The Water and Sewerage Services (Northern Ireland) Order 2006

• Citation: S.I. 2006/3336 (N.I.)
• Sections: 442

Section 1 Title and commencement

(1) This Order may be cited as the Water and Sewerage Services (Northern Ireland) Order 2006.

(2) Except as provided by paragraph (3), this Order shall come into operation on such day or days as the Department may by order appoint.

(3) The following provisions come into operation on 1st January 2007—

(a) this Part;

(b) Article 201(11) to (13);

(c) Part X (together with Schedule 11);

(d) Articles 300, 302, 306 and 307; and

(e) so much of any other provision of this Order as confers power on a Northern Ireland department to make regulations or orders or makes provision with respect to the exercise of any such power.

(4) An order under paragraph (2) providing for any provision contained in Chapter IV of Part IV to come into operation shall not be made unless a draft of the order has been laid before and approved by resolution of the Assembly.

(5) An order under paragraph (2) may contain such transitional or transitory provisions and such savings as appear to the Department to be necessary or expedient.

Section 2 Interpretation

(1) Subject to paragraph (13), the Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.

(2) In this Order—

“ accessories ”, in relation to a water main, sewer or other pipe, includes any manholes, ventilating shafts, inspection chambers, settling tanks, wash-out pipes, pumps, valves, hydrants, ferrules or stopcocks for the main, sewer or other pipe, or any machinery or other apparatus which is designed or adapted for use in connection with the use or maintenance of the main, sewer or other pipe or of another accessory for it, but does not include any electronic communications apparatus (within the meaning of the Communications Act 2003 (c. 21)) unless it—

is or is to be situated inside or in the close vicinity of the main, sewer or other pipe or inside or in the close vicinity of another accessory for it; and

is intended to be used only in connection with the use or maintenance of the main, sewer or other pipe or of another accessory for it;

“ analyse ”, in relation to any sample of land, water or effluent, includes subjecting the sample to a test of any description;

“ the Appeals Commission ” means the Water Appeals Commission for Northern Ireland;

“ the Authority ” means the Northern Ireland Authority for Utility Regulation;

“ the CMA ” means the Competition and Markets Authority;

“ consumers ” includes both existing consumers and future consumers;

“ contravention ” includes a failure to comply;

“ the Council ” means the General Consumer Council for Northern Ireland;

“ customer or potential customer ”, in relation to a company holding an appointment under Chapter I of Part III, means—

any person for or to whom that company provides any services in the course of carrying out the functions of a water undertaker or sewerage undertaker; or

any person who might become such a person on making an application for the purpose to the company;

“DAERA” means the Department of Agriculture, Environment and Rural Affairs;

“ DARD ” means the Department of Agriculture and Rural Development;

“ damage ”, in relation to individuals, includes death and any personal injury, including any disease or impairment of physical or mental condition;

...

“ the Department ” means the Department for Regional Development;

“disposal”—

in relation to land, includes the creation of any estate in the land and a disposal effected by means of the surrender or other termination of any such estate; and

in relation to sewage, includes treatment;

“ disposal main ” means (subject to paragraph (3)) any outfall pipe or other pipe which—

is a pipe for the conveyance of effluent to or from any waste water treatment works, whether of a sewerage undertaker or of any other person; and

is not a public sewer;

“ DFP ” means the Department of Finance and Personnel;

“ DHSSPS ” means the Department of Health, Social Services and Public Safety;

“ DOE ” means the Department of the Environment;

“ domestic purposes ”, in relation to a supply of water, shall be construed in accordance with paragraphs (4) to (6);

“ drain ” means (subject to paragraph (3)) a drain used for the drainage of one building or of any buildings or yards appurtenant to buildings within the same curtilage;

“ the Drainage Order ” means the Drainage (Northern Ireland) Order 1973 ( NI 1);

“ effluent ” means any liquid, including particles of matter and other substances in suspension in the liquid;

“ the Energy Order ” means the Energy (Northern Ireland) Order 2003 (NI 6);

“engineering or building operations”, without prejudice to the generality of that expression, includes—

the construction, alteration, improvement, maintenance or demolition of any building or structure or of any reservoir, watercourse, dam, weir, well, borehole or other works; and

the installation, modification or removal of any machinery or apparatus;

“ the Enterprise Act ” means the Enterprise Act 2002 (c. 40);

“ functions ”, in relation to a relevant undertaker, means the functions of the undertaker under any statutory provision and shall be construed subject to Article 304;

“ harbour authority ” means a person who is a harbour authority within the meaning of Chapter II of Part VI of the Merchant Shipping Act 1995 (c. 21) and is not a navigation authority;

“ house ” means any building or part of a building which is occupied as a dwelling-house, whether or not a private dwelling-house, or which, if unoccupied, is likely to be so occupied;

“ information ” includes anything contained in any records, accounts, estimates or returns;

