code 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 66DB 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.
5 For section 66E of that Act there is substituted—
Rules about charges
66E (1) The Authority must issue rules about charges that may be imposed by a water undertaker under a section 66D agreement.
(2) The rules may in particular make provision about—
(a) the types of charges that may be imposed;
(b) the amount or the maximum amount, or methods for determining the amount or maximum amount, of any type of charge;
(c) principles for determining what types of charges 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 must include provision for and in connection with requiring a water undertaker to impose on a water supply licensee only such charges as would enable the licensee, where the services it provides to a person under its retail authorisation or restricted retail authorisation are services to which a section 142(2)(b) agreement would apply if the undertaker had continued to provide the services, to charge for those services at the same rate or rates as would have applied if the section 142(2)(b) agreement had applied.
(4) In subsection (3) “section 142(2)(b) agreement” means an agreement to which section 142(2)(b) applies.
(5) If the Authority considers that a water undertaker is not acting as required by rules under this section, the Authority may—
(a) give the undertaker a direction to do, or not to do, a thing specified in the direction, or
(b) in a case where a section 66D agreement to which the undertaker is party requires modification in order to conform to the rules, give a direction to the undertaker and the water supply licensee in question to modify the agreement.
(6) It is the duty of a water undertaker or a water supply licensee to comply with a direction under subsection (5), and this duty is enforceable by the Authority under section 18.
(7) The rules may—
(a) make different provision for different persons or descriptions of person;
(b) make different provision for different purposes;
(c) make provision subject to exceptions.
(8) The Authority may from time to time revise rules issued under this section and issue revised rules.
(9) The Authority must issue revised rules if—
(a) guidance is issued under section 66ED, and
(b) the Authority, having regard to that guidance, considers that it is appropriate to revise the rules.
(10) Revised rules may include provision for applying any of their revisions to section 66D agreements made before the revised rules come into effect.
Rules about charges: provision about the reduction of charges
66EA (1) Rules under section 66E may make provision about the reduction of charges payable under a section 66D agreement where—
(a) a water supply licensee that has a retail authorisation or a restricted retail authorisation is party to the section 66D agreement, and
(b) other conditions specified by the rules are satisfied.
(2) Rules made by virtue of subsection (1) may in particular—
(a) specify conditions relating to any party to the section 66D agreement;
(b) specify conditions about persons taking steps for the purpose of reducing or managing water consumption;
(c) specify conditions about the premises by reference to which such steps are to be taken;
(d) specify conditions about reducing charges payable by a person who—
(i) is not party to the section 66D agreement, and
(ii) takes or proposes to take such steps as satisfy or would satisfy a condition specified under paragraph (b).
(3) The rules may provide that, where a charge falls to be reduced in accordance with rules made by virtue of subsection (1), the water undertaker to which the charges are payable must give notice of that reduction to the Authority.
(4) Rules made by virtue of subsection (3) may—
(a) make provision as to the content of the notice;
(b) specify the period within which an undertaker is to give notice to the Authority.
(5) Provision under subsection (4)(a) may in particular require the notice to specify—
(a) the amount of the charge, with and without the reduction;
(b) the period for which the reduction has effect.
Rules under section 66E: procedure
66EB (1) Before issuing rules under section 66E, 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 water undertakers likely to be affected by the rules;
(e) any water supply licensees likely to be affected by the rules;
(f) such other persons as the Authority thinks appropriate.
(3) The Authority must specify the period (“the consultation period”) within which persons may make representations about the proposed rules.
(4) The Authority must have regard to guidance issued under section 66ED in preparing rules under section 66E.
(5) Before rules under section 66E 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 rules prepared by the Authority relate to section 66D agreements affecting only the supply systems of water undertakers whose areas are wholly or mainly in England;
(b) the Welsh Ministers, so far as rules prepared by the Authority relate to section 66D agreements affecting only the supply systems of water undertakers whose areas are wholly or mainly in Wales;
(c) the Secretary of State and the Welsh Ministers acting jointly, so far as rules prepared by the Authority relate to section 66D agreements not falling within paragraph (a) or (b).
(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 66EC.
Rules under section 66E: minor or urgent revisions
66EC (1) This section applies if the Authority proposes to issue revised rules under section 66E 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 66EB 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 66EB.
Rules under section 66E: guidance
66ED (1) The Minister may issue guidance as to the content of rules under section 66E.
