Office of Public Sector Information
PART 3 continued
(1) Scottish Water must exercise its functions so as to secure that, taking one year with another, its income is not less than sufficient to meet its expenditure.
(2) The Scottish Ministers may by order direct Scottish Water to exercise its functions, during any period specified in the order, with a view to securing that it achieves in respect of that period a rate of return on the value of its average net assets (as for the time being defined for the purposes of this section by the Scottish Ministers) which is not less than the rate specified in the order as the rate of return which the Scottish Ministers consider it is reasonable for Scottish Water to achieve.
(3) Without prejudice to subsection (1), the Scottish Ministers may, after consulting Scottish Water, determine that Scottish Water is (in addition to or in place of a duty imposed by virtue of subsection (2)) subject to a specified duty of a financial nature; and different determinations may be so made in relation to different functions of Scottish Water.
(4) A determination under subsection (3) may—
(a) relate to a period beginning before the date on which it is made,
(b) contain incidental or supplemental provisions,
(c) be varied by a subsequent determination under that subsection.
(5) A determination under subsection (3) must be made by order where—
(a) the duty specified in it is in place of a duty imposed by virtue of subsection (2), or
(b) it varies a previous determination made by order.
(6) Scottish Water must secure that its charges make a proper contribution to its duties, as respect financial matters, under this Act, taking into account—
(a) its present circumstances and future prospects, and
(b) any duty imposed on it by virtue of subsection (2) or (3).
(1) The Scottish Ministers may pay to Scottish Water grants of such amounts as they may determine—
(a) in respect of the exercise of its functions and its administrative expenses,
(b) for the purpose of meeting, or alleviating, any loss it may sustain by virtue of regulations made under section 40.
(2) A grant under subsection (1) may be made subject to such conditions as the Scottish Ministers think fit.
(3) For the purpose of the exercise of any of its functions, Scottish Water may—
(a) subject to such conditions as the Scottish Ministers think fit, borrow from them, and they may lend to it, sums of such amounts as they may determine, and
(b) with the consent of the Scottish Ministers, borrow money, whether in sterling or otherwise, from any person or body, whether in the United Kingdom or elsewhere.
(4) In any financial year the net amount of sums borrowed by Scottish Water must not exceed the amount specified for that year for the purposes of this section in a Budget Act.
(5) In subsection (4), “net amount” means the amount of sums borrowed in the financial year less—
(a) any repayments made during that year (otherwise than by way of interest) in respect of sums borrowed in that or any other year, and
(b) any sums borrowed, with the consent of the Scottish Ministers, by way of overdraft or otherwise for the purpose of meeting a temporary excess of expenditure over sums otherwise available to meet that expenditure.
(6) Any loans made in pursuance of subsection (3)(a) are to be repaid to the Scottish Ministers at such times and by such methods, and interest on the loans is to be paid to them at such times and at such rates, as they may from time to time direct.
(1) The Scottish Ministers may guarantee, in such manner and on such conditions as they think fit, the discharge of any financial obligation in connection with any sums borrowed by Scottish Water or any subsidiary of Scottish Water.
(2) Immediately after a guarantee is given under this section, the Scottish Ministers must lay a statement of the guarantee before the Parliament.
(3) Where any sum is paid out in fulfilment of a guarantee under this section, Scottish Water must make to the Scottish Ministers, at such times and in such manner as they may from time to time direct—
(a) payments of such amounts as they may so direct in or towards repayment of the sums so paid out, and
(b) payments of interest, at such rate as they may so direct, on the amount outstanding for the time being in respect of sums so paid out.
(4) In subsection (1), “subsidiary” is to be construed in accordance with section 736 of the Companies Act 1985 (c. 6).
(1) The Scottish Ministers may, after consulting Scottish Water, direct it to pay to them, on a date specified in the direction, a sum specified in, or calculated in accordance with, the direction, being a sum not required for the exercise of its functions.
(2) The Scottish Ministers may, after consulting Scottish Water, direct it to invest, in such manner as may be specified in the direction, a sum specified in, or calculated in accordance with, the direction, being a sum not immediately required for the exercise of its functions.
(3) A direction under subsection (1) or (2) is not competent in relation to any sum which is payable to the Scottish Ministers under or by virtue of any other provision of this Act.
(1) Scottish Water must—
(a) keep proper accounts and accounting records,
(b) prepare for each financial year a statement of accounts giving a true and fair view of the state of its affairs and its income and expenditure, and
(c) send the statement of accounts, by such time as the Scottish Ministers may direct, to the Auditor General for Scotland for auditing.
(2) Every statement of accounts prepared by Scottish Water in accordance with this section must comply with any direction given by the Scottish Ministers relating to—
(a) the information to be contained in the statement of accounts,
(b) the manner in which that information is to be presented, or
(c) the methods and principles according to which the statement of accounts is to be prepared.
(1) Scottish Water may under this subsection—
(a) for the purposes of any of its functions, or
(b) for the purpose of the provision, by some person other than itself, of—
(i) a supply of water to the public, or
(ii) a system, to which the public is to have access, of drains, sewers or sewage treatment works,
acquire by agreement any land (other than water rights) wherever situated.
(2) Subsection (3) applies in relation to any acquisition of land under subsection (1) for the purposes of any of the core functions of Scottish Water or for the purpose mentioned in paragraph (b) of that subsection.
(3) In relation to any such acquisition of land, the Lands Clauses Acts (except in so far as they relate to acquisition other than by agreement and to access to the special Act and except sections 120 to 125 of the Lands Clauses Consolidation (Scotland) Act 1845 (c. 19)), and—
(a) in a case where the acquisition is—
(i) in relation to Scottish Water’s functions under or by virtue of the 1968 Act, or
(ii) for the purpose of the provision of a system such as is mentioned in paragraph (b)(ii) of subsection (1) of this section,
sections 6 and 70 to 78 of the Railways Clauses Consolidation (Scotland) Act 1845 (c. 33) (as originally enacted and not as amended by section 15 of the Mines (Working Facilities and Support) Act 1923 (c. 20)), and
(b) in any other case, section 6 of the Railways Clauses Consolidation (Scotland) Act 1845 (as referred to in paragraph (a)) and Part IV of Schedule 4 to the 1980 Act,
are hereby incorporated with this section; and, in construing those Acts for the purposes of that subsection, this section is to be taken to be the special Act and Scottish Water is to be taken to be the promoter of the undertaking or company as the case may require.
(1) Scottish Water may—
(a) for the purposes of any of its core functions, or
(b) for the purpose specified in section 46(1)(b),
be authorised by the Scottish Ministers to purchase compulsorily under this subsection land (other than water rights) situated in Scotland.
(2) Subsection (1) is—
(a) without prejudice to any order under section 17 (acquisition of water rights) of the 1980 Act, and
(b) subject to section 18 (authorisation of compulsory acquisition of land necessary for purposes of order under section 17) of that Act.
(3) Scottish Water is, in respect of all of its core functions, a statutory undertaker for the purposes of section 120(1)(b) of the Local Government, Planning and Land Act 1980 (c. 65) (persons to whose compulsory acquisition of an interest in land the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) in certain circumstances applies).
(4) Scottish Water may be authorised by the Scottish Ministers to purchase compulsorily, or may acquire by agreement, land in Scotland for giving in exchange for such land as is mentioned in section 1(2)(b) of that Act of 1947.
(5) This section is subject to section 67(4).
(1) Scottish Water may dispose of land held by it in any manner, to whomsoever and for whatever purpose it wishes.
(2) But Scottish Water may not, except with the consent of the Scottish Ministers, dispose of land under subsection (1) for a consideration less than the best that could reasonably be expected to be obtained on the open market.
The Scottish Ministers, when exercising their functions under or by virtue of this Act, the 1968 Act or the 1980 Act and Scottish Water, when exercising its functions, must have regard to the interests of every person who is a customer or potential customer of Scottish Water and especially of such of those persons as—
(a) are likely, by reason of a persistent disability or medical condition or of family circumstances, to require to have a much greater supply of water, or to make much greater use of facilities for the disposal of sewage, than might ordinarily have been expected, or
(b) are ordinarily resident in a rural or remote part of Scotland.
Scottish Water must, in exercising its functions, seek to ensure that its resources are used economically, efficiently and effectively.
(1) Scottish Water must, in exercising its functions, act in the way best calculated to contribute to the achievement of sustainable development.
(2) Subsection (1) applies so far as is consistent with the purposes of any enactment relating to the functions of Scottish Water.
(3) In complying with subsection (1) Scottish Water must have regard to any guidance for the time being issued by the Scottish Ministers.
(1) The Scottish Ministers, in exercising their functions under or by virtue of this Act, the 1968 Act or the 1980 Act and Scottish Water, in exercising its functions, must have regard to the desirability of preserving for the public any freedom of access (including access for recreational purposes) to land held by Scottish Water.
(2) This section is without prejudice to section 53(1) and (2)(a).
