Water (Scotland) Act 1980

Part IXS General

93 Obtaining of information as to underground water.S

(1)Any person who proposes to sink, for the purpose of searching for or abstracting water, a well or borehole intended to reach a depth of more than 50 feet below the surface shall, before he begins to do so, give to the Natural Environmental Research Council notice in writing of his intention to do so, and shall keep a journal of the progress of the work, which shall include measurements of the strata passed through, and all the levels at which water is struck and subsequently rests, and shall allow any person authorised by the said council for the purpose, on the production of some duly authenticated document showing his authority, at all reasonable times—

(a)to have free access to any such well or borehole;

(b)to inspect the well or borehole and the material excavated therefrom;

(c)to take specimens of such material and of water abstracted from the well or borehole; and

(d)to inspect and take copies of or extracts from the journal required to be kept under this section.

(2)The person sinking any such well or borehole shall, on completion or abandonment of the work, send a complete copy of the journal kept under subsection (1) to the council and shall also send them particulars of any test made, before such completion or abandonment, of the flow of water, specifying the rate of flow throughout the test and the duration of the test, and also, where practicable, specifying the water levels during the test and thereafter until the water has returned to its natural level.

(3)Where any such well or borehole is sunk in connection with an existing pumping station, the particulars of any test to be supplied to the council shall also include the rate of pumping at the existing works during the test.

(4)Where the person sinking a well or borehole on any land is not the occupier of the land, the obligation to allow a person authorised by the council to exercise the rights specified in paragraphs (a) to (d) of subsection (1) shall be the obligation of the occupier as well as of the person sinking the well or borehole.

(5)Where any person contracts to sink any well or borehole on land belonging to or occupied by any other person and the execution of the work is under the control of the contractor, the contractor and no other person shall be deemed for the purposes of this section to be the person sinking the well or borehole.

(6)The person sinking a well or borehole or (if a different person) the owner or occupier of the land on which it is sunk may give notice in writing to the council requiring them to treat as confidential any copy of or extract from the journal required to be kept under subsection (1) or any specimen taken under that subsection, and the council shall thereupon not allow that copy, extract or specimen, except in so far as it contains or affords information as to water resources and supplies, to be published or shown to any person not being an officer of the council or of the Secretary of State, unless the person giving the notice consents thereto:

(7)Any person who fails to comply with any obligation imposed on him by the provisions of this section shall be guilty of an offence against this Act and shall on summary conviction be liable to a fine not exceeding [F1level 4 on the standard scale] and, where the offence continues after conviction, to a further fine of £20 for every day during which it so continues.

[F2(8)Any person who in keeping a journal under subsection (1) or in furnishing information under subsection (2) or (3) makes any statement which he knows to be false or misleading in a material particular or recklessly makes any statement which is false or misleading in a material particular shall be guilty of an offence and shall be liable—

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

(b)on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.]

94 False information.S

Any person who, in keeping any record or journal or in furnishing any return, abstract or information which he is required by or under this Act [F3(other than by or under section 93)] to keep or furnish, knowingly or recklessly makes any statement which is false in a material particular shall be liable in respect of each offence—

(a)on summary conviction, to a fine not exceeding [F4the statutory maximum] or to imprisonment for a term not exceeding three months or to both such fine and imprisonment;

(b)on conviction on indictment, to a fine or to imprisonment for a term not exceeding three months or to both such fine and imprisonment.

95 Penalties for offences.S

Any person guilty of an offence under this Act shall, except where the provision by or under which the offence is created provides for the penalty to be imposed, be liable in respect of each offence—

(a)on summary conviction, to a fine not exceeding [F5the statutory maximum] and in the case of a continuing offence to a further fine not exceeding £25 for every day during which the offence is continued after conviction;

(b)on conviction on indictment, to imprisonment for a period not exceeding three months or to a fine, and in the case of a continuing offence to a fine for every day during which the offence is continued after conviction.

96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6S

97 Continuing offences and penalties.S

Where provision is made by or under this Act or any local enactment incorporating any provisions of Schedule 4 for the imposition of a daily penalty in respect of a continuing offence, the court by which a person is convicted may fix a reasonable period from the date of the conviction for compliance by that person with any directions given by the court, and, where the court has fixed such a period, the daily penalty shall not be recoverable in respect of any day before the expiration thereof.

98 Local inquiries.S

The Secretary of State may cause such local inquiries to be held as he may consider necessary or proper in connection with the discharge by him of any of his functions under this Act or under any other enactment with respect to water supplies or water undertakings, and the provisions of section 210(2) to (9) of the M1Local Government (Scotland) Act 1973 shall apply to any such local inquiry and to any other local inquiry which he is required by this Act or any other such enactment to cause to be held.