(2) Before issuing the guidance, the Minister must—
(a) prepare a draft of any 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 guidance issued under this section 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, in relation to section 66D agreements affecting only the supply systems of water undertakers whose areas are wholly or mainly in England;
(b) the Welsh Ministers, in relation to section 66D agreements affecting only the supply systems of water undertakers whose areas are wholly or mainly in Wales;
(c) the Secretary of State and the Welsh Ministers acting jointly, in relation to section 66D agreements not falling within paragraph (a) or (b).
6 Section 66F (section 66D: supplementary) is repealed.
7 (1) Section 66G (designation of strategic supply) is amended as follows.
(2) In subsection (1), for “an agreement under section 66D above” there is substituted “ a section 66D agreement ”.
(3) In subsection (4)(d), for “the agreement under section 66D above” there is substituted “ the section 66D agreement ”.
(4) In subsection (10)—
(a) for “section 66A” there is substituted “ section 66AA ”;
(b) for “customers of the licensed water supplier in question” there is substituted “ relevant customers of a water supply licensee ”.
(5) After subsection (10) there is inserted—
(11) A person is a relevant customer of a water supply licensee if the introduction of water in question is made by reference to the supply of water to that person's premises in accordance with—
(a) a retail authorisation (whether that retail authorisation is an authorisation of the licensee requesting the introduction of water or another water supply licensee's authorisation), or
(b) a restricted retail authorisation of the licensee requesting the introduction of water.
8 (1) Section 66H (designation of collective strategic supply) is amended as follows.
(2) In subsection (1)(b), for “agreements under section 66D above” there is substituted “ section 66D agreements ”.
(3) In subsection (4)(d), for “the agreements under section 66D above” there is substituted “ the section 66D agreements ”.
(4) In subsection (10)—
(a) for “section 66A” there is substituted “ section 66AA ”;
(b) for “customers of the licensed water supplier in question” there is substituted “ relevant customers of a water supply licensee ”.
(5) After subsection (10) there is inserted—
(11) A person is a relevant customer of a water supply licensee if an introduction of water is made by reference to the supply of water to that person's premises in accordance with—
(a) a retail authorisation (whether that retail authorisation is an authorisation of the licensee requesting the introduction of water or another water supply licensee's authorisation), or
(b) a restricted retail authorisation of the licensee requesting the introduction of water.
9 (1) Section 66I (prohibition on unauthorised use of supply system) is amended as follows.
(2) In subsection (1), for “of a customer” there is substituted
of—
(a) a customer,
(b) the person so using that system, or
(c) a person associated with that person
.
(3) In subsection (2)(b)—
(a) for “licensed water supplier” there is substituted “ water supply licensee ”;
(b) for “its licence” there is substituted “ the licensee's licence ”.
(4) After subsection (8), there is inserted—
(8A) For the purposes of this section, a person (A) is associated with another person (B) if they would be associated with each other for the purposes of Schedule 2A if A were a water supply licensee.
(5) In subsection (9), for “section 17B(5) above” there is substituted “ section 17B ”.
Section 4
SCHEDULE 2B
SEWERAGE LICENCES: AUTHORISATIONS
Retail authorisation
1 A retail authorisation given by a sewerage licence is an authorisation to the sewerage licensee to use the sewerage system of a sewerage undertaker for the purpose of enabling the licensee to provide sewerage services in respect of the premises of—
(a) the licensee,
(b) persons associated with the licensee, or
(c) the licensee's customers.
2 None of the premises served by a sewerage licensee under a retail authorisation may be household premises (as defined in section 17C).
3 The requirement in paragraph 2 is enforceable by the Authority under section 18.
4 The Authority may from time to time, with the approval of the Secretary of State, issue guidance as to the factors which are, or are not, to be taken into account in determining the extent of any premises for the purposes of paragraph 2.
Wholesale authorisation
5 A wholesale authorisation given by a sewerage licence is an authorisation to the sewerage licensee to remove matter from the sewerage system of a sewerage undertaker where—
(a) the sewerage system is being used to enable a sewerage licensee (whether the licensee or another sewerage licensee) to provide sewerage services in respect of premises in accordance with a retail authorisation, and
(b) the removing of matter from the sewerage system is done in connection with sewerage services so provided.
Disposal authorisation
6 A disposal authorisation given by a sewerage licence is an authorisation to the sewerage licensee to remove matter from the sewerage system of a sewerage undertaker.