“ inland waters ” means—

any river, stream or other watercourse whether natural or artificial and whether tidal or not;

any lough, lake or pond, whether artificial or not or any reservoir or dock; and

so much of any channel, creek, bay, estuary or arm of the sea as does not fall within sub-paragraph (a) or (b);

“ lateral drain ” means—

so much of that part of a drain which runs from the curtilage of a building (or buildings or yards within the same curtilage) to the sewer with which the drain communicates or is to communicate as is located or is to be located in, under or over a road; or

(if different and the context so requires) the part of a drain identified in a declaration of vesting made under Article 159 or in an agreement made under Article 161;

“ limited company ” means a company as defined in section 1(1) of the Companies Act 2006 that—

is registered in Northern Ireland, and

is limited by shares;

“ local statutory provision ” means a statutory provision which has effect only with respect to a particular area or to particular persons or works;

“ meter ” means any apparatus for measuring or showing the volume of water supplied to, or of effluent discharged from, any premises;

“ micro-organism ” includes any microscopic biological entity which is capable of replication;

“ modifications ” includes additions, omissions, amendments and substitutions;

“ navigation authority ” means any person who has a duty or power under any statutory provision to work, maintain, conserve, improve or control any canal or other inland navigation, navigable river, estuary, harbour or dock;

“ notice ” means notice in writing;

“ owner ”, in relation to any premises, means the person who—

is for the time being receiving the rack-rent of the premises, whether on his own account or as agent or trustee for another person; or

would receive the rack-rent if the premises were let at a rack-rent;

...

“ prescribed ” means prescribed by regulations;

“ protected land ”, in relation to a company holding an appointment under Chapter I of Part III, means any land which—

was transferred to that company in accordance with a scheme under Article 270;

is or has at any time on or after the transfer date been held by that company for purposes connected with the carrying out of its functions as a water undertaker or sewerage undertaker; or

has been transferred to that company in accordance with a scheme under Schedule 1 from another company in relation to which that land was protected land when the other company held an appointment under that Chapter;

“ public authority ” means any Northern Ireland department or department of the government of the United Kingdom, any Minister of the Crown, any district council or any person certified by the Department to be a public authority for the purposes of this Order;

“ public sewer ” means (subject to Article 163(2)) 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 Article 270 or Schedule 1 or under Article 241 or otherwise, and “ private sewer ” shall be construed accordingly;

“ railway undertaking ” has the same meaning as in the Transport Act (Northern Ireland) 1967 (c. 37);

“ records ” includes computer records and any other records kept otherwise than in a document;

“ the relevant sewerage provisions ” means the following provisions of this Order—

Chapters II and III of Part VI (except so much of Chapter III of that Part as provides for regulations under Article 197 or has effect by virtue of any such regulations);

Articles 221, 232, 233(4), 236, 240, 246, 250, 255 and 262; and

the other provisions of this Order so far as they have effect for the purposes of any provision falling within head (a) or (b) of this definition;

“ relevant undertaker ” means a water undertaker or a sewerage undertaker;

“ resource main ” means (subject to paragraph (3)) any pipe, not being a trunk main, which is or is to be used for the purpose of—

conveying water from one source of supply to another, from a source of supply to a regulating reservoir or from a regulating reservoir to a source of supply; or

giving or taking a supply of water in bulk;

“ road ” has the same meaning as in the Roads (Northern Ireland) Order 1993 (NI 15);

“ service pipe ” means (subject to paragraph (3) and to Article 90(3)) so much of a pipe which is, or is to be, connected with a water main for supplying water from that main to any premises as—

is or is to be subject to water pressure from that main; or

would be so subject but for the closing of some valve,

and includes part of any service pipe;

“ services ” includes facilities;

“ sewer ” includes (without prejudice to paragraph (3)) all sewers and drains (not being drains within the meaning given by this paragraph) which are used for the drainage of buildings and yards appurtenant to buildings;

“ sewerage services ” includes the disposal of sewage and any other services which are required to be provided by a sewerage undertaker for the purpose of carrying out its functions;

“ special administration order ” has the meaning given by Article 41;

“ statutory provision ” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954 and includes any provision of this Order;

“ stopcock ” includes any box or pit in which a stopcock is enclosed and the cover to any such box or pit;

“ street ” has the same meaning as in the Street Works (Northern Ireland) Order 1995 (NI 19);

“ substance ” includes micro-organisms and any natural or artificial substance or other matter, whether it is in solid or liquid form or in the form of a gas or vapour;

“ supply of water in bulk ” means a supply of water for distribution by a water undertaker taking the supply;

“ surface water ” includes water from roofs;

“ the transfer date ” has the meaning assigned to it by Article 270(2);

“ trunk main ” means a water main which is or is to be used by a water undertaker for the purpose of—

conveying water from a source of supply to a filter or reservoir or from one filter or reservoir to another filter or reservoir; or

conveying water in bulk, whether in the course of taking a supply of water in bulk or otherwise, between different places outside the area of the undertaker, from such a place to any part of that area or from one part of that area to another part of that area;

