Water Industry Act 1991

Part IV Sewerage Services

Chapter I General Functions of Sewerage Undertakers

Principal duties and standards of performance

94 General duty to provide sewerage system

(1) It shall be the duty of every sewerage undertaker—

(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained; and

(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers.

(2) It shall be the duty of a sewerage undertaker in performing its duty under subsection (1) above to have regard—

(a) to its existing and likely future obligations to allow for the discharge of trade effluent into its public sewers; and

(b) to the need to provide for the disposal of trade effluent which is so discharged.

(3) The duty of a sewerage undertaker under subsection (1) above shall be enforceable under section 18 above—

(a) by the Secretary of State; or

(b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

(4) The obligations imposed on a sewerage undertaker by the following Chapters of this Part, and the remedies available in respect of contraventions of those obligations, shall be in addition to any duty imposed or remedy available by virtue of any provision of this section or section 95 below and shall not be in any way qualified by any such provision.

(5) In this section “trade effluent” has the same meaning as in Chapter III of this Part.

95 Standards of performance in connection with provision of sewerage services

(1) For the purpose–

(a) of facilitating the determination of the extent to which breaches of the obligations imposed by virtue of the following provisions of this Part are to amount to breaches of the duty imposed by section 94 above; or

(b) of supplementing that duty by establishing overall standards of performance in relation to the provision of sewerage services by any sewerage undertaker,

the Secretary of State may, in accordance with section 96 below, by regulations provide for contraventions of such requirements as may be prescribed to be treated for the purposes of this Act as breaches of that duty.

(2) The Secretary of State may, in accordance with section 96 below, by regulations prescribe such standards of performance in connection with the provision of sewerage services as, in his opinion, ought to be achieved in individual cases.

(3) Regulations under subsection (2) above may provide that, if a sewerage undertaker fails to meet a prescribed standard, it shall pay such amount as may be prescribed to any person who is affected by the failure and is of a prescribed description.

(4) Without prejudice to the generality of the power conferred by subsection (2) above, regulations under that subsection may—

(a) include in a standard of performance a requirement for a sewerage undertaker, in prescribed circumstances, to inform a person of his rights by virtue of any such regulations;

(b) provide for any dispute under the regulations to be referred by either party to the dispute to the Director;

(c) make provision for the procedure to be followed in connection with any such reference and for the Director’s determination on such a reference to be enforceable in such manner as may be prescribed;

(d) prescribe circumstances in which a sewerage undertaker is to be exempted from requirements of the regulations.

96 Procedure for regulations under section 95

(1) The Secretary of State shall not make any regulations under section 95 above unless—

(a) the Director has made to the Secretary of State a written application complying with subsection (2) below;

(b) the Secretary of State is satisfied that a copy of the application has been served by the Director on every sewerage undertaker specified in the application;

(c) such period as the Secretary of State considers appropriate has been allowed for the making—

(i) by the Director; and

(ii) by any affected sewerage undertaker,

of representations or objections with respect to the Director’s proposals and any modifications proposed by the Secretary of State; and

(d) the Secretary of State has considered both the Director’s reasons for his proposals and every representation or objection which has been duly made with respect to those proposals, or any proposed modifications of those proposals, and has not been withdrawn.

(2) An application made by the Director to the Secretary of State complies with this subsection if it—

(a) sets out draft provisions proposed by the Director for inclusion in regulations under section 95 above;

(b) specifies the sewerage undertaker or undertakers in relation to which it is proposed those provisions should apply; and

(c) summarises the Director’s reasons for his proposals.

(3) The Secretary of State shall not make any regulations under section 95 above except where—

(a) the only provisions of the regulations are the provisions proposed by the Director in his application or those provisions with such modifications as the Secretary of State considers appropriate; and

(b) each of the modifications (if any) of the Director’s proposals to which effect is given by the regulations is a modification the proposal to make which has been notified—

(i) to the Director; and

(ii) to any sewerage undertaker appearing to the Secretary of State to be likely to be affected by the modifications.

Performance of sewerage undertaker’s functions by local authorities etc.

97 Performance of sewerage undertaker’s functions by local authorities etc

(1) A relevant authority may, in accordance with any arrangements which it has entered into for the purpose with any sewerage undertaker, carry out sewerage functions on that undertaker’s behalf in relation to such area comprising the whole or any part of that authority’s relevant area, together (where that authority are a local authority or an urban development corporation and the arrangements so provide) with parts of any adjacent relevant areas of other relevant authorities, as may be specified in the arrangements.

(2) Arrangements entered into for the purposes of this section may contain any such provision as may be agreed between the relevant authority and the sewerage undertaker but shall not affect the availability to any person, other than the relevant authority, of any remedy against the undertaker in respect of the carrying out of the undertaker’s sewerage functions or of any failure to carry them out.

(3) It is hereby declared that, if arrangements entered into for the purposes of this section so provide, a relevant authority shall be entitled to exercise on behalf of a sewerage undertaker any power which by or under any enactment is exercisable by the undertaker for the purposes of, or in connection with, the carrying out of the undertaker’s sewerage functions.

(4) Where arrangements entered into for the purposes of this section provide for a local authority to carry out the sewerage functions of a sewerage undertaker on the undertaker’s behalf, section 101 of the [1972 c. 70.] Local Government Act 1972 (delegation of functions), so far as it relates to the carrying out of functions by a committee, sub-committee or officer of a local authority, shall have effect in relation to those sewerage functions only in so far as the arrangements do not otherwise provide.

(5) In this section—

• “new town” has the same meaning as in the [1981 c. 64.] New Towns Act 1981;

• “relevant area”—

  (a)

  in relation to a local authority, means the area of the authority and the whole of any new town or urban development area any part of which is situated within the area of the authority;

  (b)

  in relation to the Commission for the New Towns, means any new town;

  (c)

  in relation to the development corporation for any new town, means that new town;

  (d)

  in relation to the Development Board for Rural Wales, means any new town situated within the area for which the Board is for the time being responsible; and

  (e)

  in relation to any urban development corporation for any urban development area, means that area;

• “relevant authority” means any of the following, that is to say—

  (a)

  a local authority;

  (b)

  the Commission for the New Towns, a development corporation for a new town or the Development Board for Rural Wales;

  (c)

  the urban development corporation for any urban development area;

• “sewerage functions”, in relation to a sewerage undertaker, means any of the functions of the undertaker by virtue of its appointment under Chapter I of Part II of this Act as a sewerage undertaker, other than its functions relating to sewage disposal and its functions by virtue of Chapter III of this Part;

• “urban development area” means any area so designated under Part XVI of the [1980 c. 65.] Local Government, Planning and Land Act 1980.

(6) Nothing in the [1883 c. 37.] Public Health Act 1875 (Support of Sewers) Amendment Act 1883 shall apply in relation to any sanitary work by virtue of this section; and in this section “sanitary work” has the same meaning as in that Act of 1883.

Chapter II Provision of Sewerage Services

Requisition of public sewer

98 Duty to comply with sewer requisition

(1) It shall be the duty of a sewerage undertaker (in accordance with section 101 below) to provide a public sewer to be used for the drainage for domestic purposes of premises in a particular locality in its area if–

(a) the undertaker is required to provide the sewer by a notice served on the undertaker by one or more of the persons who under subsection (2) below are entitled to require the provision of the sewer for that locality;

(b) the premises in that locality the drainage of which would be by means of that sewer are—

(i) premises on which there are buildings; or

(ii) premises on which there will be buildings when proposals made by any person for the erection of any buildings are carried out;

and

(c) the conditions specified in section 99 below are satisfied in relation to that requirement.

(2) Each of the following persons shall be entitled to require the provision of a public sewer for any locality, that is to say—

(a) the owner of any premises in that locality;

(b) the occupier of any premises in that locality;

(c) any local authority within whose area the whole or any part of that locality is situated;

(d) where the whole or any part of that locality is situated in a new town, within the meaning of the [1981 c. 64.] New Towns Act 1981—

(i) the Commission for the New Towns; and

(ii) the Development Board for Rural Wales or the development corporation for the new town, according to whether or not the new town is situated within the area for which that Board is for the time being responsible;

and

(e) where the whole or any part of that locality is situated within an area designated as an urban development area under Part XVI of the [1980 c. 65.] Local Government, Planning and Land Act 1980, the urban development corporation.

(3) The duty of a sewerage undertaker under this section to provide a public sewer shall be owed to the person who requires the provision of the sewer or, as the case may be, to each of the persons who joins in doing so.

(4) Where a duty is owed by virtue of subsection (3) above to any person, any breach of that duty which causes that person to sustain loss or damage shall be actionable at the suit of that person; but, in any proceedings brought against a water undertaker in pursuance of this subsection, it shall be a defence for the undertaker to show that it took all reasonable steps and exercised all due diligence to avoid the breach.

(5) In this section the reference to domestic purposes, in relation to the drainage of premises in a particular locality to which a requirement under this section relates, is a reference—

(a) where there are buildings on premises in that locality, to such domestic sewerage purposes as are specified in relation to those buildings in the requirement; and

(b) where any person is proposing to erect buildings on premises in the locality, to such domestic sewerage purposes as are so specified in relation to the buildings and to times after the erection of the buildings.

