Citation and interpretation

1.—(1) This Order may be cited as the Water Act 2003 (Commencement No. 4, Transitional Provisions and Savings) Order 2005.

(2) In this Order—

“the Act” means the Water Act 2003;

“the Council” means the Consumer Council for Water; and

“customer service committees” means the committees maintained under section 28 of the WIA(3).

(3) Unless the contrary intention appears, any reference in this Order to a section or Schedule is a reference to a section of or a Schedule to the Act.

Provisions coming into force on 1st April 2005

2.  The following provisions of the Act shall come into force on 1st April 2005—

(a)section 6 (rights to abstract small quantities), for all remaining purposes;

(b)section 10 (orders under section 33 of the WRA, etc)(4), for all remaining purposes;

(c)in section 16 (protection from derogation), subsection (1), in so far as it relates to subsections (4) and (5), and subsections (4) and (5);

(d)section 17 (protected rights);

(e)section 36(3) to (6) (transfer to Water Services Regulation Authority and Council of functions, property etc);

(f)section 39 (objectives and duties under WIA);

(g)section 40 (guidance to the Authority on social and environmental matters);

(h)sections 41 and 42 (standards of performance in relation to water supply and sewerage services);

(i)section 48 (financial penalties), for all remaining purposes;

(j)section 51 (reasons for decisions);

(k)section 70 (information);

(l)in section 100 (devolution: Wales)—

(i)subsection (2)(a)(i), (ii), (vii) and (ix), (b)(i), (iii), (vi) and (x) and (d), in so far as it relates to provisions amended or introduced by any provision of the Act which is brought into force by virtue of this article;

(ii)subsection (2)(b)(iii), in so far as it relates to provisions amended or introduced by any provision of the Act which was brought into force by virtue of article 2 of the Water Act 2003 (Commencement No. 2, Transitional Provisions and Savings) Order 2004(5);

(iii)subsection (6), in so far as it relates to references to provisions amended or introduced by any provision of the Act which is brought into force by virtue of this article; and

(iv)subsection (7), in so far as it relates to subsection (6) (so far as brought into force by sub-paragraph (iii)) or the amendments made by subsection (2) (so far as brought into force by sub-paragraphs (i) and (ii));

(m)section 101(1) (minor and consequential amendments and repeals), in so far as it relates to the amendments made—

(i)by paragraph 30 of Schedule 7; and

(ii)in paragraph 32 of Schedule 7, by sub-paragraph (4) for all remaining purposes, and by sub-paragraph (1) in so far as it relates to sub-paragraph (4) as brought into force by this article; and

(n)section 101(2), in so far as it relates to the following repeals specified in Schedule 9—

(i)the repeals in relation to sections 39, 44(5), 96 and 195(2) of the WIA;

(ii)the repeal of sections 28 and 39(3) of the WRA;

(iii)the repeal of section 50 of the Competition and Service (Utilities) Act 1992(6);

(iv)the repeal of paragraph 5(3) of Schedule 10 to the Competition Act 1998(7); and

(v)the repeal in relation to the reference in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999(8) to section 2 of the WIA, in so far as it relates to provisions amended or introduced by any provision of the Act which is brought into force by virtue of this article.

Provisions coming into force on 1st August 2005

3.  The following provisions of the Act shall come into force on 1st August 2005—

(a)section 35 (the Council), in so far as it inserts into the WIA—

(i)section 27A(4) (establishment of the Council and committees), in so far as that provision has effect for the purpose of enabling the Assembly and the Secretary of State to give directions; and

(ii)section 27A(5) and (6);

(b)section 56 (licensing of other water suppliers), but only in so far as it has application to paragraphs 1 and 2 of Schedule 4 and—

(i)in its application to paragraph 2, only in so far as that paragraph has effect for the purposes of—

(aa)giving effect to section 17F(1) to (3) of the WIA for all remaining purposes;

(bb)inserting into the WIA section 17F(4) and (8); and

(cc)giving effect to section 17A of the WIA in so far as relevant for the purposes of section 17F in so far as brought into force by virtue of this article; and

