Water Bill (HL Bill 88)

(c) making a communication with public sewers.

(5) If the Authority considers that a sewerage undertaker is not acting as
required by the code, the Authority may give the undertaker a direction
to do, or not to do, a particular thing specified in the direction.

(6) 5The Authority may not give a direction under subsection (5) requiring
a person to enter into, vary or terminate an agreement.

(7) It is the duty of a sewerage undertaker to comply with a direction under
subsection (5), and this duty is enforceable by the Authority under
section 18.

(8) 10The code may make different provision for different persons or
descriptions of person.

(9) The Authority must from time to time review the code and, if
appropriate, issue a revised code.

(10) A revised code may include provision for applying any of its revisions
15to section 104 agreements made before the revised code comes into
force.

105ZD Codes under section 105ZC: procedure

(1) Before issuing a code under section 105ZC, the Authority must—

(a) prepare a draft of the proposed code under section 105ZC, and

(b) 20consult such persons about the proposed code as it considers
appropriate.

(2) The Authority must specify the period (“the consultation period”)
within which a person may make representations about the proposed
code.

(3) 25Before a code under section 105ZC prepared by the Authority is issued,
the Minister may direct the Authority—

(a) not to issue the code, or

(b) to issue the code with specified modifications.

(4) Subsection (3) is subject to subsections (6) and (7).

(5) 30In this section “the Minister” means—

(a) the Secretary of State, so far as the code relates to section 104
agreements for the vesting of sewers, drains or sewage disposal
works in sewerage undertakers whose areas are wholly or
mainly in England;

(b) 35the Welsh Ministers, so far as the code relates to section 104
agreements for the vesting of sewers, drains or sewage disposal
works in sewerage undertakers whose areas are wholly or
mainly in Wales.

(6) The power under subsection (3) may not be exercised more than once
40by the Secretary of State or the Welsh Ministers.

(7) If the power under subsection (3) is not exercised by the Secretary of
State or the Welsh Ministers on the first occasion on which it may be
exercised by the Secretary of State or (as the case may be) the Welsh
Ministers, it may not be exercised by the Secretary of State or (as the
45case may be) the Welsh Ministers on a later occasion.

(8) A direction under subsection (3) must be given within the period of 28
days beginning with the day after the end of the consultation period,
and a code in relation to which a direction may be given may not be
issued before that period of 28 days has expired.

(9) 5This section is subject to section 105ZE.

105ZE Codes under section 105ZC: minor or urgent revisions

(1) This section applies if the Authority proposes to issue a revised code
under section 105ZC and, in the view of the Authority, the revision or
each of the revisions proposed to be made is—

(a) 10a revision for which consultation is unnecessary, or

(b) a revision that it is necessary or desirable to make without
delay.

(2) Section 105ZD does not apply to the proposed revised code.

(3) Once the Authority has issued the revised code, it must give notice as
15soon as reasonably practicable of—

(a) the issuing of the revised code, and

(b) as regards each revision contained in it, whether in the view of
the Authority the revision falls within paragraph (a) or (b) of
subsection (1).

(4) 20Notice under subsection (3) is to be given to such persons as the
Authority considers appropriate.

(5) Unless the Authority gives notice that a revision in a revised code is in
the view of the Authority a revision falling within subsection (1)(a), the
revision ceases to have effect at the end of the period of six months
25beginning with the day after that on which the revised code is issued.

105ZF Rules about charges in connection with a section 104 agreement

(1) The Authority may issue rules about charges that may be imposed by a
sewerage undertaker under a section 104 agreement.

(2) The rules may in particular make provision about—

(a) 30what types of charge may be imposed;

(b) the amount or the maximum amount, or a method for
determining the amount or maximum amount, of any type of
charge;

(c) principles for determining what types of charge may or may not
35be imposed;

(d) principles for determining the amount of any charge that may
be imposed;

(e) publication of the charges that may be imposed.

(3) The rules may require a sewerage undertaker, upon declaring a sewer,
40drain or sewage disposal works to be vested in the undertaker in
accordance with a section 104 agreement, to pay to the other party to
the agreement an amount (which may be nil) determined in accordance
with the rules.

