The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013

JurisdictionUK Non-devolved
CitationSI 2013/1582

2013No. 1582

WATER INDUSTRY, ENGLAND AND WALES

The Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013

27thJune2013

The Secretary of State makes these Regulations in exercise of the powers conferred by sections 36A to 36F and 213(2)(a), (d), (e) and (f) of the Water Industry Act 1991( 1) in relation to infrastructure which is provided or to be provided for the use of one of more English undertakers( 2).

These Regulations make provision only in relation to projects or works that in the Secretary of State's opinion are of a size or complexity that threatens the undertaker's ability to provide services for its customers as required by section 36A(4)(a) of that Act.

The Secretary of State has consulted as required by section 36G(2) of that Act.

A draft of these Regulations has been laid before Parliament in accordance with section 36G(1)(a) of that Act( 3) and approved by a resolution of each House of Parliament.

Citation, commencement, application and expiry

1.-(1) These Regulations-

(a) may be cited as the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013;

(b) come into force on the day after the day on which they are made; and

(c) apply in relation to the provision of infrastructure for the use of one or more English undertakers in carrying out their duties under-

(i) section 37 of the Act (general duty to maintain water supply system etc.), or

(ii) section 94 of the Act( 4) (general duty to provide sewerage system) as supplemented by paragraph (1) of regulation 4 of the Urban Waste Water Treatment Regulations 1994( 5) (duty to provide and maintain collecting systems and treatment plants),

including those duties as modified by these Regulations.

(2) Subject to paragraph (4), regulations 4(1) and 8(1) cease to have effect at the end of the period of seven years beginning with the day on which these Regulations come into force.

(3) If the powers in regulations 4(1) and 8(1) have not been exercised before the end of that period, the other provisions in these Regulations also cease to have effect at the end of that period.

(4) Notices issued under regulations 4(1) and 8(1) that are in force at the end of that period continue to have effect despite revocation of those provisions, and regulations 4(7) and 8(6) have effect after that period in relation to such notices.

Interpretation

2. In these Regulations-

"the Act" means the Water Industry Act 1991;

"company" means a company, as defined in section 1(1) of the Companies Act 2006( 6), that is registered in England and Wales or Scotland and is limited by shares or guarantee;

"incumbent undertaker", in relation to an infrastructure project, means the relevant undertaker whose ability to provide services for its customers could be threatened by that infrastructure project, but for the exercise of the powers of the Secretary of State or the Authority under or by virtue of these Regulations;

"infrastructure" means infrastructure relating to-

(a) the provision of a system, or part of a system, of water supply, or the securing of supplies of water, or

(b) the provision of a system, or part of a system, of sewers, or the provision of means for emptying, or dealing effectually with the contents of, sewers;

"infrastructure provider" means a company designated under regulation 8(1);

"licensed infrastructure provider" means an infrastructure provider which is the holder for the time being of a project licence;

"preparatory work" includes-

(a) conducting surveys, including in relation to environmental matters, ground conditions, hazardous substances, heritage, the operation of existing infrastructure, ground and surface water quality and the general condition of a site,

(b) arranging for the provision of electricity or other power,

(c) diverting or protecting communications, electricity, gas, water and sewerage assets,

(d) preparing designs and specifications for a specified infrastructure project,

(e) preparing and submitting planning applications, including consulting the public in relation to those applications, and acquiring and protecting interests in land,

(f) procuring goods, services or works,

(g) preparing a site for works, including remediation of contamination, laying access roads and undertaking demolition and clearance works, and

(h) undertaking associated works on the highway;

"project licence" means a licence granted by the Authority by virtue of its powers under section 17FA of the Act (see paragraph 3(2) of Schedule 1);

"specified infrastructure project" means an infrastructure project which has been specified under regulation 4(1).

Application of the Act

3.-(1) Schedule 1 (application of the Act and related provisions) has effect.

(2) Paragraphs (3) and (4) have effect for imposing duties on the Secretary of State and on the Authority as to when and how they should exercise and perform the powers and duties conferred or imposed on them by virtue of these Regulations.