7 If a sewerage licensee with a disposal authorisation has, or a person associated with the licensee has, a retail authorisation—
(a) the licensee or the person associated with it, or both of them, must obtain a wholesale authorisation, and
(b) neither the licensee nor the person associated with it (if that person has a disposal authorisation) may remove matter from a sewerage system in accordance with the disposal authorisation (or either disposal authorisation, if both have such an authorisation) while matter may be removed in accordance with the wholesale authorisation (or either wholesale authorisation, if both have such an authorisation).
Interpretation
8 For the purposes of this Schedule, a person (A) is associated with a sewerage licensee (L) if—
(a) where A and L are bodies corporate, one of them is a subsidiary of the other or both are subsidiaries of the same body corporate;
(b) where A or L is an individual or an unincorporated association and the other is a body corporate, that individual or unincorporated association controls the other or a body corporate of which the other is a subsidiary;
(c) A is a partnership of which L is a member.
9 In paragraph 8 “subsidiary” has the meaning given by section 1159 of the Companies Act 2006; and sections 450(1) to (4) and 451(1) to (3) of the Corporation Taxes Act 2010 (control of a company) apply for the purposes of paragraph 8 as they apply for the purposes of Part 10 of that Act.
SCHEDULE 4 Sewerage undertakers' duties as regards sewerage licensees
Section 4
After Chapter 2 of Part 4 of the Water Industry Act 1991 there is inserted—
Chapter 2A Duties relating to sewerage services: sewerage licensees
Duties of sewerage undertakers as regards enabling the provision of sewerage services
Use of undertaker's sewerage system
117A (1) This section applies where a sewerage licensee with a retail authorisation (“L”) requests a sewerage undertaker to permit the use of the undertaker's sewerage system for the purpose of enabling L to provide sewerage services in respect of premises that—
(a) L is to serve in accordance with L's retail authorisation, and
(b) are in the area of the sewerage undertaker.
(2) Where this section applies, the undertaker must in accordance with a section 117E agreement take such steps—
(a) for the purpose of connecting the drains or sewers of the premises in question to the undertaker's sewerage system, or
(b) in respect of that system,
as may be provided for in that agreement in order to enable the requested use of that system.
(3) A sewerage undertaker is not required by this section to permit the use of its sewerage system, or to take any steps to enable its use, if the sewerage licensee making a request has not secured by means of—
(a) a request under section 117B made by the licensee, or
(b) a request under section 117C made by the licensee or another sewerage licensee,
that there is to be provision for dealing with or removing matter from the sewerage system in quantities determined by reference to the extent of sewerage services provided in respect of the premises in question.
(4) Where—
(a) a request has been made by a sewerage licensee for the purposes of subsection (1), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 117E agreement provides for such liability as regards those steps.
(5) For the purposes of this section and sections 117B and 117C—
(a) premises which are outside a sewerage undertaker's area are to be treated as being within that area if they are provided with sewerage services using the undertaker's sewerage system, and
(b) any sewers or drains of the sewerage undertaker which are used for the purpose of serving premises as mentioned in paragraph (a) are to be treated as being part of the undertaker's sewerage system (if they would not otherwise be part of it).
(6) In this section and sections 117B to 117D—
(a) references to the sewerage system of a sewerage undertaker are to be construed in accordance with section 17BA(7);
(b) references to the retail authorisation of a sewerage licensee are to be construed in accordance with Schedule 2B.
Matter dealt with by sewerage undertaker
117B (1) This section applies where a sewerage licensee with a retail authorisation (“L”) requests a sewerage undertaker to deal effectually with certain quantities of matter in its sewerage system in circumstances where—
(a) sewerage services are to be provided in accordance with L's retail authorisation in respect of particular premises in the area of the undertaker, and
(b) the quantities to be dealt with are to be determined by reference to the extent of sewerage services provided in respect of those premises.
(2) Where this section applies, the sewerage undertaker must in accordance with a section 117E agreement—
(a) take such steps in respect of the undertaker's sewerage system as may be provided for in that agreement in order to enable the use of that system for the purpose in subsection (1), and
(b) having taken those steps, deal with matter as requested.
(3) Where—
(a) a request has been made by a sewerage licensee for the purposes of subsection (1), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 117E agreement provides for such liability as regards those steps.