99 Orders subject to special parliamentary procedure.S

(1)Any inquiry in relation to an order under this Act which in certain events becomes subject to special parliamentary procedure shall, if the Secretary of State so directs, be held by commissioners under the M2Private Legislation Procedure (Scotland) Act 1936; and any direction so given shall be deemed to have been given under section 2, as read with section 10, of the M3Statutory Orders (Special Procedure) Act 1945.

(2)Nothing in section 210(2) to (9) of the Local Government (Scotland) Act 1973 shall apply to any inquiry under this section by commissioners under the Private Legislation Procedure (Scotland) Act 1936.

(3)The provisions of the M4Statutory Orders (Special Procedure) Act 1945 with regard to the publication of notices in the Edinburgh Gazette and in a newspaper shall, notwithstanding anything in that Act contained, not apply to any order under this Act which is subject to special parliamentary procedure.

100 Orders.S

(1)Any power to make orders under this Act may be exercisable by statutory instrument.

[F7(2)Before making, on his own initiative, an order under section 107, the Secretary of State shall consult [F8Scottish Water] .]

101 Regulations.S

(1)The Secretary of State may make regulations prescribing anything required to be prescribed for the purpose of any provision of this Act.

[F9(1A)Regulations made under this Act may make—

(a)such supplemental, consequential or transitional provision as the Secretary of State thinks fit;

(b)different provision for different cases or classes of case.]

[F10(1B)The Secretary of State may by regulations make provision as to—

(a)the manner in which and the time within which a question or dispute may be referred (other than by him for determination by arbitration), or a request may be made, in pursuance of section 6(3), 9(4) or 24(10) of this Act and as to the procedure for dealing with any such reference or request; and

(b)the manner in which, subject to sections 76G and 76H of this Act, written representation or objection may be made, submitted or withdrawn under subsection (2) of the said section 76H.]

(2)Any power to make regulations under this Act shall be exercisable by statutory instrument; and any instrument containing any such regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.

102 Expenses.S

There shall be paid out of moneys provided by Parliament any expenses incurred by the Secretary of State in the exercise of his functions under this Act.

103 Notices to be in writing.S

All notices, consents, approvals, demands and other documents authorised or required by or under this Act or any local enactment incorporating any provisions of Schedule 4 to be given, made or issued by the Secretary of State or any [F11local authority], or [F12Scottish Water]F13, and all notices and applications authorised or required by or under this Act or any such local enactment to be given or made to the Secretary of State or to, or to any officer of, any [F11local authority], or [F12Scottish Water]F13, shall [F14, subject to section 23(4) of and paragraph 4(1) of Schedule 3 to this Act,] be in writing.

104 Appeal to sheriff-principal.S

(1)It shall be competent to appeal to the sheriff-principal against the decision of a sheriff on any application to him under this Act [F15(other than an application under section 23(1A))] within 21 days after the date of that decision, but subject thereto the decision of the sheriff-principal or sheriff shall be final.

(2)The provisions of this section shall also apply in the case of applications to the sheriff-principal under any local enactment incorporating any provisions of Schedule 4.

105 Reference to arbitration.S

In arbitrations under this Act or under any local enactment incorporating any provisions contained in Schedule 4, the reference shall, except where otherwise expressly provided, be to a single arbiter to be appointed by agreement between the parties or in default of agreement by the Secretary of State.

106 Supplementary provisions relating to determination of disputes.S

(1)Where for the purposes of this Act the Secretary of State or an arbiter is required to determine a dispute, the following provisions of this section shall apply in relation to that determination.

(2)Any such arbiter shall have the like powers for securing the attendance of witnesses and the production of documents, and with regard to the examination of witnesses on oath and the awarding of expenses, as if the arbitration were under a submission.

(3)The arbiter may, and if so directed by the Court of Session shall, state a case for the opinion of that Court on any question of law arising in the proceedings.

(4)Any award of the Secretary of State or, as the case may be, of an arbiter, under [F16this Act] may be recorded in the Books of Council and Session for execution, and may be enforced accordingly.

107 Repeal, amendment and adaptation of local enactments.S

(1)The Secretary of State may by order—

(a)on his own initiative, repeal or amend any local enactment relating to the supply of water, or

(b)on the application of [F17Scottish Water]F18, repeal or amend any local enactment relating to the supply of water—

(i)by or to [F19Scottish Water] , or

(ii)F20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The power conferred on the Secretary of State by the foregoing subsection shall include power to consolidate any such local enactments as aforesaid, with or without amendments.

(3)Any order under this section may include such transitional, incidental, supplementary and consequential provisions as the Secretary of State may consider necessary or expedient.

(4)The provisions of this scetion shall have effect without prejudice to the exercise of any power to repeal, amend or adapt local enactments which is conferred by any other enactment, including any enactment contained in this Act.

(5)The provisions of Part I of Schedule 1 shall apply to orders made under this section on the application of [F21Scottish Water]F18.

108 Transitional provisions and savings.S

The transitional provisions and savings contained in Schedule 9 shall have effect.

109 Interpretation.S

(1)In this Act the following expressions shall subject to any express provision or anything in the context to the contrary have the meanings hereby respectively assigned to them, that is to say—

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• [F23“agricultural lands and heritages” means any lands and heritages used for agricultural or pastoral purposes only or as woodlands, market gardens, orchards, allotments or allotment gardens and any lands exceeding 1011.75 square metres used for the purpose of poultry farming, but does not include any lands occupied together with a house as a park, garden or pleasure ground or any land kept or preserved mainly or exclusively for sporting purposes]

• [F24“area”, in relation to Scottish Water, means the area comprising all of the local government areas established by virtue of section 1 of the Local Government etc. (Scotland) Act 1994 (c.39);]

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “communication pipe”, subject to section 110, means—

(a)where the premises supplied with water abut on the part of the [F26road] in which the main is laid and the service pipe enters those premises otherwise than through the outer wall of a building abutting on the [F26road] and has a stopcock placed in those premises and as near to the boundary of that [F26road] as is reasonably practicable, so much of the service pipe as lies between the main and that stopcock;

(b)in any other case, so much of the service pipe as lies between the main and the boundary of the part of the [F26road] in which the main is laid; and includes the ferrule at the junction of the service pipe with the main, and also—

(i)where the communication pipe ends at a stopcock, that stopcock; and

(ii)any stopcock fitted on the communication pipe between the end thereof and the main;

• F27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “contravention” includes failure to comply, and “contravene” shall be construed accordingly;

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “enactment” means any Act of Parliament, whether public general, local or private, any statutory order or any provision in an Act of Parliament or statutory order;

• F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “fishery district” means a district for the purposes of the M5Salmon Fisheries (Scotland) Act 1862; and

• “fishery district board” means the district board for a fishery district and for the purposes of this Act the Commissioners appointed under the M6Tweed Fisheries Act 1969 shall be deemed to be a fishery district board, and the river, as defined by the said Act of 1969, shall be deemed to be their fishery district;

• “functions” includes powers and duties;

• F30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “house” means a dwelling-house, whether a private dwelling-house or not, and includes any part of a building if that part is occupied as a separate dwelling-house;

• “land” includes land covered with water and any interest in land and any right or servitude in, to or over land and shall be interpreted accordingly for the purposes of any provisions of any Act incorporated with this Act;

• [F31“limits of supply”, in relation to Scottish Water, means the area of Scottish Water;]

• “local enactment” means any local Act of Parliament, any statutory order or any provision in any such Act of Parliament or statutory order;

• “main” means a pipe laid for the purpose of giving a general supply of water as distinct from a supply to individual consumers, and includes any apparatus used in connection with such a pipe;

• “navigation authority” means any persons or body of persons, whether incorporated or not, having powers under an enactment to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock;

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “occupier” means the tenant or sub-tenant or any person in the actual occupation of premises, but does not include a lodger or person in the occupation as tenant of a furnished house let for a period of less than a year, but includes the person by whom such a furnished house is let;

• “outer wall”, in relation to a building abutting on a street, does not include the outer wall of a cellar, or other structure, belonging to that building but situated beneath the street;

• “owner” F32includes in relation to any land or other premises any person who under the Lands Clauses Acts would be enabled to sell and convey the land or other premises to the promoters of an undertaking;

• F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “performance”, in relation to functions, includes the exercise of powers as well as the performance of duties, and “perform” shall be construed accordingly;

• “premises” includes land and also tents, vans, sheds and similar structures;

• “prescribed” means prescribed by [F33or determined under] regulations made by the Secretary of State under this Act;

• [F34“private road” and “public road” have the same meanings as in the Roads (Scotland) Act 1984;]

• [F35“protection of the water environment” has the same meaning as in section 1(2) of the Water Environment and WaterServices (Scotland) Act 2003 (asp 3)]

• “reasonably practicable” means reasonably practicable in all the circumstances, including in any case where works are involved the expense involved in executing the works;

• “repeal”, in relation to a local enactment not contained in an Act, means revoke;

• F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• [F37“road” has the same meaning as in the [F38Part IV of the New Roads and Street Works Act 1991];]

• [F37“roads authority” has the same meaning as in the Roads (Scotland) Act 1984;]

• “service pipe” means so much of any pipe for supplying water from a main to any premises as is subject to water pressure from that main, or would be so subject but for the closing of some tap;

• “statutory order” means an order or scheme made under an Act of Parliament, including an order or scheme confirmed by Parliament;

• “stream” includes a river, burn, spring or other running water;

• F39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “a supply of water for domestic purposes” has the meaning assigned to it in section 7, and any reference to domestic purposes in relation to the supply of water shall be construed accordingly;

• “supply of water in bulk” means a supply of water for distribution by [F40Scottish Water];

• “supply pipe” means so much of any service pipe as is not a communication pipe;

• F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “watercourse” includes all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices and passages through which water flows;

• “water development board” means a board established by virute of section 82(1)(a) and includes the Central Board;

• [F42“the water environment” has the same meaning as in section 3 of the Water Environment and Water Services (Scotland)Act 2003 (asp 3)]

• “water fittings” includes pipes (other than mains), taps, cocks, valves, ferrules, meters, cisterns, baths, sinks, water-closets, soil-pans and other similar apparatus used in connection with the supply and use of water;

• “waterworks” includes streams, springs, wells, pumps, reservoirs, cisterns, tanks, aqueducts, cuts, sluices, mains, pipes, culverts, engines and all machinery, lands, buildings and things for supplying, or used for supplying, water or used for protecting sources of water supply.

• [F43“wholesome” and cognate expressions shall be construed subject to the provisions of any regulations made under section 76J]

F44(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In the construction of any enactment incorporated with this Act, the expressions “the promoters of the undertaking” or “the company”, and “the special Act”, shall be construed as meaning respectively the [F45Scottish Water] F46 . . . , and this Act.

(4)In this Act, except where otherwise indicated—

(a)a reference to a numbered Part, section or Schedule is a reference to the Part or section of, or the Schedule to, this Act so numbered, and

(b)a reference in a section to a numbered subsection is a reference to the subsection of that section so numbered, and

(c)a reference in a section, subsection or Schedule to a numbered paragraph is a reference to the paragraph of that section, subsection or Schedule so numbered.

F47(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

110 Further provisions as to communication pipes, etc.S

(1)Where any main is laid alongside and within 60 feet of the middle of a [F48road], then, for the purposes of the definition of “communication pipe” contained in section 109(1), the land in which the main is laid, and any land between the main and the [F48road], shall be deemed to form part of the [F48road], and references in that definition to the part of the [F48road] in which the main is laid, and to the boundary of the [F48road] in which the main is laid, shall be construed accordingly;

(2)Where any main is laid as mentioned in subsection (1), the power of [F49Scottish Water] to lay service pipes, stopcocks and other fittings under paragraph 4 of Schedule 3 shall include power, with the consent of every owner and occupier of the land, and subject to payment of compensation for any damage done by [F50Scottish Water] , to lay such pipes, stopcocks and fittings in, on or over any land which is deemed to form part of a [F48road] for the purposes specified in subsection (1).

(3)Any consent required for the purposes of subsection (2) shall not be unreasonably withheld, and any question whether such consent is, or is not, unreasonably withheld shall be referred to and determined by the Secretary of State; and any dispute as to the amount of compensation to be paid under subsection (2) shall be determined by arbitration in the manner provided by section 105.

(4)For the avoidance of doubt, it is hereby declared that the provisions of section 24(3) apply to any pipe laid before the commencement of this Act which, by virtue of this section, is deemed to be a communication pipe.

111 Saving for protective clauses in other Acts.S

Except with the consent of the persons interested, no order made under section 29 shall abrogate or affect—

(a)any provision contained in a local enactment for the protection or benefit of any specified person or class of persons or body of persons whether incorporated or not, other than a provision with respect to the discharge of compensation water into any watercourse;

(b)any provision contained in a local enactment for conferring on or preserving to the public rights of enjoyment of air, exercise and recreation on land or rights of access to land for those purposes or for conferring any right of way.

112 Amendments and repeals.S

(1)The enactments specified in Schedule 10 shall have effect subject to the amendments specified in that Schedule, being amendments consequential upon the provisions of this Act.

(2)The enactments specified in Schedule 10 shall have effect subject to the amendments specified in that Schedule, being amendments consequential upon the provisions of this Act.

113 Short title and extent.S

(1)This Act may be cited as the Water (Scotland) Act 1980.

(2)This Act shall extend to Scotland only.