Water Act 2003

24AAbstraction licences

1

Each licence to abstract water shall be of one of the following three types—

a

a licence to abstract water from one source of supply over a period of twenty-eight days or more for any purpose (a “full licence”);

b

a licence to abstract water from one source of supply over a period of twenty-eight days or more for the purpose of—

i

transferring water to another source of supply; or

ii

transferring water to the same source of supply, but at another point, in the course of dewatering activities in connection with mining, quarrying, engineering, building or other operations (whether underground or on the surface),

in either case without intervening use (a “transfer licence”);

c

a licence to abstract water from one source of supply over a period of less than twenty-eight days (a “temporary licence”).

2

In this Act, a reference (however expressed) to a licence to abstract water is to be taken as a reference to all types of licence, unless it is clear that a different meaning is intended.

“full licence” has the meaning given in section 24A above;

“temporary licence” and “transfer licence” have the meanings given in section 24A above.

1

Subject to the following provisions of this Chapter and to any drought order or drought permit under Chapter 3 of this Part, no person shall—

a

begin, or cause or permit any other person to begin, to construct or alter any impounding works at any point in any inland waters which are not discrete waters; or

b

cause or permit the flow of any inland waters which are not discrete waters to be obstructed or impeded at any point by means of impounding works,

unless (in either case) the conditions mentioned in subsection (1A) below are satisfied.

1A

The conditions are—

a

a licence under this Chapter granted by the Agency to obstruct or impede the flow of those inland waters at that point by means of impounding works is in force;

b

the impounding works will not (or, as the case may be, do not) obstruct or impede the flow of the inland waters except to the extent, and in the manner, authorised by the licence; and

c

any other conditions or requirements imposed by the provisions, as for the time being in force, of the licence (whether as to the provision of compensation water or otherwise) are complied with.

9

In relation to impounding works, references to alteration include the removal or partial removal of those works, and cognate expressions shall be construed accordingly.

b

in relation to—

i

the construction or alteration by the Agency of impounding works; and

ii

the obstruction or impeding by the Agency of the flow of inland waters by means of impounding works,

ix

section 3 of the Water Act 2003,

27Rights to abstract small quantities

1

The restriction on abstraction shall not apply to any abstraction of a quantity of water not exceeding twenty cubic metres in any period of twenty-four hours, if the abstraction does not form part of a continuous operation, or of a series of operations, by which a quantity of water which, in aggregate, is more than twenty cubic metres is abstracted during the period.

2

In the case of any abstraction of water from underground strata which falls within subsection (1) above, the restriction imposed by section 24(2) above shall not apply—

a

to the construction or extension of any well, borehole or other work; or

b

to the installation or modification of machinery or other apparatus,

if the well, borehole or other work is constructed or extended, or the machinery or apparatus is installed or modified, for the purpose of abstracting the water.

3

Where a person is authorised by a licence under this Chapter to carry on a particular abstraction operation (or series of operations), this section does not permit him to carry it on beyond the authorisation conferred by the licence.

27AVariation of small quantity threshold

1

The Secretary of State may by order made by statutory instrument provide that section 27(1) above is to have effect in relation to—

a

a geographical area; or

b

a class of inland waters; or

c

a class of underground strata; or

d

a class of inland waters or of underground strata within a geographical area,

(in each case as specified in the order) as if for “twenty cubic metres” there were substituted another quantity specified in the order.

2

The Secretary of State shall not make such an order except upon the application of the Agency; but he may direct the Agency to make such an application.

3

Such an order may—

a

make different provision in relation to the different paragraphs in subsection (1) above; and

b

make different provision for different areas, waters or underground strata.

4

Schedule 6 to this Act shall have effect with respect to applications for orders under subsection (1) above and with respect to the making of such orders.

5

An order under subsection (1) above which specifies a greater quantity than the one which previously had effect in relation to the area, waters or strata in question may make provision for a licence to abstract water granted under this Chapter—

a

which is for the time being in force; but

b

which by virtue of the order has become wholly or partly unnecessary,

to cease to have effect, or to cease to have effect to the extent specified in the order.

6

An order under subsection (1) above may include provision for or in relation to the payment by the Agency of compensation, in cases specified in the order, to a person who—

a

immediately before the making of an order under subsection (1) above, had been in a position to carry out an abstraction to which, by virtue of section 27(1) above, the restriction on abstraction did not apply;

b

following the making of that order, requires a licence under this Chapter in order to carry out that abstraction; and

c

has suffered loss or damage as a result of his having been—

i

refused such a licence in respect of that abstraction; or

ii

granted such a licence, but in respect of an abstraction of more limited extent than the one he had been in a position to carry out.

7

Paragraphs (e) and (f) of section 219(2) below apply in relation to orders under subsection (1) above as they apply to regulations made under this Act.

8

A statutory instrument containing an order under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

1A

The restriction on abstraction shall not apply to any abstraction of water from inland waters within the district of an internal drainage board if—

a

the abstraction is carried out by or on behalf of that board in connection with its functions;

b

the water abstracted is transferred to another area of inland waters within the board’s district without intervening use; and

c

the sole or main purpose of the transfer is to augment that other area of inland waters.

2

The restriction on abstraction shall not apply to any abstraction of water from a source of supply in so far as the abstraction (where it does not fall within subsection (1) or (1A) above) is an emergency abstraction and the person abstracting the water complies with subsection (2B) below.

2A

An abstraction of water is an emergency abstraction if, in the opinion of the abstractor, an emergency has arisen which makes the abstraction necessary to prevent immediate danger of interference with any mining, quarrying, engineering, building or other operations (whether underground or on the surface) or, in relation to such operations, to prevent an immediate risk—

a

to a human being of death, personal injury or harm to health;

b

of serious damage to works resulting from any such operations; or

c

of serious damage to the environment.

2B

In the case of any emergency abstraction, the person abstracting the water shall before the end of the period of five days beginning with the date on which the abstraction started give notice to the F2appropriate agency of—

a

the abstraction and of the source of supply in question; and

b

the reasons for the abstractor’s opinion that an emergency had arisen and that the abstraction was necessary.

2C

The F2appropriate agency may give notice to the person referred to in subsection (2B) above that in the F3appropriate agency's opinion an emergency had not arisen, or that the abstraction is not, or is no longer, necessary for any of the reasons set out in subsection (2A) above; and, if the F2appropriate agency does so, the restriction on abstraction shall apply to the abstraction from the time when the notice is served (and, if applicable, the restriction imposed by section 24(2) above shall apply accordingly).

5

In this section, “land drainage”—

a

includes the protection of land against erosion or encroachment by water, whether from inland waters or from the sea; but

b

does not include warping, irrigation (including spray irrigation), or transferring water from one source of supply to another (whether with or without intervening use) solely or mainly in order to augment the latter.

199AAppeals against conservation notices under section 199

1

The person on whom a notice under section 199(2) above (“a conservation notice”) is served may, by notice to the Secretary of State, appeal to him against the conservation notice on either or both of the following grounds, that is to say—

a

that the measures required by the conservation notice are not reasonable;

b

that those measures would interfere with the winning of minerals.

2

Any notice of appeal against a conservation notice shall be served within such period (not being less than twenty-eight days from the date of service of the conservation notice) and in such manner as may be prescribed.