99 Financial conditions of compliance

(1) The conditions mentioned in section 98(1)(c) above are satisfied in relation to a requirement for the provision of a public sewer by a sewerage undertaker if—

(a) such undertakings as the undertaker may have reasonably required in accordance with subsection (2) below have been given by the person or persons who have required the provision of the sewer; and

(b) such security as the undertaker may have reasonably required has been provided for the discharge of any obligations imposed by those undertakings on any person who, under subsection (3) below, may be required to secure his undertakings.

(2) The undertakings which a sewerage undertaker may require for the purposes of subsection (1) above in respect of any public sewer are undertakings which—

(a) bind the person or persons mentioned in that subsection to pay to the undertaker, in respect of each of the twelve years following the provision of the sewer, an amount not exceeding the relevant deficit (if any) for that year on that sewer; and

(b) in the case of undertakings binding two or more persons, bind them either jointly and severally or with liability to pay apportioned in such manner as they may agree.

(3) For the purposes of subsection (1)(b) above a person may be required to secure his undertakings in relation to the provision of a public sewer if—

(a) it was by virtue of section 98(2)(a) or (b) above that he required, or joined in requiring, the provision of the sewer; and

(b) he is not a public authority.

(4) Where for the purposes of subsection (1)(b) above any sums have been deposited with a sewerage undertaker by way of security for the discharge of any obligation, the undertaker shall pay interest at such rate as may be determined either—

(a) by the undertaker with the approval of the Director; or

(b) in default of a determination under paragraph (a) above, by the Director,

on every sum of 50p so deposited for every three months during which it remains in the hands of the undertaker.

(5) An approval or determination given or made by the Director for the purposes of subsection (4) above—

(a) may be given or made in relation to the provision of a particular public sewer, in relation to the provision of sewers of a particular description or in relation to the provision of public sewers generally; and

(b) may be revoked at any time.

(6) Any dispute between a sewerage undertaker and any other person as to—

(a) the undertakings or security required by the undertaker for the purposes of this section; or

(b) the amount required to be paid in pursuance of any such undertaking,

shall be referred to the arbitration of a single arbitrator appointed by agreement between the undertaker and that person or, in default of agreement, by the President of the Institution of Civil Engineers.

(7) In this section “relevant deficit” has the meaning given by section 100 below.

100 Calculation of “relevant deficit” for the purposes of section 99

(1) For the purposes of section 99 above the relevant deficit for any year on a public sewer is the amount (if any) by which the drainage charges payable for the use during that year of that sewer are exceeded by the annual borrowing costs of a loan of the amount required for the provision of that sewer.

(2) The annual borrowing costs of a loan of the amount required for the provision of a public sewer is the aggregate amount which would fall to be paid in any year by way of payments of interest and repayments of capital if an amount equal to so much of the costs reasonably incurred in providing that sewer as were not incurred in the provision of additional capacity had been borrowed, by the sewerage undertaker providing the sewer, on terms—

(a) requiring interest to be paid and capital to be repaid in twelve equal annual instalments; and

(b) providing for the amount of the interest to be calculated at such rate, and in accordance with such other provision, as may have been determined for the purposes of this subsection.

(3) A determination for the purposes of subsection (2) above shall be made either—

(a) by the undertaker with the approval of the Director; or

(b) in default of such a determination, by the Director.

(4) For the purposes of this section the costs reasonably incurred in providing a public sewer (“the new sewer”) shall include—

(a) the costs reasonably incurred in providing such other public sewers and such pumping stations as it is necessary to provide in consequence of the provision of the new sewer; and

(b) such proportion (if any) as is reasonable of the costs reasonably incurred in providing any such additional capacity in an earlier public sewer as falls to be used in consequence of the provision of the new sewer.

(5) In subsection (4) above the reference to an earlier public sewer, in relation to the new sewer, is a reference to any public sewer which—

(a) has been provided in the period of twelve years immediately before the provision of the new sewer; and

(b) was so provided in pursuance of a public sewer requisition.

(6) Any reference in this section to the provision of additional capacity in a public sewer provided in pursuance of a requirement under any enactment is a reference to such works carried out or other things done in connection with the provision of that sewer as are carried out or done for the purpose of enabling that sewer to be used for purposes in addition to those for which it is necessary to provide the sewer in order to comply with the requirement.

(7) Any reference in this section to the drainage charges payable for the use during any year of any sewer provided by a sewerage undertaker is a reference to so much of the aggregate of any charges payable to the sewerage undertaker in respect of services provided in the course of that year as represents charges which—

(a) have been imposed by the undertaker in relation to such of the premises connected with that sewer as are premises where there are buildings; and

(b) are reasonably attributable to the use of that sewer for the drainage for domestic sewerage purposes of those premises or to the disposal of effluent drained for any such purpose from those premises.

(8) An approval or determination given or made by the Director for the purposes of subsection (2) above—

(a) may be given or made in relation to the provision of a particular public sewer, in relation to the provision of sewers of a particular description or in relation to the provision of public sewers generally; and

(b) may be revoked at any time except in relation to a public sewer that has already been provided.

(9) In this section “public sewer requisition” means—

(a) a requirement under section 98 above (including, by virtue of paragraph 1 of Schedule 2 to the [1991 c. 60.] Water Consolidation (Consequential Provisions) Act 1991, a requirement under section 71 of the [1989 c. 15.] Water Act 1989);

(b) a requirement under the provisions of section 16 of the [1973 c. 37.] Water Act 1973 (sewer requisitions); or

(c) a requirement under any local statutory provision corresponding to section 98 above or to any of the provisions of that section 16.

101 Determination of completion date and route for requisitioned sewer

(1) A sewerage undertaker shall not be in breach of a duty imposed by section 98 above in relation to any locality unless–

(a) the period of six months beginning with the relevant day has expired; and

(b) the sewerage undertaker has not, before the end of that period, so laid the public sewer to be provided as to enable drains and private sewers to be used for the drainage of premises in that locality to communicate with the public sewer at the places determined under subsection (3) below.

(2) The period mentioned in subsection (1)(a) above may be extended—

(a) by agreement between the undertaker and the person or persons who required the provision of the public sewer; or

(b) where there is a dispute as to whether the period should be extended, by an arbitrator on a reference under subsection (4) below.

(3) The places mentioned in subsection (1)(b) above shall be—

(a) such places as are determined by agreement between the sewerage undertaker and the person or persons who required the provision of the public sewer; or

(b) in default of agreement, such places as are determined by an arbitrator on a reference under subsection (4) below to be the places at which it is reasonable, in all the circumstances, for drains or private sewers to be used for the drainage of premises in that locality to communicate with the public sewer.

(4) A reference for the purposes of subsection (3) or (4) above shall be to a single arbitrator appointed—

(a) by agreement between the undertaker and the person or persons who required the provision of the public sewer; or

(b) in default of agreement, by the President of the Institution of Civil Engineers.

(5) In this section “relevant day”, in relation to a requirement to provide a public sewer for any locality, means the day after whichever is the later of the following, that is to say—

(a) the day on which the conditions specified in section 99 above are satisfied in relation to the requirement; and

(b) the day on which the places where drains or private sewers to be used for the drainage of premises in that locality will communicate with the public sewer are determined under subsection (3) above.

Adoption etc. of sewers and disposal works

102 Adoption of sewers and disposal works

(1) Subject to the following provisions of this section and to sections 103, 105 and 146(3) below, a sewerage undertaker may at any time declare that—

(a) any sewer which is situated within its area or which serves the whole or any part of that area; or

(b) any sewage disposal works which are so situated or which serve the whole or any part of that area,

shall, as from such date as may be specified in the declaration, become vested in the undertaker.

(2) The owner, or any of the owners, of any sewer or sewage disposal works with respect to which a sewerage undertaker might make a declaration under this section may make an application to that undertaker requesting it to make a declaration under this section with respect to the sewer or works.

(3) A declaration or application under this section may be made with respect to a part only of a sewer.

(4) A sewerage undertaker which proposes to make a declaration under this section—

(a) shall give notice of its proposal to the owner or owners of the sewer or works in question; and

(b) shall take no further action in the matter until two months have elapsed without an appeal against the proposal being lodged under section 105 below or, as the case may be, until any appeal so lodged has been determined.

(5) A sewerage undertaker, in deciding whether a declaration should be made under this section, shall have regard to all the circumstances of the case and, in particular, to the following considerations, that is to say—

(a) whether the sewer or works in question is or are adapted to, or required for, any general system of sewerage or sewage disposal which the undertaker has provided, or proposes to provide, for the whole or any part of its area;

(b) whether the sewer is constructed under a highway or under land reserved by a planning scheme for a street;

(c) the number of buildings which the sewer is intended to serve, and whether, regard being had to the proximity of other buildings or the prospect of future development, it is likely to be required to serve additional buildings;

(d) the method of construction and state of repair of the sewer or works; and

(e) in a case where an owner objects, whether the making of the proposed declaration would be seriously detrimental to him.

(6) Any person who immediately before the making of a declaration under this section was entitled to use the sewer in question shall be entitled to use it, or any sewer substituted for it, to the same extent as if the declaration had not been made.

(7) No declaration may be made under this section in respect of any sewer or works the construction of which was completed before 1st October 1937.

