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domestic or food production purposes (in a case | |
falling within subsection (1) above); or | |
(iv) in respect of that system, | |
as may be so provided for in order to enable the supplier to | |
make the requested introduction of the water into that | 5 |
system; and | |
(b) having taken any such steps, to permit the requested | |
introduction of the water into that system. | |
(4) A water undertaker shall not be required by virtue of this section to | |
permit the introduction of water into its supply system, or to take | 10 |
any steps to enable a qualifying water supplier to make such an | |
introduction, if the first or second condition is satisfied. | |
(5) The first condition is that permitting the introduction of the water | |
into the water undertaker’s supply system would— | |
(a) require the undertaker, in order to meet all its existing | 15 |
obligations to supply water for domestic or other purposes, | |
together with its probable future obligations to supply | |
buildings and parts of buildings with water for domestic | |
purposes, to incur unreasonable expenditure in carrying out | |
works; or | 20 |
(b) otherwise put at risk its ability to meet any of the existing or | |
probable future obligations mentioned in paragraph (a) | |
above. | |
(6) The second condition is that there is a contravention in relation to the | |
water fittings used or to be used in connection with— | 25 |
(a) the supply of water to the premises to be supplied by the | |
supplier; or | |
(b) the use of water in those premises, | |
of such of the requirements of regulations under section 74 below as | |
are prescribed for the purposes of section 66A(6) above. | 30 |
(7) Where— | |
(a) a request has been made by a qualifying licensed water | |
supplier to a water undertaker for the purposes of subsection | |
(1) or (2) above; and | |
(b) the steps which the undertaker is required to take by virtue | 35 |
of that request include steps for the purpose of obtaining any | |
necessary authority for, or agreement to, any exercise by it of | |
any of its powers or the carrying out by it of any works, | |
the failure of the undertaker to acquire the necessary authority or | |
agreement shall not affect any liability of the supplier, under any | 40 |
term or condition in accordance with which those steps are taken, to | |
reimburse the undertaker in respect of some or all of the expenses | |
incurred by it in taking those steps. | |
(8) In this section “treatment works”— | |
(a) in relation to a water undertaker, means the works | 45 |
designated as treatment works by the Secretary of State for | |
the purposes of section 17B(6) above; | |
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(b) in relation to a qualifying licensed water supplier, means the | |
works designated from time to time by the Secretary of State | |
as treatment works for the purposes of this paragraph. | |
(9) Before designating any works for the purposes of subsection (8)(b) | |
above, the Secretary of State shall consult the Assembly. | 5 |
(10) A list of any works designated for the purposes of subsection (8)(b) | |
above shall be published from time to time by the Secretary of State | |
in such manner as he considers appropriate for the purpose of | |
bringing the designations to the attention of persons likely to be | |
affected by them. | 10 |
(11) Any pipe laid in pursuance of subsection (3)(a)(ii) or (iii) above shall | |
be regarded as a water main for the purposes of this Act, subject to | |
any provision to the contrary. | |
(12) In this section and section 66C below, references to a qualifying | |
licensed water supplier are references to a licensed water supplier | 15 |
which is the holder of a combined licence (within the meaning of | |
Chapter 1A of Part 2 of this Act). | |
66C Wholesale water supply by secondary water undertaker | |
(1) This section applies where— | |
(a) a qualifying licensed water supplier— | 20 |
(i) requests a water undertaker other than its primary | |
water undertaker (the “secondary water undertaker”) | |
to provide a supply of water for the purpose of the | |
supplier supplying water, using the primary water | |
undertaker’s supply system, to the premises of the | 25 |
supplier’s customers in accordance with the retail | |
authorisation; and | |
(ii) requests its primary water undertaker to permit it to | |
introduce that water into its supply system; and | |
(b) the premises are in the area of the primary undertaker. | 30 |
(2) Where this section applies— | |
(a) it shall be the duty of the secondary water undertaker, in | |
accordance with an agreement or determination for such | |
period and containing such terms and conditions as may be | |
provided for under section 66D(2) below— | 35 |
(i) to take any such steps in respect of its supply system | |
as may be so provided for in order to enable it to | |
provide the requested supply; and | |
(ii) having taken any such steps, to provide that supply; | |
and | 40 |
(b) it shall be the duty of the primary water undertaker, in | |
accordance with an agreement or determination for such | |
period and containing such terms and conditions as may be | |
provided for under section 66D(2) below— | |
(i) to take any such steps specified in subsection (3) | 45 |
below as may be so provided for in order to enable the | |
licensed water supplier to make the introduction of | |
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requested supply of water into the primary | |
undertaker’s supply system; and | |
(ii) having taken any such steps, to permit the | |
introduction of that supply of water into that supply | |
system. | 5 |
(3) The steps mentioned in subsection (2)(b)(i) above are steps— | |
(a) for the purpose of connecting the premises in question with | |
the primary undertaker’s supply system; | |
(b) for the purpose of connecting that system with the secondary | |
water undertaker’s supply system; or | 10 |
(c) in respect of the primary undertaker’s supply system. | |
(4) If the first or second condition is satisfied— | |
(a) a secondary water undertaker shall not be required by virtue | |
of this section to provide a supply of water to a licensed water | |
supplier; and | 15 |
(b) a primary water undertaker shall not be required by virtue of | |
this section to permit the introduction of water into its supply | |
system, or to take any steps to enable the licensed water | |
supplier to make such an introduction. | |
(5) The first condition is that the provision of the supply or permitting | 20 |
the introduction would— | |
(a) require the undertaker in question, in order to meet all its | |
existing obligations to supply water for domestic or other | |
purposes, together with its probable future obligations to | |
supply buildings and parts of buildings with water for | 25 |
domestic purposes, to incur unreasonable expenditure in | |
carrying out works; or | |
(b) otherwise put at risk its ability to meet any of the existing or | |
probable future obligations mentioned in paragraph (a) | |
above. | 30 |
(6) This second condition is that there is a contravention in relation to | |
the water fittings used or to be used in connection with— | |
(a) the supply of water to the premises to be supplied by the | |
supplier; or | |
(b) the use of water in those premises, | 35 |
of such of the requirements of regulations under section 74 below as | |
are prescribed for the purposes of section 66A(6) above. | |
(7) Where— | |
(a) requests have been made by a licensed water supplier to its | |
primary water undertaker and secondary water undertaker | 40 |
for the purposes of subsection (1) above; and | |
(b) the steps which either of those undertakers is required to take | |
by virtue of the request made to it include steps for the | |
purpose of obtaining any necessary authority for, or | |
agreement to, any exercise by it of any of its powers or the | 45 |
carrying out by it of any works, | |
the undertaker’s failure to acquire the necessary authority or | |
agreement shall not affect any liability of the licensed water supplier, | |
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under any term or condition in accordance with which those steps | |
are taken, to reimburse the undertaker in respect of some or all of the | |
expenses incurred by it in taking those steps. | |
(8) Any pipe laid in pursuance of subsection (2)(b)(i) above by virtue of | |
subsection (3)(b) above shall be regarded as a water main for the | 5 |
purposes of this Act, subject to any provision to the contrary. | |
66D Sections 66A to 66C: determinations and agreements | |
(1) The Authority may determine, in a case referred to it by a licensed | |
water supplier, whether any condition specified in section 66A(4) to | |
(6), 66B(5) or (6) or 66C(5) or (6) above is satisfied (subject to section | 10 |
66F below). | |
(2) The period for which and terms and conditions on which a water | |
undertaker is to perform any duty under sections 66A to 66C above | |
are— | |
(a) those which are— | 15 |
(i) in a case falling within section 66A(2) or 66B(3) above, | |
agreed between the water undertaker and the | |
licensed water supplier in question; and | |
(ii) in a case falling within section 66C(2) above, agreed | |
between the water undertakers and the licensed | 20 |
water supplier in question; or | |
(b) in default of such agreement, those which are determined by | |
the Authority, in a case referred to it by the licensed water | |
supplier in question, if they are acceptable to the supplier, | |
(subject to the following provisions of this section and sections 66E | 25 |
and 66F below). | |
(3) The charges payable by a licensed water supplier to a water | |
undertaker under an agreement under paragraph (a)(i) or (ii) of | |
subsection (2) above or a determination under paragraph (b) of that | |
subsection shall be fixed in accordance with the costs principle set | 30 |
out in section 66E below. | |
(4) The Authority shall issue guidance in accordance with which the | |
terms and conditions of an agreement under paragraph (a)(i) or (ii) | |
of subsection (2) above shall be made. | |
(5) Before issuing guidance under subsection (4) above, the Authority | 35 |
shall consult such persons as it considers appropriate. | |
(6) The guidance issued under subsection (4) above shall include | |
guidance with respect to the fixing of charges in accordance with | |
subsection (3) above. | |
(7) Subsection (8) below applies if it appears to the Authority that an | 40 |
agreement under paragraph (a)(i) or (ii) of subsection (2) above has | |
not been made in accordance with— | |
(a) subsection (3) above; or | |
(b) the guidance issued under subsection (4) above. | |
(8) The Authority may require the parties to the agreement to— | 45 |
(a) modify the agreement; or | |
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(b) terminate the agreement, | |
and that requirement shall be enforceable under section 18 above by | |
the Authority. | |
(9) Neither the Office of Fair Trading nor the Authority may exercise, in | |
respect of an agreement under paragraph (a)(i) or (ii) of subsection | 5 |
(2) above, the powers conferred by— | |
(a) section 32 of the Competition Act 1998 (directions in relation | |
to agreements); and | |
(b) subsection (2) of section 35 of that Act (interim directions). | |
(10) Subsection (9)(b) above does not apply to the exercise of powers in | 10 |
respect of conduct— | |
(a) which is connected with an agreement under paragraph (a)(i) | |
or (ii) of subsection (2) above; and | |
(b) in respect of which subsection (1)(b) of section 35 of that Act | |
applies. | 15 |
66E Section 66D: costs principle | |
(1) The costs principle referred to in subsection (3) of section 66D above | |
is that the charges payable by a licensed water supplier to a water | |
undertaker, under the agreement or determination mentioned in that | |
subsection, shall enable the undertaker to recover from the | 20 |
supplier— | |
(a) any expenses reasonably incurred in performing any duty | |
under sections 66A to 66C above in accordance with that | |
agreement or determination, and | |
(b) the appropriate amount in respect of qualifying expenses and | 25 |
a reasonable return on that amount, | |
to the extent that those sums exceed any financial benefits which the | |
undertaker receives as a result of the supplier supplying water to the | |
premises of relevant customers. | |
(2) In subsection (1) above “qualifying expenses” means expenses | 30 |
(whether of a capital nature or otherwise) that the water undertaker | |
has reasonably incurred or will reasonably incur in carrying out its | |
functions. | |
(3) For the purposes of subsection (1)(b) above, the appropriate amount | |
is the amount which the water undertaker— | 35 |
(a) reasonably expected to recover from relevant customers; but | |
(b) is unable to recover from those customers as a result of their | |
premises being supplied with water by the licensed water | |
supplier. | |
(4) Nothing in subsection (3) above shall enable a water undertaker to | 40 |
recover any amount— | |
(a) to the extent that any expenses can be reduced or avoided; or | |
(b) to the extent that any amount is recoverable in some other | |
way (other than from other customers of the undertaker). | |
(5) In this section “relevant customers” means customers to whose | 45 |
premises the licensed water supplier is to make any supply of water | |
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in connection with which the agreement or determination | |
mentioned in subsection (1) above is made. | |
66F Section 66D: supplementary | |
(1) Before the Authority makes— | |
(a) a determination for the purposes of subsection (1) of section | 5 |
66D above as to whether any condition specified in section | |
66B(5) or (6) above is satisfied; or | |