3

Before determining an appeal against a conservation notice, the Secretary of State may, if he thinks fit—

a

cause a local inquiry to be held; or

b

afford to the appellant and the Agency an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose;

and the Secretary of State shall act as mentioned in paragraph (a) or (b) above if a request is made by the appellant or the Agency to be heard with respect to an appeal.

4

On an appeal against a conservation notice the Secretary of State may confirm, quash or vary the notice as he may consider appropriate.

5

The decision of the Secretary of State on any appeal against a conservation notice shall be final.

6

The Secretary of State may by regulations make provision as to the manner in which appeals against conservation notices are to be dealt with, including provision requiring the giving of notices of, and information relating to, the making of such appeals or decisions on any such appeals.

7

Section 69 above applies to a decision of the Secretary of State on any appeal to him under this section as it applies to a decision of his on an appeal to him under Chapter 2 of Part 2, taking the reference in subsection (2)(b) of that section to that Chapter as a reference to this section.

8

This section is subject to section 114 of the 1995 Act (delegation or reference of appeals).

2

In relation to abstractions from any inland waters, a person shall be entitled to make the application if, as respects the place (or, if more than one, as respects each of the places) at which the proposed abstractions are to be effected, he satisfies the Agency that—

a

he has, or at the time when the proposed licence is to take effect will have, a right of access to land contiguous to the inland waters at that place (or those places); and

b

he will continue to have such a right for the period of at least one year beginning with the date on which the proposed licence is to take effect, or until it is to expire (if sooner).

3

In relation to abstractions from underground strata, a person shall be entitled to make the application if he satisfies the Agency that—

a

he has, or at the time when the proposed licence is to take effect will have, a right of access to land consisting of or comprising those underground strata; and

b

he will continue to have such a right for the period of at least one year beginning with the date on which the proposed licence is to take effect, or until it is to expire (if sooner).

3A

The Agency may, in particular, take evidence of a person’s occupation of land to be evidence of his right of access to it.

36AApplications: types of abstraction licence

1

The Agency may decide that—

a

an application for a full licence, a transfer licence or a temporary licence ought to be for one of the other types of licence;

b

a number of applications for licences (of any type or types) to abstract water from a particular source of supply ought to be treated as an application for a single such licence (of any type);

c

an application for a single licence (of any type) to abstract water from a particular source of supply ought to be treated as a number of applications for such licences (of any type or types); or

d

any such application as is referred to above ought to be accompanied by an application for revocation of an existing licence to abstract water.

2

The Agency may arrive at the decision referred to in paragraph (a), (b), (c) or (d) of subsection (1) above on the basis of its assessment of any one or more of the following—

a

the likely effect of the abstraction (or abstractions) for which the applicant has applied for a licence (or licences);

b

the likely effect of that abstraction (or those abstractions) taken together with abstractions under any other licence held by the applicant, or abstractions which would be authorised under any other licence for which the applicant has applied;

c

any other prescribed matter.

3

If the Agency does so decide, it shall serve a notice of its decision on the applicant; and, subject to subsections (4) to (8) below, shall deal with the application (or applications) accordingly (which, if the Agency made the decision referred to in paragraph (d) of subsection (1) above in relation to any application (or applications), means not publishing any notice under section 37 below, or taking any further step in connection with the application (or applications), until the application for revocation has been received).

4

The applicant may by notice appeal to the Secretary of State against the decision, and shall serve a copy of any such notice on the Agency.

5

That notice, and the copy of it, shall be served in such manner and within such period as may be prescribed.

6

If the Agency serves a notice under subsection (3) above, it shall not publish any notice under section 37 below, or take any further step in connection with the application (or applications), before—

a

the end of the period within which notice of an appeal may be served on the Secretary of State; or

b

if notice of an appeal is so served, the appeal has been determined.

7

The Secretary of State—

a

may allow or dismiss the appeal, or vary any part of the decision of the Agency, whether the appeal relates to that part of the decision or not; and

b

shall direct the Agency to deal with the application, or applications, accordingly (which, if the Agency’s decision was made under paragraph (d) of subsection (1) above in relation to any such application, and that decision is upheld, may mean not publishing any notice under section 37 below, or taking any further step in connection with the application, until the application for revocation has been received).

8

Subsections (2) and (7) of section 44 below apply in relation to an appeal under this section as they apply in relation to an appeal under section 43 below.

9

This section is subject to section 114 of the 1995 Act (delegation or reference of appeals).

3

An application may not be referred to the Secretary of State under this section—

a

if in relation to the application the Agency is still considering whether to make any such decision as is referred to in subsection (1) of section 36A above, or if it has made such a decision but has not yet served the notice referred to in subsection (3) of that section; or

b

where the Agency has served a notice on the applicant under subsection (3) of that section, until the period for appealing under that section has expired or (if the applicant appeals) the appeal has been determined.

37Publication of application for licence

1

The Agency shall publish a notice of an application for—

a

a full licence or a transfer licence; or

b

a licence under this Chapter to obstruct or impede the flow of any inland waters by means of impounding works,

in the prescribed way or (if no way is prescribed) in a way calculated to bring the application to the attention of persons who in the Agency’s view are likely to be affected by the licence.

2

Not later than the date on which that notice is first published, the Agency shall also serve a copy of it on the persons referred to in subsection (3) below (except the applicant, if the applicant is one of those persons).

3

Those persons are—

a

any water undertaker within whose area any proposed point of abstraction or impounding is situated;

b

any navigation authority, harbour authority or conservancy authority having functions in relation to any inland waters at any such proposed point; and

c

the drainage board for any internal drainage district within which any such proposed point is situated,

but paragraphs (b) and (c) above do not apply if the licence applied for is exclusively for the abstraction of water from a source of supply that does not form part of any inland waters.

4

A notice for the purposes of the preceding provisions of this section shall—

a

be in the prescribed form and shall include any prescribed matters; and

b

state that any person may make representations in writing to the Agency with respect to the application at any time before the end of a period specified in the notice.

5

The period referred to in subsection (4)(b) above—

a

begins on the date the notice referred to in subsection (1) above is first published as mentioned there; and

b

shall not end before the end of the period of twenty-eight days beginning with that date.

6

The Secretary of State may make regulations providing for—

a

the requirements of subsection (2) above, or of both subsections (1) and (2) above, not to apply in prescribed cases;

b

notices of applications to exclude prescribed classes of information, either generally or as respects prescribed classes of application.

7

In this section, “proposed point of abstraction or impounding”, in relation to an application for a licence referred to in subsection (1) above, means a place where a licence, if granted in accordance with the application, would authorise—

a

water to be abstracted; or

b

the flow of inland waters to be obstructed or impeded by means of impounding works,

(as the case may be).

8

This section is subject to section 37A below.

37APower to dispense with publication requirements

The Secretary of State may by regulations make provision for—

a

enabling the Agency; or

b

him, in the case of applications referred to him in accordance with section 41 below,

to direct or determine that the requirements of subsections (1) and (2) of section 37 above may in any case (except where the Agency is the applicant) be dispensed with, if in that case it appears to the Agency (or, as the case may be, the Secretary of State) to be appropriate to do so.

1A

An application shall be determined in two stages in accordance with subsections (1B) and (1C) below if it is an application for a full licence or a transfer licence which, if granted—

a

would take effect immediately after the expiry of an existing licence of the same type (the “existing licence”) and be held by the same person as the holder of that licence; but

b

would in any other respect be different from the existing licence in a way which, if the existing licence were to continue without expiring, would require an application to be made under section 51(2) below for a variation of the licence.