103 Adoption of cross-border sewers etc

(1) Where a sewerage undertaker is about to take into consideration the question of making a declaration under section 102 above with respect to—

(a) any sewer which is situated within the area of another sewerage undertaker or which, though situated within its own area, serves the whole or any part of the area of another sewerage undertaker; or

(b) any sewage disposal works which are situated within the area of another sewerage undertaker or which, though situated within its own area, serve the whole or any part of the area of another sewerage undertaker,

it shall give notice to the other undertaker.

(2) Where a sewerage undertaker is required to give notice under subsection (1) above to another undertaker, no declaration under section 102 above shall be made by the former undertaker until either—

(a) the other undertaker has consented to the declaration; or

(b) the Secretary of State, on an application made to him, has dispensed with the necessity for such consent, either unconditionally or subject to such conditions as he may think fit to impose.

(3) Where—

(a) a sewer or part of a sewer is vested, or any sewage disposal works are vested, in a relevant body; and

(b) in the case of a sewer, part of a sewer or works vested in railway undertakers or dock undertakers, the sewer or part in question is, or the works are, situated in or on land belonging to those undertakers and held or used by them for the purposes of their undertaking,

a sewerage undertaker shall not make a declaration under section 102 above with respect to the sewer or part or, as the case may be, with respect to the works, except on the application of the relevant body concerned.

(4) Where a sewerage undertaker makes a declaration under section 102 above with respect to—

(a) a sewer which is situated within the area of another sewerage undertaker; or

(b) any sewage disposal works which are so situated,

it shall forthwith give notice of the fact to that other undertaker.

(5) In this section “relevant body” means any sewerage undertaker, any local authority or county council or any railway undertakers or dock undertakers.

104 Agreements to adopt sewer, drain or sewage disposal works, at future date

(1) Subject to subsection (7) and section 146(3) below, a sewerage undertaker may agree with any person constructing, or proposing to construct—

(a) any sewer; or

(b) any sewage disposal works,

that, if the sewer or works is or are constructed in accordance with the terms of the agreement, the undertaker will, upon the completion of the work, at some specified date or on the happening of some future event, declare the sewer or works to be vested in that undertaker.

(2) A person constructing or proposing to construct a sewer may make an application to a sewerage undertaker requesting the undertaker to make an agreement under this section.

(3) An application under subsection (2) above shall be accompanied and supplemented by all such information as the undertaker may reasonably require; but, subject to subsection (4) below and without prejudice to the effect (if any) of any other contravention of the requirements of this section in relation to such an application, a failure to provide information in pursuance of the obligation to supplement such an application shall not invalidate the application.

(4) Where—

(a) a person who has made an application to a sewerage undertaker under subsection (2) above has failed to comply with his obligation under this section to supplement that application with information required by the undertaker; and

(b) that requirement was made by the undertaker at such a time before the end of the period within which the undertaker is required, by virtue of section 105 below, to respond to the application as gave that person a reasonable opportunity to provide the required information within that period,

the undertaker may delay its response to the application until a reasonable time after the required information is provided.

(5) Any agreement made under this section by a sewerage undertaker shall be enforceable against the undertaker by the owner or occupier for the time being of any premises served by the sewer or works to which it relates.

(6) The preceding provisions of this section shall apply also in relation to drains as if references to a sewer included references to a drain; but it shall be a condition of any agreement under this section with respect to a drain that a declaration shall not be made before the drain has become a sewer.

(7) A sewerage undertaker shall not make an agreement under this section with respect to a sewer, drain or sewage disposal works situated within the area of another sewerage undertaker, until either—

(a) that other undertaker has consented to the making of the agreement; or

(b) the Secretary of State, on an application made to him, has dispensed with the necessity for such consent, either unconditionally or subject to such conditions as he may think fit to impose.

105 Appeals with respect to adoption

(1) An owner of any sewer or sewage disposal works may appeal to the Secretary of State if—

(a) he is aggrieved by the proposal of a sewerage undertaker to make a declaration under section 102 above; or

(b) he is aggrieved by the refusal of a sewerage undertaker to make such a declaration.

(2) Subject to section 104(4) above, a person constructing or proposing to construct a drain or sewer or any sewage disposal works may appeal to the Secretary of State where a sewerage undertaker—

(a) has refused an application under section 104 above;

(b) has offered to grant such an application on terms to which that person objects; or

(c) has failed, before the end of two months from the making of such an application, either to refuse the application or to give notice to the applicant of the terms on which it is prepared to grant the application.

(3) The time for the making of an appeal under subsection (1) above by the owner of any sewer or sewage disposal works shall be–

(a) in the case of an appeal by virtue of paragraph (a) of that subsection, any time within two months after notice of the proposal is served on that owner; and

(b) in the case of an appeal by virtue of paragraph (b) of that subsection, any time after receipt of notice of the undertaker’s refusal or, if no such notice is given, at any time after the end of two months from the making of the application for the declaration.

(4) On the hearing of an appeal under this section, the Secretary of State may—

(a) in the case of an appeal under subsection (1) above, allow or disallow the proposal of the sewerage undertaker or, as the case may be, make any declaration which the sewerage undertaker might have made; or

(b) in the case of an appeal under subsection (2) above—

(i) uphold the refusal of the undertaker to grant the application or to modify the terms offered; or

(ii) on behalf of the undertaker, refuse the application or enter into any agreement into which the undertaker might have entered on the application;

and any declaration made under paragraph (a) above shall have the same effect as if it had been made by the undertaker in question.

(5) Where the Secretary of State makes a declaration under subsection (4)(a) above, he may, if he thinks fit—

(a) specify conditions, including conditions as to the payment of compensation by the sewerage undertaker; and

(b) direct that his declaration shall not take effect unless any conditions so specified are accepted.

(6) Where the Secretary of State makes an agreement under subsection (4)(b) above on behalf of a sewerage undertaker, he may do so on such terms as he considers reasonable or, as the case may be, on the terms offered by the undertaker subject to such modifications as he considers appropriate for ensuring that the terms of the agreement are reasonable.

(7) The Secretary of State, in deciding, on an appeal under this section, whether any declaration or agreement should be made, shall have regard to all the circumstances of the case and, in particular, to the considerations specified in section 102(5) above; and for the purposes of this subsection, in its application in relation to an appeal under subsection (2) above, paragraphs (a) to (e) of section 102(5) above shall have effect with the necessary modifications.

Communication of drains and private sewers with public sewers

106 Right to communicate with public sewers

(1) Subject to the provisions of this section—

(a) the owner or occupier of any premises in the area of a sewerage undertaker; or

(b) the owner of any private sewer draining premises in the area of any such undertaker,

shall be entitled to have his drains or sewer communicate with the public sewers of that undertaker and thereby to discharge foul water and surface water from those premises or that private sewer.

(2) Subject to the provisions of Chapter III of this Part, nothing in subsection (1) above shall entitle any person—

(a) to discharge directly or indirectly into any public sewer—

(i) any liquid from a factory, other than domestic sewage or surface or storm water, or any liquid from a manufacturing process; or

(ii) any liquid or other matter the discharge of which into public sewers is prohibited by or under any enactment; or

(b) where separate public sewers are provided for foul water and for surface water, to discharge directly or indirectly—

(i) foul water into a sewer provided for surface water; or

(ii) except with the approval of the undertaker, surface water into a sewer provided for foul water; or

(c) to have his drains or sewer made to communicate directly with a storm-water overflow sewer.

(3) A person desirous of availing himself of his entitlement under this section shall give notice of his proposals to the sewerage undertaker in question.

(4) At any time within twenty-one days after a sewerage undertaker receives a notice under subsection (3) above, the undertaker may by notice to the person who gave the notice refuse to permit the communication to be made, if it appears to the undertaker that the mode of construction or condition of the drain or sewer is such that the making of the communication would be prejudicial to the undertaker’s sewerage system

(5) For the purpose of examining the mode of construction and condition of a drain or sewer to which a notice under subsection (3) above relates a sewerage undertaker may, if necessary, require it to be laid open for inspection.

(6) Any question arising under subsections (3) to (5) above between a sewerage undertaker and a person proposing to make a communication as to—

(a) the reasonableness of the undertaker’s refusal to permit a communication to be made; or

(b) as to the reasonableness of any requirement under subsection (5) above,

may, on the application of that person, be determined by a magistrates' court.

(7) Sections 300 to 302 of the [1936 c. 49.] Public Health Act 1936 (which relate to the determination of questions by courts of summary jurisdiction and to appeals against such determinations) shall apply for the purposes of and in relation to a determination on an application under subsection (6) above—

(a) as they apply for the purposes of and in relation to a determination by a magistrates' court under that Act; and

(b) in the case of section 302, as if the reference to a decision of a local authority included a reference to a decision of a sewerage undertaker.

(8) Where a person proposes under this section to make a communication between a drain or sewer and such a public sewer in Greater London as is used for the general reception of sewage from other public sewers and is not substantially used for the reception of sewage from private sewers and drains—

(a) the grounds on which a sewerage undertaker may refuse to permit the communication shall be such grounds as the undertaker thinks fit; and

(b) no application to a magistrates' court may be made under subsection (6) above in respect of any refusal under this subsection.