(ii)in its application to paragraph 1, only for the purpose of giving effect to paragraph 2 of that Schedule to the extent specified in sub-paragraph (i);

(c)in section 100 (devolution: Wales)—

(i)subsection (2)(a)(ii), (iii) and (ix) and (j), in so far as it relates to provisions amended or introduced by any provision of the Act which is brought into force by virtue of this article;

(ii)subsection (6), in so far as it relates to references to provisions amended or introduced by any provision of the Act which is brought into force by virtue of this article; and

(iii)subsection (7), in so far as it relates to subsection (6) (so far as brought into force by sub-paragraph (ii)) or the amendments made by subsection (2) (so far as brought into force by sub-paragraph (i)); and

(d)section 101(1) (minor and consequential amendments and repeals), in so far as it relates to the amendments made, in paragraph 27 of Schedule 7, by sub-paragraph (7)(b) and sub paragraph (1) in so far it relates to that sub-paragraph.

Transitional provisions, savings and revocation

4.—(1) The transitional provisions and savings in the Schedules to this Order shall have effect.

(2) Paragraph 7 (devolution: Wales) of the Schedule to the Water Act 2003 (Commencement No. 2, Transitional Provisions and Savings) Order 2004 shall be revoked.

(3) Paragraphs (1) and (2) shall come into force on 1st April 2005.

Article 4

SCHEDULE 1ABSTRACTION LICENSING AND PROTECTED RIGHTS: TRANSITIONAL PROVISIONS AND SAVINGS

Interpretation

1.—(1) In this Schedule—

(a)“abstraction licence” means a licence under Chapter 2 of Part 2 of the WRA to abstract water;

(b)“the Agency” means the Environment Agency;

(c)“called-in application” means an application for an abstraction licence referred to the Secretary of State or the Assembly (as the case may be) under section 41 of the WRA (Secretary of State’s power to call in applications) (including that section as applied by section 51(3) of the WRA (modification on application of licence holder));

(d)“licensed relevant abstraction” means a relevant abstraction which, immediately before the commencement of section 6 (rights to abstract small quantities) in accordance with this Order, is authorised by an abstraction licence;

(e)“relevant date” means 1st April 2005;

(f)“relevant abstraction” means an abstraction which—

(i)immediately before the coming into force of section 6 in accordance with this Order, is an abstraction to which the restriction on abstraction applies; and

(ii)after that coming into force, is an abstraction to which the restriction on abstraction does not apply;

(g)“relevant application” means an application for an abstraction licence, or for the variation of such a licence, that relates (wholly or in part) to a relevant abstraction and that—

(i)was received by the Agency before 1st April 2005; and

(ii)not finally disposed of before that date;

(h)“restriction on abstraction” means the restriction imposed by section 24(1) of the WRA (restriction on abstraction); and

(i)“the Succession Regulations” means the Water Resources (Succession to Licences) Regulations 1969(9).

(2) For the purposes of this Schedule, an application shall be considered to have been finally disposed of when—

(a)the application is withdrawn;

(b)in the case of a called-in application, the application has been determined under section 42 of the WRA (consideration of called-in applications) (including that section as applied by section 51(3) of the WRA (modification on application of licence holder)); or

(c)in the case of any other application, the Agency has given notice to the applicant of its decision on the application, or has failed to do so within the period referred to in section 43(2) of the WRA (appeals to the Secretary of State) (including that section as applied by section 51(3), subject to the modifications in section 51(4), of the WRA), and—

(i)the period within which notice of appeal against that decision or failure may be given has ended without any such notice having been given; or

(ii)notice of appeal against that decision or failure has been given and the appeal has been withdrawn or determined.

(3) Any reference in this Schedule to a regulation is a reference to a regulation in the Succession Regulations.

Protected rights

2.—(1) Until such time as section 23 (transfer and apportionment of licences), in so far as it inserts section 59C of the WRA (apportionment of licences to abstract), is fully in force, section 39A of the WRA (protected rights for the purposes of Chapter 2 of Part 2), as inserted by section 17, shall have effect as if—

(a)in subsection (1), paragraph (d); and

(b)in subsection (6), the reference to that paragraph,

were omitted.

