Office of Public Sector Information
(1) Any person who introduces water into the public water supply system is guilty of an offence.
(2) Any person who uses the public water supply system for the purposes of supplying water to the premises of another person is guilty of an offence.
(3) Any person who makes arrangements for or in relation to the supply of water to the premises of another person through the public water supply system is guilty of an offence.
(4) Subsections (1) to (3) do not apply to—
(a) Scottish Water; or
(b) another person if (and to the extent that) the person is acting on behalf of Scottish Water or under its authority.
(5) Subsections (2) and (3) do not apply to a person if (and to the extent that) the person is supplying water with the help of services provided by Scottish Water as described in section 30 of the 2002 Act.
(6) Subsection (3) does not apply to a water services provider where the provider is acting as authorised by the water services licence held by the provider.
(7) The Scottish Ministers may by regulations—
(a) specify other circumstances in which subsection (1), (2) or (3) does not apply; or
(b) specify that subsection (1), (2) or (3) does not apply—
(i) to such other person or to such category of person; and
(ii) to such extent and subject to such conditions,
as may be specified in the regulations.
(8) The Scottish Ministers are to consult—
(a) Scottish Water;
(b) the Commission; and
(c) such other persons as they consider appropriate,
on any regulations they propose to make under subsection (7).
(9) It is competent to make regulations under subsection (7) only if the effect of the regulations would not be prejudicial to the exercise of Scottish Water’s core functions as respects the supply of water.
(10) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to a fine not exceeding £20,000; or
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.
(11) A person who is guilty of an offence under subsection (2) or (3) is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.
(12) Any contract or other agreement which involves a contravention of subsection (1), (2) or (3) is unenforceable.
(1) Any person who draws sewage from the public sewerage system is guilty of an offence.
(2) Any person who uses the public sewerage system for the disposal of sewage from the premises of another person is guilty of an offence.
(3) Any person who makes arrangements for or in relation to the provision of sewerage to, or disposal of sewage from, the premises of another person through the public sewerage system is guilty of an offence.
(4) Subsections (1) to (3) do not apply to—
(a) Scottish Water; or
(b) another person if (and to the extent that) the person is acting on behalf of Scottish Water or under its authority.
(5) Subsections (2) and (3) do not apply to a person if (and to the extent that) the person is providing sewerage, or disposing of sewage, with the help of services provided by Scottish Water as described in section 30 of the 2002 Act.
(6) Subsection (3) does not apply to a sewerage services provider where the provider is acting as authorised by the sewerage services licence held by the provider.
(7) The Scottish Ministers may by regulations—
(a) specify other circumstances in which subsection (1), (2) or (3) does not apply; or
(b) specify that subsection (1), (2) or (3) does not apply—
(i) to such other person or to such category of person; and
(ii) to such extent and subject to such conditions,
as may be specified in the regulations.
(8) The Scottish Ministers are to consult—
(a) Scottish Water;
(b) the Commission; and
(c) such other persons as they consider appropriate,
on any regulations they propose to make under subsection (7).
(9) It is competent to make regulations under subsection (7) only if the effect of the regulations would not be prejudicial to the exercise of Scottish Water’s core functions as respects the provision of sewerage and disposal of sewage.
(10) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to a fine not exceeding £20,000; or
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.
(11) A person who is guilty of an offence under subsection (2) or (3) is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.
(12) Any contract or other agreement which involves a contravention of subsection (1), (2) or (3) is unenforceable.
(13) In this Part, “sewage” is to be construed in accordance with section 59(1) (interpretation) of the 1968 Act.
(1) The Commission may, subject to section 7 and paragraphs 1 and 2 of schedule 2, grant a licence authorising a person—
(a) to—
(i) make arrangements with the occupier of any eligible premises for or in relation to the supply of water to the premises through the public water supply system; and
(ii) fix, demand and recover charges for or in relation to the supply of water to any premises in respect of which the person has made such arrangements; and
(b) to make such arrangements with Scottish Water and such other persons as are necessary for the purposes of or in connection with the things mentioned in paragraph (a).