(9) In this section “factory” has the same meaning as in the [1961 c. 34.] Factories Act 1961.

107 Right of sewerage undertaker to undertake the making of communications with public sewers

(1) Where a person gives to a sewerage undertaker notice under section 106 above of his proposal to have his drains or sewer made to communicate with a public sewer of that undertaker, the undertaker may—

(a) within fourteen days after the receipt of the notice; or

(b) if any question arising under the notice requires to be determined by a magistrates' court, within fourteen days after the determination of that question,

give notice to that person that the undertaker intends itself to make the communication.

(2) If, after a notice has been given to any person under subsection (1) above, that person proceeds himself to make the communication, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(3) Where a sewerage undertaker has given a notice under subsection (1) above—

(a) the undertaker shall have all such rights in respect of the making of the communication as the person desiring it to be made would have; but

(b) it shall not be obligatory on the undertaker to make the communication until either—

(i) there has been paid to the sewerage undertaker any such sum, not exceeding the undertaker’s reasonable estimate of the cost of the work, as the undertaker may have required to be paid to it; or

(ii) there has been given to the undertaker such security for the payment of the cost of the work as it may reasonably have required.

(4) If any payment made to a sewerage undertaker under subsection (3) above exceeds the expenses reasonably incurred by it in the carrying out of the work in question, the excess shall be repaid by the undertaker; and, if and so far as those expenses are not covered by such a payment, the undertaker may recover the expenses, or the balance of them, from the person for whom the work was done.

(5) Sections 291, 293 and 294 of the [1936 c. 49.] Public Health Act 1936 (which provide for the means of, and for limitations on, the recovery of expenses incurred by a local authority) shall apply in relation to the recovery by a sewerage undertaker of any sums under this section as they apply in relation to the recovery of expenses under that Act by a local authority.

(6) For the purposes of this section, the making of the communication between a drain or private sewer and a public sewer includes all such work as involves the breaking open of a street.

108 Communication works by person entitled to communication

(1) Where a sewerage undertaker does not under section 107 above elect itself to make a communication to which a person is entitled under section 106 above, the person making it shall—

(a) before commencing the work, give reasonable notice to any person directed by the undertaker to superintend the carrying out of the work; and

(b) afford any such person all reasonable facilities for superintending the carrying out of the work.

(2) For the purpose—

(a) of exercising his rights under section 106 above; or

(b) of examining, repairing or renewing any drain or private sewer draining his premises into a public sewer,

the owner or occupier of any premises shall be entitled to exercise the same powers as, for the purpose of carrying out its functions, are conferred on a sewerage undertaker by sections 158 and 161(1) below.

(3) The provisions of Part VI of this Act shall apply, with the necessary modifications, in relation to the power conferred by subsection (2) above as they apply in relation to the power conferred by sections 158 and 161(1) below.

109 Unlawful communications

(1) Any person who causes a drain or sewer to communicate with a public sewer—

(a) in contravention of any of the provisions of section 106 or 108 above; or

(b) before the end of the period mentioned in subsection (4) of that section 106,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

(2) Whether proceedings have or have not been taken by a sewerage undertaker in respect of an offence under this section, such an undertaker may—

(a) close any communication made in contravention of any of the provisions of section 106 or 108 above; and

(b) recover from the offender any expenses reasonably incurred by the undertaker in so doing.

(3) Sections 291, 293 and 294 of the [1936 c. 49.] Public Health Act 1936 (which provide for the means of, and for limitations on, the recovery of expenses incurred by a local authority) shall apply in relation to the recovery by a sewerage undertaker of any sums under this section as they apply in relation to the recovery of expenses under that Act by a local authority.

Connections between public sewers

110 Determination of disputes with respect to cross boundary sewers

(1) Where any part of a sewer is vested in a sewerage undertaker by virtue of section 70 of the [1989 c. 15.] Water Act 1989 (cross boundary sewers), the terms on which that part of that sewer—

(a) communicates with such parts of that sewer or of any other sewer; or

(b) discharges into any such sewage disposal works,

as immediately before 1st September 1989 were vested in the same water authority as that part of that sewer but, by virtue of that section, are vested in another sewerage undertaker shall be determined, in default of agreement, by the Director.

(2) A determination by the Director under this section shall have effect as an agreement between the sewerage undertakers in question but may be varied or revoked by a subsequent determination made by the Director on the application of either of those undertakers, as well as by agreement between the undertakers.

(3) In making a determination under this section, the Director shall have regard to the desirability of a sewerage undertaker’s recovering the costs resulting from its allowing the sewers of other sewerage undertakers to communicate with its sewers or to discharge into its sewage disposal works and of its securing a reasonable return on its capital.

Provisions protecting sewerage system

111 Restrictions on use of public sewers

(1) Subject to the provisions of Chapter III of this Part, no person shall throw, empty or turn, or suffer or permit to be thrown or emptied or to pass, into any public sewer, or into any drain or sewer communicating with a public sewer—

(a) any matter likely to injure the sewer or drain, to interfere with the free flow of its contents or to affect prejudicially the treatment and disposal of its contents; or

(b) any such chemical refuse or waste steam, or any such liquid of a temperature higher than one hundred and ten degrees Fahrenheit, as by virtue of subsection (2) below is a prohibited substance; or

(c) any petroleum spirit or carbide of calcium.

(2) For the purposes of subsection (1) above, chemical refuse, waste steam or a liquid of a temperature higher than that mentioned in that subsection is a prohibited substance if (either alone or in combination with the contents of the sewer or drain in question) it is or, in the case of the liquid, is when so heated—

(a) dangerous;

(b) the cause of a nuisance; or

(c) injurious, or likely to cause injury, to health.

(3) A person who contravenes any of the provisions of this section shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum and to a further fine not exceeding £50 for each day on which the offence continues after conviction;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(4) For the purposes of so much of subsection (3) above as makes provision for the imposition of a daily penalty—

(a) the court by which a person is convicted of the original offence may fix a reasonable date from the date of conviction for compliance by the defendant with any directions given by the court; and

(b) where a court has fixed such a period, the daily penalty shall not be imposed in respect of any day before the end of that period.

(5) In this section the expression “petroleum spirit” means any such—

(a) crude petroleum;

(b) oil made from petroleum or from coal, shale, peat or other bituminous substances; or

(c) product of petroleum or mixture containing petroleum,

as, when tested in the manner prescribed by or under the [1928 c. 32.] Petroleum (Consolidation) Act 1928, gives off an inflammable vapour at a temperature of less than seventy-three degrees Fahrenheit.

112 Requirement that proposed drain or sewer be constructed so as to form part of general system

(1) Where—

(a) a person proposes to construct a drain or sewer; and

(b) a sewerage undertaker considers that the proposed drain or sewer is, or is likely to be, needed to form part of a general sewerage system which that undertaker provides or proposes to provide,

the undertaker may require that person to construct the drain or sewer in a manner differing, as regards material or size of pipes, depth, fall, direction or outfall or otherwise, from the manner in which that person proposes, or could otherwise be required by the undertaker, to construct it.

(2) If any person on whom requirements are imposed under this section by a sewerage undertaker is aggrieved by the requirements, he may within twenty-eight days appeal to the Secretary of State.

(3) On an appeal under subsection (2) above with respect to any requirements, the Secretary of State may either disallow the requirements or allow them with or without modification.

(4) It shall be the duty of a person on whom requirements are imposed by a sewerage undertaker under this section to comply with those requirements.

(5) The duty of any person by virtue of subsection (4) above to comply with the requirements of a sewerage undertaker shall be owed to the undertaker; and any breach of that duty which causes the undertaker to sustain loss or damage shall be actionable at the suit of the undertaker.

(6) A sewerage undertaker which exercises the powers conferred on it by this section shall—

(a) repay to the person constructing the drain or sewer the extra expenses reasonably incurred by that person in complying with the undertaker’s requirements; and

(b) until the drain or sewer becomes a public sewer, from time to time repay to that person so much of any expenses reasonably incurred by him in repairing or maintaining the drain or sewer as may be attributable to the undertaker’s requirements having been imposed and complied with.

(7) Nothing in this section shall apply in relation to so much of any drain or sewer as is proposed to be constructed by any railway undertakers or dock undertakers in or on land which—

(a) belongs to them; and

(b) is held or used by them for the purposes of their undertaking.

113 Power to alter drainage system of premises in area

(1) Where any premises have a drain or sewer communicating with a public sewer or a cesspool, but that system of drainage, though sufficient for the effectual drainage of the premises—

(a) is not adapted to the general sewerage system of the area; or

(b) is, in the opinion of the sewerage undertaker for the area, otherwise objectionable,

the undertaker may, at its own expense, close the existing drain or sewer and fill up the cesspool, if any, and do any work necessary for that purpose.

(2) The power conferred on a sewerage undertaker by subsection (1) above shall be exercisable on condition only that the undertaker first provides, in a position equally convenient to the owner of the premises in question, a drain or sewer which—

(a) is equally effectual for the drainage of the premises; and

(b) communicates with a public sewer.

(3) A sewerage undertaker which proposes to carry out any work under this section shall give notice of its proposals to the owner of the premises in question.

(4) If the owner of the premises is aggrieved by the proposals, whether as regards the position or the sufficiency of the drain or sewer proposed to be provided for the drainage of the premises, he may appeal to a magistrates' court.

