Water Industry Act 1991 (c. 56)

Part I E+W PRELIMINARY

General duties E+W

2 General duties with respect to water industry. E+W

(1) This section shall have effect for imposing duties on the Secretary of State and on the Director as to when and how they should exercise and perform [F1 the following powers and duties, that is to say—

(a) in the case of the Secretary of State, the powers and duties conferred or imposed on him by virtue of the provisions of this Act relating to the regulation of relevant undertakers [F2 and of licensed water suppliers]; and

(b) in the case of the Director, the powers and duties conferred or imposed on him by virtue of any of those provisions, by the provisions relating to the financial conditions of requisitions or by the provisions relating to the movement of certain pipes][F1 the powers and duties conferred or imposed on the Secretary of State or the Authority by virtue of any of the relevant provisions.]

[F3 (2A) The Secretary of State or, as the case may be, the Authority shall exercise and perform the powers and duties mentioned in subsection (1) above in the manner which he or it considers is best calculated—

(a) to further the consumer objective;

(b) to secure that the functions of a water undertaker and of a sewerage undertaker are properly carried out as respects every area of England and Wales;

(c) to secure that companies holding appointments under Chapter 1 of Part 2 of this Act as relevant undertakers are able (in particular, by securing reasonable returns on their capital) to finance the proper carrying out of those functions; F4 ...

(d) to secure that the activities authorised by the licence [F5 of a water supply licensee or sewerage licensee] and any statutory functions imposed on it in consequence of the licence are properly carried out[F6 ; and

(e) to further the resilience objective.]

(2B) The consumer objective mentioned in subsection (2A)(a) above is to protect the interests of consumers, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the provision of water and sewerage services.

(2C) For the purposes of subsection (2A)(a) above the Secretary of State or, as the case may be, the Authority shall have regard to the interests of—

(a) individuals who are disabled or chronically sick;

(b) individuals of pensionable age;

(c) individuals with low incomes;

(d) individuals residing in rural areas; and

(e) customers, of companies holding an appointment under Chapter 1 of Part 2 of this Act, whose premises are not eligible to be supplied by a licensed water supplier,

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(2D) For the purposes of subsection (2C) above, premises are not eligible to be supplied by a licensed water supplier if—

(a) they are household premises (as defined in section 17C below); or

(b) the total quantity of water estimated to be supplied to the premises annually for the purposes of subsection (2) of section 17D below is less than the quantity specified in that subsection.

[F7 (2DA) The resilience objective mentioned in subsection (2A)(e) is—

(a) to secure the long-term resilience of water undertakers' supply systems and sewerage undertakers' sewerage systems as regards environmental pressures, population growth and changes in consumer behaviour, and

(b) to secure that undertakers take steps for the purpose of enabling them to meet, in the long term, the need for the supply of water and the provision of sewerage services to consumers,

including by promoting—

(i) appropriate long-term planning and investment by relevant undertakers, and

(ii) the taking by them of a range of measures to manage water resources in sustainable ways, and to increase efficiency in the use of water and reduce demand for water so as to reduce pressure on water resources.

(2DB) For the purposes of subsection (2DA)—

(a) the reference to water undertakers' supply systems is to be construed in accordance with section 17B;

(b) the reference to sewerage undertakers' sewerage systems is [F8 to be construed in accordance with section 17BA(7).]]

(2E) The Secretary of State and the Authority may, in exercising any of the powers and performing any of the duties mentioned in subsection (1) above, have regard to—

(a) any interests of consumers in relation to electricity conveyed by distribution systems (within the meaning of the Electricity Act 1989);

(b) any interests of consumers in relation to gas conveyed through pipes (within the meaning of the Gas Act 1986);

(c) any interests of consumers in relation to communications services and electronic communications apparatus (within the meaning of the Communications Act 2003),

which are affected by the exercise of that power or the performance of that duty.]