Removal of matter from sewerage system by a sewerage licensee
117C (1) This section applies where a sewerage licensee with a wholesale authorisation (“L”) requests a sewerage undertaker to permit L to remove certain quantities of matter from the undertaker's sewerage system in circumstances where—
(a) sewerage services are to be provided in accordance with a retail authorisation (whether L's or another's) in respect of particular premises in the area of the undertaker, and
(b) the quantities to be removed are to be determined by reference to the extent of sewerage services provided in respect of those premises.
(2) Where this section applies, the sewerage undertaker must in accordance with a section 117E agreement—
(a) take such steps, including steps in respect of the undertaker's sewerage system, as may be provided for in that agreement in order to enable L to remove matter from the undertaker's sewerage system as requested, and
(b) having taken those steps, permit that requested removal of matter from that sewerage system.
(3) Where—
(a) a request has been made by a sewerage licensee for the purposes of subsection (1), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 117E agreement provides for such liability as regards those steps.
(4) A pipe connecting a sewerage undertaker's sewerage system to a sewage disposal works that is laid because of subsection (2)(a) is to be regarded as a disposal main for the purposes of this Act, subject to any provision to the contrary.
(5) In this section, a reference to a wholesale authorisation is to be construed in accordance with Schedule 2B.
Connections for the purposes of a disposal authorisation
117D (1) This section applies where a sewerage licensee with a disposal authorisation (“L”) requests a sewerage undertaker to permit L to remove matter from the undertaker's sewerage system.
(2) Where this section applies, the sewerage undertaker must in accordance with a section 117E agreement—
(a) take such steps, including steps in respect of the undertaker's sewerage system, as may be provided for in that agreement in order to enable L to remove matter from the undertaker's sewerage system as requested, and
(b) having taken those steps, permit that requested removal of matter from that sewerage system.
(3) Where—
(a) a request has been made by a sewerage licensee for the purposes of subsection (1), and
(b) the steps which the undertaker is required to take by virtue of that request include steps for the purpose of obtaining any necessary authority for, or agreement to, any exercise by it of any of its powers or the carrying out by it of any works,
the failure of the undertaker to acquire the necessary authority or agreement does not affect the liability of the licensee to reimburse the undertaker in respect of some or all of the expenses incurred by it in taking those steps, if the section 117E agreement provides for such liability as regards those steps.
(4) A pipe connecting a sewerage undertaker's sewerage system to a sewage disposal works that is laid because of subsection (2)(a) is to be regarded as a disposal main for the purposes of this Act, subject to any provision to the contrary.
(5) In this section, a reference to a disposal authorisation is to be construed in accordance with Schedule 2B.
Agreements as to duties under sections 117A to 117D
117E (1) On the application of—
(a) a sewerage licensee that has made a request under sections 117A to 117D, or
(b) a sewerage undertaker to which such a request has been made,
the Authority may by order require a sewerage undertaker to perform the duty in question under sections 117A to 117D, for such period and on such terms and conditions as may be specified in the order.
(2) The Authority may make an order under subsection (1) only if—
(a) it appears to the Authority that the sewerage undertaker is required to perform the duty in question, and
(b) it is satisfied that the parties cannot reach agreement within a reasonable time.
(3) An order under subsection (1) has effect as an agreement between—
(a) the sewerage licensee, and
(b) the sewerage undertaker required to perform the duty in question.
(4) On the application of a party to a section 117E agreement, the Authority may, if it is satisfied that the parties cannot reach agreement on the variation or termination of the agreement, by order vary or terminate the agreement.
(5) If an order under subsection (4) is made in relation to a section 117E 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.
(6) An order under subsection (4) may require one party to the agreement to pay compensation to the other.
(7) Neither the CMA nor the Authority may exercise, in respect of an agreement for the performance of a duty under sections 117A to 117D by a sewerage undertaker, 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).
(8) Subsection (7)(b) does not apply to the exercise of powers in respect of conduct—
(a) which is connected with an agreement for the performance of a duty under sections 117A to 117D by a sewerage undertaker, 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.
(9) In this Chapter a reference to a section 117E agreement is a reference to—
(a) an agreement for the performance of a duty under sections 117A to 117D by a sewerage undertaker, or
(b) an order deemed to be such an agreement under subsection (3), or
(c) an agreement varied by order under subsection (4).
Codes in respect of section 117E agreements
117F (1) The Authority may issue one or more codes in respect of section 117E agreements.
(2) A code may make provision about—
(a) procedures in connection with making a section 117E agreement;
(b) procedures in connection with varying or terminating a section 117E agreement;
(c) the terms and conditions of a section 117E agreement, including terms as to the duration of such an agreement;
(d) principles for determining the terms and conditions that should or should not be incorporated into a section 117E agreement.