(5) Sections 300 to 302 of the [1936 c. 49.] Public Health Act 1936 (which relate to the determination of questions by courts of summary jurisdiction and to appeals against such determinations) shall apply in relation to an appeal under subsection (4) above and to any determination on such an appeal—

(a) as they apply in relation to appeals against any decision of a local authority under that Act and to determinations on any such appeal; and

(b) in the case of section 302, as if the reference to a decision of a local authority included a reference to a decision of a sewerage undertaker.

(6) The Secretary of State may by regulations make provision with respect to consents and the conditions of consents for discharges of trade effluent into the sewer of a sewerage undertaker through a drain or sewer provided in pursuance of this section.

(7) In this section—

• “cesspool” includes a settlement tank or other tank for the reception or disposal of foul matter from buildings; and

• “trade effluent” has the same meaning as in Chapter III of this Part.

114 Power to investigate defective drain or sewer

(1) Where it appears to a sewerage undertaker that there are reasonable grounds for believing—

(a) that any drain connecting with a public sewer, or any private sewer so connecting, is in such a condition as to be injurious or likely to cause injury to health or as to be a nuisance; or

(b) that any such drain or private sewer is so defective as to admit subsoil water,

the undertaker may examine the condition of the drain or sewer and, for that purpose, may apply any test, other than a test by water under pressure and, if the undertaker deems it necessary, open the ground.

(2) If on examination the drain or sewer is found to be in proper condition, the undertaker shall, as soon as possible, reinstate any ground which has been opened by it and make good any damage done by the undertaker.

Use of pipes for sewerage purposes

115 Use of highway drains as sewers and vice versa

(1) Subject to the provisions of this section, a relevant authority and a sewerage undertaker may agree that—

(a) any drain or sewer which is vested in the authority in their capacity as a highway authority may, upon such terms as may be agreed, be used by the undertaker for the purpose of conveying surface water from premises or streets;

(b) any public sewer vested in the undertaker may, upon such terms as may be agreed, be used by the authority for conveying surface water from roads repairable by the authority.

(2) Where a sewer or drain with respect to which a relevant authority and a sewerage undertaker propose to make an agreement under this section discharges, whether directly or indirectly, into the sewers or sewage disposal works of another sewerage undertaker, the agreement shall not be made without the consent of that other undertaker.

(3) Subject to subsection (4) below, a consent given by a sewerage undertaker for the purposes of subsection (2) above may be given on such terms as that undertaker thinks fit.

(4) Neither a relevant authority nor a sewerage undertaker shall—

(a) unreasonably refuse to enter into an agreement for the purposes of this section; or

(b) insist unreasonably upon terms unacceptable to the other party;

and a sewerage undertaker shall not unreasonably refuse to consent to the making of such an agreement or insist unreasonably upon terms unacceptable to either party.

(5) Any question arising under this section as to whether or not any authority or undertaker is acting unreasonably shall be referred to the Secretary of State, whose decision shall be final.

(6) The powers by virtue of paragraph (a) of subsection (1) above of a relevant authority and a sewerage undertaker to enter into an agreement shall be exercisable by two relevant authorities as they would be exercisable if one of them were a sewerage undertaker.

(7) Nothing in this section shall be construed as limiting the rights of a relevant authority under section 264 of the [1980 c. 66.] Highways Act 1980.

(8) Part XII of the [1936 c. 49.] Public Health Act 1936 shall apply for the purposes of the provisions of this section which confer functions on relevant authorities as they apply for the purposes of the provisions of that Act.

(9) In this section “relevant authority” means a county council or any local authority except a non-metropolitan district council.

(10) The provisions of this section are subject to the provisions of section 146(4) below.

116 Power to close or restrict use of public sewer

(1) Subject to subsection (3) below, a sewerage undertaker may discontinue and prohibit the use of any public sewer which is vested in the undertaker.

(2) A discontinuance or prohibition under this section may be for all purposes, for the purpose of foul water drainage or for the purpose of surface water drainage.

(3) Before any person who is lawfully using a sewer for any purpose is deprived under this section by a sewerage undertaker of the use of the sewer for that purpose, the undertaker shall—

(a) provide a sewer which is equally effective for his use for that purpose; and

(b) at the undertaker’s own expense, carry out any work necessary to make that person’s drains or sewers communicate with the sewer provided in pursuance of this subsection.

Interpretation of Chapter II

117 Interpretation of Chapter II

(1) In this Chapter, except in so far as the context otherwise requires—

• “dock undertakers” means persons authorised by any enactment, or by any order, rule or regulation made under any enactment, to construct, work or carry on any dock, harbour, canal or inland navigation;

• “domestic sewerage purposes”, in relation to any premises, means any one or more of the following purposes, that is to say—

  (a)

  the removal, from buildings on the premises and from land occupied with and appurtenant to the buildings, of the contents of lavatories;

  (b)

  the removal, from such buildings and from such land, of water which has been used for cooking or washing; and

  (c)

  the removal, from such buildings and such land, of surface water;

  but does not, by virtue of paragraph (b) of this definition, include the removal of any water used for the business of a laundry or for a business of preparing food or drink for consumption otherwise than on the premises.

(2) References in this Chapter to the construction of a sewer or of any sewage disposal works include references to the extension of any existing sewer or works.

(3) In this Chapter “local authority”, in relation to the Inner Temple and the Middle Temple, includes, respectively, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple.

(4) Every application made or consent given under this Chapter shall be made or given in writing.

(5) Nothing in sections 102 to 109 above or in sections 111 to 116 above shall be construed as authorising a sewerage undertaker to construct or use any public or other sewer, or any drain or outfall—

(a) in contravention of any applicable provision of the [1991 c. 57.] Water Resources Act 1991; or

(b) for the purpose of conveying foul water into any natural or artificial stream, watercourse, canal, pond or lake, without the water having been so treated as not to affect prejudicially the purity and quality of the water in the stream, watercourse, canal, pond or lake.

(6) A sewerage undertaker shall so carry out its functions under sections 102 to 105, 112, 115 and 116 above as not to create a nuisance.

Chapter III Trade Effluent

Consent for discharge of trade effluent into public sewer

118 Consent required for discharge of trade effluent into public sewer

(1) Subject to the following provisions of this Chapter, the occupier of any trade premises in the area of a sewerage undertaker may discharge any trade effluent proceeding from those premises into the undertaker’s public sewers if he does so with the undertaker’s consent.

(2) Nothing in this Chapter shall authorise the discharge of any effluent into a public sewer otherwise than by means of a drain or sewer.

(3) The following, that is to say—

(a) the restrictions imposed by paragraphs (a) and (b) of section 106(2) above; and

(b) section 111 above so far as it relates to anything falling within paragraph (a) or (b) of subsection (1) of that section,

shall not apply to any discharge of trade effluent which is lawfully made by virtue of this Chapter.

(4) Accordingly, subsections (3) to (8) of section 106 above and sections 108 and 109 above shall have effect in relation to communication with a sewer for the purpose of making any discharge which is lawfully made by virtue of this Chapter as they have effect in relation to communication with a sewer for the purpose of making discharges which are authorised by subsection (1) of section 106 above.

(5) If, in the case of any trade premises, any trade effluent is discharged without such consent or other authorisation as is necessary for the purposes of this Chapter, the occupier of the premises shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment, to a fine.

Consents on an application

119 Application for consent

(1) An application to a sewerage undertaker for a consent to discharge trade effluent from any trade premises into a public sewer of that undertaker shall be by notice served on the undertaker by the owner or occupier of the premises.

(2) An application under this section with respect to a proposed discharge of any such effluent shall state—

(a) the nature or composition of the trade effluent;

(b) the maximum quantity of the trade effluent which it is proposed to discharge on any one day; and

(c) the highest rate at which it is proposed to discharge the trade effluent.

120 Applications for the discharge of special category effluent

(1) Subject to subsection (3) below, where a notice containing an application under section 119 above is served on a sewerage undertaker with respect to discharges of any special category effluent, it shall be the duty of the undertaker to refer to the Secretary of State the questions—

(a) whether the discharges to which the notice relates should be prohibited; and

(b) whether, if they are not prohibited, any requirements should be imposed as to the conditions on which they are made.

(2) Subject to subsection (3) below, a reference which is required to be made by a sewerage undertaker by virtue of subsection (1) above shall be made before the end of the period of two months beginning with the day after the notice containing the application is served on the undertaker.

(3) There shall be no obligation on a sewerage undertaker to make a reference under this section in respect of any application if, before the end of the period mentioned in subsection (2) above, there is a refusal by the undertaker to give any consent on the application.

(4) It shall be the duty of a sewerage undertaker where it has made a reference under this section not to give any consent, or enter into any agreement, with respect to the discharges to which the reference relates at any time before the Secretary of State serves notice on the undertaker of his determination on the reference.

(5) Every reference under this section shall be made in writing and shall be accompanied by a copy of the notice containing the application in respect of which it is made.

(6) It shall be the duty of a sewerage undertaker, on making a reference under this section, to serve a copy of the reference on the owner or the occupier of the trade premises in question, according to whether the discharges to which the reference relates are to be by the owner or by the occupier.

