Water Act 1989

Section 69.

SCHEDULE 8Sewerage Functions

General

1(1)Subject to the following provisions of this Schedule and to any repeal made by this Act, in the provisions to which this sub-paragraph applies, for any reference which falls to be construed as a reference to a water authority there shall be substituted a reference to a sewerage undertaker, and references falling to be construed as references to the area of a water authority shall have effect accordingly.

(2)Sub-paragraph (1) above applies to—

(a)sections 17 to 19, 21 and 22, 30 and 31, 34, 36, 42 and 48 of the [1936 c. 49.] Public Health Act 1936 (in this Schedule referred to as “the 1936 Act”);

(b)the following provisions of Part XII of the 1936 Act so far as they relate to any of the sections specified in paragraph (a) above or to section 27 of that Act, that is to say, sections 275, 276, 278, 283, 291 to 294, 298, 300 to 302, 330 to 334, 339 and 341;

(c)the [1937 c. 40.] Public Health (Drainage of Trade Premises) Act 1937 (in this Schedule referred to as “the 1937 Act”); and

(d)Part V of the [1961 c. 64.] Public Health Act 1961 (in this Schedule referred to as “the 1961 Act”).

(3)Sections 284, 290, 304, 305 and 322 to 325 of the 1936 Act (authentication of documents, works notices, judicial disqualification, protection of officers etc. and enforcement powers), so far as they have effect as modified by section 14 of the 1973 Act for the purposes of or in relation to any of the provisions of the 1936 Act to which sub-paragraph (1) above applies, shall have effect as from the transfer date without the modifications made by the said section 14.

The Public Health Act 1936 (c. 49)

2(1)In section 18 of the 1936 Act (agreements to adopt sewers), after subsection (3) there shall be inserted the following subsections—

“(4)Where—

(a)a person constructing or proposing to construct a drain or sewer or any sewage disposal works has made an application to a sewerage undertaker requesting the undertaker to enter into an agreement under this section;

(b)that application has been accompanied or supplemented by all such information as the undertaker may have reasonably required; and

(c)the undertaker refuses the application, offers to grant it on terms to which that person objects or fails before the expiration of two months from the making of the application either to refuse the application or to give notice to the applicant of the terms on which it is prepared to grant the application,

that person may appeal to the Minister under this subsection.

(5)On the hearing of an appeal under the preceding subsection, the Minister may uphold the refusal of the undertaker to grant the application or to modify the terms offered or may, on behalf of the undertaker—

(a)refuse the application; or

(b)enter into any agreement into which the undertaker might have entered on the application;

and where under this subsection the Minister enters into any agreement on behalf of a sewerage undertaker, he may do so on such terms as he considers reasonable or, as the case may be, on the terms offered by the undertaker subject to such modifications as he considers appropriate for ensuring that the terms of the agreement are reasonable.

(6)Subsection (4) of the preceding section shall apply with the necessary modifications in relation to an appeal under subsection (4) of this section as it applies in relation to an appeal under subsection (3) of that section.”

(2)In section 19 of the 1936 Act (power to require sewer or drain to be constructed so as to form part of the general system)—

(a)the words in subsection (2) from “and if” onwards (which confer jurisdiction on magistrates' courts with respect to the recovery of expenses incurred by virtue of that section) shall be omitted; and

(b)for subsection (3) (which makes it an offence not to comply with requirements imposed under that section) there shall be substituted the following subsection—

“(3)The duty under this section to comply with the requirements of a sewerage undertaker shall be owed to the undertaker; and any breach of that duty which causes the undertaker to sustain loss or damage shall be actionable at the suit of the undertaker.”

(3)The power conferred by section 21(1)(a) of the 1936 Act (use of certain drains and sewers for conveying surface water) on local authorities, within the meaning of that Act, shall continue to be exercisable by those authorities, as well as, by virtue of paragraph 1 above, by sewerage undertakers.

(4)In section 22 of the 1936 Act (power to alter or close public sewers), for the words from the beginning to “such public sewer” there shall be substituted the words “A sewerage undertaker may discontinue and prohibit the use of any public sewer vested in the undertaker”.

(5)Section 24 of the 1936 Act (power to recover cost of maintaining certain lengths of sewer) shall cease to have effect.

(6)In section 34 of the 1936 Act (right of owners and occupiers to drain into public sewers)—

(a)in subsection (1), for the words from “or the owner” to “thereby” there shall be substituted the words “in the area of a sewerage undertaker or the owner of any private sewer draining premises in the area of such an undertaker shall be entitled to have his drains or sewer communicate with the public sewers of that undertaker and thereby”; and

(b)for subsection (2) (power of owner or occupier to break open any streets) there shall be substituted the following subsection—

“(2)For the purpose of exercising his rights under this section or of examining, repairing or renewing any drain or private sewer draining his premises into a public sewer, the owner or occupier of any premises shall be entitled to exercise the same powers as, for the purpose of carrying out its functions, are conferred on a sewerage undertaker by paragraph 2 of Schedule 19 to the Water Act 1989 (street works); and the provisions of that Act shall apply, with the necessary modifications, in relation to the power conferred by this subsection as they apply in relation to the power conferred by that paragraph.”

(7)In section 36(2) of the 1936 Act (right to demand security for costs of carrying out connection works), for the words from “until” onwards there shall be substituted the words “until either—

(a)there has been paid to the sewerage undertaker any such sum, not exceeding the undertaker’s reasonable estimate of the cost of the work, as the undertaker may have required to be paid to it; or

(b)there has been given to the undertaker such security for the payment of the cost of the work as it may reasonably have required.”

(8)In section 50(1) of the 1936 Act (overflowing and leaking cesspools), the words “or the water authority for the area” shall be omitted.

(9)Section 287 of the 1936 Act (powers of entry) shall apply in relation to a sewerage undertaker for the purposes of the provisions of that Act to which paragraph 1(1) above applies and of section 27 of that Act as it applies in relation to a local authority for the purposes of the other provisions of that Act but as if—

(a)the reference in that section to an authorised officer of a local authority were a reference to a person designated in writing for the purposes of that section by a sewerage undertaker; and

(b)the words “if so required,” were omitted.

(10)Section 181 of this Act shall apply in relation to a local inquiry held by virtue of this Schedule under section 318 of the 1936 Act (local inquiries) as it applies to local inquiries under this Act.

(11)Without prejudice to the powers conferred by virtue of Chapter IV of Part II of this Act, no liability shall arise at any time on or after the transfer date to make a payment by virtue of section 337 of the 1936 Act (saving for certain yearly payments).

(12)In section 343 of the 1936 Act (interpretation), for the definition of “public sewer” there shall be substituted the following definition—

““public sewer” means a sewer for the time being vested in a sewerage undertaker in its capacity as such, whether vested in that undertaker by virtue of a scheme under Schedule 2 or 5 to the Water Act 1989 or under section 153 of that Act or otherwise;”.

The Public Health (Drainage of Trade Premises) Act 1937 (c. 40)

3(1)In section 2 of the 1937 Act (trade effluent notices and consents)—

(a)in subsection (1), for the words from the beginning to “in accordance with”, in the first place where it occurs, there shall be substituted the words “An application to a sewerage undertaker for a consent to discharge trade effluent from any trade premises into the public sewer of a sewerage undertaker shall be by”;

(b)in subsection (3), for the words from the beginning to “that consent” there shall be substituted the words “The power of a sewerage undertaker to give a consent on an application under subsection (1) of this section shall be a power to give a consent”; and

(c)after subsection (5) of that section there shall be substituted the following subsection—

“(5A)A person guilty of an offence under subsection (5) above shall be liable—

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

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

(2)On and after the transfer date—

(a)appeals under section 3 of the 1937 Act (appeals in respect of trade effluent notices);

(b)references under section 4 of that Act (disputes under section 43 of the [1974 c. 40.] Control of Pollution Act 1974); and

(c)applications under section 7(5) of the 1937 Act (cancellation of pre-1937 Act agreements),

shall be made to the Director, instead of to the Secretary of State; and, accordingly, references in those provisions and in sections 61, 66 and 68 of the 1961 Act to the Secretary of State shall have effect on and after that date, in relation to any such appeal, reference or application, as references to the Director.

(3)Subject to paragraph 1(6) of Schedule 9 to this Act, the initial period for the purposes of section 3 of the 1937 Act (appeals) shall, in relation to any trade effluent notice, be the period of two months beginning with the day after service of the notice.

(4)On any appeal or reference under section 3 or 7(5) of 1937 Act—

(a)conditions providing for the payment of charges to the sewerage undertaker in question shall not be determined by the Director except in so far as no provision is in force by virtue of a scheme under section 76 of this Act in respect of any such receptions, discharges, removals or disposals of effluent or substances as are of the same description as the reception, discharge, removal or disposal which is the subject-matter of the appeal or reference; and

(b)in so far as any such conditions do fall to be determined by the Director, they shall be determined having regard to the desirability of that undertaker’s recovering the expenses of complying with its obligations in consequence of the consent or agreement to which the conditions relate and of securing a reasonable return on its capital;

and, to the extent that paragraph (a) above excludes any charges from a determination on such an appeal or reference, those charges shall be fixed from time to time by a scheme under the said section 76 but not otherwise.

(5)After section 7 of the 1937 Act (certified copies of agreements to be made available for inspection) there shall be inserted the following section—

“7AInspection of consents etc

(1)It shall be the duty of every sewerage undertaker to secure that copies of—

(a)every consent given or having effect as if given by the undertaker under this Act;

(b)every agreement entered into or having effect as if entered into by the undertaker under section 7 of this Act;

(c)every direction given or having effect as if given by the undertaker under Part V of the [1961 c. 64.] Public Health Act 1961;

(d)every direction given or having effect as if given by the undertaker in pursuance of section 43(3) of the [1974 c. 40.] Control of Pollution Act 1974; and

(e)every notice served on the undertaker under paragraph 3 of Schedule 9 to the Water Act 1989,

are kept available, at all reasonable times, for inspection by the public free of charge at the offices of the undertaker.

(2)It shall be the duty of every sewerage undertaker, on the payment of such sum as may be reasonable, to furnish a person who requests it with a copy of, or of an extract from, anything kept available for inspection under this subsection.

(3)The duties of a sewerage undertaker under this section shall be enforceable under section 20 of the Water Act 1989 by the Director General of Water Services.”

(6)In section 9(3) of the 1937 Act (offence of failure to provide information etc.), the words from “and to a further” onwards shall be omitted.

(7)The provisions of Part XII of the 1936 Act so far as they have effect by virtue of section 14(2) of the 1937 Act in relation to any enactment contained in the 1937 Act shall so have effect as they have effect, by virtue of the preceding provisions of this Schedule, in relation to the sections specified in paragraph 1(2)(a) above; and, accordingly, the references in section 10 of the 1937 Act to an officer of a water authority shall have effect as references to any such person as is mentioned in paragraph 2(9) above.

The Public Health Act 1961 (c. 64)

4(1)Sections 12 to 14 of and Schedule 2 to the 1961 Act (contributions to costs of sewering highways etc.) shall cease to have effect.

(2)On and after the transfer date—

(a)appeals under section 60 of the 1961 Act (power to vary conditions); and

(b)applications under section 62 of that Act (power to vary directions),

shall be made to the Director, instead of to the Secretary of State; and, accordingly, references in those provisions and in sections 66 and 68 of that Act to the Secretary of State shall have effect on and after that date, in relation to any such appeal or application, as references to the Director.

(3)Sub-paragraph (4) of paragraph 3 above shall apply with the necessary modifications in relation to an appeal under section 60 of the 1961 Act as it applies in relation to such an appeal or reference as is mentioned in that sub-paragraph.

(4)On and after the transfer date the power under subsection (5) of section 60 of the 1961 Act to give permission for an appeal under that section to be brought more than two months after the giving of a notice of any direction under subsection (1) of that section shall be exercisable only by the Director.

(5)In section 63(1)(a) of the 1961 Act (extension of definition of “trade”), after the words “horticultural purposes” there shall be inserted the words “or for the purposes of fish farming”, and after the word “horticulture” in the words after paragraph (b) there shall be inserted the words “fish farming”.

(6)The provisions of Part XII of the 1936 Act so far as they have effect by virtue of section 1(3) of the 1961 Act in relation to any enactment contained in Part V of the 1961 Act shall so have effect as they have effect, by virtue of the preceding provisions of this Schedule, in relation to the sections specified in paragraph 1(2)(a) above.

The Control of Pollution Act 1974 (c. 40)

5(1)In section 43 of the Control of Pollution Act 1974 (control of discharges into sewers)—

(a)for the references in subsections (1) and (6) to a water authority there shall, in relation to any time on or after the transfer date, be substituted references to a sewerage undertaker;

(b)for the references in subsections (3) and (5) to the water authority whose consent for any discharge is deemed to be given by virtue of subsection (2) of that subsection there shall, in relation to any such time, be substituted references to the sewerage undertaker for the area which immediately before that date was that water authority’s area for the purposes of section 14 of the 1973 Act; and

(c)for the references in subsection (5) (appeals to the Secretary of State) to the Secretary of State there shall, in relation to any such time, be substituted references to the Director;

and any regulations made under the said subsection (5) and in force immediately before that date shall have effect on and after that date (subject to any revocation or amendment in exercise of the power conferred by that subsection) with such modifications as may be necessary in consequence of paragraphs (a) and (b) above or for the purpose of enabling appeals made on or after that date to be made to and determined by the Director.

(2)In section 44(3) of the said Act of 1974 (regulations with respect to arbitrations) and in any regulations made under that section and in force immediately before the transfer date, for references to a water authority there shall be substituted references to a sewerage undertaker.

(3)In section 45 of the said Act of 1974 (early variations of conditions of discharges), for references to a water authority there shall be substituted references to a sewerage undertaker.

(4)On and after the transfer date appeals under subsection (4) of the said section 45 shall be made to the Director, instead of to the Secretary of State; and, accordingly, references in that subsection to the Secretary of State shall have effect on and after that date as references to the Director.

The Building Act 1984 (c. 55)

6(1)In subsection (1) of section 18 of the Building Act 1984 (building over a sewer etc.), for the words in paragraph (b) from “sewer or drain” to “sewers” there shall be substituted the words “drain, sewer or disposal main that is shown on any map of sewers or to erect it on such a site or in such a manner as would result in its interfering with the use of any such drain, sewer or disposal main or in its obstructing the access of any person to any such drain, sewer or disposal main”.

(2)In subsection (2) of that section (notification to water authority)—

(a)for the words in paragraph (b) from “a water” to “sewers” there shall be substituted the words “a drain, sewer or disposal main that is shown on any map of sewers and is vested in a sewerage undertaker or to erect it on such a site or in such a manner as would result in its interfering with the use of any such drain, sewer or disposal main or in its obstructing the access of any person to any such drain, sewer or disposal main”; and

(b)for the words “the water authority” there shall be substituted the words “the sewerage undertaker”.

(3)For subsection (3) of that section (directions by water authority) there shall be substituted the following subsection—

“(3)Subject to subsection (4) below, where a sewerage undertaker notifies a local authority of its requirements as to the manner in which the authority are to exercise their functions under subsection (1) above in relation to any case or description of cases affecting any of the undertaker’s drains, sewers or disposal mains and those requirements are reasonable, it shall be the duty of the council so to exercise those functions in accordance with those requirements.”

(4)In subsection (4) of that section (appeal to magistrates' court), in paragraph (a) for the words “sewer or drain” there shall be substituted the words “drain, sewer or disposal main” and for paragraph (b) there shall be substituted the following paragraphs—

“(b)whether the site on which or the manner in which it is proposed to erect a building or an extension of a building is such as would result in the building or extension interfering with the use of any such drain, sewer or disposal main or in its obstructing the access of any person to any such drain, sewer or disposal main; or

(c)whether, and if so on what conditions, a consent ought to be given by a local authority; or

(d)whether, for the purposes of paragraph (c) above, any requirements notified to a local authority by a sewerage undertaker under subsection (3) above are reasonable,”.

(5)In subsection (5) of that section (interpretation)—

(a)before the definition of “drain” there shall be inserted the following definition—

““disposal main” has the same meaning as in paragraph 1 of Schedule 19 to the Water Act 1989;”

(b)for paragraph (a) of the definition of “map of sewers” there shall be substituted the following paragraph—

“(a)any records kept by a sewerage undertaker under section 166 of the Water Act 1989 (sewer maps)”.

7In section 60(4) of the said Act of 1984 (notice of contravention of provisions with respect to the use and ventilation of soil pipes), the words “or the water authority for the area” shall be omitted.