(4) Rules made by virtue of subsection (3) may, in particular, provide for
45the determination to take into account—

(a) revenue that might be derived from the sewer, drain or sewage
disposal works in question;

(b) costs that might have been incurred in providing such a sewer,
drain or sewage disposal works.

(5) 5The rules may also make provision as to—

(a) the amount of security that may be required by a sewerage
undertaker for the purposes of any charges imposed by the
sewerage undertaker under a section 104 agreement;

(b) the type of security that may be required;

(c) 10the payment of interest on a sum deposited with a sewerage
undertaker by way of security.

(6) If the Authority considers that a sewerage undertaker is not acting as
required by rules under this section, the Authority may give the
undertaker a direction to do, or not to do, a particular thing specified in
15the direction.

(7) It is the duty of a sewerage undertaker to comply with a direction under
subsection (6), and this duty is enforceable by the Authority under
section 18.

(8) The rules may make different provision for different sewerage
20undertakers or descriptions of undertaker.

(9) The Authority may from time to time revise rules issued under this
section and issue revised rules.

(10) The Authority must issue revised rules if—

(a) guidance is issued under section 105ZI, and

(b) 25the Authority, having regard to that guidance, considers that it
is appropriate to revise the rules.

(11) Revised rules may include provision for applying any of their revisions
to section 104 agreements made before the revised rules come into
effect.

105ZG 30 Rules under section 105ZF: procedure

(1) Before issuing rules under section 105ZF, the Authority must—

(a) prepare a draft of the proposed rules, and

(b) consult the relevant persons about the draft.

(2) The relevant persons are—

(a) 35the Secretary of State;

(b) the Welsh Ministers;

(c) the Council;

(d) any sewerage undertakers or other persons likely to be affected
by the rules;

(e) 40such other persons as the Authority thinks appropriate.

(3) The Authority must specify the period (“the consultation period”)
within which the relevant persons may make representations about the
proposed rules.

(4) The Authority must have regard to guidance issued under section
45105ZI in making rules under section 105ZF.

(5) Before rules under section 105ZF prepared by the Authority are issued,
the Minister may direct the Authority not to issue the rules.

(6) In subsection (5) “the Minister” means—

(a) the Secretary of State, so far as the rules relate to section 104
5agreements for the vesting of sewers, drains or sewage disposal
works in sewerage undertakers whose areas are wholly or
mainly in England;

(b) the Welsh Ministers, so far as the rules relate to section 104
agreements for the vesting of sewers, drains or sewage disposal
10works in sewerage undertakers whose areas are wholly or
mainly in Wales.

(7) A direction under subsection (5) must be given within the period of 28
days beginning with the day after the end of the consultation period,
and rules may not be issued before that period of 28 days has expired.

(8) 15This section is subject to section 105ZH.

105ZH Rules under section 105ZF: minor or urgent revisions

(1) This section applies if the Authority proposes to issue revised rules
under section 105ZF and, in the view of the Authority, the revision or
each of the revisions proposed to be made is—

(a) 20a revision for which consultation is unnecessary, or

(b) a revision that it is necessary or desirable to make without
delay.

(2) Section 105ZG does not apply to the proposed revised rules.

(3) Before issuing the revised rules, the Authority must give notice to the
25Minister of its intention to issue revised rules.

(4) Before the revised rules are issued, the Minister may direct the
Authority not to issue the revised rules.

(5) A direction under subsection (4) must be given within the period of 14
days beginning with the day after the day on which notice is given
30under subsection (3), and the Authority may not issue the revised rules
in question before—

(a) that period of 14 days expires, or

(b) the Minister notifies the Authority that no direction under
subsection (4) will be given in relation to the revised rules,

35whichever is the sooner.

(6) Once the Authority has issued the revised rules, it must give notice as
soon as reasonably practicable of—

(a) the issuing of the revised rules, and

(b) as regards each revision contained in them, whether in the view
40of the Authority the revision falls within paragraph (a) or (b) of
subsection (1).

(7) Notice under subsection (6) is to be given to such persons as the
Authority considers appropriate.