(7) Subject to subsection (8) below, the duties of a sewerage undertaker under this section shall be enforceable under section 18 above by the Secretary of State.

(8) Where an application is made to the Secretary of State under section 18 above in respect of a failure by a sewerage undertaker to make a reference under this section, the Secretary of State may, instead of making an order under that section, proceed with the matter as if the application were the reference.

121 Conditions of consent

(1) The power of a sewerage undertaker, on an application under section 119 above, to give a consent with respect to the discharge of any trade effluent shall be a power to give a consent either unconditionally or subject to such conditions as the sewerage undertaker thinks fit to impose with respect to—

(a) the sewer or sewers into which the trade effluent may be discharged;

(b) the nature or composition of the trade effluent which may be discharged;

(c) the maximum quantity of trade effluent which may be discharged on any one day, either generally or into a particular sewer; and

(d) the highest rate at which trade effluent may be discharged, either generally or into a particular sewer.

(2) Conditions with respect to all or any of the following matters may also be attached under this section to a consent to the discharge of trade effluent from any trade premises—

(a) the period or periods of the day during which the trade effluent may be discharged from the trade premises into the sewer;

(b) the exclusion from the trade effluent of all condensing water;

(c) the elimination or diminution, in cases falling within subsection (3) below, of any specified constituent of the trade effluent, before it enters the sewer;

(d) the temperature of the trade effluent at the time when it is discharged into the sewer, and its acidity or alkalinity at that time;

(e) the payment by the occupier of the trade premises to the undertaker of charges for the reception of the trade effluent into the sewer and for the disposal of the effluent;

(f) the provision and maintenance of such an inspection chamber or manhole as will enable a person readily to take samples, at any time, of what is passing into the sewer from the trade premises;

(g) the provision, testing and maintenance of such meters as may be required to measure the volume and rate of discharge of any trade effluent being discharged from the trade premises into the sewer;

(h) the provision, testing and maintenance of apparatus for determining the nature and composition of any trade effluent being discharged from the premises into the sewer;

(i) the keeping of records of the volume, rate of discharge, nature and composition of any trade effluent being discharged and, in particular, the keeping of records of readings of meters and other recording apparatus provided in compliance with any other condition attached to the consent; and

(j) the making of returns and giving of other information to the sewerage undertaker concerning the volume, rate of discharge, nature and composition of any trade effluent discharged from the trade premises into the sewer.

(3) A case falls within this subsection where the sewerage undertaker is satisfied that the constituent in question, either alone or in combination with any matter with which it is likely to come into contact while passing through any sewers–

(a) would injure or obstruct those sewers, or make the treatment or disposal of the sewage from those sewers specially difficult or expensive; or

(b) in the case of trade effluent which is to be or is discharged—

(i) into a sewer having an outfall in any harbour or tidal water; or

(ii) into a sewer which connects directly or indirectly with a sewer or sewage disposal works having such an outfall,

would cause or tend to cause injury or obstruction to the navigation on, or the use of, the harbour or tidal water.

(4) In the exercise of the power conferred by virtue of subsection (2)(e) above, regard shall be had—

(a) to the nature and composition and to the volume and rate of discharge of the trade effluent discharged;

(b) to any additional expense incurred or likely to be incurred by a sewerage undertaker in connection with the reception or disposal of the trade effluent; and

(c) to any revenue likely to be derived by the undertaker from the trade effluent.

(5) If, in the case of any trade premises, a condition imposed under this section is contravened, the occupier of the premises shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment, to a fine.

(6) In this section “harbour” and “tidal water” have the same meanings as in the [1894 c. 60.] Merchant Shipping Act 1894.

(7) This section has effect subject to the provisions of sections 133 and 135(3) below.

122 Appeals to the Director with respect to decisions on applications etc

(1) Any person aggrieved by—

(a) the refusal of a sewerage undertaker to give a consent for which application has been duly made to the undertaker under section 119 above;

(b) the failure of a sewerage undertaker to give such a consent within the period of two months beginning with the day after service of the notice containing the application; or

(c) any condition attached by a sewerage undertaker to such a consent,

may appeal to the Director.

(2) On an appeal under this section in respect of a refusal or failure to give a consent, the Director may give the necessary consent, either unconditionally or subject to such conditions as he thinks fit to impose for determining any of the matters as respects which the undertaker has power to impose conditions under section 121 above.

(3) On an appeal under this section in respect of a condition attached to a consent, the Director may take into review all the conditions attached to the consent, whether appealed against or not, and may—

(a) substitute for them any other set of conditions, whether more or less favourable to the appellant; or

(b) annul any of the conditions.

(4) The Director may, under subsection (3) above, include provision as to the charges to be made in pursuance of any condition attached to a consent for any period before the determination of the appeal.

(5) On any appeal under this section, the Director may give a direction that the trade effluent in question shall not be discharged until a specified date.

(6) Any consent given or conditions imposed by the Director under this section in respect of discharges of trade effluent shall have effect for the purposes of this Chapter as if given or imposed by the sewerage undertaker in question.

(7) The powers of the Director under this section shall be subject to the provisions of sections 123, 128, 133, 135 and 137 below.

123 Appeals with respect to the discharge of special category effluent

(1) Where a reference is made to the Secretary of State under section 120 above, the period mentioned in paragraph (b) of subsection (1) of section 122 above shall not begin to run for the purposes of that subsection, in relation to the application to which the reference relates, until the beginning of the day after the Secretary of State serves notice on the sewerage undertaker in question of his determination on the reference.

(2) If, on an appeal under section 122 above, it appears to the Director—

(a) that the case is one in which the sewerage undertaker in question is required to make a reference under section 120 above before giving a consent; and

(b) that the undertaker has not made such a reference, whether because the case falls within subsection (3) of that section or otherwise,

the Director shall not be entitled to determine the appeal, otherwise than by upholding a refusal, except where the conditions set out in subsection (3) below are satisfied.

(3) The conditions mentioned in subsection (2) above are satisfied if the Director—

(a) has himself referred the questions mentioned in section 120(1) above to the Secretary of State; and

(b) has been sent a copy of the notice of the Secretary of State’s determination on the reference.

(4) Every reference under this section shall be made in writing and shall be accompanied by a copy of the notice containing the application in respect of which the appeal and reference is made.

(5) It shall be the duty of the Director, on making a reference under this section, to serve a copy of the reference—

(a) on the owner or the occupier of the trade premises in question, according to whether the discharges to which the reference relates are to be by the owner or by the occupier; and

(b) on the sewerage undertaker in question.

124 Variation of consents

(1) Subject to sections 128, 133 and 135(3) below, a sewerage undertaker may from time to time give a direction varying the conditions which have been attached to any of its consents under this Chapter to the discharge of trade effluent into a public sewer.

(2) Subject to subsections (3) and (4) and section 125 below, no direction shall be given under this section with respect to a consent under this Chapter—

(a) within two years from the date of the consent; or

(b) where a previous direction has been given under this section with respect to that consent, within two years from the date on which notice was given of that direction.

(3) Subsection (2) above shall not prevent a direction being given before the time specified in that subsection if it is given with the consent of the owner and occupier of the trade premises in question.

(4) A direction given with the consent mentioned in subsection (3) above shall not affect the time at which any subsequent direction may be given.

(5) The sewerage undertaker shall give to the owner and occupier of the trade premises to which a consent under this Chapter relates notice of any direction under this section with respect to that consent.

(6) A notice under subsection (5) above shall—

(a) include information as to the right of appeal conferred by subsection (1) of section 126 below; and

(b) state the date, being a date not less than two months after the giving of the notice, on which (subject to subsection (2) of that section) the direction is to take effect.

(7) For the purposes of this section references to the variation of conditions include references to the addition or annulment of a condition and to the attachment of a condition to a consent to which no condition was previously attached.

125 Variations within time limit

(1) A sewerage undertaker may give a direction under section 124 above before the time specified in subsection (2) of that section and without the consent required by subsection (3) of that section if it considers it necessary to do so in order to provide proper protection for persons likely to be affected by the discharges which could lawfully be made apart from the direction.

(2) Subject to section 134(3) below, where a sewerage undertaker gives a direction by virtue of subsection (1) above, the undertaker shall be liable to pay compensation to the owner and occupier of the trade premises to which the direction relates, unless the undertaker is of the opinion that the direction is required—

(a) in consequence of a change of circumstances which—

(i) has occurred since the beginning of the period of two years in question; and

(ii) could not reasonably have been foreseen at the beginning of that period;

and

(b) otherwise than in consequence of consents for discharges given after the beginning of that period.

(3) Where a sewerage undertaker gives a direction by virtue of subsection (1) above and is of the opinion mentioned in subsection (2) above, it shall be the duty of the undertaker to give notice of the reasons for its opinion to the owner and occupier of the premises in question.

(4) For the purposes of this section the circumstances referred to in subsection (2)(a) above may include the information available as to the discharges to which the consent in question relates or as to the interaction of those discharges with other discharges or matter.

(5) The Secretary of State may by regulations make provision as to the manner of determining the amount of any compensation payable under this section, including the factors to be taken into account in determining that amount.