(b) a determination for the purposes of subsection (2)(b) of | |
section 66D above as to the period for which and terms and | |
conditions on which a water undertaker is to perform any | 10 |
duty under section 66B above, | |
it shall consult the Secretary of State (subject to subsection (3) below). | |
(2) Before the Authority makes— | |
(a) a determination for the purposes of subsection (1) of section | |
66D above as to whether any condition specified in section | 15 |
66C(5) or (6) is satisfied; or | |
(b) a determination for the purposes of subsection (2)(b) of | |
section 66D above as to the period for which and terms and | |
conditions on which the water undertakers are to perform | |
any duty under section 66C above, | 20 |
it shall consult the Secretary of State (subject to subsections (3) and | |
(4) below) and the Environment Agency. | |
(3) If a determination mentioned in subsection (1) or (2) above— | |
(a) is in relation to premises supplied with water using the | |
supply system of a water undertaker whose area is wholly or | 25 |
mainly in Wales; and | |
(b) in the case of a determination mentioned in subsection (2) | |
above, the area of the secondary undertaker in question is | |
wholly or mainly in Wales, | |
the Authority shall consult the Assembly (and not the Secretary of | 30 |
State). | |
(4) If a determination mentioned in subsection (2) above— | |
(a) is in relation to premises supplied with water using the | |
supply system of a water undertaker whose area is wholly or | |
mainly in— | 35 |
(i) England; or | |
(ii) Wales; | |
(b) but the area of the secondary water undertaker in question is | |
(respectively) wholly or mainly in— | |
(i) Wales; or | 40 |
(ii) England, | |
the Authority shall consult the Assembly (as well as the Secretary of | |
State). | |
(5) The Authority shall publish guidance issued under section 66D(4) | |
above in such manner as the Authority considers appropriate for the | 45 |
purpose of bringing it to the attention of persons likely to be affected | |
by it. | |
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(6) The Authority may from time to time revise the guidance so issued. | |
(7) Before revising any guidance under subsection (6) above, the | |
Authority shall consult such persons as it considers appropriate. | |
(8) Subsection (5) above applies to guidance revised under subsection | |
(6) above as it applies to guidance issued under section 66D(4) above. | 5 |
(9) In this section, references to the supply system of a water undertaker | |
shall be construed in accordance with section 17B(5) above. | |
(10) Where the period for which and terms and conditions on which a | |
water undertaker is to perform any duty under sections 66A to 66C | |
above are determined in accordance with subsection (2)(b) of section | 10 |
66D above, they shall have effect as if they had been agreed between | |
the parties in question (and references in the following provisions of | |
this Act to an agreement under this section shall be construed | |
accordingly). | |
66G Designation of strategic supply | 15 |
(1) Subsection (2) below applies if at any time the Authority determines | |
that an introduction of water which a water undertaker is required | |
to permit under section 66B or 66C above in accordance with an | |
agreement under section 66D above constitutes a strategic supply of | |
water. | 20 |
(2) The Authority shall designate the introduction as a strategic supply. | |
(3) Subsection (4) below applies if— | |
(a) a water undertaker requests the Authority to make a | |
determination that an introduction of water constitutes a | |
strategic supply for the purposes of subsection (1) above, or | 25 |
(b) the Authority otherwise proposes to make a determination | |
that an introduction of water constitutes a strategic supply | |
for the purposes of that subsection. | |
(4) The Authority shall give notice of the request or proposed | |
determination to— | 30 |
(a) the Secretary of State; | |
(b) the Assembly; | |
(c) the Environment Agency; | |
(d) the other party or parties, or the parties, to the agreement | |
under section 66D above; and | 35 |
(e) such other persons (if any) as the Authority thinks it | |
appropriate to notify. | |
(5) Any such notice shall specify the time (not being less than twenty- | |
eight days from the date on which the notice was given) within | |
which representations or objections with respect to the request or | 40 |
proposed determination may be made. | |
(6) The Authority shall consider any representations or objections which | |
are duly made and not withdrawn. | |
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