(2) Until such time as section 1 (licences to abstract water) is fully in force, section 102(3) (specific transitional and transitory provisions) shall have effect as if the reference to a full licence were a reference to an abstraction licence.

Relevant applications

3.—(1) An abstraction to which a relevant application relates shall be treated, until that application is finally disposed of, as if the amendments made by section 6, so far as it comes into force in accordance with this Order, had not been made.

(2) For the purposes of the application of section 102(3) in relation to a relevant licence, a relevant application and any relevant licence granted pursuant to it shall be treated as if section 102(2) applied to them immediately after the application is finally disposed of.

(3) For the purposes of sub-paragraph (2), a “relevant licence” means an abstraction licence arising from the final disposal of a relevant application.

Relevant applications: duty on Agency to inform applicants of transitional arrangements

4.  The Agency shall by 1st June 2005 serve notice in writing on every person who has made a relevant application stating that—

(a)abstractions such as that to which the application (wholly or in part) relates are, but for transitional arrangements, no longer abstractions to which the restriction on abstraction applies;

(b)had a licence been granted in relation to the application before 1st April 2005—

(i)the holder of that licence would have been taken to have a right to abstract water to the extent authorised by that licence; and

(ii)that right would have been a protected right for the purposes of Chapter 2 of Part 2 of the WRA; and

(c)by virtue of paragraphs 1 and 3 of this Schedule—

(i)unless the application (or any appeal) is withdrawn, the restriction on abstraction will continue to apply to the abstraction to which the application relates until that application is finally disposed of;

(ii)consideration of that application will continue; and

(iii)any decision to grant a licence will have effect only for the purpose of determining the extent of the applicant’s protected right.

Aggregated abstractions

5.—(1) For the purposes of this paragraph—

(a)“relevant person” means the holder of a licence authorising a licensed relevant abstraction;

(b)“related exempt abstraction” means an abstraction which, immediately before the relevant date—

(i)a relevant person is making or is in a position to make;

(ii)is from the same source of supply as that person’s licensed relevant abstraction;

(iii)forms part of a continuous operation, or of a series of operations, with that licensed relevant abstraction; and

(iv)is an abstraction to which the restriction on abstraction does not apply by virtue of section 27(3) or (5) of the WRA (rights to abstract small quantities); and

(c)“aggregated abstraction” means—

(i)a licensed relevant abstraction and its related exempt abstraction taken together; and

(ii)in relation to which, as from the relevant date, the restriction on abstraction would, but for the remaining provisions of this paragraph, apply.

(2) Any aggregated abstraction shall be treated, before 1st April 2008, as if the amendments made by section 6, so far as it comes into force in accordance with this Order, did not apply to it.

(3) The Agency shall, before 1st April 2008, grant a licence to each person who satisfies the Agency that, immediately before the relevant date, he was making or in a position to make an aggregated abstraction.

(4) The licence shall authorise, with effect from 1st April 2008, the abstraction of a quantity of water not exceeding the quantity capable of being lawfully abstracted by the aggregated abstraction.

(5) Section 43(1)(a) of the WRA (appeals to the Secretary of State) shall have effect in relation to a licence granted in accordance with sub-paragraph (3) as if that licence had been granted on an application to the Agency.

Succession to entire abstraction licence authorising a relevant abstraction

6.—(1) For the purposes of sub-paragraph (2), “relevant licence” means a licence authorising a licensed relevant abstraction that—

(a)immediately before the relevant date, is held, by virtue of section 49(2) of the WRA(10) (succession to licences to abstract where person ceases to occupy the relevant land), by a successor who has given notice under section 49(3) of the WRA; and

(b)has not been varied in accordance with section 49(4) of the WRA.

(2) For the purposes of the application of section 102(3) in relation to a relevant licence, that licence shall be treated as if section 102(2) applied to it immediately after the licence is varied in accordance with section 49(4) of the WRA.

(3) For the purposes of sub-paragraphs (4) and (5), “relevant licence” means a licence authorising a licensed relevant abstraction in relation to which, before the relevant date, the precondition mentioned in paragraph (a) of section 49(2) of the WRA is satisfied, but either—

(a)no person has become a successor to the licence before the relevant date; or

(b)any person who becomes a successor to the licence before the relevant date has not, before the relevant date, given notice under section 49(3) of the WRA.