(1) The Scottish Ministers, in exercising their functions under or by virtue of this Act, the 1968 Act or the 1980 Act and Scottish Water, in exercising its functions, must have regard to the matters specified in subsection (2).
(2) Those matters are—
(a) the desirability of preserving for the public any freedom of access (including access for recreational purposes) to areas of forest, woodland, mountains, moor, bog, cliff, foreshore, loch or reservoir and to other places of natural beauty, and
(b) the desirability of protecting and conserving—
(i) buildings,
(ii) sites, and
(iii) objects,
of archaeological, architectural, historic or scientific interest and of maintaining the availability to the public of any facility for visiting or inspecting any such building, site or object.
(3) The Scottish Ministers and Scottish Water must, in exercising the functions referred to in subsection (1), further—
(a) the conservation and enhancement of natural beauty and the conservation of flora and fauna, and
(b) the conservation of geological or physiographical features of special interest.
(4) Subsection (3) applies so far as is consistent with the purposes of any enactment relating to the functions of the Scottish Ministers or, as the case may be, Scottish Water (whether or not functions under or by virtue of this Act, the 1968 Act or the 1980 Act).
(1) Scottish Natural Heritage (“SNH”) must by notice in writing notify Scottish Water of any area of land in Scotland which is a protected area.
(2) An area of land is a protected area if—
(a) it has been designated under section 6(2) of the Natural Heritage (Scotland) Act 1991 (c. 28) (“the 1991 Act”) as a Natural Heritage Area,
(b) it is an area in respect of which notification has been given by SNH under section 28(1) (areas of special scientific interest) of the Wildlife and Countryside Act 1981 (c. 69), or
(c) it is a European site within the meaning of Regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 (S.I.1994/2716).
(3) Where SNH has given notice under subsection (1) in respect of an area of land and—
(a) in the case of an area mentioned in subsection (2)(a), the designation referred to in that subsection is cancelled or varied under section 6(7) of the 1991 Act,
(b) in the case of an area mentioned in subsection (2)(b), the notification ceases to have effect,
(c) in the case of an area mentioned in subsection (2)(c), the area ceases to be a European site,
SNH must by notice in writing advise Scottish Water of that fact.
(4) Where Scottish Water has received notice under subsection (1), it must (unless SNH has given notice under subsection (3) to the effect that the area of land in question is no longer a protected area) consult SNH before commencing any scheme, work, operation or activity which is likely to prejudice significantly the qualities by reference to which the area of land was designated as a Natural Heritage Area or notified as an area of special scientific interest or, as the case may be, is a European site.
(5) Before commencing any scheme, work, operation or activity which appears to Scottish Water to be likely to affect adversely an area of land designated as a National Park under the National Parks (Scotland) Act 2000 (asp 10), Scottish Water must consult the National Park authority for the National Park.
(6) Subsections (4) and (5) do not apply in relation to anything to be done by Scottish Water in an emergency but particulars of what is done and of the emergency must be notified by Scottish Water to SNH or, as the case may be, the National Park authority as soon as is practicable after the thing is done.
(1) Where it appears to Scottish Water that (whether or not as a result of any act or omission by it) services provided by it in the exercise of its core functions give rise to, or are likely to give rise to, a significant risk to public health in relation to the area of any Health Board, Scottish Water must—
(a) consult the Health Board, and
(b) exercise its core functions with a view to reducing or eliminating the risk to public health, having regard to any views expressed by the Health Board.
(2) This section is without prejudice to section 11(6).
(1) The Scottish Ministers must give Scottish Water directions—
(a) as to the exercise of its powers under section 25 and schedule 3, and
(b) otherwise as to how its affairs are to be managed and conducted.
(2) Directions under subsection (1) may be of a general or specific character and may, in particular, include provision—
(a) as to the nature and allocation of the responsibilities of the members and employees of Scottish Water,
(b) requiring Scottish Water to obtain the approval of, or to consult, the Scottish Ministers before exercising such of its powers, or exercising them in such ways, as the directions may specify,
(c) for any matter to which the directions relate to be determined, in such manner (if any) as the directions may specify, by a person other than the Scottish Ministers.
(3) The Scottish Ministers may give Scottish Water other directions of a general or specific character as to the exercise of its functions.
(4) Before giving any direction under this section, the Scottish Ministers must consult Scottish Water.
(5) Scottish Water must comply with directions given under this Part.
(1) Scottish Water must provide the Scottish Ministers with such information relating to the exercise of its functions as they may require.
(2) For that purpose Scottish Water must—
(a) permit any person authorised to do so by the Scottish Ministers to inspect and make copies of its accounts and other records, and
(b) provide that person with such explanations in relation to those accounts and records as the person or the Scottish Ministers may require.
(3) Scottish Water must prepare—
(a) a report on its activities during the period from the beginning of each financial year to 30th September in that year, and
(b) a report on its activities during the whole of each financial year,
as soon as practicable after the end of the period to which the report relates.
(4) A report prepared under subsection (3)(a) must include a statement of accounts for the period to which the report relates; and subsection (2) of section 45 applies to such a statement of accounts as it applies to a statement of accounts prepared in accordance with that section.
(5) A report prepared under subsection (3)(b) must include—
(a) a description of the manner in which Scottish Water has complied, during the period to which the report relates, with its duties under sections 26, 28, 50 and 51, and
(b) the reasons for any failure, during that period, to comply with its duties under sections 26 and 28.
(6) Scottish Water must—
(a) send a copy of each report prepared under subsection (3) to the Scottish Ministers, the Commissioner and the Convener of the Water Customer Consultation Panels, and
(b) publish the report.
(7) A report prepared under subsection (3) must set out any directions under section 56 which have been given to Scottish Water during the period to which the report relates.
(8) The Scottish Ministers must lay a copy of a report sent to them under subsection (6) before the Parliament.
(1) This section applies to all records (in whatever form or medium)—
(a) transferred to Scottish Water by virtue of this Act,
(b) created or acquired by it in the exercise of any of its functions, or
(c) otherwise in its keeping.
(2) Scottish Water must, after consulting the Keeper of the Records of Scotland, make arrangements for the preservation and management of the records and must ensure that the records are preserved and managed in accordance with those arrangements.
(3) Scottish Water may from time to time revise those arrangements but before making any material change must consult the Keeper.
(4) Despite subsection (2), Scottish Water may dispose of records which in its opinion are not worthy of preservation.
(5) Scottish Water—
(a) must ensure that the Keeper has, at all reasonable hours, unrestricted access to the records preserved by it,
(b) may afford facilities for any person to inspect and, on payment of a reasonable fee, to obtain copies of or extracts from those records.
(6) Nothing in subsection (5)(b) permits infringement of copyright or contravention of conditions subject to which records are in the keeping of Scottish Water.
(7) If any enactment makes provision relating to records of a specific kind which is inconsistent with subsections (1) to (6), those subsections are subject to that enactment.
The validity of any actings of Scottish Water is not affected by any failure to comply with a duty imposed on it under or by virtue of this Part.
(1) Scottish Water may, if it thinks fit—
(a) with the consent of the Scottish Ministers, promote private legislation in the Scottish Parliament,
(b) oppose private legislation in the Parliament of the United Kingdom or the Scottish Parliament.
(2) An application for consent under subsection (1)(a) must be accompanied by a concise summary of the purposes of the proposed legislation.
(3) Such consent must be withheld if the Scottish Ministers consider that the powers sought by the private legislation could be obtained by means of an order under the 1968 Act or, as the case may be, the 1980 Act.
The Local Authorities (Goods and Services) Act 1970 (c. 39) has effect as if Scottish Water were both a local authority and a public body for the purposes of that Act.
(1) The Scottish Ministers may by regulations require a local authority or an assessor to provide Scottish Water with relevant information in such form as the regulations may specify.
(2) For the purposes of subsection (1), information is relevant if—
(a) it is information falling within subsection (3), and
(b) its possession by Scottish Water would, in the opinion of the Scottish Ministers, be likely to assist Scottish Water to make a charges scheme or to collect, or arrange to have collected, such charges as may be fixed by a charges scheme made by it.
(3) Information falls within this subsection if it is held—
(a) by the local authority in connection with their—
(i) setting, levying or collecting council tax or council water charges (within the meaning of Part II of the Local Government Finance Act 1992 (c. 14)) or the non-domestic water rate or non-domestic sewerage rate (as defined in paragraphs (c) and (d) of section 99(2) of that Act before the repeal of those paragraphs by the 1994 Act), or
(ii) levying or collecting the non-domestic rate (as for the time being defined in section 37(1) of the Local Government (Scotland) Act 1975 (c. 30), or
(b) as the case may be, by the assessor in connection with the assessor’s functions under any enactment.
(4) In this section—
“assessor” is to be construed in accordance with section 27 of the 1994 Act,
“information” includes, in particular, a copy of the whole, or of any part of, a valuation roll or valuation list.
Water Industry (Scotland) Act 2002