126 Appeals with respect to variations of consent

(1) The owner or occupier of any trade premises may—

(a) within two months of the giving to him under subsection (5) of section 124 above of a notice of a direction under that section; or

(b) with the written permission of the Director, at any later time,

appeal to the Director against the direction.

(2) Subject to subsection (3) below, if an appeal against a direction is brought under subsection (1) above before the date specified under section 124(6)(b) above in the notice of the direction, the direction shall not take effect until the appeal is withdrawn or finally disposed of.

(3) In so far as the direction which is the subject of an appeal relates to the making of charges payable by the occupier of any trade premises, it may take effect on any date after the giving of the notice.

(4) On an appeal under subsection (1) above with respect to a direction, the Director shall have power—

(a) to annul the direction given by the sewerage undertaker; and

(b) to substitute for it any other direction, whether more or less favourable to the appellant;

and any direction given by the Director may include provision as to the charges to be made for any period between the giving of the notice by the sewerage undertaker and the determination of the appeal.

(5) A person to whom notice is given in pursuance of section 125(3) above may, in accordance with regulations made by the Secretary of State, appeal to the Director against the notice on the ground that compensation should be paid in consequence of the direction to which the notice relates.

(6) On an appeal under subsection (5) above the Director may direct that section 125 above shall have effect as if the sewerage undertaker in question were not of the opinion to which the notice relates.

(7) Any consent given or conditions imposed by the Director under this section in respect of discharges of trade effluent shall have effect for the purposes of this Chapter as if given or imposed by the sewerage undertaker in question.

(8) The powers of the Director under this section shall be subject to the provisions of sections 133, 135 and 137 below.

127 Review by the Secretary of State of consents relating to special category effluent

(1) Where any person, as the owner or occupier of any trade premises, is (whether or not in accordance with a notice under section 132 below) for the time being authorised by virtue of a consent under this Chapter to make discharges of any special category effluent from those premises into a sewerage undertaker’s public sewer, the Secretary of State may review the questions—

(a) whether the discharges authorised by the consent should be prohibited; and

(b) whether, if they are not prohibited, any requirements should be imposed as to the conditions on which they are made.

(2) Subject to subsection (3) below, the Secretary of State shall not review any question under this section unless—

(a) the consent or variation by virtue of which the discharges in question are made has not previously been the subject-matter of a review and was given or made—

(i) before 1st September 1989; or

(ii) in contravention of section 133 below;

(b) a period of more than two years has elapsed since the time, or last time, when notice of the Secretary of State’s determination on any reference or review relating to that consent or the consent to which that variation relates was served under section 132 below on the owner or occupier of the trade premises in question; or

(c) there has, since the time, or last time, when such a notice was so served, been a contravention of any provision which was included in compliance with a requirement of a notice under section 132 below in the consent or variation by virtue of which the discharges in question are made.

(3) Subsection (2) above shall not apply if the review is carried out—

(a) for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any Community obligation or to any international agreement to which the United Kingdom is for the time being a party; or

(b) for the protection of public health or of flora and fauna dependent on an aquatic environment.

Application for variation of time for discharge

128 Application for variation of time for discharge

(1) If, after a direction has been given under any of the preceding provisions of this Chapter requiring that trade effluent shall not be discharged until a specified date, it appears to the sewerage undertaker in question that in consequence—

(a) of a failure to complete any works required in connection with the reception and disposal of the trade effluent; or

(b) of any other exceptional circumstances,

a later date ought to be substituted for the date so specified in the direction, the undertaker may apply to the Director for such a substitution.

(2) The Director shall have power, on an application under subsection (1) above, to vary the direction so as to extend the period during which the trade effluent may not be discharged until the date specified in the application or, if he thinks fit, any earlier date.

(3) Not less than one month before making an application under subsection (1) above a sewerage undertaker shall give notice of its intention to the owner and occupier of the trade premises from which the trade effluent is to be discharged.

(4) The Director, before varying a direction on an application under subsection (1) above, shall take into account any representations made to him by the owner or occupier of the trade premises in question.

Agreements with respect the disposal etc. of trade effluent

129 Agreements with respect to the disposal etc of trade effluent

(1) Subject to sections 130 and 133 below, a sewerage undertaker may enter into and carry into effect—

(a) an agreement with the owner or occupier of any trade premises within its area for the reception and disposal by the undertaker of any trade effluent produced on those premises;

(b) an agreement with the owner or occupier of any such premises under which it undertakes, on such terms as may be specified in the agreement, to remove and dispose of substances produced in the course of treating any trade effluent on or in connection with those premises.

(2) Without prejudice to the generality of subsection (1) above, an agreement such as is mentioned in paragraph (a) of that subsection may, in particular, provide—

(a) for the construction or extension by the sewerage undertaker of such works as may be required for the reception or disposal of the trade effluent; and

(b) for the repayment by the owner or occupier, as the case may be, of the whole or part of the expenses incurred by the undertaker in carrying out its obligations under the agreement.

(3) It is hereby declared that the power of a sewerage undertaker to enter into an agreement under this section includes a power, by that agreement, to authorise such a discharge as apart from the agreement would require a consent under this Chapter.

130 Reference to the Secretary of State of agreements relating to special category effluent

(1) Where a sewerage undertaker and the owner or occupier of any trade premises are proposing to enter into an agreement under section 129 above with respect to, or to any matter connected with, the reception or disposal of any special category effluent, it shall be the duty of the undertaker to refer to the Secretary of State the questions—

(a) whether the operations which would, for the purposes of or in connection with the reception or disposal of that effluent, be carried out in pursuance of the proposed agreement should be prohibited; and

(b) whether, if they are not prohibited, any requirements should be imposed as to the conditions on which they are carried out.

(2) It shall be the duty of a sewerage undertaker where it has made a reference under this section not to give any consent or enter into any agreement with respect to any such operations as are mentioned in subsection (1)(a) above at any time before the Secretary of State serves notice on the undertaker of his determination on the reference.

(3) Every reference under this section shall be made in writing and shall be accompanied by a copy of the proposed agreement.

(4) It shall be the duty of a sewerage undertaker, on making a reference under this section, to serve a copy of the reference on the owner or the occupier of the trade premises in question, according to whether it is the owner or occupier who is proposing to be a party to the agreement.

(5) Subject to subsection (6) below, the duties of a sewerage undertaker under this section shall be enforceable under section 18 above by the Secretary of State.

(6) Where an application is made to the Secretary of State under section 18 above in respect of a failure by a sewerage undertaker to make a reference under this section, the Secretary of State may, instead of making an order under that section, proceed with the matter as if the application were the reference.

131 Review by the Secretary of State of agreements relating to special category effluent

(1) Where any person, as the owner or occupier of any trade premises, is (whether or not in accordance with a notice under section 132 below) for the time being a party to any agreement under section 129 above with respect to, or to any matter connected with, the reception or disposal of special category effluent, the Secretary of State may review the questions—

(a) whether the operations which, for the purposes of or in connection with the reception or disposal of that effluent, are carried out in pursuance of the agreement should be prohibited; and

(b) whether, if they are not prohibited, any requirements should be imposed as to the conditions on which they are carried out.

(2) Subject to subsection (3) below, the Secretary of State shall not review any question under this section unless—

(a) the agreement by virtue of which the operations in question are carried out has not previously been the subject-matter of a review and was entered into—

(i) before 1st September 1989; or

(ii) in contravention of section 133 below;

(b) a period of more than two years has elapsed since the time, or last time, when notice of the Secretary of State’s determination on any reference or review relating to that agreement was served under section 132 below on the owner or occupier of the trade premises in question; or

(c) there has, since the time, or last time, when such a notice was so served, been a contravention of any provision which was included in compliance with a requirement of a notice under section 132 below in the agreement by virtue of which the operations in question are carried out.

(3) Subsection (2) above shall not apply if the review is carried out—

(a) for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any Community obligation or to any international agreement to which the United Kingdom is for the time being a party; or

(b) for the protection of public health or of flora and fauna dependent on an aquatic environment.

(4) References in this section to an agreement include references to an agreement as varied from time to time by a notice under section 132 below.

References and reviews relating to special category effluent

132 Powers and procedure on references and reviews

(1) This section applies to—

(a) any reference to the Secretary of State under section 120, 123 or 130 above; and

(b) any review by the Secretary of State under section 127 or 131 above.

(2) On a reference or review to which this section applies, it shall be the duty of the Secretary of State, before determining the questions which are the subject-matter of the reference or review—

(a) to give an opportunity of making representations or objections to the Secretary of State—

(i) to the sewerage undertaker in question; and

(ii) to the following person, that is to say, the owner or the occupier of the trade premises in question, according to whether it is the owner or the occupier of those premises who is proposing to be, or is, the person making the discharges or, as the case may be, a party to the agreement;

and

(b) to consider any representations or objections which are duly made to him with respect to those questions by a person to whom he is required to give such an opportunity and which are not withdrawn.

(3) On determining any question on a reference or review to which this section applies, the Secretary of State shall serve notice on the sewerage undertaker in question and on the person specified in subsection (2)(a)(ii) above.