(4) Subject to sub-paragraph (5), an abstraction authorised by a relevant licence shall be treated, before 1st July 2006, as if the amendments made by section 6, so far as it comes into force in accordance with this Order, did not apply to it.

(5) If, in relation to a relevant licence, a successor, before 1st July 2006, gives notice to the Agency under section 49(3) of the WRA, sub-paragraph (4) shall cease to apply in relation to that licence when it is varied in accordance with section 49(4) of the WRA.

(6) For the purposes of the application of section 102(3) in relation to a licence referred to in sub-paragraph (5), that licence shall be treated as if section 102(2) applied to it immediately after the licence was varied in accordance with section 49(4) of the WRA.

Succession to part of abstraction licence authorising relevant abstraction

7.—(1) For the purposes of this paragraph, “relevant licence” means a licence authorising a licensed relevant abstraction in relation to which a precondition mentioned in paragraph (a) or (b) of section 50(1) of the WRA (succession where person becomes occupier of part of the relevant land) is satisfied before the relevant date.

(2) Sub-paragraph (3) applies to a relevant licence in relation to which—

(a)no person has become a successor before the relevant date; or

(b)any person who, by virtue of regulation 4(1), becomes a successor to the licence before the relevant date has not, before the relevant date, given notice under regulation 4(2).

(3) Subject to sub-paragraph (4), an abstraction authorised by a licence to which this sub-paragraph applies shall be treated, before 1st July 2006, as if the amendments made by section 6, so far as it comes into force in accordance with this Order, did not apply to it.

(4) If, in relation to a licence to which sub-paragraph (3) applies, a successor, before 1st July 2006, gives notice to the Agency under regulation 4(2), sub-paragraph (3) shall cease to apply in relation to that licence from the date that notice is given.

(5) For the purposes of the application of section 102(3) in relation to a relevant licence to which sub-paragraph (3) has ceased to apply by virtue of sub-paragraph (4), that licence shall be treated as if section 102(2) applied to it immediately after notice under regulation 4(2) is given.

(6) For the purposes of the application of section 102(3) in relation to a licence which comes to be held, by virtue of regulation 4(3)(b), by the person who was the original holder, that licence shall be treated from the time when it comes to be so held by that person as if section 102(2) applied to it.

(7) If, in relation to a licence to which sub-paragraph (3) applies (“the original licence”), a successor, before 1st July 2006, makes an application under regulation 5 for a new licence—

(a)sub-paragraph (3) shall cease to apply; but

(b)the original licence shall be treated, before the relevant time, as if the amendments made by section 6, so far as it comes into force in accordance with this Order, did not apply to it.

(8) For the purposes of sub-paragraph (7), “relevant time” means whichever is the later of—

(a)the day after the day on which the application for the new licence is finally disposed of; or

(b)the day after the day on which any related application under regulation 6 is finally disposed of.

(9) Except as provided by paragraph (10), a new licence shall have no effect.

(10) A new licence shall have effect for the purposes of sections 48(1) (which relates to protected rights) and 189 (register of abstraction and impounding licences) of the WRA.

Succession to part of abstraction licence authorising abstraction other than a relevant abstraction

8.—(1) For the purposes of this paragraph—

(a)“relevant licence” means a licence—

(i)authorising an abstraction which, both immediately before and immediately after the relevant date, was subject to the restriction on abstraction; and

(ii)in relation to which—

(aa)a precondition mentioned in paragraph (a) or (b) of section 50(1) of the WRA is satisfied before the relevant date; and

(bb)a person, before 1st July 2006, makes an application under regulation 5;

(b)“part licence” means a new licence that—

(i)is granted, in accordance with regulation 5 or 6, in relation to a relevant licence; and

(ii)relates to a relevant abstraction.

(2) Except as provided by paragraph (3), a part licence shall have no effect.

(3) A part licence shall have effect for the purposes of sections 48(1) and 189 of the WRA.