1B

So far as the application relates to any such difference as is mentioned in subsection (1A)(b) above, it shall first be treated for determination purposes as if it were an application for a variation under section 51(2) below (but as if the existing licence were to continue without expiring).

1C

If the result of that would have been the grant of the application for variation of the licence, the application referred to in subsection (1) above shall be treated as one for a licence with that variation, and its determination concluded accordingly; and otherwise its determination shall be concluded as if it were an application for a licence with no such variation.

1A

Subsection (1) above does not apply when—

a

the application to be determined is one which does not fall within subsection (1A) of section 38 above only because paragraph (b) of that subsection is not satisfied; or

b

the determination of an application is being concluded in accordance with subsection (1C) of that section.

39AProtected rights for the purposes of this Chapter

1

For the purposes of this Chapter, a right is a protected right if—

a

it is such a right as a person who is the holder of a full licence is taken to have by virtue of section 48(1) below;

b

it is such a right as a person is taken to have by virtue of subsection (2) below;

c

it is such a right as a person continues to be taken to have by virtue of subsection (7) below;

d

it is such a right as a person is taken to have by virtue of subsection (10) of section 59C below;

e

it is such a right as a person continues to be taken to have by virtue of a provision made under subsection (5)(b) of section 10 of the Water Act 2003 in an order made under that section; or

f

it is such a right as a person continues to be taken to have by virtue of section 102(3) of that Act.

2

A person who is in a position to carry out an abstraction of a quantity of water which—

a

by virtue of section 27(1) above is not subject to the restriction on abstraction; and

b

also falls within subsection (4) or (5) below,

shall be taken, for the purposes of this Chapter, to have a right to do so in respect of the maximum quantity mentioned in subsection (3) below.

3

The maximum quantity is the lower of the following—

a

twenty cubic metres;

b

if, by virtue of an order under section 27A(1) above, section 27(1) above has, or has ever had, effect in relation to the source of supply and point of abstraction in question as if it referred to a quantity lower than twenty cubic metres, that lower quantity (or, if more than one, the lowest of them).

4

An abstraction falls within this subsection if it is an abstraction from inland waters carried out by or on behalf of an occupier of land contiguous to those waters at the place where the abstraction is effected (“contiguous land”), and—

a

the water is abstracted for use on a holding consisting of the contiguous land with or without other land held with that land; and

b

it is abstracted for use on that holding for either or both of the following purposes—

i

the domestic purposes of the occupier’s household;

ii

agricultural purposes other than spray irrigation.

5

An abstraction falls within this subsection if it is an abstraction from underground strata and the water is abstracted by or on behalf of an individual as a supply of water for the domestic purposes of his household.

6

Subsection (2) above shall not apply to a person in respect of an abstraction which that person is, or was at any time, taken to have a right to carry out by virtue of any provision mentioned in paragraph (a), (c), (d), (e) or (f) of subsection (1) above.

7

Subject to subsection (8) below, a person who was the holder of a full licence which has ceased to have effect (or has ceased in part to have effect) by virtue of—

a

any provision made by virtue of section 27A(5) above in an order made under section 27A(1) above; or

b

any provision made by virtue of section 33A(5) above in regulations made under section 33A above,

and who was taken in consequence of that licence (or that part of the licence) to have a right to abstract water by virtue of section 48(1) below shall continue to be taken to have that right for the purposes of this Chapter.

8

For the purposes of this Chapter, the person who was the holder of the licence in question (“the old licence”) shall cease to continue to be taken to have a right, by virtue of subsection (7) above, to abstract water if—

a

during a period mentioned in subsection (9) below he does not carry out any such abstraction as would have been authorised by the old licence if it had still been in force; or

b

following a further order under section 27A(1) above or further regulations under section 33A above, he is granted another full licence in respect of abstraction from the same point as that authorised by the old licence.

9

The period referred to in subsection (8)(a) above is—

a

four years; or

b

if the abstractions authorised under the old licence were abstractions planned to be carried out at intervals of more than four years, or abstractions for emergency purposes only, such longer period as the Agency may determine on the application of the holder of the old licence.

10

In subsections (8) and (9) above, references to the old licence, in the case of a licence which ceased to have effect only to the extent specified in the order or regulations referred to in subsection (7) above, are to the part of the licence which ceased to have effect.

11

Any reference in this Chapter to the person entitled to a protected right shall be construed in accordance with this section.

12

This section is subject to any provision made by virtue of subsection (3) of section 39B below, and to subsections (4) and (5) of that section.

2A

For the purposes of section 61(4A) below—

a

every full licence under this Chapter which is for a term exceeding twelve years shall; and

b

any transfer licence under this Chapter which is for a term exceeding twelve years may,

specify a minimum value for the quantity referred to in subsection (2)(a) above.

4

Every licence under this Chapter to abstract water shall also specify the purposes for which water abstracted in pursuance of the licence is to be used.

5

Every licence under this Chapter to abstract water shall state—

a

the date on which it takes effect; and

b

the date on which it expires.

5A

Every licence under this Chapter to obstruct or impede any inland waters shall remain in force until revoked.

1A

The holder of a licence under this Chapter to obstruct or impede the flow of inland waters (an “impounding licence”) may apply to the Agency to revoke the licence and, on any such application, the Agency may revoke the licence accordingly.

1B

The Agency may require conditions to be met to its satisfaction before revocation of the impounding licence takes effect, and those conditions may in particular include conditions—

a

requiring the removal of all or part of the impounding works;

b

as to the restoration of the site of the impounding works to a state which is satisfactory to the Agency;

c

relating to the inland waters the flow of which is obstructed or impeded by means of the impounding works.

1C

The person making an application under subsection (1A) above (“the applicant”) may by notice appeal to the Secretary of State if—

a

he is dissatisfied with the decision of the Agency as to—

i

whether his licence may be revoked; or

ii

any conditions imposed by virtue of subsection (1B) above; or

b

the Agency fails to give notice of its decision to the applicant within the prescribed period or within such extended period as may be agreed in writing between the Agency and the applicant.

1D

The Secretary of State may by regulations make provision with respect to—

a

the manner in which notices of appeal under subsection (1C) above shall be served;

b

the period within which such notices shall be served;

c

the procedure on any such appeal.

1E

Where an appeal is brought under subsection (1C) above, the Secretary of State may—

a

allow or dismiss the appeal or reverse or vary any part of the decision of the Agency, whether the appeal relates to that part of the decision or not; and

b

may deal with the application as if it had been made to him in the first place.

1F

The decision of the Secretary of State on any appeal under subsection (1C) above shall be final.

1G

Subsections (1C) to (1F) above are subject to section 114 of the 1995 Act (delegation or reference of appeals).

1A

In the case of a licence to obstruct or impede any inland waters, a variation may take the form of a requirement that the impounding works be modified in ways specified in the proposed new provision of the licence.

b

be published in the prescribed way or (if no way is prescribed) in a way calculated to bring it to the attention of persons likely to be affected if the licence were revoked or varied as proposed.

6

A notice for the purposes of subsection (4) above shall—

a

include any prescribed matters; and

b

state that, before the end of a period specified in the notice—

i

the holder of the licence may give notice in writing to the Agency objecting to the proposals; and

ii

any other person may make representations in writing to the Agency with respect to the proposals.

