2015 No. 22
The Water Industry (Specified Infrastructure Projects) (English Undertakers) (Amendment) Regulations 2015
Made
Coming into force in accordance with regulation 1(1).
The Secretary of State makes these Regulations in the exercise of the powers conferred by sections 36A and 213(2)(d) and (dd) of the Water Industry Act 19911 in relation to infrastructure which is provided or is to be provided for the use of one or more English undertakers2.
The Secretary of State has consulted as required by section 36G(2) of that Act3.
A draft of these Regulations has been laid before Parliament in accordance with section 36G(1)(a) of that Act and approved by resolution of each House of Parliament.
Citation, commencement and interpretation1
1
These Regulations may be cited as the Water Industry (Specified Infrastructure Projects) (English Undertakers) (Amendment) Regulations 2015 and come into force on the day after the day on which they are made.
2
In these Regulations, “the 2013 Regulations” means the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 20134.
Amendments to the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013
2
Schedule 1 to the 2013 Regulations (application of the Water Industry Act 1991 and related provisions) is amended in accordance with regulations 3 to 5.
3
1
Paragraph 4 (conditions of project licences) is amended as follows.
2
In the section 17HA of the Water Industry Act 1991 (conditions of project licences) which is set out in paragraph 4—
a
in subsection (2)—
i
at the end of paragraph (b), omit the word “and”;
ii
in paragraph (c), for “specified questions” to the end substitute “such questions arising under or in connection with the licence and of such other matters as are specified or are of a specified description; and”; and
iii
after paragraph (c), insert—
d
provide for the reference by the Authority to the CMA, and the determination by the CMA, of such questions arising under or in connection with the licence and of such other matters, including disputes as to determinations by the Authority, as are specified or are of a specified description.
b
after subsection (5) insert—
6
Where any question or other matter falls to be determined by the CMA in pursuance of a provision contained in a project licence held by a licensed infrastructure provider—
a
it is the duty of the Authority, on being required to do so by that licensed infrastructure provider, to refer that question or matter to the CMA; and
b
it is the duty of the CMA to determine any question or other matter referred by virtue of paragraph (a) in accordance with the principles which apply, by virtue of Part 1 of this Act, in relation to determinations under this Chapter by the Authority.
7
For the purposes of subsection (6), where—
a
the question or matter referred to the CMA concerns the review of a price control imposed on the licensed infrastructure provider; and
b
the CMA is to decide to what extent it is reasonable to take into account in its determination costs incurred or borne by the licensed infrastructure provider in connection with the reference,
the CMA shall also have regard to the extent to which, in its view, its determination is likely to support the licensed infrastructure provider’s (rather than the Authority’s) claims in relation to the question or matter referred to it.
8
Section 17K(5) and (7), and sections 17L and 17M, apply to references to the CMA under this section as they apply to references under section 17K(1).
9
A report of the CMA on a reference under this section—
a
shall be made to the Authority; and
b
shall include definite conclusions on the questions or other matters comprised in the reference, together with such an account of the CMA’s reasons for those conclusions as, in the opinion of the CMA, is expedient for facilitating a proper understanding of those questions or other matters and of the CMA’s conclusions.
10
Section 17N(10), (13) and (14) applies to a report of the CMA on a reference under this section as it applies to a report on a reference under section 17K(1).
11
The functions of the CMA with respect to a reference under this section are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 20135 (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act 20026, as applied by subsection (8) read with section 17M).
4
In paragraph 5 (modification of project licences)—
a
in sub-paragraph (2), for “Competition Commission” substitute “CMA”; and
b
in sub-paragraph (6), for “Commission’s” (in both places where it occurs) substitute “CMA’s”.
5
In paragraph 8 (general duty of the Authority to keep matters under review), in sub-paragraph (c), for “OFT” substitute “CMA”.
6
The provisions of the Water Industry Act 1991 applied by the 2013 Regulations have effect with the amendments of those provisions made by—
a
the Enterprise and Regulatory Reform Act 2013; and
b
the Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Savings Provisions) Order 20147.
(This note is not part of the Order)