[F9 (3) Subject to subsection (2A) above, the Secretary of State or, as the case may be, the Authority shall exercise and perform the powers and duties mentioned in subsection (1) above in the manner which he or it considers is best calculated—

(a) to promote economy and efficiency on the part of companies holding an appointment under Chapter 1 of Part 2 of this Act in the carrying out of the functions of a relevant undertaker;

(b) to secure that no undue preference is shown, and that there is no undue discrimination in the fixing by such companies of water and drainage charges;

[F10 (ba) to secure that no undue preference (including for itself) is shown, and that there is no undue discrimination, in the doing by such a company of—

(i) such things as relate to the provision of services by itself or another such company, or

(ii) such things as relate to the provision of services by a water supply licensee or a sewerage licensee;]

(c) to secure that consumers are protected as respects benefits that could be secured for them by the application in a particular manner of any of the proceeds of any disposal (whenever made) of any of such a company’s protected land or of an interest or right in or over any of that land;

(d) to ensure that consumers are also protected as respects any activities of such a company which are not attributable to the exercise of functions of a relevant undertaker, or as respects any activities of any person appearing to the Secretary of State or (as the case may be) the Authority to be connected with the company, and in particular by ensuring—

(i) that any transactions are carried out at arm’s length;

(ii) that the company, in relation to the exercise of its functions as a relevant undertaker, maintains and presents accounts in a suitable form and manner;

F11 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) to contribute to the achievement of sustainable development.

(4) In exercising any of the powers or performing any of the duties mentioned in subsection (1) above in accordance with the preceding provisions of this section, the Secretary of State and the Authority shall have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed).]

(5) In this section the references to water and drainage charges are references to—

(a) any charges in respect of any services provided in the course of the carrying out of the functions of a relevant undertaker; and

(b) amounts of any other description which such an undertaker is authorised by or under any enactment to require any of its customers or potential customers to pay.

[F12 (5A) In this section—

• “consumers” includes both existing and future consumers; and

• “the interests of consumers” means the interests of consumers in relation to—

  (a)

  the supply of water by means of a water undertaker’s supply system to premises either by water undertakers or by [F13 water supply licensees] acting in their capacity as such; and

  (b)

  the provision of sewerage services [F14 either by sewerage undertakers or by sewerage licensees acting in their capacity as such.]]

(6) For the purposes of this section—

[F15 (a) subject to subsection (6A) below, the reference in subsection (1) above to [F16 the provisions of this Act relating to the regulation of relevant undertakers and of licensed water suppliers] [F16 the relevant provisions] is a reference to the provisions [F17 contained in Part 2 of this Act (except section 27A, and Schedule 3A), or in any of sections 37A to 38, 39, 39B, 39C, 66B, 66D, 66F to 66H, 66K, 66L, 95, 96, 153, 181, 182, 192A, 192B, 195, 195A and 201 to 203 below;] [F17 contained in—

(i) Part 2 of this Act (except section 27A and Schedule 3A),

(ii) any of sections 37A to 38, 38ZA, 39, 39ZA, 39B to 39D, 40E to 40J, 42, 51CD to 51CG, 63AC to 63AF, 66B, 66CA to 66H, 66K, 66L, 66O(2), 95, 95ZA, 96, 96ZA, 99, 105ZF to 105ZI, 110F to 110J, 110L to 110O, 117E to 117O, 117R, 117S, 143B to 143E, 144ZA to 144ZF, 153, 181, 182, 185, 192A, 192B, 195, 195A and 201 to 203 below, and

(iii) any of sections 42 to 54 of the Water Act 2014.]

(b) [F18 the reference in that subsection to the provisions relating to the financial conditions of requisitions is a reference to the provisions contained in sections 42, 43, 43A, 48, 51C, 99, 100 and 100A below; and]]

(c) [F19 the reference in that subsection to the provisions relating to the movement of certain pipes is a reference to the provisions of section 185 below.]

F20 [(6A) [F21 Subsections (2A) to (4) above and [F22 sections 2A and 2B] below] do not apply in relation to anything done by the Director in the exercise of functions assigned to him by section 31(3) below (“Competition Act functions”).

(6B) The Director may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of [F23 subsections (2A) to (4) above and [F24 sections 2A and 2B] below] , if it is a matter to which [F25 the CMA] could have regard when exercising that function.]

[F26 (7) The duties imposed by subsections (2A) to (4) above and [F27 sections 2A and 2B] below do not affect the obligation of the Authority or, as the case may be, the Secretary of State to perform or comply with any other duty or requirement (whether arising under this Act or another enactment, by virtue of any [F28 EU] obligation or otherwise).]