7

The period referred to in subsection (6)(b) above—

a

begins on the date the notice referred to in subsection (4) above is first published as mentioned there; and

b

shall not end before the end of the period of twenty-eight days beginning with that date.

Transfer and apportionment of licences

59ATransfer of licence

1

The following licences—

a

a full licence;

b

a transfer licence; or

c

a licence to obstruct or impede the flow of inland waters by means of impounding works,

may be transferred by the holder of the licence to another person (“the transferee”) in accordance with the following provisions of this section.

2

The holder and the proposed transferee shall give notice (a “transfer notice”) to the Agency of their agreement that the licence should be transferred.

3

The transfer notice shall include—

a

such information as the Agency reasonably requires; and

b

(in the case of the transfer of a full licence or of a transfer licence) a declaration by the proposed transferee that—

i

he has, or at the time when the proposed transfer is to take effect will have, a right of access in relation to each point of abstraction; and

ii

he will continue to have such a right for the period of at least one year beginning with the date on which the proposed transfer is to take effect, or until the licence is to expire (if sooner),

and may specify the date on which the holder and the transferee wish the transfer to take effect.

4

If the holder is a person in whom the licence has vested under section 59B below, a transfer notice shall be of no effect unless the notice required by section 59B(4) has been given.

5

Subject to subsection (4) above, if the Agency receives a transfer notice which complies with the requirements of subsections (2) and (3) above, the Agency shall amend the licence by substituting the name of the transferee as holder of the licence.

6

The transfer shall take effect—

a

from the date on which the Agency amends the licence; or

b

from the date specified in the transfer notice, if later.

7

Nothing in this section shall affect the liability of the holder of the licence for any failure by him, before the transfer took effect, to comply with any condition or requirement of that licence.

8

In this section—

• “point of abstraction” means a place where the licence authorises water to be abstracted from inland waters or (as the case may be) a place consisting of or comprising underground strata from which the licence authorises water to be abstracted; and

• “right of access” means, in relation to a point of abstraction, a right of access to land of the kind referred to in subsection (2)(a) or, as the case may be, (3)(a) of section 35 above; and references to a person who will have such a right of access shall be construed in accordance with that section (including subsections (4) to (6)).

59BVesting of licence on death or bankruptcy of holder

1

On the death of the holder of a licence under this Chapter, the licence shall be regarded as property forming part of the deceased’s personal estate, whether or not it would be so regarded apart from this subsection, and shall accordingly vest in his personal representatives.

2

If a bankruptcy order is made against the holder of a licence under this Chapter, the licence shall be regarded for the purposes of any of the Second Group of Parts of the Insolvency Act 1986 (insolvency of individuals; bankruptcy) as property forming part of the bankrupt’s estate, whether or not it would be so regarded apart from this subsection, and shall accordingly vest as such in the trustee in bankruptcy.

3

A person in whom a licence vests under this section shall become the holder of the licence, in place of the prior holder, from the date of the vesting.

4

Where a licence other than a temporary licence vests in any person under this section, that person shall give notice of that fact to the Agency not later than the end of the period of fifteen months beginning with the date of the vesting.

5

If—

a

a licence vests in any person under this section; but

b

that person fails to give the notice required by subsection (4) above within the period mentioned there,

the licence shall cease to have effect.

59CApportionment of licence to abstract

1

The holder of a full licence or of a transfer licence (the “old licence”) may apply to the Agency for the division of the holder’s right to abstract water in accordance with the old licence and for the transfer—

a

to another person of part, or to a number of other persons of parts not amounting to the whole; or

b

to a number of other persons of parts amounting in all to the whole,

of that right.

2

The holder of the old licence and any person proposing to carry on a part of the abstraction authorised by the old licence in place of the holder (a “successor”) shall give notice to the Agency of their agreement to the division and transfer (an “apportionment notice”).

3

The apportionment notice shall, in relation to the abstraction authorised by the old licence—

a

specify, for each proposed successor, what quantity of water he proposes to abstract, and (if the holder of the old licence is to continue the abstraction in part) what quantity of water he proposes to abstract;

b

specify the purpose or purposes for which those persons referred to in paragraph (a) above who would require a new licence granted under subsection (5) below would abstract water (being one or more of the purposes for which abstraction is authorised under the old licence);

c

specify the point (or points) of abstraction from which it is proposed that the persons referred to in paragraph (a) above would abstract water (being one or more of the points from which abstraction is authorised under the old licence);

d

include a declaration by each of those persons who requires a licence under this Chapter in order to carry on the abstraction that—

i

he has, or at the time when the proposed grant to him of a new licence under subsection (5) below is to take effect will have, a right of access in relation to each such point of abstraction; and

ii

he will continue to have such a right for the period of at least one year beginning with the date on which the new licence is to take effect, or until it is to expire (if sooner); and

e

include such other information as the Agency reasonably requires,

and may specify the date on which the holder and the successor (or successors) wish the division and transfer (or transfers) to take effect.

4

The apportionment notice shall be accompanied by an application on the part of the holder of the old licence for its revocation.

5

Subject to subsection (9) below, if the Agency receives an apportionment notice and the application for revocation referred to in subsection (4) above, the Agency shall—

a

revoke the old licence;

b

if the holder is to continue the abstraction in part and a licence is required under this Chapter for that purpose, grant to the holder of the old licence a licence relating to that part of the abstraction; and

c

grant to each successor who requires a licence under this Chapter in order to carry on his part of the abstraction a licence relating to that part of the abstraction.

6

Sections 34 to 45 above shall not apply to the grant of a new licence under subsection (5) above.

7

Subject to section 46 above and to any provision of regulations made under section 59D(1) below, each new licence to be granted under subsection (5) above shall be granted subject to provisions which correspond as nearly as practicable to those of the old licence in relation to the part of the abstraction to be authorised by the new licence.

8

The revocation of the old licence and the grant of the new licences shall take effect—

a

from the date on which the Agency revokes the old licence and grants the new ones; or

b

from the date specified in the apportionment notice, if later.

9

The Agency shall not grant a new licence to the holder of the old licence or to a successor if, by virtue of an exemption, the restriction on abstraction would not apply to that part of the abstraction proposed in relation to him in the apportionment notice.

10

For the purposes of this Chapter, a person (whether the holder of the old licence or a successor) who proposes to carry on a part of the abstraction in the circumstances mentioned in subsection (9) above shall, if the old licence was a full licence, be taken to have the right to do so in relation to that part, subject to subsection (11) below.

11

For the purposes of this Chapter, a person shall cease to be taken to have a right, by virtue of subsection (10) above, to carry on an abstraction if—

a

during a period mentioned in subsection (12) below that person does not carry out any such abstraction; or

b

following an order under section 27A(1) above or regulations under section 33A above, that person is granted a full licence in respect of abstraction from the same point.

12

The period referred to in subsection (11)(a) above is—

a

four years; or

b

if the abstractions authorised under the old licence were abstractions planned to be carried out at intervals of more than four years, or abstractions for emergency purposes only, such longer period as the Agency may determine on the application of the person in question.

13

For the purposes of section 39A above, a new licence granted under subsection (5) above shall be treated—

a

as if it had been granted at the time the old licence was granted; and

b

as if it and any other new licence granted by virtue of the relevant apportionment notice had been granted in place of the old licence.