(4) A notice under this section shall state, according to what has been determined–

(a) that the discharges or operations to which, or to the proposals for which, the reference or review relates, or such of them as are specified in the notice, are to be prohibited; or

(b) that those discharges or operations, or such of them as are so specified, are to be prohibited except in so far as they are made or carried out in accordance with conditions which consist in or include conditions so specified; or

(c) that the Secretary of State has no objection to those discharges or operations and does not intend to impose any requirements as to the conditions on which they are made or carried out.

(5) Without prejudice to section 133 below, a notice under this section, in addition to containing such provision as is specified in sub-paragraph (4) above, may do one or both of the following, that is to say—

(a) vary or revoke the provisions of a previous notice with respect to the discharges or operations in question; and

(b) for the purpose of giving effect to any prohibition or other requirement contained in the notice, vary or revoke any consent under this Chapter or any agreement under section 129 above.

(6) Nothing in subsection (1) or (2) of section 121 above shall be construed as restricting the power of the Secretary of State, by virtue of subsection (4)(b) above, to specify such conditions as he considers appropriate in a notice under this section.

(7) The Secretary of State shall have the same right of entry and other powers for the purposes of this section and any provision under which any reference or review to which this section applies is made as are conferred on a sewerage undertaker by section 171 below in relation to any other provision of this Chapter; and the provisions of that section accordingly have effect with the necessary modifications in relation to the power conferred by this subsection.

(8) The Secretary of State shall send a copy of every notice served under this section to the Director.

133 Effect of determination on reference or review

(1) Where a notice under section 132 above has been served on a sewerage undertaker, it shall be the duty—

(a) of the undertaker; and

(b) in relation to that undertaker, of the Director,

so to exercise the powers to which this section applies as to secure compliance with the provisions of the notice.

(2) This paragraph applies to the following powers, that is to say–

(a) in relation to a sewerage undertaker, its power to give a consent under this Chapter, any of its powers under section 121 or 124 above and any power to enter into or vary an agreement under section 129 above; and

(b) in relation to the Director, any of his powers under this Chapter.

(3) Nothing in subsection (1) or (2) of section 121 above shall be construed as restricting the power of a sewerage undertaker, for the purpose of complying with this section, to impose any condition specified in a notice under section 132 above.

(4) The duties of a sewerage undertaker under this section shall be enforceable under section 18 above by the Secretary of State.

134 Compensation in respect of determinations made for the protection of public health etc

(1) Subject to subsection (2) below, the Secretary of State shall be liable to pay compensation to the relevant person in respect of any loss or damage sustained by that person as a result of any notice under section 132 above containing the Secretary of State’s determination on a review which—

(a) has been carried out for the protection of public health or of flora and fauna dependent on an aquatic environment; and

(b) but for being so carried out would have been prohibited by virtue of section 127(2) or 131(2) above.

(2) The Secretary of State shall not be required to pay any compensation under this section if the determination in question is shown to have been given in consequence of—

(a) a change of circumstances which could not reasonably have been foreseen at the time when the period of two years mentioned in section 127(2) or, as the case may be, section 131(2) above began to run; or

(b) consideration by the Secretary of State of material information which was not reasonably available to him at that time.

(3) No person shall be entitled to any compensation under section 125 above in respect of anything done in pursuance of section 133 above.

(4) In this section “the relevant person”, in relation to a review, means the owner or the occupier of the trade premises in question, according to whether it is the owner or the occupier who makes the discharges to which the review relates or, as the case may be, is a party to the agreement to which it relates.

Supplemental provisions of Chapter III

135 Restrictions on power to fix charges under Chapter III

(1) On any appeal under section 122 or 126(1) above conditions providing for the payment of charges to the sewerage undertaker in question shall not be determined by the Director except in so far as no provision is in force by virtue of a charges scheme under section 143 below in respect of any such receptions, discharges, removals or disposals of effluent or substances as are of the same description as the reception, discharge, removal or disposal which is the subject-matter of the appeal.

(2) In so far as any such conditions as are mentioned in subsection (1) above do fall to be determined by the Director, they shall be determined having regard to the desirability of that undertaker's—

(a) recovering the expenses of complying with its obligations in consequence of the consent or agreement to which the conditions relate; and

(b) securing a reasonable return on its capital.

(3) To the extent that subsection (1) above excludes any charges from a determination on an appeal those charges shall be fixed from time to time by a charges scheme under section 143 below but not otherwise.

136 Evidence from meters etc

Any meter or apparatus provided in pursuance of this Chapter in any trade premises for the purpose of measuring, recording or determining the volume, rate of discharge, nature or composition of any trade effluent discharged from those premises shall be presumed in any proceedings to register accurately, unless the contrary is shown.

137 Statement of case on appeal

(1) At any stage of the proceedings on an appeal under section 122 or 126(1) above, the Director may, and if so directed by the High Court shall, state in the form of a special case for the decision of the High Court any question of law arising in those proceedings.

(2) The decision of the High Court on a special case under this section shall be deemed to be a judgment of the Court within the meaning of section 16 of the [1981 c. 54.] Supreme Court Act 1981 (which relates to the jurisdiction of the Court of Appeal); but no appeal to the Court of Appeal shall be brought by virtue of this subsection except with the leave of the High Court or of the Court of Appeal.

138 Meaning of “special category effluent”

(1) Subject to subsection (2) below, trade effluent shall be special category effluent for the purposes of this Chapter if—

(a) such substances as may be prescribed under this Act are present in the effluent or are present in the effluent in prescribed concentrations; or

(b) the effluent derives from any such process as may be so prescribed or from a process involving the use of prescribed substances or the use of such substances in quantities which exceed the prescribed amounts.

(2) Trade effluent shall not be special category effluent for the purposes of this Chapter if it is produced, or to be produced, in any process which is a prescribed process designated for central control as from the date which is the determination date for that process.

(3) In subsection (2) above “determination date”, in relation to a prescribed process, means—

(a) in the case of a process for which authorisation is granted, the date on which the enforcing authority grants it, whether in pursuance of the application or, on an appeal, of a direction to grant it;

(b) in the case of a process for which authorisation is refused, the date of refusal or, on appeal, of the affirmation of the refusal.

(4) In this section—

(a) “authorisation”, “enforcing authority” and “prescribed process” have the meanings given by section 1 of the [1990 c. 43.] Environmental Protection Act 1990; and

(b) the references to designation for central control and to an appeal are references, respectively, to designation under section 4 of that Act and to an appeal under section 15 of that Act.

(5) Without prejudice to the power in subsection (3) of section 139 below, nothing in this Chapter shall enable regulations under this section to prescribe as special category effluent any liquid or matter which is not trade effluent but falls to be treated as such for the purposes of this Chapter by virtue of an order under that section.

139 Power to apply Chapter III to other effluents

(1) The Secretary of State may by order provide that, subject to section 138(5) above, this Chapter shall apply in relation to liquid or other matter of any description specified in the order which is discharged into public sewers as it applies in relation to trade effluent.

(2) An order applying the provisions of this Chapter in relation to liquid or other matter of any description may provide for it to so apply subject to such modifications (if any) as may be specified in the order and, in particular, subject to any such modification of the meaning for the purposes of this Chapter of the expression “trade premises” as may be so specified.

(3) The Secretary of State may include in an order under this section such provisions as appear to him expedient for modifying any enactment relating to sewage as that enactment applies in relation to the discharge into sewers of any liquid or other matter to which any provisions of this Chapter are applied by an order under this section.

(4) The Secretary of State may include in an order under this section such other supplemental, incidental and transitional provision as appears to him to be expedient.

(5) The power to make an order under this section shall be exercisable by statutory instrument; and no order shall be made under this section unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

140 Pre-1989 Act authority for trade effluent discharges etc

Schedule 8 to this Act shall have effect (without prejudice to the provisions of the [1991 c. 60.] Water Consolidation (Consequential Provisions) Act 1991 or to sections 16 and 17 of the [1978 c. 30.] Interpretation Act 1978) for the purpose of making provision in respect of certain cases where trade effluent was discharged in accordance with provision made before the coming into force of the [1989 c. 15.] Water Act 1989.

Interpretation of Chapter III

141 Interpretation of Chapter III

(1) In this Chapter, except in so far as the context otherwise requires—

• “special category effluent” has the meaning given by section 138 above;

• “trade effluent”—

  (a)

  means any liquid, either with or without particles of matter in suspension in the liquid, which is wholly or partly produced in the course of any trade or industry carried on at trade premises; and

  (b)

  in relation to any trade premises, means any such liquid which is so produced in the course of any trade or industry carried on at those premises,

  but does not include domestic sewage;

• “trade premises” means, subject to subsection (2) below, any premises used or intended to be used for carrying on any trade or industry.

(2) For the purposes of this Chapter any land or premises used or intended for use (in whole or in part and whether or not for profit)—

(a) for agricultural or horticultural purposes or for the purposes of fish farming; or

(b) for scientific research or experiment,

shall be deemed to be premises used for carrying on a trade or industry; and the references to a trade or industry in the definition of “trade effluent” in subsection (1) above shall include references to agriculture, horticulture, fish farming and scientific research or experiment.

(3) Every application or consent made or given under this Chapter shall be made or given in writing.

(4) Nothing in this Chapter shall affect any right with respect to water in a river stream or watercourse, or authorise any infringement of such a right, except in so far as any such right would dispense with the requirements of this Chapter so far as they have effect by virtue of any regulations under section 138 above.