EX-10.1.7



 





Exhibit 10.1.7




WATER ACT 2003

MODIFICATION OF THE CONDITIONS OF APPOINTMENT OF

[ALL WATER AND SEWERAGE UNDERTAKERS

AND ALL WATER UNDERTAKERS]




Made on 14 August 2007



Coming into effect on 1 September 2007




The Water Services Regulation Authority, in exercise of the power conferred on it by paragraph 4 of
Schedule 4 to the Water Act 2003, after consulting [the undertaker concerned] and other appropriate
persons as required by that paragraph, hereby modifies with effect on and from 1 September 2007 the
conditions of the appointment of [the undertaker concerned] under Chapter I of Part II of the Water
Industry Act 1991 as follows:



1. Condition R is deleted and replaced with the following:





“Condition R: Provision of combined and
wholesale water supplies





The
Access Code 



1.—(1) The Appointee
shall have an Access Code which complies with paragraphs 2 to 4 of this condition.




(2) The Appointee shall comply with its Access Code.





2.—(1) The Access Code shall —




(a) conform to the guidance for the time being issued under section 66D(4); and





(b) set out —




(i) the Appointee’s procedure (including timetables) for dealing with a
request made to it by a licensed water supplier under sections 66A, 66B
or 66C (which procedure shall itself conform to any relevant guidance);




(ii) the types of feasibility studies which the Appointee may undertake in
response to any of those possible applications, including the method of
calculation of any costs associated with any such study with a view to
recovering them from any such applicant (all of which feasibility studies and
the method of calculation shall themselves conform to any relevant guidance);
and




(iii) the terms (including the basis for calculating charges in accordance
with the costs principle in section 66E) upon which the Appointee will
offer to perform each duty under sections 66A to 66C and indicative charges
for performing each duty under sections 66A and 66B (which indicative
charges shall themselves be calculated in accordance with any relevant
guidance).




(2) In this paragraph and in paragraph 3 below, “relevant guidance” means guidance —




(a) in relation to the matters specified in sub-paragraph (1)(b) above;




(b) for the time being issued by the Authority where —



 









 






(i) before issuing such guidance, the Authority has consulted such persons as
it considers appropriate; and




(ii) the Authority has published such guidance in such a manner as it considers
appropriate for the purpose of bringing it to the attention of persons likely to
be affected by it.


3.—(1) Subject to sub-paragraph (2), the Appointee —





(a) shall review its Access Code, and make any revisions to its Access Code consequent upon
that review, annually not later than 15 October in each year; and




(b) may also at any other time revise it.


(2) If the Authority revises its guidance under section 66D(4), the Appointee shall revise its
Access Code to conform to the revised guidance within the timescales set out by the Authority.



(3) If the Authority revises any relevant guidance, the Appointee shall revise its Access Code to
conform to such revised relevant guidance, within the timescales set out by the Authority,
provided that the Authority has —





(a) consulted such persons as it considers appropriate before revising that relevant
guidance; and




(b) published that revised relevant guidance in such a manner as it considers appropriate
for the purpose of bringing it to the attention of persons likely to be affected by it.


4.—(1) The Appointee shall —





(a) include the text of its Access Code, as revised from time to time, on any Internet
website which it may maintain; and




(b) in response to any request, provide a copy of it free of charge.


(2) The Appointee shall provide to the Authority —





(a) free of charge a copy of its Access Code; and




(b) within seven days of making them, written particulars of any modifications of it.



Anti-competitive behaviour



5.—(1) If and for so long as the Appointee is related to any licensed water supplier —





(a) it shall not without the consent of the Authority sell (or otherwise make available)
to that licensed water supplier any water, or any of its other assets; and




(b) otherwise, it shall ensure that every other transaction between the Appointed
Business and that licensed water supplier is at arm’s length.


(2) For the purpose of this paragraph the Appointee is related to a licensed water supplier if
their enterprises are under common ownership or common control (within the meaning those
expressions have in section 26(1) of the Enterprise Act 2002).



(3) The Appointee shall by notice inform the Authority if at any time it becomes, or ceases to
be, related to a licensed water supplier.




 









 







(4) This paragraph is without prejudice to anything contained in paragraph 6 of Condition F
(Transactions entered into by the Appointee or the Appointed Business with or for the benefit of
Associated Companies or other businesses or activities of the Appointee).