Application of section 189 of the WRA to certain applications

9.  Section 189 of the WRA, and any regulations having effect under that section, shall apply in relation to any licence referred to in paragraph 6(2), 6(6), 7(5) or 7(6) as if it were a licence under Chapter 2 of Part 2 of the WRA.

Article 4

SCHEDULE 2OTHER TRANSITIONAL PROVISIONS AND SAVINGS

1.  Section 195A of the WIA (reasons for decisions), as inserted by section 51, shall only apply to decisions made after 1st April 2005.

2.  Section 100(6) (devolution: Wales) shall not have effect in relation to references to any Act generally except—

(a)to the extent that any such Act has been amended by the Act as at the date of this Order; and

(b)as from the dates specified in this Order in relation to the provisions in question, to the extent that any such Act has been amended by the Act by virtue of the provisions of this Order.

3.  Until such time as section 35(1) (the Council), in so far as it inserts section 27A of the WIA (establishment of the Council and committees), and section 35(2) to (4) are fully in force, any reference to the Council in any provision of the WIA introduced or amended by the Act and by virtue of this Order, except section 27A, shall have effect as if it were a reference to the customer service committees.

4.  Until the coming fully into force of section 36(1) (transfer to the Water Services Regulation Authority and the Council of functions, property etc), any reference to the Water Services Regulation Authority in any provision of the WIA introduced or amended by the Act and by virtue of this Order shall have effect as if it were a reference to the Director General of Water Services.

Explanatory Note

(This note is not part of the Order)

This Order brings into force on 1st April 2005 or 1st August 2005 certain provisions of the Water Act 2003 (“the Act”), and makes transitional provision and savings in respect of some of those provisions.

The provisions in Part 1 of the Act brought into force on 1st April 2005 relate to abstraction licensing. They: substitute a new general exemption from licensing of small volume abstractions for the exemptions previously found in section 27 of the Water Resources Act 1991 (“the WRA”) (section 6); enable the Secretary of State (in England) and the National Assembly for Wales (“the Assembly”) (in Wales) to revoke any order made under section 33 of the WRA, or under a local or private Act, which provides for an exemption from abstraction licensing (section 10); and make related and consequential changes to the protected rights framework (sections 16, in part, and 17). The transitional and savings provisions in Schedule 1 protect certain applications already made, and certain abstractions already taking place (including those in relation to which an entitlement to succeed has arisen), so that abstractors can benefit from protected rights.

The provisions in Parts 2 and 3 of the Act brought into force on 1st April 2005: empower the Secretary of State to make transfer schemes in relation to the setting up of the Consumer Council for Water (“the Council”) and the Water Services Regulation Authority (“the Authority”) (section 36); amend the general duties with respect to the water industry on the Secretary of State, the Assembly, the Director General of Water Services and, in due course, the Authority (“Ofwat”) (section 39); establish a new regime for the Secretary of State and the Assembly to give guidance on social and environmental matters to Ofwat (section 40); establish new rules for making Regulations in relation to standards of performance in relation to water supply and sewerage services (sections 41 and 42); establish a new financial penalties regime for relevant undertakers and licensed water suppliers (section 48); impose new duties on Ofwat, the Secretary of State and the Assembly to publish reasons for certain decisions made under the Water Industry Act 1991 (section 51); and extend the Environment Agency’s powers to obtain information in respect of its water resources functions (section 70).

The provisions in Part 2 of the Act brought into force on 1st August 2005 empower the Secretary of State and the Assembly to direct the Council as to the establishment of regional committees (section 35), and permit applications to be made to Ofwat for water supply licences (but do not empower Ofwat to grant such licences).

Transitional provisions and savings arising from the coming into force of provisions in Part 2 of the Act are made in Schedule 2.

Note as to Earlier Commencement Orders

(This note is not part of the Order)

The following provisions of the Water Act 2003 have been brought into force in England and Wales by commencement orders made before the date of this Order:

The following provisions of the Water Act 2003 have been brought into force in England by commencement orders made before the date of this Order:

The following provisions of the Act have been brought into force in Wales by commencement orders made before the date of this Order: