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Water Bill [HL]


Water Bill [HL]
Schedule 4 — Licensing of water suppliers

    152

 

section 17K(1) above shall not prevent any other part of the condition

from continuing to be regarded as a standard condition for the

purposes of this Chapter.

              (10)            Where at any time it modifies under subsection (1) above the

standard conditions of retail licences or combined licences in

5

consequence of a reference under section 17K(2) above, the

Authority shall—

                    (a)                   also make (as nearly as may be) the same modifications of

those conditions for the purposes of their incorporation in

licences of that description granted after that time; and

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                    (b)                   publish the modifications made for those purposes in such

manner as it considers appropriate.

       17P            Water supply licences: Commission’s power of veto following report

              (1)             The Commission may, within the period of four weeks after the date

on which it is given a notice under section 17O(6) above, direct the

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Authority—

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

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

the direction;

                              and the Authority shall comply with any such direction.

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              (2)             The Secretary of State may—

                    (a)                   within the period of four weeks after the date on which the

Commission is given a notice under section 17O(6) above;

and

                    (b)                   on the application of the Commission,

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                              direct that the period for giving a direction under subsection (1)

above (and, accordingly, the period mentioned in section 17O(8)

above) shall be extended by fourteen days.

              (3)             The power to give a direction under subsection (1) above may only

be exercised in respect of such of the modifications set out in the

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notice under section 17O(6)(a) above as appear to the Commission

not to be the modifications which are requisite for the purpose of

remedying or preventing all or any of the adverse effects specified in

the report as effects which could be remedied or prevented by

modifications.

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

shall—

                    (a)                   give notice setting out the modifications proposed by the

Authority, the terms of the direction and the reasons for

giving it; and

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                    (b)                   make such modifications itself of the relevant conditions as

appear to it to be requisite for the purpose of remedying or

preventing—

                           (i)                          if the direction was given under subsection (1)(a)

above, the adverse effects specified in the report as

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effects which could be remedied or prevented by

modifications;

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

    153

 

                           (ii)                         if the direction was given under subsection (1)(b)

above, such of those adverse effects as are not

remedied or prevented by the modifications made by

the Authority under section 17O(8)(b) above.

              (5)             In exercising its power under subsection (4)(b) above the

5

Commission shall have regard to the matters as respects which

duties are imposed on the Authority by Part 1 of this Act.

              (6)             Before making modifications under subsection (4)(b) above the

Commission shall give notice—

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

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them out;

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

                    (c)                   specifying the period (not being less than twenty-eight days

from the date of publication of the notice) within which

representations or objections with respect to the proposed

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modifications may be made,

                              and shall consider any representations or objections which are duly

made and not withdrawn.

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

                    (a)                   by publishing the notice in such manner as the Commission

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considers appropriate for the purpose of bringing it to the

attention of persons likely to be affected by the making of the

modifications;

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

                           (i)                          the Authority;

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                           (ii)                         the holder of the licence in question or, as the case

may be, the relevant licence holders;

                           (iii)                        the Council;

                           (iv)                         the Secretary of State;

                           (v)                          the Assembly; and

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                           (vi)                         the Chief Inspector of Drinking Water.

              (8)             After making modifications under this section the Commission shall

publish a notice stating that the modifications have been made and

setting them out, with the reasons for making them.

              (9)             The modification under this section of part of a standard condition of

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a particular licence in consequence of a reference under section

17K(1) above shall not prevent any other part of the condition from

continuing to be regarded as a standard condition for the purposes

of this Chapter.

              (10)            Where, in consequence of a reference under section 17K(2) above, the

40

Commission modifies under subsection (4)(b) above the standard

conditions of retail licences or combined licences, the Authority may

make such incidental and consequential modifications as it considers

necessary or expedient of any conditions of licences of that

description.

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              (11)            Where, in consequence of a reference under section 17K(2) above, the

Commission modifies under subsection (4)(b) above the standard

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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conditions of retail licences or combined licences, the Authority

shall—

                    (a)                   make (as nearly as may be) the same modifications of those

conditions for the purposes of their incorporation in licences

of that description granted after that time, and

5

                    (b)                   publish the modifications made for those purposes in such

manner as it considers appropriate.

       17Q            Section 17P: supplementary

              (1)             For the purposes of the law relating to defamation, absolute privilege

attaches to any notice under subsection (4)(a), (6) or (8) of section 17P

10

above.

              (2)             In giving any notice under subsection (4)(a) or (6) of section 17P

above, or publishing any notice under subsection (8) of that section,

the Commission must have regard to the following considerations

before disclosing any information.

15

              (3)             The first consideration is the need to exclude from disclosure (so far

as practicable) any information whose disclosure the Commission

thinks is contrary to the public interest.

              (4)             The second consideration is the need to exclude from disclosure (so

far as practicable)—

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                    (a)                   commercial information whose disclosure the Commission

thinks might significantly harm the legitimate business

interests of the undertaking to which it relates; or

                    (b)                   information relating to the private affairs of an individual

whose disclosure the Commission thinks might significantly

25

harm the individual’s interests.

              (5)             The third consideration is the extent to which the disclosure of the

information mentioned in subsection (4)(a) or (b) above is necessary

for the purposes of the notice.

              (6)             The following sections of Part 3 of the Enterprise Act 2002 shall

30

apply, with the modifications mentioned in subsections (7) and (8)

below, for the purposes of any investigation by the Commission for

the purposes of the exercise of its functions under section 17P above,

as they apply for the purposes of any investigation on references

under that Part—

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                    (a)                   section 109 (attendance of witnesses and production of

documents etc.);

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

general);

                    (c)                   section 111 (penalties);

40

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

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

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

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

                    (h)                   section 116 (statement of policy).

45

              (7)             Section 110 shall, in its application by virtue of subsection (6) above,

have effect as if—

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                    (a)                   subsection (2) were omitted,

                    (b)                   in subsection (4), for the words “the publication of the report

of the Commission on the reference concerned” there were

substituted “the publication by the Commission of a notice

under section 17P(8) of the Water Industry Act 1991 in

5

connection with the reference concerned or, if no direction

has been given by the Commission under section 17P(1) of

that Act in connection with the reference concerned and

within the period permitted for that purpose, the latest day

on which it was possible to give such a direction within the

10

permitted period”; and

                    (c)                   in subsection (9) the words from “or section” to “section

65(3))” were omitted.

              (8)             Section 111(5)(b) shall, in its application by virtue of subsection (6),

have effect as if for sub-paragraph (ii) there were substituted—

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                        “(ii)                           if earlier, the day on which a notice is published by the

Commission under section 17P(8) of the Water Industry

Act 1991 in connection with the reference concerned or,

if no direction is given by the Commission under section

17P(1) of that Act in connection with the reference

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concerned and within the period permitted for that

purpose, the latest day on which such a direction may be

given within the permitted period.”

              (9)             Provisions of Part 3 of the Enterprise Act 2002 which have effect for

the purposes of sections 109 to 116 of that Act (including, in

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particular, provisions relating to offences and the making of orders)

shall, for the purposes of the application of those sections by virtue

of subsection (6) above, have effect in relation to those sections as

applied by virtue of that subsection.

              (10)            Accordingly, corresponding provisions of this Act shall not have

30

effect in relation to those sections as applied by virtue of that

subsection.

       17R            Water supply licences: modification by order under other enactments

              (1)             Where the Office of Fair Trading, the Commission or the Secretary of

State (the “relevant authority”) makes a relevant order, the order

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may also provide for the modification of—

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

licence; or

                    (b)                   the standard conditions of retail licences or combined

licences,

40

                              to such extent as may appear to the relevant authority to be requisite

or expedient for the purpose of giving effect to, or taking account of,

any provision made by the order.

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

                    (a)                   an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11

45

of Schedule 7 to, the Enterprise Act 2002 where—

                           (i)                          one or more than one of the enterprises which have,

or may have, ceased to be distinct enterprises was

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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engaged in the carrying on of activities authorised or

regulated by a retail licence or combined licence; or

                           (ii)                         one or more than one of the enterprises which will or

may cease to be distinct enterprises is engaged in the

carrying on of activities authorised or regulated by a

5

retail licence or combined licence; or

                    (b)                   an order under section 160 or 161 of that Act where the

feature, or combination of features, of the market in the

United Kingdom for goods or services which prevents,

restricts or distorts competition relates to activities

10

authorised or regulated by a retail licence or combined

licence.

              (3)             The modification under subsection (1)(a) above of part of a standard

condition of a particular licence shall not prevent any other part of

the condition from continuing to be regarded as a standard condition

15

for the purposes of this Chapter.

              (4)             Where at any time the relevant authority modifies under subsection

(1)(b) above the standard conditions of retail licences or combined

licences, the relevant authority—

                    (a)                   shall also make (as nearly as may be) the same modifications

20

of those conditions for the purposes of their incorporation in

licences of that description granted after that time; and

                    (b)                   may, after consultation with the Authority, make such

incidental or consequential modifications as the relevant

authority considers necessary or expedient of any conditions

25

of licences of that description granted before that time.

              (5)             Where at any time the relevant authority modifies standard

conditions of retail licences or combined licences under subsection

(4)(a) above for the purposes of their incorporation in licences, the

relevant authority shall publish those modifications in such manner

30

as the relevant authority considers appropriate.

              (6)             Expressions used in subsection (2) above and in Part 3 or 4 of the

Enterprise Act 2002 have the same meaning in that subsection as in

that Part.”

  3        After Chapter 2 of Part 3 of the WIA there is inserted—

35

“Chapter 2A

Supply duties etc: licensed water suppliers

Duty of undertaker to supply licensed water supplier etc

       66A            Wholesale water supply by primary water undertaker

              (1)             This section applies where—

40

                    (a)                   a licensed water supplier requests its primary water

undertaker to provide it with a supply of water for the

purpose of supplying water to the premises of its customers

in accordance with the retail authorisation; and

                    (b)                   the premises are in the area of the undertaker.

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Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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              (2)             Where this section applies, it shall be the duty of the primary water

undertaker, in accordance with an agreement or determination for

such period and containing such terms and conditions as may be

provided for under section 66D(2) below—

                    (a)                   to take any such steps—

5

                           (i)                          for the purpose of connecting the premises in

question with the undertaker’s supply system; or

                           (ii)                         in respect of that system,

                                          as may be so provided for in order to enable the undertaker

to provide the requested supply; and

10

                    (b)                   having taken any such steps, to provide that supply.

              (3)             A primary water undertaker shall not be required by virtue of this

section to provide a supply of water to a licensed water supplier, or

to take any steps to enable it to provide such a supply, if—

                    (a)                   both of the first and second conditions are satisfied; or

15

                    (b)                   the third condition is satisfied.

              (4)             The first condition is that—

                    (a)                   the premises to be supplied by the supplier do not consist in

the whole or any part of a building; or

                    (b)                   the supply to be made by it to those premises is for purposes

20

other than domestic purposes.

              (5)             The second condition is that the provision of the supply by the

undertaker would—

                    (a)                   require the undertaker, in order to meet all its existing

obligations to supply water for domestic or other purposes,

25

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

30

probable future obligations mentioned in paragraph (a)

above.

              (6)             The third condition is that there is a contravention in relation to the

water fittings used or to be used in connection with—

                    (a)                   the supply of water to the premises to be supplied by the

35

supplier; or

                    (b)                   the use of water in those premises,

                              of such of the requirements of regulations under section 74 below as

are prescribed for the purposes of this subsection.

              (7)             Where—

40

                    (a)                   a request has been made by a licensed water supplier to its

primary water undertaker for the purposes of subsection (1)

above; and

                    (b)                   the steps which the undertaker is required to take by virtue

of that request include steps for the purpose of obtaining any

45

necessary authority for, or agreement to, any exercise by it of

any of its powers or the carrying out by it of any works,

 

 

Water Bill [HL]
Schedule 4 — Licensing of water suppliers

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                              the failure of the undertaker to acquire the necessary authority or

agreement shall not affect any liability of the licensed water supplier,

under any term or condition in accordance with which those steps

are taken, to reimburse the undertaker in respect of some or all of the

expenses incurred by it in taking those steps.

5

              (8)             A water undertaker is the primary water undertaker of a licensed

water supplier for the purposes of this section and section 66C below

if the undertaker’s supply system is to be used for the purpose of

making the supply to premises mentioned in those sections.

              (9)             In this section and sections 66B and 66C below—

10

                    (a)                   any reference to the supply system of a water undertaker

shall be construed in accordance with section 17B(5) above;

and

                    (b)                   any reference to the retail authorisation shall be construed in

accordance with section 17A(2) above.

15

       66B            Introduction of water into water undertaker’s supply system

              (1)             This section applies where—

                    (a)                   a qualifying licensed water supplier requests a water

undertaker to permit it to introduce water into the

undertaker’s supply system, by means of which any

20

particular supply of water to any premises in accordance

with the retail authorisation is to take place, in connection

with that supply; and

                    (b)                   the premises are in the area of the undertaker.

              (2)             This section also applies where—

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                    (a)                   a water undertaker agrees to permit a qualifying licensed

water supplier to introduce water into the undertaker’s

treatment works;

                    (b)                   in connection with that introduction, the supplier requests

the undertaker to permit it to introduce water into the

30

undertaker’s supply system, by means of which any

particular supply of water to any premises in accordance

with the retail authorisation is to take place, in connection

with that supply; and

                    (c)                   the premises are in the area of the undertaker.

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              (3)             Where this section applies, it shall be the duty of the water

undertaker, in accordance with an agreement or determination for

such period and containing such terms and conditions as may be

provided for under section 66D(2) below—

                    (a)                   to take any such steps—

40

                           (i)                          for the purpose of connecting the premises in

question with the undertaker’s supply system;

                           (ii)                         for the purpose of connecting the treatment works of

the qualifying licensed water supplier with that

system (in a case falling within subsection (1) above);

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                           (iii)                        for the purpose of connecting with that system any

source used by the qualifying licensed water supplier

for the purpose of supplying water other than for

 

 

 
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