6.— The Appointee shall not show undue preference towards, or undue discrimination against —





(a) customers or potential customers (or classes of customers) of a licensed water supplier,
as compared with either the Appointee’s own customers or potential customers (or classes of
customers) or the customers or potential customers (or classes of customers) of any other
licensed water supplier; or




(b) a licensed water supplier, as compared with any other licensed water supplier or
the Appointee itself.



Obligations about information



7.—(1) Whenever the Appointee is —





(a) negotiating with a licensed water supplier the period for which and terms and
conditions on which it might discharge any of its duties under sections 66A to 66C; or




(b) discharging any of those duties,


it shall ensure that legally enforceable terms exist about the confidentiality of
information provided to or by it for those purposes.



(2) Without prejudice to the generality of sub-paragraph (1) above, the Appointee shall not use
or disclose information received from or in relation to a licensed water supplier in the course
or contemplation of the discharge of its duties under sections 66A to 66C or in the course or
contemplation of its dealings with or in relation to that licensed water supplier under sections
66A to 66C, except —





(a) for the purpose for which it was furnished and to the minimum extent
necessary to discharge those duties or for those dealings;




(b) where required or permitted by law; or




(c) where otherwise agreed with the licensed water supplier.


(3) Without prejudice to the generality of sub-paragraph (1) and (2) above, and subject to
subparagraphs (2)(a), (b) and (c) above, the Appointee shall ensure that information received
from or in relation to a licensed water supplier in the course or contemplation of the discharge
of its duties under sections 66A to 66C or in the course or contemplation of its dealings with or
in relation to that licensed water supplier under sections 66A to 66C is not used or disclosed or
otherwise distributed or disseminated within the Appointed Business otherwise than for the
purposes for which the information was furnished.



(4)





(a) The Appointee shall have a Compliance Code which complies with Compliance Guidance
issued by the Authority.




(b) Compliance Guidance means guidance —




(i) in relation to the matters specified in this paragraph; in relation to the
Appointee’s compliance with its obligations under this paragraph and under
paragraph 5(1)(b) above; and generally in relation to any obligation of



 









 







confidentiality on the Appointee in relation to information provided to or by
it under or for the purposes of this Condition or Condition S, and its
compliance with those obligations; and




(ii) for the time being issued by the Authority where —




	 	a.	 	before issuing such guidance, the
Authority has consulted such persons as it considers
appropriate; and
	 
	 	b.	 	the Authority has published such guidance in
such a manner as it considers appropriate for the purpose of bringing
it to the attention of persons likely to be affected by it.






(c) Subject to sub-paragraph (d) below, the Appointee —




(i) shall review its Compliance Code annually not later than the anniversary of
the date upon which Compliance Guidance is first issued by the Authority; and




(ii) may at any time revise it.




(d) If the Authority revises its Compliance Guidance, the Appointee shall revise its
Compliance Code to conform to such revised guidance, within the timescales set out by the
Authority, provided that the Authority has —




(i) consulted such persons as it considers appropriate before revising that
Compliance Guidance; and




(ii) published that Compliance Guidance in such a manner as it considers
appropriate for the purpose of bringing it to the attention of persons likely to
be affected by it.


8.—(1) The Appointee shall provide to a licensed water supplier such information as the licensed
water supplier reasonably requires —





(a) to enable the licensed water supplier to apply for, negotiate and conclude an
agreement under section 66D;




(b) to comply with any condition of its water supply licence, or any statutory
requirement imposed in consequence of its water supply licence; or




(c) to comply with any reasonable request for information made by the Environment
Agency.


(2) The Appointee may impose reasonable conditions on the use which any licensed water
supplier makes of information provided under this paragraph.



(3) Any question as to the reasonableness of —





(a) any requirement to provide information under sub-paragraph (1); or




(b) any condition proposed by the Appointee under sub-paragraph (2);


shall be resolved by referring that question to the Authority for its determination.



(4) A reference under sub-paragraph (3) shall have the effect of suspending the requirement so
referred pending the Authority’s determination.




 









 







(5) The Appointee shall not be required under this paragraph to disclose any information or
produce any document which it would be entitled to refuse to disclose or produce on grounds of
legal professional privilege in proceedings in the High Court.