14

In this section—

• “exemption” means the disapplication of the restriction on abstraction under or by virtue of section 27 or 33A above; and

• “point of abstraction” and “right of access” have the same meanings as in section 59A above.

59DApportionment of licence to abstract: supplementary

1

The Secretary of State may make regulations about the provisions to be contained in licences granted under section 59C above.

2

Nothing in section 59C above shall affect the liability of the holder of the old licence for any failure by him, before the revocation of that licence took effect, to comply with any condition or requirement of that licence.

3

If the holder of the old licence is a person in whom the old licence has vested under section 59B above, an apportionment notice shall be of no effect unless the notice required by section 59B(4) has been given.

4

In this section, “apportionment notice” and “old licence” have the same meanings as in section 59C above.

48ACivil remedies for loss or damage due to water abstraction

1

Subject to subsection (7) below and to section 79 (including that section as applied by section 79A(9)) below, a person who abstracts water from any inland waters or underground strata (an “abstractor”) shall not by that abstraction cause loss or damage to another person.

2

A person who suffers such loss or damage (a “relevant person”) may bring a claim against the abstractor.

3

Such a claim shall be treated as one in tort for breach of statutory duty.

4

In proceedings in respect of a claim under this section, the court may not grant an injunction against the abstractor if that would risk interrupting the supply of water to the public, or would put public health or safety at risk.

5

Except as provided in this section, no claim may be made in civil proceedings by a person (whether or not a relevant person) against an abstractor in respect of loss or damage caused by his abstraction of water.

6

Nothing in this section prevents or affects a claim for negligence or breach of contract.

7

This section does not apply, and no claim may be brought under this section, where the loss or damage is caused by an abstractor acting in pursuance of a licence under this Chapter and is loss or damage—

a

in respect of which a person is entitled to bring a claim under section 60 below (or would be so entitled if there were a breach of the duty referred to in that section);

b

in respect of which a person would have been entitled to bring a claim under section 60 below but for an express provision (including, for example, section 39(1A) above and section 59C(6) below) disapplying that duty; or

c

constituting grounds on which a person is entitled to apply to the Secretary of State under section 55 below (or would be so entitled but for subsection (2) of that section) for the revocation or variation of that licence,

but without prejudice to the application of section 48 above.

4A

No compensation shall be payable under this section in respect of the variation of a full licence, or of a transfer licence which specifies a minimum value under section 46(2A) above, so as to reduce the quantity of water which the holder of the licence is authorised by the licence to abstract from the source of supply to which the licence relates if—

a

the ground for varying the licence is that the Secretary of State is satisfied that the variation is necessary in order to protect the availability of water in the source of supply to which the licence relates;

b

the variation does not reduce the quantity of water which the holder of the licence is authorised by the licence to abstract to less than the minimum value specified in the licence under section 46(2A) above for the purposes of this subsection; and

c

the conditions set out in subsection (4B) below are satisfied.

4B

Those conditions are that—

a

the licence was granted after the coming into force of section 19 of the Water Act 2003;

b

the variation is made no sooner than the end of the period of six years beginning with the date on which the licence took effect; and

c

the variation takes effect no sooner than the end of the period of six years beginning with the date of the variation.

20BWater resources management schemes: referral to Secretary of State

1

This section applies where—

a

the Agency has sought to enter into arrangements acceptable to it under section 20 or 20A above, but is satisfied that the other party is unwilling to enter into such arrangements or to do so on terms appearing to the Agency to be reasonable; or

b

having entered into such arrangements, the Agency has sought to renew or vary them but is satisfied that the other party is unwilling to do so or to do so on terms appearing to the Agency to be reasonable.

2

Where this section applies, the Agency may refer to the Secretary of State the question (as the case may be)—

a

whether such arrangements should be entered into, and if so, on what terms; or

b

whether the arrangements should be renewed or varied (as the case may be), and if so, on what terms.

3

If the Secretary of State determines that arrangements should be entered into or (as the case may be) renewed or varied, such arrangements on the terms determined by the Secretary of State shall be enforceable—

a

by civil proceedings by the Secretary of State for an injunction or for any other appropriate relief; and

b

where the other party is a water undertaker, also under section 18 of the Water Industry Act 1991 (enforcement orders) by the Secretary of State.

4

The functions of the Secretary of State under subsection (2) above shall be treated for the purposes of section 114 of the 1995 Act (delegation or reference of appeals) as if they were functions to which paragraph (a) of subsection (1) of that section applied.

20CProposals for bulk supply arrangements

1

In the circumstances mentioned in subsection (2) below, the Agency may, in carrying out its functions under section 6(2) of the 1995 Act, propose to a qualifying person (within the meaning of section 40 of the Water Industry Act 1991) that he make an application under that section for a bulk supply of water from a water undertaker.

2

The circumstances referred to in subsection (1) above are that it appears to the Agency that such a bulk supply is necessary in order to secure the proper use of water resources.

3

The Agency shall not make such a proposal without first consulting the Water Services Regulation Authority.

4

The Agency may include in its proposal the period for which, and terms and conditions on which, the Agency considers it appropriate that the bulk supply should be given.

1AWater Services Regulation Authority

1

There shall be a body corporate to be known as the Water Services Regulation Authority (in this Act referred to as “the Authority”) for the purpose of carrying out the functions conferred on or transferred to it by this Act or under or by virtue of any other enactment.

2

The functions of the Authority are performed on behalf of the Crown.

3

Schedule 1A to this Act shall have effect with respect to the Authority.

4

In Welsh the Authority may be known as “Awdurdod Rheoleiddio Gwasanaethau Dŵr”.

The Consumer Council for Water

27AEstablishment of the Council and committees

1

There shall be a body corporate to be known as the Consumer Council for Water (in this Act referred to as “the Council”) for the purpose of carrying out the functions of the Council under this Act.

2

In Welsh the Council may be known as “Cyngor Defnyddwyr Dŵr”.

3

The Council shall not be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

4

The Council shall establish such committees of the Council—

a

as the Assembly may direct, for relevant undertakers whose areas are wholly or mainly in Wales; and

b

as the Secretary of State may direct, for other relevant undertakers.

5

A direction under subsection (4) above may provide for the allocation of each relevant undertaker to a committee specified in the direction.

6

The power to give a direction under subsection (4) above may not be exercised after the end of the period of six months beginning with the commencement of section 35 of the Water Act 2003.

7

After the end of the period mentioned in subsection (6) above the Council may (subject to paragraph 11 of Schedule 3A to this Act)—

a

establish such committees for relevant undertakers as it considers appropriate; or

b

alter the allocation of a relevant undertaker to a committee established under this section.

8

The Council shall ensure that each relevant undertaker is allocated to a committee established under this section.

9

A committee established under this section is referred to in this Act as a “regional committee”.

10

The purposes of a regional committee shall be—

a

the provision of advice and information to the Council on consumer matters affecting the areas of the relevant undertakers allocated to that committee;

b

such other purposes as the Council may determine.

11

The provisions of Schedule 3A to this Act (which makes further provision about the Council and regional committees) shall have effect.

12

The Council shall exercise and perform its powers and duties in the manner which it considers is best calculated to contribute to the achievement of sustainable development.