(2) A licence granted under subsection (1) is in this Act referred to as a “water services licence”; and a person who holds a water services licence is in this Act referred to as a “water services provider”.
(3) The Commission may, subject to section 7 and paragraphs 1 and 2 of schedule 2, grant a licence authorising a person—
(a) to—
(i) make arrangements with the occupier of any eligible premises for or in relation to the provision of sewerage to, or the disposal of sewage from, the premises through the public sewerage system; and
(ii) fix, demand and recover charges for or in relation to the provision of sewerage to, and disposal of sewage from, any premises in respect of which the person has made such arrangements; and
(b) to make such arrangements with Scottish Water and such other persons as are necessary for the purposes of or in connection with the things mentioned in paragraph (a).
(4) A licence granted under subsection (3) is in this Act referred to as a “sewerage services licence”; and a person who holds a sewerage services licence is in this Act referred to as a “sewerage services provider”.
(5) The references in subsections (1) and (3) to the occupier of premises are, if the premises are unoccupied, to be construed as references to the owner of the premises.
(1) The Commission may grant a water services licence or a sewerage services licence only if satisfied that the applicant has the ability to perform adequately the activities authorised by the licence.
(2) In assessing an applicant’s ability so to perform those activities, the Commission is to have special regard to the following factors (in so far as relevant in relation to the performance of those activities)—
(a) knowledge, expertise and experience; and
(b) financial acumen and business viability,
and such other matters as the Scottish Ministers may by order specify.
(3) The Commission may issue guidance (either generally or in a particular case or category of case) in relation to the things mentioned in subsection (2).
(4) A water services licence and a sewerage services licence—
(a) must be in writing; and
(b) unless revoked or suspended, continues in force for such period as may be specified in or determined by or under the licence.
(5) As soon as practicable after refusing an application for a water services licence or a sewerage services licence, the Commission is to intimate the refusal to—
(a) the applicant; and
(b) Scottish Water.
(6) As soon as practicable after granting a water services licence or a sewerage services licence, the Commission is to send a copy of the licence to—
(a) the person to whom it is granted; and
(b) Scottish Water.
(1) The Commission is to—
(a) monitor compliance with the terms and conditions of water services licences and sewerage services licences; and
(b) take such steps as it considers are necessary for the purposes of ensuring that the terms and conditions of such licences are complied with.
(2) The Commission may give directions to any water services provider or sewerage services provider for the purpose of ensuring that the provider complies with the terms and conditions of the provider’s licence; and the provider must comply with any such directions.
(3) The Commission may issue guidance (either generally or in a particular case or category of case) in relation to compliance with the terms and conditions of water services licences and sewerage services licences.
(4) Scottish Water must report to the Commission any contravention of a term or condition of a water services licence or a sewerage services licence which appears to it to have occurred or be occurring.
(1) The Commission may, for the purpose mentioned in subsection (2), make a scheme (a “fees scheme”) which specifies—
(a) the matters relating to water services and sewerage services licences in respect of which fees are payable; and
(b) the amounts of fees payable (and, as appropriate, the persons by whom they are payable) in respect of each of those matters.
(2) The purpose is securing that the fees payable in accordance with the scheme are sufficient to meet the costs incurred by the Commission in exercising its functions relating to water services and sewerage services licences.
(3) A fees scheme may, in particular—
(a) impose on licence-holders fees by way of annual levies; and
(b) specify fees by reference to maximum amounts.
(4) A fees scheme may make provision with respect to the times and methods of payment of the fees specified by the scheme.
(5) A fees scheme may—
(a) make different provision for different cases or types of case;
(b) revoke or amend a previous scheme.
(6) The Commission must—
(a) send any fees scheme to the Scottish Ministers for approval; and
(b) publish a summary of the scheme (and, in doing so, invite representations for the purposes of subsection (7)).
(7) The Scottish Ministers—
(a) must have regard to any representations about a fees scheme which are made to them within 4 weeks of publication of the summary of it under subsection (6)(b); and
(b) may approve a fees scheme with or without modifications.