(8) Unless the Authority gives notice that a revision in revised rules is in
45the view of the Authority a revision falling within subsection (1)(a), the

revision ceases to have effect at the end of the period of six months
beginning with the day after that on which the revised rules are issued.

(9) In this section “the Minister” has the meaning given by section 105ZG.

105ZI Rules under section 105ZF: guidance

(1) 5The Minister may issue guidance as to the content of rules under
section 105ZF.

(2) Before issuing the guidance, the Minister must—

(a) prepare a draft of the proposed guidance;

(b) consult the relevant persons about the draft.

(3) 10The relevant persons are—

(a) the Secretary of State;

(b) the Welsh Ministers;

(c) such other persons as the Minister thinks appropriate.

(4) The Minister may from time to time revise the guidance and issue
15revised guidance.

(5) Subsections (2) and (3) apply to revised guidance as they apply to the
original guidance.

(6) The Minister must arrange for the publication of guidance issued under
this section.

(7) 20In this section “the Minister” means—

(a) the Secretary of State, so far as the guidance is as to the content
of rules relating to section 104 agreements for the vesting of
sewers, drains or sewage disposal works in sewerage
undertakers whose areas are wholly or mainly in England;

(b) 25the Welsh Ministers, so far as the guidance is as to the content
of rules relating to section 104 agreements for the vesting of
sewers, drains or sewage disposal works in sewerage
undertakers whose areas are wholly or mainly in Wales.”

(4) In section 107 (right of sewerage undertaker to undertake the making of
30communications with public sewers), after subsection (1) there is inserted—

“(1A) A sewerage undertaker may not give notice to a person under
subsection (1) if—

(a) the undertaker and the person entered into an agreement under
section 104, and

(b) 35the agreement provides for the communication to which the
person’s proposal relates to be made by the person.”

(5) In section 108 (communication works by person entitled to communication), in
subsection (1), after “section 106 above” there is inserted “or may not make
such an election because of section 107(1A)”.

Arrangements for water undertakers to take water

12 Arrangements for water undertakers to take water from other persons

In Part 3 of the Water Industry Act 1991, after Chapter 2A there is inserted—

“Chapter 2B

Additional sources of water

66M Arrangements for water undertakers to take water from other persons

(1) 5The Minister may by regulations make provision about the supply of
water to a water undertaker by a person other than a water undertaker.

(2) Regulations under this section may, in particular—

(a) confer functions on the Authority, the Secretary of State and the
Welsh Ministers;

(b) 10make provision preventing the CMA or the Authority from
exercising powers under the Competition Act 1998 in respect of
a water supply agreement;

(c) include provision described in sections 66N and 66O;

(d) make provision excepting water supply agreements of such
15description as the regulations may specify from the effect of—

(i) any provision of the regulations, or

(ii) any provision of the codes or rules made under the
regulations.

(3) In this Chapter—

• 20“the Minister” means—

  (a)

  the Secretary of State, in relation to the supply of water
  to a water undertaker whose area is wholly or mainly in
  England, and

  (b)

  the Welsh Ministers, in relation to the supply of water to
  25a water undertaker whose area is wholly or mainly in
  Wales;

• “relevant person” means a person other than a water undertaker;

• “water supply agreement” means an agreement for the supply of
  water to a water undertaker by a relevant person.

(4) 30Nothing in provision made under this Chapter affects a water supply
agreement made before any regulations under this section first come
into force.

66N Orders in respect of supplies by relevant persons

(1) Regulations under section 66M may, in particular, make provision for
35the Authority by order—

(a) to require a water undertaker to take a supply of water from a
relevant person, and

(b) to vary or terminate a water supply agreement.

(2) Provision made under subsection (1)(a) must provide that—

(a) 40the Authority may make an order only on an application by the
water undertaker or the relevant person, and

(b) before making an order the Authority must be satisfied that the
water undertaker and the relevant person cannot reach
agreement.

(3) Provision made under subsection (1)(b) must provide that the
5Authority may make an order only on an application by a party to the
agreement.

(4) The provision that may be made under subsection (1) includes—

(a) provision about the circumstances in which the Authority may
make an order;

(b) 10provision requiring the Authority to have regard to whether a
person has complied with a code or rules described in section
66O;

(c) provision enabling the Authority to specify the times at which,
the period during which and the terms and conditions on which
15the supply of water must be taken;

(d) provision for an order made by the Authority requiring a
supply of water to be taken to have effect as an agreement
between the water undertaker and the relevant person (or those
persons and other persons);

(e) 20provision requiring a party to a water supply agreement to pay
compensation to another party on the variation or termination
of the agreement.

66O Codes and rules in respect of water supply agreements

(1) Regulations under section 66M may, in particular, make provision for
25the Authority to issue one or more codes in respect of water supply
agreements, including—

(a) provision for a code to include provision about procedures in
connection with making, varying or terminating a water supply
agreement;

(b) 30provision for a code to include provision about the terms and
conditions of water supply agreements;

(c) provision for a code to include provision about procedures to be
followed by the Authority in determining whether to make an
order described in section 66N;

(d) 35provision for the Authority to direct water undertakers to
comply with a code;

(e) provision for such directions to be enforceable by the Authority
under section 18;

(f) provision for the Minister to require a code to be revised or to
40prevent a code being issued or revised (but see subsections (3)
and (4)).

(2) Regulations under section 66M may, in particular, make provision for
the Authority to issue and enforce rules about charges that may be
imposed under water supply agreements, including—

(a) 45provision for the making of rules about the amount or
maximum amount of a charge;

(b) provision for the Authority to direct water undertakers to
comply with the rules;

(c) provision for such directions to be enforceable by the Authority
under section 18;

(d) provision for the Minister to issue guidance as to the content of
the rules (but see subsection (4));

(e) 5provision for the Minister to prevent rules being issued (but see
subsection (4)).

(3) Regulations conferring a power on the Minister as described in
subsection (1)(f) must provide that—

(a) if the power is exercised to impose a requirement in respect of
10agreements for such supplies of water as are referred to in
paragraph (a) or (b) of the definition of “the Minister” in section
66M(3), it may not be exercised again in respect of such supplies
of water as are referred to in that paragraph, and

(b) if the power to impose a requirement in respect of agreements
15for such supplies of water as are referred to in paragraph (a) or
(b) of the definition of “the Minister” in section 66M(3) is not
exercised on the first occasion on which it may be so exercised,
it may not be exercised in respect of such agreements as are
referred to in that paragraph on a later occasion.

(4) 20Functions conferred by provision described in subsection (1)(f) or (2)(d)
or (e) must be conferred on the Secretary of State and the Welsh
Ministers acting jointly so far as the code, guidance or rules relate to—

(a) a supply of water to a water undertaker whose area is wholly or
mainly in England by means of the supply system of a water
25undertaker whose area is wholly or mainly in Wales;

(b) a supply of water to a water undertaker whose area is wholly or
mainly in Wales by means of the supply system of a water
undertaker whose area is wholly or mainly in England.

(5) References in this section to a water undertaker's supply system are to
30be construed in accordance with section 17B.

66P Procedure etc

(1) A statutory instrument containing regulations under section 66M may
not be made unless a draft of the instrument has been laid before and
approved by a resolution of—

(a) 35each House of Parliament, in the case of regulations made by
the Secretary of State, or

(b) the Assembly, in the case of regulations made by the Welsh
Ministers.

(2) Before laying a draft of an instrument in accordance with subsection
40(1), the Minister must consult—

(a) the Authority,

(b) water undertakers,

(c) water supply licensees,

(d) the Chief Inspector of Drinking Water,

(e) 45the Chief Inspector of Drinking Water for Wales if there is one,

(f) the Environment Agency,

(g) the NRBW,

(h) the Council, and

(i) such other persons as the Minister considers appropriate.

(3) The supplemental and consequential provision that regulations under
section 66M may include by virtue of section 213(2)(f) includes
provision amending, repealing or revoking provision made by or
5under an enactment.

(4) Section 213(2) to (2B) applies to regulations made by the Welsh
Ministers under section 66M as it applies to regulations made by the
Secretary of State.