(3) A code may make provision about the steps to be taken by the Authority in determining for the purposes of section 117E(2) whether a sewerage undertaker is, in the particular case, required to perform a duty under sections 117A to 117D.
(4) If the Authority considers that a sewerage undertaker or a sewerage licensee is not acting as required by a code, the Authority may give the undertaker or the licensee a direction to do, or not to do, a thing specified in the direction.
(5) The Authority may not give a direction under subsection (4) requiring a person to enter into, vary or terminate an agreement.
(6) It is the duty of a sewerage undertaker or a sewerage licensee to comply with a direction under subsection (4), and this duty is enforceable by the Authority under section 18.
(7) A code may make—
(a) different provision for different persons or descriptions of person;
(b) different provision for different duties under sections 117A to 117D.
(8) The Authority may from time to time revise a code issued under this section and issue a revised code.
(9) A revised code may include provision for applying any of its revisions to section 117E agreements made before the revised code comes into effect.
Codes under section 117F: procedure
117G (1) Before issuing a code under section 117F, the Authority must—
(a) prepare a draft of the proposed code under section 117F, and
(b) consult persons in accordance with subsections (2) and (3).
(2) The relevant persons are—
(a) the Secretary of State;
(b) the appropriate agency;
(c) the Council;
(d) any sewerage undertakers likely to be affected by the proposed code;
(e) any sewerage licensees likely to be affected by the proposed code;
(f) such other persons as the Authority thinks appropriate.
(3) The Authority must specify the period (“the consultation period”) within which a person may make representations about the proposed code.
(4) Before a code under section 117F prepared by the Authority is issued for the first time, the Secretary of State may direct the Authority—
(a) not to issue the code, or
(b) to issue the code with specified modifications.
(5) A direction under subsection (4) 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.
(6) In this section “the appropriate agency” means—
(a) the Environment Agency, in relation to section 117E agreements made with sewerage undertakers whose areas are wholly in England;
(b) both the Environment Agency and the NRBW, in relation to section 117E agreements made with sewerage undertakers whose areas are partly in England and partly in Wales.
(7) This section is subject to section 117H.
Codes under section 117F: minor or urgent revisions
117H (1) This section applies if the Authority proposes to issue a revised code under section 117F 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 117G 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.
Rules about charges
117I (1) The Authority must issue rules about charges that may be imposed by sewerage undertakers under a section 117E agreement.
(2) The rules may in particular make provision about—
(a) the types of charges that may be imposed;
(b) the amount or the maximum amount, or methods for determining the amount or maximum amount, of any type of charge;
(c) principles for determining what types of charges 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 must include provision for and in connection with requiring a sewerage undertaker to impose on a sewerage licensee only such charges as would enable the licensee, where the services it provides to a person under its retail authorisation are services to which a section 142(2)(b) agreement would apply if the undertaker had continued to provide the services, to charge for those services at the same rate or rates as would have applied if the section 142(2)(b) agreement had applied.
(4) In subsection (3) “section 142(2)(b) agreement” means an agreement to which section 142(2)(b) applies.
(5) If the Authority considers that a sewerage undertaker is not acting as required by rules under this section, the Authority may—
(a) give the undertaker a direction to do, or not to do, a thing specified in the direction, or
(b) in a case where a section 117E agreement to which the undertaker is party requires modification in order to conform to the rules, give a direction to the undertaker and the sewerage licensee in question to modify the agreement.
(6) It is the duty of a sewerage undertaker or a sewerage licensee to comply with a direction under subsection (5), and this duty is enforceable by the Authority under section 18.
(7) The rules may—
(a) make different provision for different persons or descriptions of person;
(b) make different provision for different purposes;
(c) make provision subject to exceptions.
(8) The Authority may from time to time revise rules issued under this section and issue revised rules.
(9) The Authority must issue revised rules if—
(a) guidance is issued under section 117M, and
(b) the Authority, having regard to that guidance, considers that it is appropriate to revise the rules.
(10) Revised rules may include provision for applying any of the revisions to section 117E agreements made before the revised rules come into effect.
Rules about charges: provision about the reduction of charges
117J (1) Rules under section 117I may provide for the reduction of charges payable under a section 117E agreement where—
(a) a sewerage licensee that has a retail authorisation is party to the section 117E agreement, and
(b) other conditions specified by the rules are satisfied.