Textual Amendments

F1 Words in s. 2(1) substituted (15.7.2015 for specified purposes, 1.9.2015 for specified purposes, 1.11.2015 for specified purposes, 18.12.2015 for specified purposes, 1.4.2016 for specified purposes, 1.9.2016 for specified purposes, 1.11.2016 for specified purposes) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(2); S.I. 2015/1469, arts. 2(f)(ii), 3(f)(ii), 4(c)(ii); S.I. 2015/1938, art. 2(g)(ii); S.I. 2016/465, arts. 2(m), 3(g)(ii), Sch. 1 para. 1(c)(iv) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16); S.I. 2016/1007, art. 2(h)(aa)(ii)

F2 Words in s. 2(1)(a) inserted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(2), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F3 S. 2(2A)-(2E) substituted (1.4.2005) for s. 2(2) by Water Act 2003 (c. 37), ss. 39(3), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F4 Word in s. 2(2A)(c) omitted (14.7.2014 for specified purposes, 18.12.2015 in so far as not already in force) by virtue of Water Act 2014 (c. 21), ss. 22(2)(a), 94(2)(e); S.I. 2015/1938, art. 2(e)

F5 Words in s. 2(2A)(d) substituted (1.4.2016) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(3); S.I. 2016/465, art. 2(m), Sch. 1 para. 1(c)(ii) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

F6 S. 2(2A)(e) and word inserted (14.7.2014 for specified purposes, 18.12.2015 in so far as not already in force) by Water Act 2014 (c. 21), ss. 22(2)(b), 94(2)(e); S.I. 2015/1938, art. 2(e)

F7 S. 2(2DA)(2DB) inserted (14.7.2014 for specified purposes, 18.12.2015 in so far as not already in force) by Water Act 2014 (c. 21), ss. 22(3), 94(2)(e); S.I. 2015/1938, art. 2(e)

F8 Words in s. 2(2DB)(b) substituted (1.4.2016) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(6); S.I. 2016/465, art. 2(m), Sch. 1 para. 1(c)(ii) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

F9 S. 2(3)(4) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(4), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F10 S. 2(3)(ba) inserted (1.1.2015 for W. for specified purposes, 6.4.2015 for W. for specified purposes, 1.4.2016 for E. in so far as not already in force) by Water Act 2014 (c. 21), ss. 23, 94(3); S.I. 2014/3320, art. 2(1)(a) (with art. 3); S.I. 2015/773, art. 2(3)(a) (with art. 6); S.I. 2016/465, art. 2(e) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

F11 S. 2(3)(d)(iii) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(2), Sch. 21 para. 4

F12 S. 2(5A) inserted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(5), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F13 Words in s. 2(5A)(a) substituted (1.4.2016) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(7)(a); S.I. 2016/465, art. 2(m), Sch. 1 para. 1(c)(ii) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

F14 Words in s. 2(5A)(b) substituted (1.4.2016) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(7)(b); S.I. 2016/465, art. 2(m), Sch. 1 para. 1(c)(ii) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

F15 S. 2(6)(a)(b) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(6), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F16 Words in s. 2(6)(a) substituted (15.7.2015 for specified purposes, 1.9.2015 for specified purposes, 1.11.2015 for specified purposes, 18.12.2015 for specified purposes, 1.4.2016 for specified purposes, 1.9.2016 for specified purposes, 1.11.2016 for specified purposes) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(8)(a); S.I. 2015/1469, arts. 2(f)(ii), 3(f)(ii), 4(c)(ii); S.I. 2015/1938, art. 2(g)(ii); S.I. 2016/465, arts. 2(m), 3(g)(ii), Sch. 1 para. 1(c)(iv) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16); S.I. 2016/1007, art. 2(h)(aa)(ii)

F17 Words in s. 2(6)(a) substituted (15.7.2015 for specified purposes, 1.9.2015 for specified purposes, 1.11.2015 for specified purposes, 18.12.2015 for specified purposes, 1.4.2016 for specified purposes, 1.9.2016 for specified purposes, 1.11.2016 for specified purposes) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(8)(b); S.I. 2015/1469, arts. 2(f)(i), 3(f)(i), 4(c)(i); S.I. 2015/1938, art. 2(g)(i); S.I. 2016/465, arts. 2(m), 3(g)(i), Sch. 1 para. 1(c)(iii) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16); S.I. 2016/1007, art. 2(h)(bb)(ii)

