Office of Public Sector Information

SCHEDULE 3 Certain pre-existing agreements as to charges

(introduced by section 21(6))

1 (1) In this schedule, a “relevant agreement” is an agreement—

(a) between Scottish Water and another person (a “relevant customer”) in respect of eligible premises (within the meaning of Part 2)—

(i) by virtue of any of the provisions referred to in sub-paragraph (3) or otherwise; and

(ii) which makes provision as to the charges to be paid (other than under a charges scheme) by the relevant customer for services provided by Scottish Water in the exercise of its core functions; and

(b) extant on the coming into force of this schedule.

(2) For the purposes of sub-paragraph (1)—

(a) an agreement between Scottish Water and another person includes an agreement with the other person to which Scottish Water has become party in consequence of a transfer, by virtue of any enactment or contractual arrangements, of obligations to Scottish Water; and

(b) an agreement which makes provision as to the charges to be paid for services provided by Scottish Water does not include an agreement by virtue of which there is an obligation to which section 47 of the 1980 Act applies.

(3) For the purposes of sub-paragraph (1)(a)(i), the provisions are—

(a) sections 29(2)(b) and (4) and 31(6) of the 2002 Act (as they had effect immediately before their repeal by this Act);

(b) section 29(3)(j) of the 1968 Act (as it had effect immediately before its repeal by this Act).

2 (1) Scottish Water must, within one month of the coming into force of this schedule, send to the Commission written details of every relevant agreement.

(2) The Commission must, following receipt of those details, in each case—

(a) assess the charges payable under the relevant agreement (the “relevant charges”) during any period to which a charges scheme applies; and

(b) having regard to—

(i) any costs which reasonably require to be met from the charges fixed in accordance with sub-paragraph (6)(b); and

(ii) such other matters as the Commission considers appropriate,

determine, for the purposes of sub-paragraph (6)(a), an amount less than the relevant charges.

(3) The Commission must, in each case—

(a) give the relevant customer written notice of the assessment and determination under sub-paragraph (2); and

(b) send a copy of the notice to—

(i) Scottish Water; and

(ii) every water services and sewerage services provider,

by such date as the Scottish Ministers may direct.

(4) The Commission must publish details of every determination under sub-paragraph (2)(b).

(5) This sub-paragraph applies in any case where a water or sewerage services provider makes arrangements for the provision of any services to which relevant charges apply and is accordingly entitled to demand and recover charges from a relevant customer for that provision.

(6) Where sub-paragraph (5) applies—

(a) Scottish Water may, in relation to that provision, demand and recover from the provider charges which must not exceed the amount determined under sub-paragraph (2)(b); and

(b) the charges which the provider may, in relation to that provision, demand and recover from the relevant customer concerned must not exceed the amount of the relevant charges.

(7) Any financial disadvantage to Scottish Water arising as a consequence of differences between—

(a) the amounts determined under sub-paragraph (2)(b); and

(b) the charges which would be recoverable by Scottish Water under a charges scheme in relation to the services to which the determinations apply,

is to be borne by Scottish Water.

(8) Scottish Water is—

(a) in any case where sub-paragraph (5) does not for the time being apply; or

(b) in any case where that sub-paragraph ceases to apply,

to demand and recover relevant charges from the relevant customer for services provided by it to the customer.

3 (1) A charges scheme does not apply in relation to any services to which relevant charges apply except where the relevant agreement concerned expires or is terminated.

(2) For the purposes of sub-paragraph (1), the making of arrangements by a water services or sewerage services provider for the provision of any services to which relevant charges apply does not of itself cause the relevant agreement concerned to expire or terminate.

(3) A relevant agreement may not be renewed on its expiry or termination, nor may its term be extended at any time.

SCHEDULE 4 Powers of entry under the Coal Industry Act 1994

(introduced by section 30(4))

After Schedule 1B to the Coal Industry Act 1994 (c. 21) there is inserted—

“SCHEDULE 1C Supplemental provisions with respect to powers of entry: scotland

Exercise of powers of entry etc.

1 (1) A person entitled to enter premises by virtue of the power mentioned in section 4E(3)(a) of this Act—

(a) may take on to the premises such other persons (including, if the person reasonably believes he is likely to be obstructed, a constable) and such equipment or materials as may be necessary; but this is, where that power is exercisable under a warrant, subject to the terms of the warrant; and

(b) must, if required to do so, produce written evidence of that entitlement.

(2) A person who enters premises in the exercise of a power conferred by virtue of section 4E of this Act must leave the premises as effectually secured against trespassers as the person found them.

(3) Where a person exercises a power conferred by virtue of section 4E(3)(a) or (4) of this Act, the Authority is to make full compensation to any person who has sustained loss or damage by reason of—

(a) the exercise of that power; or

(b) the carrying out of, or failure to carry out, the duty imposed by sub-paragraph (2) above,

except in so far as the loss or damage is attributable to the fault of the person who sustained it.

(4) Any dispute as to a person’s entitlement to compensation under sub-paragraph (3) above, or as to the amount of any such compensation, shall be referred to the arbitration of a single arbiter, appointed—

(a) by agreement between the Authority and the person who claims to have sustained the loss or damage; or

(b) in default of agreement, by the Scottish Ministers.

(5) Any person who makes use of or discloses any trade secret of which the person has gained knowledge as a result of the exercise of a power conferred by virtue of section 4E of this Act is guilty of an offence.

(6) A person who is guilty of an offence under sub-paragraph (5) above is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

(7) In this schedule, “premises” has the meaning given by section 4E(8) of this Act.

Warrants

2 (1) If a sheriff or justice of the peace is satisfied, by evidence on oath, that—

(a) there are reasonable grounds for the exercise in relation to any premises of a power mentioned in section 4E(3) or (4) of this Act; and

(b) at least one of the conditions mentioned in sub-paragraph (2) below is fulfilled in relation to the premises,

the sheriff or justice may grant a warrant authorising the Authority (and any person authorised by the Authority for the purpose) to exercise the power in relation to the premises in accordance with the terms of the warrant and, if need be, by force.

(2) The conditions are—

(a) that the exercise of the power in relation to the premises has been refused;

(b) that such a refusal may reasonably be expected;

(c) that the premises are unoccupied;

(d) that the occupier is temporarily absent from the premises and the case is one of urgency.

(3) In a case where subsections (5) and (6) of section 4E of this Act apply, a sheriff or justice shall not issue a warrant under this paragraph by virtue of being satisfied that a condition mentioned in head (a) or (b) of sub-paragraph (2) above is fulfilled unless the sheriff or justice is also satisfied that notice required by subsection (5)(a) of that section has been given and that the period of that notice has expired.

(4) A warrant granted under this paragraph continues in force until the purposes for which the warrant is issued have been fulfilled.”.