(2) Rules made by virtue of subsection (1) may in particular—
(a) specify conditions relating to any party to the section 117E agreement;
(b) specify conditions about persons taking steps for the purpose of reducing or managing demand for sewerage services;
(c) specify conditions about the premises by reference to which such steps are to be taken;
(d) specify conditions about reducing charges payable by a person who—
(i) is not party to the section 117E agreement, and
(ii) takes or proposes to take such steps as satisfy or would satisfy a condition specified under paragraph (b).
(3) The rules may provide that, where a charge falls to be reduced in accordance with rules made by virtue of subsection (1), the sewerage undertaker to which the charges are payable must give notice of that reduction to the Authority.
(4) Rules made by virtue of subsection (3) may—
(a) make provision as to the content of the notice;
(b) specify the period within which an undertaker is to give notice to the Authority.
(5) Provision under subsection (4)(a) may in particular require the notice to specify—
(a) the amount of the charge, with and without the reduction;
(b) the period for which the reduction has effect.
Rules under section 117I: procedure
117K (1) Before issuing rules under section 117I, 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 appropriate agency;
(c) the Council;
(d) any sewerage undertakers likely to be affected by the proposed rules;
(e) any sewerage licensees likely to be affected by the proposed rules;
(f) such other persons as the Authority thinks appropriate.
(3) The Authority must specify the period (“the consultation period”) within which persons may make representations about the proposed rules.
(4) The Authority must have regard to guidance issued under section 117M in making rules under section 117I.
(5) Before rules under section 117I prepared by the Authority are issued, the Secretary of State may direct the Authority not to issue the rules.
(6) 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.
(7) In this section “the appropriate agency” means—
(a) the Environment Agency, in relation to section 117E agreements made with sewerage undertakers whose areas are wholly in England;
(b) both the Environment Agency and the NRBW, in relation to section 117E agreements made with sewerage undertakers whose areas are partly in England and partly in Wales.
(8) This section is subject to section 117L.
Rules under section 117I: minor or urgent revisions
117L (1) This section applies if the Authority proposes to issue revised rules under section 117I 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 117K does not apply to the proposed revised rules.
(3) Before issuing the revised rules, the Authority must give notice to the Secretary of State of its intention to issue revised rules.
(4) Before the revised rules are issued, the Secretary of State 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 Secretary of State 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.
Rules under section 117I: guidance
117M (1) The Minister may issue guidance as to the content of rules under section 117I.
(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 such 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 the Secretary of State.
Designation of strategic sewerage provision
117N (1) Subsection (2) applies if at any time the Authority determines that the removal of matter from a sewerage undertaker's sewerage system that the undertaker is required to permit under section 117C or 117D in accordance with a section 117E agreement constitutes strategic sewerage provision.
(2) The Authority must designate the removal of matter as strategic sewerage provision.
(3) Subsection (4) applies if—
(a) a sewerage undertaker requests the Authority to make a determination that a particular removal of matter constitutes strategic sewerage provision for the purposes of subsection (1), or
(b) the Authority otherwise proposes to make a determination that a particular removal of matter constitutes strategic sewerage provision for the purposes of subsection (1).
(4) The Authority must give notice of the request or proposed determination to—
(a) the Secretary of State;
(b) the appropriate agency;
(c) the other party or parties, or the parties, to the section 117E agreement; and
(d) such other persons (if any) as the Authority thinks it appropriate to notify.
(5) A notice under subsection (4) must specify the time within which representations or objections with respect to the request or proposed determination may be made.
The time specified may not be less than 28 days from the date on which the notice was given.
(6) The Authority must consider any representations or objections which are duly made and not withdrawn.
(7) If the Authority determines that a particular removal of matter designated under this section as strategic sewerage provision no longer constitutes such provision, it must cancel its designation.
(8) If the Authority proposes to make a determination under subsection (7) that a particular removal of matter no longer constitutes strategic sewerage provision, it must give notice of the proposed determination to—
(a) the Secretary of State;
(b) the appropriate agency; and
(c) the parties to the section 117E agreements in question.
(9) Subsection (5) applies to a notice under subsection (8) as it applies to a notice under subsection (4), and subsection (6) applies accordingly.
(10) For the purposes of this section, a removal of matter from a sewerage system is strategic sewerage provision if, without that removal of matter, there is a substantial risk that the sewerage undertaker would be unable—
(a) to maintain its services to its own customers, and
(b) to fulfil its obligations under section 117B to deal with matter in its sewerage system.