(6)





(a) The Appointee shall immediately inform the licensed water supplier of relevant details
if the Appointee is or becomes aware that a special consumer occupies or is likely to
occupy any premises which the licensed water supplier is proposing to supply.




(b) For the purpose of sub-paragraph (a) above, a special consumer is a person or a
member of a class of persons who —




(i) the Appointee and the relevant licensed water supplier agree; or




(ii) the Authority specifically or generally determines by relevant notice,



regularly requires water urgently on medical or other grounds.



(7) Under sub-paragraph (6) —





(a) a determination shall not have effect unless, before making the determination, the
Authority has consulted such persons as it considers appropriate; and




(b) a “relevant notice” is a notice published in such manner as the Authority considers
appropriate and served on the Appointee.


(8)





(a) The Appointee shall immediately inform each licensed water supplier which is supplying
water to premises in its Water Supply Area of every actual or potential incident which
affects adversely, or is likely to affect adversely —




(i) water quality;




(ii) water pressure;




(iii) continuity of supply; or




(iv) any other matter related to the Appointee’s supply system as defined in
section 17B(5);




but the foregoing obligation applies only if and to the extent that the supply or supplies
being made by such licensed water supplier to premises in the Appointee’s Water Supply Area
is or are, or is or are likely to be, affected by any such actual or potential incident;
and




(b) information provided by the Appointee under sub-paragraph (a) above shall be as
detailed as the information which the Appointee uses or intends to use or would use,
when dealing with complaints from its own customers arising out of the same matters.


(9) For the purposes of sub-paragraph (8), an incident includes regulatory infringements which
may put the Appointee or relevant licensed water supplier at risk of supplying water which is
unwholesome as determined under section 67 (standards of wholesomeness) or unfit for human
consumption within the meaning of section 70 (offence of supplying water unfit for human
consumption).




 









 






9.— In so far as the provision of information to the Appointee is not provided for by or under any
enactment, the Appointee shall not seek —





(a) from a licensed water supplier; or




(b) from a person supplied or seeking to be supplied by a licensed water supplier;


more information than the Appointee reasonably requires —





(i) for the purposes of carrying out its functions;




(ii) to ascertain whether the licensed water supplier has sufficient product and
public liability insurance for the activities authorised by its water supply
licence;




(iii) to comply with any condition of the Appointee’s appointment;




(iv) in relation to national security or civil emergencies; or




(v) to comply with any reasonable request for information made by the
Environment Agency.



General



10.—(1) Until the coming fully into force of section 36(1) of the Water Act 2003 (transfer to the
Water Services Regulation Authority and the Consumer Council for Water of functions, property
etc), any reference to the Authority in this Condition shall have effect as if it were a reference
to the Director.



(2) Unless the contrary intention appears, references in this Condition to sections are references
to sections of the Water Industry Act 1991.




[Application



11.—(1) This Condition shall not apply to the Appointee in the circumstances and to the extent
set out in this paragraph.



(2) Paragraphs 1 to 9 of this Condition shall not apply if and for so long as the Appointee has no
supply system, as defined in section 17B(5).



(3) Subject to sub-paragraph (4), the Appointee shall notify the Authority as soon as it has a
supply system, as defined in section 17B(5).



(4) If the Appointee has a supply system, as defined in section 17B(5), on 15 September 2005, it
shall be deemed to have notified the Authority that it has a supply system at that date.



(5) If and for such time as the Appointee has a supply system, as defined in section 17B(5) —





(a) the Appointee shall notify the Authority immediately of the fact and terms of each
request the Appointee receives from a licensed water supplier to provide a supply of water
or to permit the introduction of water into the Appointee’s supply system pursuant to
section 66A, 66B or 66C; and




(b) paragraphs 1 to 9 of this Condition shall apply only from and for such time and to
such extent as may be specified by the Authority from time to time by relevant notice.


(6) Under sub-paragraph (5)(a) —




 









 









(a) a relevant notice shall not have effect unless, before making the relevant notice,
the Authority has consulted the Appointee and such persons as it considers appropriate;
and




(b) a “relevant notice” is a notice published in such manner as the Authority
considers appropriate and served on the Appointee.]”




[Paragraph 11 of Condition R above is only included in the conditions of the
appointments of Albion Water Ltd and Cholderton and District Water
Company Ltd]



Signed for and on behalf of the Water

Services Regulation Authority





Keith Mason

Director of Regulatory Finance and Competition