(5) If a draft of an instrument containing regulations under section 66M
10would, apart from this subsection, be treated for the purposes of the
Standing Orders of either House of Parliament as a hybrid instrument,
it is to proceed in that House as if it were not a hybrid instrument.

(6) In this section “enactment” includes a Measure or Act of the National
Assembly for Wales.”

15Appointments and variations

13 Procedure with respect to appointments and variations

(1) Section 8 of the Water Industry Act 1991 (procedure with respect to
appointments and variations replacing relevant undertakers) is amended as
follows.

(2) 20In subsection (2)(a) (the Water Services Regulation Authority to serve notice of
application), for “on the existing appointee the NRA and on every” there is
substituted “on—

“(i) the existing appointee,

(ii) if the application relates to the replacement of a water
25undertaker whose area is wholly or mainly in England,
the Chief Inspector of Drinking Water,

(iii) if the application relates to the replacement of a water
undertaker whose area is wholly or mainly in Wales, the
Chief Inspector of Drinking Water for Wales if there is
30one, or the Chief Inspector of Drinking Water if section
86(1B)(b) applies,

(iv) the appropriate agency, and

(v) every”.

(3) In subsection (4)(b) (the Secretary of State or the Water Services Regulation
35Authority to serve notice of proposed appointment or variation), for “on the
existing appointee the NRA and on every” there is substituted “on—

“(i) the existing appointee,

(ii) if the proposed appointment or variation would replace
a water undertaker whose area is wholly or mainly in
40England, the Chief Inspector of Drinking Water,

(iii) if the proposed appointment or variation would replace
a water undertaker whose area is wholly or mainly in
Wales, the Chief Inspector of Drinking Water for Wales
if there is one, or the Chief Inspector of Drinking Water
45if section 86(1B)(b) applies,

(iv) the appropriate agency, and

(v) every”.

(4) In subsection (5)(b) (the Secretary of State or the Water Services Regulation
Authority to serve notice of the making of an appointment or variation), for “on
the NRA and on every” there is substituted “on—

“(i) 5if the appointment or variation replaces a water
undertaker whose area is wholly or mainly in England,
the Chief Inspector of Drinking Water,

(ii) if the appointment or variation replaces a water
undertaker whose area is wholly or mainly in Wales, the
10Chief Inspector of Drinking Water for Wales if there is
one, or the Chief Inspector of Drinking Water if section
86(1B)(b) applies,

(iii) the appropriate agency, and

(iv) every”.

(5) 15After subsection (6) insert—

“(6A) In this section “the appropriate agency”, in relation to the replacement
of a relevant undertaker, means—

(a) the Environment Agency, if the undertaker's area is wholly in
England;

(b) 20the NRBW, if the undertaker's area is wholly in Wales;

(c) both the Environment Agency and the NRBW, if the
undertaker's area is partly in England and partly in Wales.”

Duty of CMA to refer mergers of relevant undertakers

14 Exceptions to duty and undertakings in lieu of merger references

(1) 25In section 32 of the Water Industry Act 1991 (duty to refer merger of water or
sewerage undertaking), for “Subject to section 33 below,” there is substituted
“Subject to sections 33 and 33A below,”.

(2) After section 33 (exclusion of small mergers) there is inserted—

“33A Exceptions to duty to make reference

(1) 30The CMA may decide not to make a merger reference under section 32
as regards a case falling within section 32(a) if it believes that—

(a) the arrangements concerned are not sufficiently far advanced,
or are not sufficiently likely to proceed, to justify the making of
a merger reference;

(b) 35the prospective merger is not likely to prejudice the ability of
the Authority, in carrying out its functions by virtue of this Act,
to make comparisons between water enterprises; or

(c) the prospective merger is likely to prejudice that ability, but the
prejudice in question is outweighed by relevant customer
40benefits relating to the merger.

(2) The CMA may decide not to make a merger reference under section 32
as regards a case falling within section 32(b) if it believes that—

(a) the merger has not prejudiced and is not likely to prejudice the
ability of the Authority, in carrying out its functions by virtue of
45this Act, to make comparisons between water enterprises; or