(11) In this section and section 117O “the appropriate agency”, in relation to a determination in respect of the removal of matter from a sewerage undertaker's system, means—
(a) the Environment Agency, in a case where the undertaker's area is wholly in England;
(b) both the Environment Agency and the NRBW, in a case where the undertaker's area is partly in England and partly in Wales.
Designation of collective strategic sewerage provision
117O (1) Subsection (2) applies if at any time the Authority determines that two or more cases of the removal of matter from a sewerage system—
(a) each of which is a removal by a sewerage licensee, and
(b) each of which is a removal that a sewerage undertaker is required to permit under section 117C or 117D in accordance with a section 117E agreement,
constitute collective strategic sewerage provision.
(2) The Authority must designate the cases of the removal of matter as collective strategic sewerage provision.
(3) Subsection (4) applies if—
(a) a sewerage undertaker requests the Authority to make a determination that two or more cases of the removal of matter from a sewerage system constitute collective strategic sewerage provision for the purposes of subsection (1), or
(b) the Authority otherwise proposes to make a determination that two or more cases of the removal of matter from a sewerage system constitute collective strategic sewerage provision for the purposes of subsection (1).
(4) The Authority must give notice of the request or proposed determination to—
(a) the Secretary of State;
(b) the appropriate agency;
(c) the other party or parties, or the parties, to the section 117E agreements in question; and
(d) such other persons (if any) as the Authority thinks it appropriate to notify.
(5) A notice under subsection (4) must specify the time within which representations or objections with respect to the request or proposed determination may be made.
The time specified may not be less than 28 days from the date on which the notice was given.
(6) The Authority must consider any representations or objections which are duly made and not withdrawn.
(7) If the Authority determines that the cases of the removal of matter from a sewerage system designated under this section as collective strategic sewerage provision no longer constitute such provision, it must cancel their designation.
(8) If the Authority proposes to make a determination under subsection (7) that the cases of the removal of matter from a sewerage system no longer constitute collective strategic sewerage provision, it must give notice of the proposed determination to—
(a) the Secretary of State;
(b) the appropriate agency; and
(c) the parties to the section 117E agreements in question.
(9) Subsection (5) applies to a notice under subsection (8) as it applies to a notice under subsection (4), and subsection (6) applies accordingly.
(10) For the purposes of this section, two or more cases of the removal of matter from a sewerage system are collective strategic sewerage provision if, without those cases of the removal of matter, there is a substantial risk that the sewerage undertaker would be unable—
(a) to maintain its services to its own customers, and
(b) to fulfil its obligations under section 117B to deal with matter in its sewerage system.
Offences
Prohibition on unauthorised use of sewerage system
117P (1) No person may use the sewerage system of a sewerage undertaker whose area is wholly or mainly in England for the purpose of providing sewerage services to premises of—
(a) a customer,
(b) the person so using that system, or
(c) a person associated with that person.
(2) Subsection (1) is subject to subsections (3) and (4) and section 117R.
(3) Subsection (1) does not apply where that use of the system is made by—
(a) the sewerage undertaker, or
(b) a sewerage licensee in pursuance of its sewerage licence.
(4) The Secretary of State may by regulations specify further circumstances in which subsection (1) does not apply.
(5) A person who contravenes subsection (1) is guilty of an offence.
(6) An undertaking entered into which involves a contravention of subsection (1) is unenforceable.
(7) A person guilty of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(8) Proceedings for an offence under this section may not be instituted except by—
(a) the Secretary of State, or
(b) the Authority.
(9) For the purposes of this section, a person (A) is associated with another person (B) if they would be associated with each other for the purposes of Schedule 2B if A were a sewerage licensee.
(10) In this section and sections 117Q and 117R, references to the sewerage system of a sewerage undertaker are to be construed in accordance with section 17BA(7).
Prohibition on unauthorised removal of matter from sewerage system
117Q (1) No person other than the undertaker may remove matter from the sewerage system of a sewerage undertaker whose area is wholly or mainly in England.
(2) Subsection (1) is subject to subsections (3) and (4) and section 117R.
(3) Subsection (1) does not apply where —
(a) matter is removed by a sewerage licensee in pursuance of its sewerage licence, or
(b) matter is removed by another sewerage undertaker under a main connection agreement (within the meaning of section 110A).
(4) The Secretary of State may by regulations specify further circumstances in which subsection (1) does not apply.