F18 S. 2(6)(b) repealed (15.7.2015 for specified purposes, 1.9.2015 for specified purposes, 1.11.2015 for specified purposes, 18.12.2015 for specified purposes, 1.4.2016 for specified purposes, 1.9.2016 for specified purposes, 1.11.2016 for specified purposes) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(8)(c); S.I. 2015/1469, arts. 2(f)(ii), 3(f)(ii), 4(c)(ii); S.I. 2015/1938, art. 2(g)(ii); S.I. 2016/465, arts. 2(m), 3(g)(ii), Sch. 1 para. 1(c)(iv) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16); S.I. 2016/1007, art. 2(h)(aa)(ii)

F19 S. 2(6)(c) repealed (15.7.2015 for specified purposes, 1.9.2015 for specified purposes, 1.11.2015 for specified purposes, 18.12.2015 for specified purposes, 1.4.2016 for specified purposes, 1.9.2016 for specified purposes, 1.11.2016 for specified purposes) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 3(8)(c); S.I. 2015/1469, arts. 2(f)(ii), 3(f)(ii), 4(c)(ii); S.I. 2015/1938, art. 2(g)(ii); S.I. 2016/465, arts. 2(m), 3(g)(ii), Sch. 1 para. 1(c)(iv) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16); S.I. 2016/1007, art. 2(h)(aa)(ii)

F20 S. 2(6A)(6B) inserted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 54(3), Sch. 10 Pt. II para. 5(4) (with s. 73); S.I. 1998/2750, art. 2(1); S.I. 2000/344, art. 2, Sch.

F21 Words in s. 2(6A) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(7), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F22 Words in s. 2(6A) substituted (6.4.2015) by Water Act 2014 (c. 21), ss. 24(2), 94(3); S.I. 2015/773, art. 2(1)(c) (with art. 4)

F23 Words in s. 2(6B) substituted (1.4.2005) by Water Act 2003 (c. 37), ss. 39(8), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F24 Words in s. 2(6B) substituted (6.4.2015) by Water Act 2014 (c. 21), ss. 24(2), 94(3); S.I. 2015/773, art. 2(1)(c) (with art. 4)

F25 Words in s. 2(6B) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 74 (with art. 3)

F26 S. 2(7) added (1.4.2005) by Water Act 2003 (c. 37), ss. 39(9), 105(3); S.I. 2005/968, art. 2(f) (with savings in art. 4, Schs. 1, 2)

F27 Words in s. 2(7) substituted (6.4.2015) by Water Act 2014 (c. 21), ss. 24(2), 94(3); S.I. 2015/773, art. 2(1)(c) (with art. 4)

F28 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5))

Modifications etc. (not altering text)

C1 S. 2 applied (with modifications) (28.6.2013) by The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 (S.I. 2013/1582), regs. 1(1)(b), 3(3) (with regs. 1(1)(c), 3(2)(5))

[F29 2A Strategic priorities and objectives: England E+W

(1) The Secretary of State may from time to time publish a statement setting out strategic priorities and objectives for the Authority in carrying out relevant functions relating wholly or mainly to England.

(2) The Authority must carry out those functions in accordance with any statement published under this section.

(3) In formulating a statement under this section, the Secretary of State—

(a) must have regard to the duties imposed on the Authority under section 2,

(b) must have regard to social and environmental matters, and

(c) may have regard to such other matters as the Secretary of State thinks fit.

(4) Before publishing a statement under this section, the Secretary of State must consult—

(a) the Authority,

(b) the Council,

(c) relevant undertakers,

(d) [F30 water supply licensees and sewerage licensees],

(e) the Environment Agency,

(f) the Welsh Ministers,

(g) the NRBW, and

(h) anyone else the Secretary of State thinks appropriate.

(5) Before publishing a statement under this section the Secretary of State must—

(a) lay a draft of the statement before Parliament, and

(b) then wait until the end of the 40-day period.

(6) The Secretary of State may not publish the statement under this section if, within the 40-day period, either House of Parliament resolves not to approve it.

(7) “The 40-day period” means the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).

(8) When calculating the 40-day period, ignore any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

(9) In this section “relevant functions relating wholly or mainly to England” means the functions mentioned in section 2(1)(b) so far as they relate to appointment areas wholly or mainly in England.

(10) In subsection (9) “appointment area” means an area for which an appointment is held under Chapter 1 of Part 2.]