13

In this Chapter—

• “consumers” includes both existing and future consumers;

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

  1. a

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

  2. b

     the provision of sewerage services by sewerage undertakers; and

• “consumer matter” means any matter connected with the interests of consumers.

27BCo-operation between Council and other authorities

1

This section imposes duties on—

a

the Authority and the Council;

b

the Council and the Secretary of State; and

c

the Council and the Assembly.

2

It shall be the duty of the bodies mentioned in each paragraph of subsection (1) above to make arrangements with a view to securing—

a

co-operation and the exchange of information between them; and

b

the consistent treatment of matters which affect both of them.

3

As soon as practicable after agreement is reached on any arrangements required by this section, the parties shall prepare a memorandum setting them out.

4

Arrangements under this section shall be kept under review by the parties.

5

As soon as practicable after agreement is reached on any changes to arrangements under this section, the parties shall revise their memorandum.

6

Parties to arrangements required by this section shall send a copy of their memorandum, and any revised memorandum, to each other person mentioned in subsection (1) above who is not a party to the arrangements set out in the memorandum (or revised memorandum).

7

The Secretary of State shall lay a copy of every memorandum or revised memorandum under this section before each House of Parliament.

192AForward work programmes

1

The Authority and the Council shall, before each financial year, each publish a document (the “forward work programme”) containing a general description of the projects, other than those comprising routine activities in the exercise of its functions, which it plans to undertake during the year.

2

That description must include the objectives of each project.

3

The forward work programme for any year shall also include an estimate of the overall expenditure which the Authority or the Council expects to incur during the year in the exercise of its functions.

4

Before publishing the forward work programme for any year, the Authority or the Council shall give notice—

a

containing a draft of the forward work programme; and

b

specifying the time within which representations or objections to the proposals contained in it may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

5

The notice under subsection (4) above must be published by the Authority or the Council in such manner as it considers appropriate for the purpose of bringing the matters contained in it to the attention of persons likely to be affected by them.

6

The Authority must send a copy of any notice given by it under subsection (4) above to the Council, the Secretary of State and the Assembly.

7

The Council must send a copy of any notice given by it under subsection (4) above to the Authority, the Secretary of State and the Assembly.

192BAnnual and other reports

1

The Authority shall, as soon as practicable after the end of each financial year, make to the Secretary of State a report (the “annual report” for that year) on—

a

its activities during that year; and

b

the activities of the Competition Commission during that year in respect of any references made by it.

2

The annual report for each year shall include—

a

a general survey of developments in respect of matters falling within the scope of the Authority’s functions;

b

a report on the progress of the projects described in the forward work programme for that year;

c

a summary of final and provisional orders made and penalties imposed by the Authority during the year;

d

a report on such matters relating to any relevant undertaker whose area is wholly or mainly in Wales as the Assembly may from time to time require; and

e

a report on such other matters as the Secretary of State may from time to time require.

3

The annual report for each year shall set out any general directions given by the Secretary of State under section 27(3) above.

4

The Secretary of State or (as the case may be) the Assembly shall consult the Authority before exercising the power under subsection (2)(d) or (e) above in relation to any matter.

5

The Secretary of State shall—

a

lay a copy of each annual report before each House of Parliament; and

b

arrange for the report to be published in such manner as he considers appropriate.

6

The Authority may also prepare other reports with respect to any matter falling within the scope of its functions and may arrange for any such report to be published in such manner as it considers appropriate.

7

The Authority shall send a copy of each annual or other report under this section to the Assembly, the Council and the Chief Inspector of Drinking Water.

8

In making or preparing any report under this section the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

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; and

d

to secure that the activities authorised by the licence of a licensed water supplier and any statutory functions imposed on it in consequence of the licence are properly carried out.

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.

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.

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;

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;

iii

that, if the person is a licensed water supplier, its licence does not authorise it to carry on any activities in the area of the company;

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).

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 licensed water suppliers acting in their capacity as such; and

b

the provision of sewerage services by sewerage undertakers.

a

subject to subsection (6A) below, the reference in subsection (1) above to the provisions of this Act relating to the regulation of relevant undertakers and of licensed water suppliers is a reference to the provisions 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;

b

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

7

The duties imposed by subsections (2A) to (4) above and section 2A 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 Community obligation or otherwise).

A1

The Secretary of State may make regulations under section 38 above—

a

on an application by the Authority, in accordance with subsections (1) to (3) below; or

b

otherwise than on such an application, in accordance with subsections (4) to (8) below.

4

Where no such application as is mentioned in subsection (1) above has been made, the Secretary of State may make regulations under section 38 above only if he considers—

a

that the regulations will contribute towards the attainment of policies relating to public health or the environment; or

b

(if he does not consider that they will so contribute) that there are exceptional reasons why it is otherwise in the public interest that the regulations should be made.

5

Before making regulations under section 38 above by virtue of subsection (4) above, the Secretary of State shall—

a

give notice of his proposals;

b

consider the results of the research carried out in accordance with subsection (7) below; and

c

consider every representation or objection with respect to the proposals which has been duly made and not withdrawn.

6

A notice under subsection (5)(a) above must—

a

summarise the Secretary of State’s reasons for his proposals;

b

specify the water undertaker or undertakers in relation to which it is proposed the regulations should apply; and

c

specify the period within which objections or representations with respect to the proposals may be made.

7

Before giving notice under subsection (5)(a) above the Secretary of State shall arrange for such research as he considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected.

8

A notice under subsection (5)(a) above shall be given by serving a copy on—

a

the Authority;

b

the Council;

c

every water undertaker to which the regulations will apply;

d

persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations; and

e

such other persons or bodies as the Secretary of State may consider appropriate.

A1

The Secretary of State may make regulations under section 95 above—

a

on an application by the Authority, in accordance with subsections (1) to (3) below; or

b

otherwise than on such an application, in accordance with subsections (4) to (8) below.

4

Where no such application as is mentioned in subsection (1) above has been made, the Secretary of State may make regulations under section 95 above only if he considers—

a

that the regulations will contribute towards the attainment of policies relating to public health or the environment; or

b

(if he does not consider that they will so contribute) that there are exceptional reasons why it is otherwise in the public interest that the regulations should be made.

5

Before making regulations under section 95 above by virtue of subsection (4) above, the Secretary of State shall—

a

give notice of his proposals;

b

consider the results of the research carried out in accordance with subsection (7) below; and

c

consider every representation or objection with respect to the proposals which has been duly made and not withdrawn.

6

A notice under subsection (5)(a) above must—

a

summarise the Secretary of State’s reasons for his proposals;

b

specify the sewerage undertaker or undertakers in relation to which it is proposed the regulations should apply; and

c

specify the period within which objections or representations with respect to the proposals may be made.

7

Before giving notice under subsection (5)(a) above the Secretary of State shall arrange for such research as he considers appropriate with a view to discovering the views of a representative sample of persons likely to be affected.

8

A notice under subsection (5)(a) above shall be given by serving a copy on—

a

the Authority;

b

the Council;

c

every sewerage undertaker to which the regulations will apply;

d

persons or bodies appearing to the Secretary of State to be representative of persons likely to be affected by the regulations; and

e

such other persons or bodies as the Secretary of State may consider appropriate.

General functions of the Council

27CThe interests of consumers

1

In considering the interests of consumers, the Council 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.