(5) An undertaking entered into which involves a contravention of subsection (1) is unenforceable.
(6) A person who contravenes subsection (1) is guilty of an offence.
(7) A person guilty of an offence under this section is liable—
(a) on summary conviction, to a fine not exceeding £20,000;
(b) on conviction on indictment, to a fine.
(8) For the purposes of section 210, the penalty on conviction on indictment of an offence under this section is to be deemed to include imprisonment for a term not exceeding two years (in addition to or instead of a fine).
(9) Proceedings for an offence under this section may not be instituted except by—
(a) the Secretary of State, or
(b) the Authority.
Sections 117P and 117Q: exemptions
117R (1) The Secretary of State may by order made by statutory instrument grant exemption from section 117P(1) or 117Q(1) to—
(a) a person or persons of a class;
(b) generally or to such extent as may be specified in the order;
(c) unconditionally or subject to such conditions as may be specified in the order.
(2) Before making an order under subsection (1), the Secretary of State must give notice—
(a) stating that the Secretary of State proposes to make such an order and setting out the terms of the proposed order;
(b) stating the reasons why the Secretary of State proposes to make the order in the terms proposed; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposals may be made,
and must consider any representations or objections which are duly made and not withdrawn.
(3) The notice required by subsection (2) is to be given—
(a) by serving a copy of it on the Authority, and
(b) by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of those likely to be affected by the proposed order.
(4) Notice of an exemption granted to a particular person is to be given—
(a) by serving a copy of the exemption on the person, and
(b) by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of other persons who may be affected by it.
(5) Notice of an exemption granted to persons of a particular class is to be given by publishing the exemption in such manner as the Secretary of State considers appropriate for bringing it to the attention of—
(a) persons of that class, and
(b) other persons who may be affected by it.
(6) An exemption may be granted—
(a) indefinitely, or
(b) for a period specified in, or determined by or under, the exemption.
(7) The conditions that may be specified may, in particular, require any person carrying on any activity allowed by the exemption—
(a) to comply with any direction given by the Secretary of State or the Authority as to such matters as are specified in the exemption or are of a description so specified;
(b) except in so far as the Secretary of State or the Authority consents to the person's doing or not doing them, not to do or to do such things as are specified in the exemption or are of a description so specified;
(c) to refer for determination by the Secretary of State or the Authority such questions arising under the exemption as are specified in the exemption or are of a description so specified.
Section 117R: supplementary
117S (1) The Secretary of State may by order made by statutory instrument revoke an order by which an exemption was granted to a particular person under section 117R(1) or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—
(a) at the person's request,
(b) in accordance with any provision of the order by which the exemption was granted, or
(c) if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.
(2) The Secretary of State may by order made by statutory instrument revoke an order by which an exemption was granted to persons of a particular class under section 117R(1) or vary an order by which more than one exemption was so granted so as to terminate any of the exemptions—
(a) in accordance with any provision of the order by which the exemption was granted, or
(b) if it appears to the Secretary of State inappropriate that the exemption should continue to have effect.
(3) The Secretary of State may by direction withdraw an exemption granted to persons of a particular class under section 117R(1) from any person of that class—
(a) at the person's request,
(b) in accordance with any provision of the order by which the exemption was granted, or
(c) if it appears to the Secretary of State inappropriate that the exemption should continue to have effect in the case of the person.
(4) Before making an order under subsection (1)(b) or (c) or (2) or giving a direction under subsection (3)(b) or (c), the Secretary of State must—
(a) consult the Authority, and
(b) give notice—
(i) stating that the Secretary of State proposes to make such an order or give such a direction,
(ii) stating the reasons why the Secretary of State proposes to make such an order or give such a direction, and
(iii) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposals may be made,
and must consider any representations or objections which are duly made and not withdrawn.
(5) The notice required by subsection (4)(b) is to be given—
(a) where the Secretary of State is proposing to make an order under subsection (1)(b) or (c), by serving a copy of it on the person to whom the exemption was granted;
(b) where the Secretary of State is proposing to make an order under subsection (2), by publishing it in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of the class of persons to whom the exemption was granted;
(c) where the Secretary of State is proposing to give a direction under subsection (3)(b) or (c), by serving a copy of it on the person from whom the Secretary of State proposes to withdraw the exemption.
(6) A statutory instrument containing—
(a) an order under subsection (1) or (2), or
(b) an order under section 117R(1),
is subject to annulment in pursuance of a resolution of either House of Parliament.