Textual Amendments

F29 Ss. 2A, 2B substituted for s. 2A (6.4.2015) by Water Act 2014 (c. 21), ss. 24(1), 94(3); S.I. 2015/773, art. 2(1)(c) (with art. 4)

F30 Words in s. 2A(4)(d) substituted (1.4.2016) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 4; S.I. 2016/465, art. 2(m), Sch. 1 para. 1(d) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

[F29 2B Strategic priorities and objectives: Wales E+W

(1) The Welsh Ministers may from time to time publish a statement setting out strategic priorities and objectives for the Authority in carrying out relevant functions relating wholly or mainly to Wales.

(2) The Authority must carry out those functions in accordance with any statement published under this section.

(3) In formulating a statement under this section the Welsh Ministers—

(a) must have regard to the duties imposed on the Authority under section 2,

(b) must have regard to social and environmental matters, and

(c) may have regard to such other matters as the Welsh Ministers think fit.

(4) Before publishing a statement under this section, the Welsh Ministers must consult—

(a) the Authority,

(b) the Council,

(c) relevant undertakers,

(d) [F31 water supply licensees],

(e) the NRBW,

(f) the Secretary of State,

(g) the Environment Agency, and

(h) anyone else the Welsh Ministers think appropriate.

(5) Before publishing a statement under this section the Welsh Ministers must—

(a) lay a draft of the statement before the Assembly, and

(b) then wait until the end of the 40-day period.

(6) The Welsh Ministers may not publish the statement under this section if, within the 40-day period, the Assembly resolves not to approve it.

(7) “The 40-day period” means the period of 40 days beginning with the day on which the draft is laid before the Assembly.

(8) When calculating the 40-day period, ignore any period during which the Assembly is dissolved or is in recess for more than 4 days.

(9) In this section “relevant functions relating wholly or mainly to Wales” means the functions mentioned in section 2(1)(b) so far as they relate to appointment areas wholly or mainly in Wales.

(10) In subsection (9) “appointment area” means an area for which an appointment is held under Chapter 1 of Part 2.]

Textual Amendments

F29 Ss. 2A, 2B substituted for s. 2A (6.4.2015) by Water Act 2014 (c. 21), ss. 24(1), 94(3); S.I. 2015/773, art. 2(1)(c) (with art. 4)

F31 Words in s. 2B(4)(d) substituted (1.4.2016) by Water Act 2014 (c. 21), s. 94(3), Sch. 7 para. 5; S.I. 2016/465, art. 2(m), Sch. 1 para. 1(d) (with Sch. 2) (as amended (22.3.2017) by S.I. 2017/462, art. 16)

3 General environmental and recreational duties. E+W

(1) It shall be the duty of each of the following, that is to say—

(a) the Secretary of State;

(b) F32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) [F33 the Authority]; and

(d) every company holding an appointment as a relevant undertaker,

in formulating or considering any proposals relating to any functions of a relevant undertaker (including, in the case of such a company, any functions which, by virtue of that appointment, are functions of the company itself) to comply with the requirements imposed in relation to the proposals by subsections (2) and (3) below.

(2) The requirements imposed by this subsection in relation to any such proposals as are mentioned in subsection (1) above are—

(a) a requirement, so far as may be consistent—

(i) with the purposes of any enactment relating to the functions of the undertaker; and

(ii) in the case of the Secretary of State and [F33 the Authority], with their duties under section 2 above,

so to exercise any power conferred with respect to the proposals on the person subject to the requirement as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest [F34 and, in the case of the exercise of such a power by a company holding an appointment as a relevant undertaker, as to further water conservation] ;

(b) a requirement to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest; and

(c) a requirement to take into account any effect which the proposals would have on the beauty or amenity of any rural or urban area or on any such flora, fauna, features, buildings, sites or objects.

(3) The requirements imposed by this subsection in relation to any such proposals as are mentioned in subsection (1) above are, subject to the requirements imposed by subsection (2) above—

(a) a requirement to have regard to the desirability of preserving for the public any freedom of access to areas of woodland, mountains, moor, heath, down, cliff or foreshore and other places of natural beauty;

(b) a requirement to have regard to the desirability of maintaining the availability to the public of any facility for visiting or inspecting any building, site or object of archaeological, architectural or historic interest; and

(c) a requirement to take into account any effect which the proposals would have on any such freedom of access or on the availability of any such facility.