(8) If the Scottish Ministers approve a fees scheme with modifications, they must give their reasons for doing so.
(9) When a fees scheme has been approved under subsection (7), the Commission—
(a) must—
(i) make arrangements for allowing any person to obtain a copy of the scheme on payment of such reasonable fee (if any) as the Commission may determine; and
(ii) publicise those arrangements and publish the scheme; and
(b) may charge and recover fees in accordance with the scheme.
(1) Water services providers and sewerage services providers must provide the Commission with such information (including information in the form of a document) as it reasonably requires in the exercise of its functions.
(2) Subsection (1) does not authorise the Commission to require the disclosure of anything that a person would be entitled to refuse to disclose on grounds of confidentiality in proceedings in the Court of Session.
(3) Any person who fails, without reasonable excuse, to provide information required by the Commission under subsection (1) is guilty of an offence.
(4) A person who is guilty of an offence under subsection (3) is liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on indictment, to a fine.
(1) The Commission is (so far as is consistent with the exercise of its function under section 1(2) of the 2002 Act) to exercise its functions relating to water services and sewerage services licences for the purposes of securing the participation—
(a) in an orderly manner; and
(b) in a manner that is not detrimental to the exercise of Scottish Water’s core functions,
of water services and sewerage services providers in the provision of water and sewerage services.
(2) The Commission may give directions of a specific or general character to—
(a) Scottish Water; or
(b) any—
(i) water services or sewerage services provider; or
(ii) person in whose favour it intends to grant a water services or sewerage services licence,
as to steps to be taken for the purposes mentioned in subsection (1).
(3) Directions under subsection (2) may, in particular, relate to—
(a) any costs attributable to the participation of water services and sewerage services providers in the provision of water and sewerage services; and
(b) the provision or exchange of information about customers of water services or sewerage services providers.
(4) Before giving directions under subsection (2), the Commission must consult any person to whom the directions are to be given.
(5) Any person to whom directions are given under subsection (2) must comply with the directions.
Schedule 2 makes further provision regarding licences and compliance with licences.
(1) Scottish Water must, in accordance with any requirements made under subsection (2), secure the establishment of a business undertaking for the purposes of this section.
(2) The Scottish Ministers may require Scottish Water to—
(a) take such steps for the purposes of or in connection with—
(i) the establishment and development of the undertaking; and
(ii) Scottish Water’s interest in the undertaking,
as the Scottish Ministers may specify; and
(b) take the steps, or any particular steps, by such date as they may specify.
(3) It is, subject to the approval of the Scottish Ministers, for Scottish Water to determine whether the undertaking is—
(a) to be—
(i) a subsidiary (to be construed in accordance with section 736 of the Companies Act 1985 (c. 6)) of Scottish Water;
(ii) a company (within the meaning of that Act) formed by Scottish Water (on its own or with others); or
(iii) a partnership; or
(b) to be established through such other arrangements as Scottish Water considers it appropriate to make.
(4) The functions of the undertaking are—
(a) to become a water services provider and a sewerage services provider; and
(b) thereafter, to perform the activities authorised by the water services and sewerage services licences held by it.
(5) Accordingly, the undertaking must (as soon as reasonably practicable after it is established) apply for a water services licence and a sewerage services licence.
(6) The Scottish Ministers may by order provide that paragraphs 1 and 2 of schedule 2 have effect—
(a) as regards an initial application by the undertaking for a licence; and
(b) following such an application, as regards the granting of the licence and the incorporation in it of conditions,
with or subject to such modifications as the order may specify.
(7) The undertaking may engage in any activity which it considers is not inconsistent with the performance of the activities authorised by the water services and sewerage services licences held by it.
(8) After the undertaking is established, Scottish Water must not treat it any more or less favourably than it treats—
(a) in relation to services as respects the supply of water, other water services providers; and
(b) in relation to services as respects the provision of sewerage and the disposal of sewage, other sewerage services providers.
(9) Any reference in any enactment to Scottish Water is to be construed as not including the undertaking.