2

For the purposes of subsection (1) above, premises are not eligible to be supplied by a licensed water supplier if—

a

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

b

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

27DAcquisition and review of information

The Council shall have the function of obtaining and keeping under review—

a

information about consumer matters (including matters affecting consumers in different areas); and

b

information about the views of consumers on such matters (including the views of consumers in different areas).

27EProvision of advice and information to public authorities

1

The Council shall have the function of—

a

making proposals, or providing advice and information, about consumer matters (including matters affecting consumers in different areas); and

b

representing the views of consumers on such matters (including the views of consumers in different areas),

to public authorities, companies holding an appointment under Chapter 1 of this Part, licensed water suppliers and other persons whose activities may affect the interests of consumers.

2

Subject to subsection (7) below, information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be disclosed in the exercise of the Council’s function under this section unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.

3

Information relating to a particular individual or body may be disclosed if—

a

the individual or body has consented to the disclosure;

b

it is information that is available to the public from some other source; or

c

it is not information the disclosure of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.

4

Before deciding to disclose any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—

a

consult that individual or body; and

b

have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its disclosure;

and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

5

Subject to subsection (7) below, the Council shall not in the exercise of its function under this section disclose any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.

6

In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.

7

Subsections (2) to (5) above do not apply to a disclosure of information which is made to the Authority, the Secretary of State, the Assembly, the Competition Commission or any other public authority.

8

The disclosure by the Council of information in the exercise of its function under this section does not contravene section 206 below (restriction on disclosure of information).

27FProvision of information to consumers

1

The Council has the function of providing information to consumers about consumer matters in such form as appears to the Council to be most useful to the recipients.

2

That function may be exercised by—

a

publishing information in any manner the Council thinks appropriate for the purpose of bringing it to the attention of those likely to be interested; or

b

furnishing information to any consumer (whether in response to a request or otherwise).

3

Information may only be disclosed in the exercise of that function if it is information that is available to members of the public from some other source.

4

The Council shall maintain at least one office in each of England and Wales at which consumers may apply for information.

27GPower to publish information and advice about consumer matters

1

If it appears to the Council that the publication of any advice and information about consumer matters (including information about the views of consumers on such matters) would promote the interests of consumers, the Council may publish that advice or information in such manner as it thinks fit.

2

Information which relates to the affairs of any particular individual or body of persons (corporate or unincorporate) shall not be published in the exercise of the Council’s function under this section unless one or more of paragraphs (a) to (c) of subsection (3) below applies to the information.

3

Information relating to a particular individual or body may be published if—

a

the individual or body has consented to the publication;

b

it is information that is available to the public from some other source; or

c

it is not information the publication of which would or might, in the opinion of the Council, seriously and prejudicially affect the interests of the individual or body.

4

Before deciding to publish any information relating to a particular individual or body in pursuance of subsection (3)(c) above, the Council shall—

a

consult that individual or body; and

b

have regard to any opinion expressed by the Authority as to the application of subsection (3)(c) above to the information or as to the desirability or otherwise of its publication;

and paragraph (b) applies whether the opinion is given in relation to the information itself or to information of a description which applies to that information.

5

The Council shall not in the exercise of its function under this section publish any information which it considers relates to any matter which is, or is likely to be, the subject of criminal proceedings.

6

In considering whether information relates to any matter as mentioned in subsection (5) above, the Council shall have regard to any opinion expressed (whether in relation to the information itself or to information of a description which applies to that information) by the Secretary of State, the Assembly or the Director of Public Prosecutions.

7

The publication of information under this section does not contravene section 206 below (restriction on disclosure of information).

Further functions of Authority

30ZADuty to consult Council

1

It shall be the duty of the Authority to consult the Council in relation to the exercise of each of its functions, except where—

a

the Council has indicated to the Authority (whether specifically or generally) that it does not wish to be consulted; or

b

the Authority considers that it would be clearly inappropriate to consult the Council.

2

That duty is in addition to any duty on the Authority to consult the Council which is provided for elsewhere.

30ZBCopies of notices

Where the Authority is required by any provision of this Act to publish a notice or any other document, it shall send a copy of the document to the Council.

38BPublication of statistical information about complaints

1

It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to complaints made by consumers about any matter relating to the activities of water undertakers or licensed water suppliers and the handling of such complaints.

2

In subsection (1) above, “complaints” includes complaints made directly to water undertakers or licensed water suppliers (or anyone carrying on activities on their behalf) and complaints to the Authority, the Council, the Assembly or the Secretary of State.

95BPublication of statistical information about complaints

1

It shall be the duty of the Council to publish, in such form and manner and with such frequency as it thinks appropriate, such statistical information as it considers appropriate relating to complaints made by consumers about any matter relating to the activities of sewerage undertakers and the handling of such complaints.

2

In subsection (1) above, “complaints” includes complaints made directly to sewerage undertakers (or anyone carrying on activities on their behalf) and complaints to the Authority, the Council, the Assembly or the Secretary of State.

29Consumer complaints

1

This section applies to a complaint which any person (“the complainant”) has against a relevant undertaker or a licensed water supplier in relation to any matter connected with the functions of that undertaker or the services provided by that licensed water supplier.

2

Where a complaint to which this section applies (other than one appearing to the Council to be frivolous or vexatious) is referred to the Council by or on behalf of the complainant, the Council shall (subject to subsections (3) and (8) below) investigate the complaint for the purpose of determining whether it is appropriate to take any action under subsection (9) below.

3

Where it appears to the Council that the complaint is one the Authority would be required to investigate under section 181 below, the Council shall, instead of investigating the matter to which it relates, refer the complaint to the Authority.

4

Where it appears to the Council that the complaint relates to a matter in respect of which a function under section 18 or 22A above is or may be exercisable by any person, the Council shall (unless it considers that that person already has notice of the matter) refer the matter to that person.

5

Where it appears to the Council that the complaint relates to a matter which constitutes or might constitute an offence, the Council shall refer the matter—

a

to the Assembly, if the matter relates to a relevant undertaker whose area is wholly or mainly in Wales or to services provided by a licensed water supplier using the supply system of a water undertaker whose area is wholly or mainly in Wales; or

b

to the Secretary of State, in any other case.

6

Where it appears to the Council that the complaint relates to a matter which constitutes a dispute of a kind which can be referred to the Authority for determination under any provision of this Act, the Council shall, if the complainant consents, refer the matter to the Authority.

7

A referral under subsection (6) above shall have effect for the purposes of section 30A below as if it were a referral by the complainant of a dispute for determination by the Authority.

8

The Council is not required to investigate any matter if it appears to the Council that—

a

it is unlikely that the complaint could be resolved by action taken by the relevant undertaker or the licensed water supplier;

b

the relevant undertaker or the licensed water supplier has not been given a reasonable opportunity to deal with the complaint; or

c

in a case mentioned in subsection (4) or (5) above or (where the complainant does not consent to the matter being referred to the Authority) subsection (6) above, it is inappropriate to do so.

9

Where it appears to the Council to be appropriate to do so with a view to assisting in reaching a satisfactory resolution of a complaint referred to it under this section, the Council shall make representations on behalf of the complainant to the relevant undertaker or the licensed water supplier about anything to which the complaint relates.

10

After investigating a complaint the Council may make a report to the Authority, the Secretary of State or the Assembly.

11

A report under subsection (10) above may include information about—

a

any representations made by the Council under subsection (9) above; and

b

the response of the relevant undertaker or the licensed water supplier to the complaint or any such representations.