(3) Section 2 of the Act( 7) (general duties with respect to the water industry) applies as if-

(a) in subsection (1) (when the general duties of the Secretary of State and the Authority apply), in paragraph (a)-

(i) after "by virtue of", there were inserted "the Water Industry (Specified Infrastructure Projects) (English Undertakers) Regulations 2013 or"; and

(ii) for "and of licensed water suppliers" there were substituted ", of licensed water suppliers and of licensed infrastructure providers";

(b) in subsection (2A) (primary duties)-

(i) the "and" following paragraph (c) were repealed; and

(ii) after paragraph (d), there were inserted-

"(e) to secure that the functions of a licensed infrastructure provider are properly carried out; and

(f) to secure that relevant licensed infrastructure providers are able (in particular, by securing reasonable returns on their capital) to finance the proper carrying out of those functions.";

(c) in subsection (3) (secondary duties)-

(i) in paragraph (a) (promoting of economy and efficiency), after "relevant undertaker", there were inserted "and companies that are licensed infrastructure providers in the carrying out of their functions"; and

(ii) in paragraph (d) (protecting consumers from non statutory activities)-

(aa) in the words preceding sub-paragraph (i), after "relevant undertaker", there were inserted "or of a licensed infrastructure provider (as the case may be)"; and

(bb) in sub-paragraph (ii), after "relevant undertaker", there were inserted "or as a licensed infrastructure provider (as the case may be)";

(d) in subsection (5) (meaning of water and drainage charges)-

(i) in paragraph (a), after "relevant undertaker", there were inserted "or a licensed infrastructure provider"; and

(ii) in paragraph (b), after "such an undertaker" there were inserted "or infrastructure provider"; and

(e) in subsection (5A) (meaning of "consumers" and "interests of consumers")-

(i) in the definition of "consumers", after "future consumers", there were inserted "and excludes relevant undertakers, so far as regards services provided by the licensed infrastructure provider for an infrastructure project to a relevant undertaker who is the incumbent undertaker in relation to the infrastructure project";

(ii) the "and" following the definition of "consumers" were repealed; and

(iii) after the definition of "the interests of consumers" there were inserted-

"; and

"relevant licensed infrastructure provider" means a licensed infrastructure provider whose charges fixed under section 142 below are limited by or under a condition of its project licence."

(f) in subsection (6)(a) (meaning of reference in subsection (1)), for "and of licensed water suppliers" there were substituted ", of licensed water suppliers and of licensed infrastructure providers".

(4) Section 219 of the Act( 8) (general interpretation) applies with the modifications made by paragraph 16(2) of Schedule 1.

(5) Paragraphs (3)(b) to (e) and (4) have effect for imposing duties on the Secretary of State and on the Authority as to when and how they should exercise and perform the powers and duties mentioned in section 2(1)(a) of the Act (powers and duties conferred or imposed on them by virtue of the provisions of the Act relating to the regulation of relevant undertakers and of licensed water suppliers) in cases where the exercise or performance of the power or duty in question is capable of affecting a licensed infrastructure provider.

Specification of infrastructure projects

4.-(1) Subject to the following provisions of this regulation, the Secretary of State or the Authority may by notice specify an infrastructure project.

(2) The Secretary of State may by notice served on the Authority delegate the Secretary of State's power under paragraph (1) to the Authority.

(3) The Secretary of State or the Authority may exercise the power under paragraph (1) only if the Secretary of State or the Authority respectively is of the opinion that-

(a) the infrastructure project is of a size or complexity that threatens the incumbent undertaker's ability to provide services for its customers; and

(b) specifying the infrastructure project is likely to result in better value for money than would be the case if the infrastructure project were not specified, including taking into account-

(i) the charges fixed or likely to be fixed under Chapter 1 of Part 5 of the Act( 9) (financial provisions, charges); and

(ii) the powers of the Secretary of State under section 154B of the Act( 10) (financial assistance for major works).

(4) The Secretary of State must-

(a) subject to paragraph (6), before exercising the power under paragraph (1), prepare draft reasons for exercising the power and consult-

(i) the incumbent undertaker;

(ii) the Authority;

(iii) where any part of the infrastructure in question is or is to be in Wales, the Welsh Ministers; and

(iv) any other person the Secretary of State thinks appropriate;

(b)...

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