(1) In such circumstances as the Scottish Ministers may by order specify, the Scottish Ministers may, with the consent of Scottish Water, make grants to the business undertaking established under section 13(1) of such amounts as the Scottish Ministers may determine.
(2) In such circumstances as the Scottish Ministers may by order specify, the undertaking—
(a) may, with the consent of Scottish Water, borrow from the Scottish Ministers (and they may lend to it) sums of such amounts as the Scottish Ministers may determine;
(b) may not, except as described in subsection (4)(b), borrow money from any other person apart from Scottish Water.
(3) In any financial year, the net amount of sums borrowed under subsection (2)(a) must not exceed the amount specified for that year for the purposes of this subsection in a Budget Act.
(4) In subsection (3), “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 Scottish Water, by way of overdraft or otherwise for the purpose of meeting a temporary excess of expenditure over sums otherwise available to meet that expenditure.
(5) Any loans made under subsection (2)(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 specify.
(6) In such circumstances as the Scottish Ministers may by order specify, the Scottish Ministers may guarantee, in such manner as they consider appropriate, the discharge of any financial obligation in connection with any sums borrowed as described in subsection (4)(b).
(7) Immediately after a guarantee is given under subsection (6), the Scottish Ministers must lay a statement of the guarantee before the Parliament.
(8) Where any sums are paid out in fulfilment of a guarantee under subsection (6), the undertaking must make to the Scottish Ministers, at such times and in such manner as they may from time to time specify—
(a) payments of such amounts as they may so specify in or towards repayment of those sums; and
(b) payments of interest, at such rate as they may so specify, on the amount outstanding for the time being in respect of those sums.
(9) In such circumstances as the Scottish Ministers may by order specify, the Scottish Ministers may, with the consent of Scottish Water, subscribe for share or loan capital of the undertaking.
(10) Any—
(a) grants under subsection (1) may be made;
(b) loans under subsection (2)(a) may be made;
(c) guarantees under subsection (6) may be given; and
(d) subscriptions for share or loan capital under subsection (9) may be made,
subject to such conditions as the Scottish Ministers consider it appropriate to impose.
(1) Scottish Water must, following a requirement made by the Scottish Ministers to do so, transfer such of its staff to the employment of the business undertaking established under section 13(1) as are necessary for the purposes of or in connection with the matters mentioned in subsection (8).
(2) The contract of employment of a person transferred by virtue of subsection (1)—
(a) is not terminated by the transfer; and
(b) has effect from the date of transfer as if originally made between the person and the undertaking.
(3) Without prejudice to subsection (2), where a person is transferred to the employment of the undertaking by virtue of subsection (1)—
(a) all the rights, powers, duties and liabilities of Scottish Water under or in connection with the person’s contract of employment are transferred to the undertaking on the date of transfer; and
(b) anything done before that date by or in relation to Scottish Water in respect of the person or that contract is to be treated from that date as having been done by or in relation to the undertaking.
(4) Subsections (1) to (3) do not affect any right of any person to terminate the person’s contract of employment if the terms and conditions of employment are changed substantially to the detriment of the person; but such a change is not to be taken to have occurred by reason only that the identity of the person’s employer changes by virtue of those subsections.
(5) Scottish Water must, following a requirement made by the Scottish Ministers to do so, transfer such of its property (including rights) and liabilities to the undertaking as are necessary for the purposes of or in connection with the matters mentioned in subsection (8).
(6) A transfer by virtue of subsection (5) may be—
(a) to such extent; and
(b) subject to such conditions,
as Scottish Water may, with the consent of the Scottish Ministers, determine.
(7) A transfer by virtue of subsection (5)—
(a) has effect in relation to any property and liabilities to which it applies despite any provision (of whatever nature) which would otherwise prevent, penalise or prohibit the transfer of the property or liabilities; and
(b) has the effect of vesting in the undertaking any property or liabilities to which it applies.
(8) For the purpose of subsections (1) and (5), those matters are—
(a) applications by the undertaking for water services and sewerage services licences; and
(b) the performance by the undertaking of its activities.