12

No report under subsection (10) above or information about a complaint referred to the Council under this section, from which the complainant may be identified, shall be published or disclosed by the Council, the Authority, the Secretary of State or the Assembly in the exercise of any power under this Act without the consent of the complainant.

13

Where a representation made to the Authority, the Secretary of State or the Assembly about any matter (other than a representation appearing to the person to whom it is made to be frivolous or vexatious) appears to that person—

a

to be about a matter which is or amounts to a complaint to which this section applies (other than one which, in the case of the Authority, it is its duty to investigate under section 181 below); and

b

to have been made by or on behalf of the complainant,

that person shall refer the matter to the Council.

Financial penalties

22APenalties

1

Where the Authority is satisfied—

a

in the case of any company holding an appointment under Chapter 1 of this Part, that the company—

i

has contravened or is contravening any condition of the appointment;

ii

has caused or contributed to, or is causing or contributing to, a contravention by a company holding a licence under Chapter 1A of this Part of any condition of the licence; or

iii

has failed or is failing to achieve any standard of performance prescribed under section 38(2) or 95(2) below; or

b

in the case of any company holding a licence under Chapter 1A of this Part, that the company—

i

has contravened or is contravening any condition of the licence; or

ii

has caused or contributed to, or is causing or contributing to, a contravention by a company holding an appointment under Chapter 1 of this Part of any condition of the appointment,

the Authority may, subject to section 22C below, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.

2

Where the Authority, the Secretary of State or the Assembly is satisfied—

a

in the case of any company holding an appointment under Chapter 1 of this Part, that the company—

i

has contravened or is contravening any statutory or other requirement which is enforceable under section 18 above and in relation to which he or it is the enforcement authority; or

ii

has caused or contributed to, or is causing or contributing to, a contravention by a company holding a licence under Chapter 1A of this Part of any such requirement; or

b

in the case of any company holding a licence under Chapter 1A of this Part, that the company—

i

has contravened or is contravening any statutory or other requirement which is enforceable under section 18 above and in relation to which he or it is the enforcement authority; or

ii

has caused or contributed to, or is causing or contributing to, a contravention by a company holding an appointment under Chapter 1 of this Part of any such requirement,

he or it may, subject to section 22C below, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.

3

In a case in which—

a

subsection (1) above applies by virtue of paragraph (a)(ii) or (b)(ii) of that subsection, or

b

subsection (2) above applies by virtue of paragraph (a)(ii) or (b)(ii) of that subsection,

references in the following provisions of this section and sections 22B and 22C below to a contravention include references to causing or contributing to a contravention.

4

Before imposing a penalty on a company under subsection (1) or (2) above the Authority, the Secretary of State or the Assembly (the “enforcement authority”) shall give notice—

a

stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;

b

setting out the condition, requirement or standard of performance in question;

c

specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of a penalty and the amount of the penalty proposed; and

d

specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

5

Before varying any proposal stated in a notice under subsection (4)(a) above the enforcement authority shall give notice—

a

setting out the proposed variation and the reasons for it; and

b

specifying the period (not being less than twenty-one days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

6

As soon as practicable after imposing a penalty, the enforcement authority shall give notice—

a

stating that he or it has imposed a penalty on the company and its amount;

b

setting out the condition, requirement or standard of performance in question;

c

specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of the penalty and its amount; and

d

specifying a date, no earlier than the end of the period of forty-two days from the date of service of the notice on the company, by which the penalty is required to be paid.

7

The company may, within twenty-one days of the date of service on it of a notice under subsection (6) above, make an application to the enforcement authority for him or it to specify different dates by which different portions of the penalty are to be paid.

8

Any notice required to be given under this section shall be given—

a

by publishing the notice in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;

b

by serving a copy of the notice on the company;

c

by serving a copy of the notice on the Council; and

d

where the notice is given by the Secretary of State or the Assembly, by serving a copy of the notice on the Authority.

9

Any sums received by the enforcement authority by way of penalty under this section shall be paid into the Consolidated Fund.

10

The power of the enforcement authority to impose a penalty under this section is not exercisable in respect of any contravention or failure before the commencement of this section.

11

No penalty imposed by an enforcement authority under this section may exceed 10% of the turnover of the company (determined in accordance with provisions specified in an order made, after consulting the Assembly, by the Secretary of State).

12

The power of the Secretary of State to make an order under subsection (11) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

13

An enforcement authority shall not impose a penalty under this section where it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.

22BStatement of policy with respect to penalties

1

Each enforcement authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.

2

In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure an enforcement authority shall have regard to his or its statement of policy most recently published at the time when the contravention or failure occurred.

3

An enforcement authority may revise his or its statement of policy and where he or it does so shall publish the revised statement.

4

Publication under this section shall be in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.

5

An enforcement authority shall undertake such consultation as he or it considers appropriate when preparing or revising his or its statement of policy.

22CTime limits on the imposition of financial penalties

1

Where no final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure later than the end of the period of twelve months from the time of the contravention or failure, unless before the end of that period—

a

the notice under section 22A(4) above relating to the penalty is served on the company under section 22A(8) above; or

b

a notice relating to the contravention or failure is served on the company under section 203(2) below.

2

Where a final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under section 22A(4) above was served on the company under section 22A(8) above—

a

within three months from the confirmation of the provisional order or the making of the final order; or

b

where the provisional order is not confirmed, within six months from the making of the provisional order.

22DInterest and payment of instalments

1

If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the Judgments Act 1838.

2

If an application is made under subsection (7) of section 22A above in relation to a penalty, the penalty is not required to be paid until the application has been determined.

3

If the enforcement authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the enforcement authority under that subsection, the enforcement authority may where he or it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.

22EAppeals

1

If the company on which a penalty is imposed is aggrieved by—

a

the imposition of the penalty;

b

the amount of the penalty; or

c

the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,

the company may make an application to the court under this section.

2

An application under subsection (1) above must be made—

a

within forty-two days from the date of service on the company of a notice under section 22A(6) above; or

b

where the application relates to a decision of an enforcement authority on an application by the company under section 22A(7) above, within forty-two days from the date the company is notified of the decision.

3

On any such application, where the court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within subsection (4) below, the court—

a

may quash the penalty;

b

may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; or

c

in the case of an application under subsection (1)(c) above, may substitute for the date or dates imposed by the enforcement authority an alternative date or dates.

4

The grounds falling within this subsection are—

a

that the imposition of the penalty was not within the power of the enforcement authority under section 22A above;

b

that any of the requirements of subsections (4) to (6) or (8) of section 22A above have not been complied with in relation to the imposition of the penalty and the interests of the company have been substantially prejudiced by the non-compliance; or

c

that it was unreasonable of the enforcement authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.

5

If an application is made under this section in relation to a penalty, the penalty is not required to be paid until the application has been determined.

6

Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.

7

Where the court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this section it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.

8

Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.

9

In this section “the court” means the High Court.

22FRecovery of penalties

Where a penalty imposed under section 22A(1) or (2) above, or any portion of it, has not been paid by the date on which it is required to be paid and—

a

no application relating to the penalty has been made under section 22E above during the period within which such an application can be made; or

b

an application has been made under that section and determined,

the enforcement authority may recover from the company, as a civil debt due to him or it, any of the penalty and any interest which has not been paid.