(4) Subsections (1) to (3) above shall apply so as to impose duties on [F33 the Authority] and any company holding an appointment as a relevant undertaker in relation to any proposal relating to—

(a) the functions of [F35 the Environment Agency]; F36 ...

[F37 (aa) the functions of the NRBW; or]

(b) the functions of an internal drainage board,

as they apply in relation to any proposals relating to the functions of such an undertaker; and for the purposes of this subsection the reference in subsection (2)(a) above to the functions of the undertaker shall have effect as a reference to the functions of [F38 the Environment Agency] [F39 , the NRBW,] or, as the case may be, of the internal drainage board in question.

(5) Subject to obtaining the consent of any navigation authority, harbour authority or conservancy authority before doing anything which causes navigation which is subject to the control of that authority to be obstructed or otherwise interfered with, it shall be the duty of every company holding an appointment as a relevant undertaker to take such steps as are—

(a) reasonably practicable; and

(b) consistent with the purposes of the enactments relating to the functions of the undertaker in question,

for securing, so long as that company has rights to the use of water or land associated with water, that those rights are exercised so as to ensure that the water or land is made available for recreational purposes and is so made available in the best manner.

(6) It shall be the duty of a company holding an appointment as a relevant undertaker, in determining what steps to take in performance of any duty imposed by virtue of subsection (5) above, to take into account the needs of persons who are chronically sick or disabled.

(7) The obligations under this section of a company holding an appointment as a relevant undertaker shall be enforceable under section 18 below by the Secretary of State.

(8) Nothing in this section or the following provisions of this Act shall require recreational facilities made available by a relevant undertaker to be made available free of charge.

(9) References in this section to the functions of a relevant undertaker shall be construed, without prejudice to section 156(7) below, as if those functions included the management, by a company holding an appointment as such an undertaker, of any land for the time being held by that company for any purpose whatever (whether or not connected with the carrying out of the functions of a relevant undertaker).

(10) In this section “building” includes structure.

Textual Amendments

F32 S. 3(1)(b) repealed (27.3.2002) by The Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002 (S.I. 2002/794), art. 5(2), 6, Sch. 2

F33 Words in Act substituted (1.4.2006) by virtue of Water Act 2003 (c. 37), ss. 36(2), 105(3); S.I. 2005/2714, art. 4(c)

F34 Words in s. 3(2)(a) inserted (1.4.2004) by Water Act 2003 (c. 37), ss. 82, 105(3); S.I. 2004/641, art. 3(u) (with art. 6, Sch. 3)

F35 Words in s. 3(4) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 97 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F36 Word in s. 3(4)(a) omitted (1.4.2013) by virtue of The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 224(2) (with Sch. 7)

F37 S. 3(4)(aa) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 224(3) (with Sch. 7)

F38 Words in s. 3(4) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 97 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F39 Words in s. 3(4) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 224(4) (with Sch. 7)

4 Environmental duties with respect to sites of special interest. E+W

(1) Where [F40 Natural England] or [F41 the NRBW] are of the opinion that any area of land in England or, as the case may be, in Wales—

(a) is of special interest by reason of its flora, fauna or geological or physiographical features; and

(b) may at any time be affected by schemes, works, operations or activities of a relevant undertaker,

[F42 Natural England or (as the case may be) [F43 the NRBW]] shall notify the fact that the land is of special interest for that reason to every relevant undertaker whose works, operations or activities may affect the land.

(2) Where a National Park authority or the Broads Authority is of the opinion that any area of land in a National Park or in the Broads—

(a) is land in relation to which the matters for the purposes of which section 3 above has effect are of particular importance; and

(b) may at any time be affected by schemes, works, operations or activities of a relevant undertaker,

the National Park authority or Broads Authority shall notify the fact that the land is such land, and the reasons why those matters are of particular importance in relation to the land, to every relevant undertaker whose works, operations or activities may affect the land.

(3) Where a relevant undertaker has received a notification under subsection (1) or (2) above with respect to any land, that undertaker shall consult the notifying body before carrying out any works, operations or activities which appear to that undertaker to be likely—

(a) to destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; or

(b) significantly to prejudice anything the importance of which is one of the reasons why the matters mentioned in subsection (2) above are of particular importance in relation to that land.

(4) Subsection (3) above shall not apply in relation to anything done in an emergency where particulars of what is done and of the emergency are notified to [F44 Natural England], [F41 the NRBW], the National Park authority in question or, as the case may be, the Broads Authority as soon as practicable after that thing is done.

(5) The obligations under this section of a relevant undertaker shall be enforceable under section 18 below by the Secretary of State.

(6) In this section—

• “the Broads” has the same meaning as in the M1 Norfolk and Suffolk Broads Act 1988; F45 . . .

• F45 . . .

and section 3(9) above shall apply, as it applies in relation to that section, for construing (in accordance with section 6 below) any references in this section to a relevant undertaker.

Textual Amendments

F40 Words in s. 4(1) substituted (1.10.2006) by Natural Environment and Rural Communities Act 2006 (c. 16), ss. 105(1), 107, Sch. 11 para. 129(2)(a); S.I. 2006/2541, art. 2

F41 Words in s. 4 substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 225(2) (with Sch. 7)

F42 Words in s. 4(1) substituted (1.10.2006) by Natural Environment and Rural Communities Act 2006 (c. 16), ss. 105(1), 107, Sch. 11 para. 129(2)(b); S.I. 2006/2541, art. 2

F43 Words in s. 4(1) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 225(3) (with Sch. 7)

F44 Words in s. 4(4) substituted (1.10.2006) by Natural Environment and Rural Communities Act 2006 (c. 16), ss. 105(1), 107, Sch. 11 para. 129(3); S.I. 2006/2541, art. 2

F45 Definition of “National Park authority” and the word “and” immediately preceding it repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

Marginal Citations

M1 1988 c. 4.

5 Codes of practice with respect to environmental and recreational duties. E+W

(1) The Secretary of State may by order approve any code of practice issued (whether by him or by another person) for the purpose of—

(a) giving practical guidance to relevant undertakers with respect to any of the matters for the purposes of which sections 3 and 4 above have effect; and

(b) promoting what appear to him to be desirable practices by such undertakers with respect to those matters,

and may at any time by such an order approve a modification of such a code or withdraw his approval of such a code or modification.

(2) A contravention of a code of practice as for the time being approved under this section shall not of itself constitute a contravention of any requirement imposed by section 3 or 4 above or give rise to any criminal or civil liability; but the Secretary of State F46 . . . shall F47 . . . be under a duty to take into account whether there has been or is likely to be any such contravention in determining when and how he should exercise his powers in relation to any relevant undertaker by virtue of this Act, any of the other consolidation Acts or the M2 Water Act 1989.

(3) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(4) The Secretary of State shall not make an order under this section unless he has first consulted—

(a) [F48 the Environment Agency] [F49 and the NRBW];

(b) [F50 Natural England] F51 ...;

(c) the Historic Buildings and Monuments Commission for England;

(d) the Sports Council and the Sports Council for Wales; and

(e) such relevant undertakers and other persons as he considers it appropriate to consult.

(5) In this section “the other consolidation Acts” means the M3 Water Resources Act 1991, F52 ... the M4 Land Drainage Act 1991 and the M5 Water Consolidation (Consequential Provisions) Act 1991.

Textual Amendments

F46 Words in s. 5(2) repealed (27.3.2002) by The Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002 (S.I. 2002/794), art. 5(2), Sch. 2 (with art. 6)

F47 Word in s. 5(2) repealed (27.3.2002) by The Ministry of Agriculture, Fisheries and Food (Dissolution) Order 2002 (S.I. 2002/794), art. 5(2), Sch. 2 (with art. 6)

F48 Words in s. 5(4)(a) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 98 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F49 Words in s. 5(4)(a) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 226(2) (with Sch. 7)

F50 Words in s. 5(4)(b) substituted (1.10.2006) by Natural Environment and Rural Communities Act 2006 (c. 16), ss. 105(1), 107, Sch. 11 para. 130; S.I. 2006/2541, art. 2

F51 Words in s. 5(4)(b) omitted (1.4.2013) by virtue of The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 226(3) (with Sch. 7)

F52 Words in s. 5(5) omitted (26.5.2015) by virtue of Deregulation Act 2015 (c. 20), s. 115(3)(r), Sch. 23 para. 28(4)(a)

Marginal Citations

M2 1989 c. 15.

M3 1991 c. 57.

M4 1991 c. 59.

M5 1991 c. 60.