(1) Where a water services provider has made arrangements with the occupier of eligible premises for the supply of water to the premises, the provider may request Scottish Water to supply (or continue to supply) water through the public water supply system to the premises.
(2) Scottish Water must, so far as is consistent with the exercise of its core functions as respects the supply of water, supply water as so requested subject to agreement between Scottish Water and the provider as to the terms and conditions that are to apply in relation to that supply.
(3) A duty to supply water under subsection (2)—
(a) ceases if—
(i) the arrangements mentioned in subsection (1) have come to an end (unless the duty is continued under section 17(1)); or
(ii) the supply is discontinued under section 18; and
(b) may be superseded by a new duty under subsection (2).
(4) Where a sewerage services provider has made arrangements with the occupier of eligible premises for the provision of sewerage to, or disposal of sewage from, the premises, the provider may request Scottish Water to provide (or continue to provide) sewerage to, or dispose of (or continue to dispose of) sewage from, the premises through the public sewerage system.
(5) Scottish Water must, so far as is consistent with the exercise of its core functions as respects the provision of sewerage and disposal of sewage, provide sewerage and dispose of sewage as so requested subject to agreement between Scottish Water and the provider as to the terms and conditions that are to apply in relation to that provision or disposal.
(6) A duty to provide sewerage or dispose of sewage under subsection (5)—
(a) ceases if the provision or (as the case may be) disposal is discontinued under section 20; and
(b) may be superseded by a new duty under subsection (5).
(7) Where no agreement as is mentioned in subsection (2) or (5) is reached, the Commission, on the application of the provider in question, may determine the terms and conditions that are to apply in relation to the supply or (as the case may be) provision or disposal; and those terms and conditions have effect as if agreed between the provider and Scottish Water.
(1) Where—
(a) water is supplied to premises by Scottish Water under subsection (2) of section 16; and
(b) the arrangements for the supply of water (made between the occupier of the premises and the water services provider who made the related request under subsection (1) of that section in respect of the premises) have come to an end—
(i) by reason of the revocation or suspension of the licence held by the provider; or
(ii) for any other reason (except where the supply is discontinued under section 18),
the duty of Scottish Water under subsection (2) of section 16 to supply water to the premises continues for the period mentioned in subsection (2).
(2) The period is 2 months, or such longer period as Scottish Water agrees to, from the date on which the arrangements mentioned in subsection (1)(b) came to an end.
(3) But the continuation under subsection (1) of a duty to supply water ceases if—
(a) it is superseded by a new duty under subsection (2) of section 16; or
(b) the occupier of the premises notifies Scottish Water that the supply of water is not required.
(4) In section 9 (supply of water for non-domestic purposes) of the 1980 Act, after subsection (2), there is inserted—
“(2A) Where a supply of water has been made to premises under subsection (2) of section 16 of the Water Services etc. (Scotland) Act 2005 (asp 3) but—
(a) the arrangements for the supply (made between the occupier of the premises and the water services provider who made the related request under subsection (1) of that section in respect of the premises) are at an end, or are to come to an end, in consequence of non-payment of charges owed to the provider in relation to the water supplied; or
(b) the supply is discontinued (or is to be discontinued) under section 18(5) of that Act,
Scottish Water shall not be required to give a supply of water to the premises in accordance with subsection (1) if it is of the opinion that there is no reasonable prospect of recovering the charges (or any significant proportion of the charges) which it would be entitled to recover in relation to that supply of water were it given.
(2B) Where Scottish Water decides, by virtue of subsection (2A), not to give a supply of water to premises, the occupier of the premises may by notice require the Water Industry Commission for Scotland to review that decision.
(2C) In a review under subsection (2B), the Commission may, having regard to any representations made to it by the parties—
(a) confirm the decision of Scottish Water; or
(b) direct Scottish Water to give a supply of water to the premises in accordance with subsection (1),
and the determination of the Commission in the review shall be final.”.
Water Services etc (Scotland) Act 2005