“ underground strata ” has the same meaning as in the Water Order;

“ vessel ” has the same meaning as in the Water Order;

“ waste water treatment works ” means any works, apparatus or plant used for the disposal of sewage;

“ watercourse ” has the same meaning as in the Drainage Order;

“ water and sewerage functions ”, in relation to the Authority, has the meaning given by Article 3(2);

“ water main ” means (subject to paragraph (3)) any pipe, not being a pipe for the time being vested in a person other than the undertaker, which is used or to be used by a water undertaker for the purpose of making a general supply of water available to customers or potential customers of the undertaker, as distinct from for the purpose of providing a supply to particular customers;

“ the Water Order ” means the Water (Northern Ireland) Order 1999 (NI 6).

(3) In this Order—

(a) references to a pipe, including references to a main, a drain or a sewer, shall include references to a tunnel or conduit which serves or is to serve as the pipe in question and to any accessories for the pipe; and

(b) references to any waste water treatment works shall include references to the machinery and equipment of those works and any necessary pumping stations and outfall pipes;

and, accordingly, references to the laying of a pipe shall include references to the construction of such a tunnel or conduit, to the construction or installation of any such accessories and to the making of a connection between one pipe and another.

(3A) In this Order “ sustainable drainage system ” means any structure or part of a structure that is designed to receive surface water from premises and—

(a) to discharge that water at a rate which is (whether in all circumstances or only in some circumstances) less than the rate at which the water enters the structure, or

(b) to reduce the volume of surface water entering public sewers or watercourses.

(3B) For this purpose—

(a) “ structure ” does not include—

(i) a sewer or drain that is capable of being the subject of a declaration under Article 159 (adoption of sewers etc. ), or

(ii) a watercourse; and

(b) the definition of “watercourse” in paragraph (2) (same meaning as in the Drainage Order) does not apply.

(3C) In this Order—

(a) references to a sustainable drainage system include references to a tunnel or conduit which serves or is to serve as the system in question or part of it, and to any machinery or equipment of the system, and

(b) accordingly, references to the construction of a sustainable drainage system include references to the construction of such a tunnel or conduit and to the construction or installation of any such machinery or equipment.

(4) Subject to paragraphs (5) and (6), in this Order references to domestic purposes, in relation to a supply of water to any premises or in relation to any cognate expression, are references to the drinking, washing, cooking, central heating and sanitary purposes for which water supplied to those premises may be used.

(5) Where the whole or any part of the premises are or are to be occupied as a house, those purposes shall be taken to include—

(a) the purposes of a profession carried on in that house or, where—

(i) that house and another part of the premises are occupied together; and

(ii) the house comprises the greater part of what is so occupied,

in that other part; and

(b) such purposes outside the house (including the washing of vehicles and the watering of gardens) as are connected with the occupation of the house and may be satisfied by a supply of water drawn from a tap inside the house and without the use of a hosepipe or similar apparatus.

(6) No such reference to domestic purposes shall be taken to include a reference—

(a) to the purposes of the business of a laundry; or

(b) to any purpose of a business of preparing food or drink for consumption otherwise than on the premises.

(7) Nothing in Part IV or VI by virtue of which a relevant undertaker owes a duty to any particular person to lay any water main, resource main or service pipe or any sewer, lateral drain, disposal main or discharge pipe shall be construed—

(a) as conferring any power in addition to the powers conferred apart from those Parts; or

(b) as requiring the undertaker to carry out any works which it has no power to carry out.

(8) References in this Order to the fixing of charges in relation to any premises by reference to volume are references to the fixing of those charges by reference to the volume of water supplied to those premises, to the volume of effluent discharged from those premises, to both of those factors or to one or both of those factors taken together with other factors.

(9) In this Order references to the supply system of a water undertaker are to the water mains and other pipes which it is the undertaker's duty to develop and maintain by virtue of Article 65.

(10) For the purposes of any provision of this Order by or under which power is or may be conferred on any person to recover the expenses incurred by that person in doing anything, those expenses shall be assumed to include such sum as may be reasonable in respect of establishment charges or overheads.

(11) References in this Order to the later or latest of two or more different times or days are, in a case where those times or days coincide, references to the time at which or, as the case may be, the day on which they coincide.

(12) For the purposes of this Order any property of the Northern Ireland Transport Holding Company which is used by a railway undertaking for the purposes of its undertaking shall be treated as property of that railway undertaking.

(13) Section 24(1) of the Interpretation Act (Northern Ireland) 1954 (c. 33) (service of documents) shall have effect in relation to the service of any document required or authorised by virtue of this Order to be served on any person with the omission of the word “registering”.

(14) The Department may by order provide that references in this Order, or in any statutory provision amended by this Order, to assets of, or belonging to, or vested in, a relevant undertaker are to be read as including references to assets controlled, operated or used by the undertaker for the purposes of its functions as such.

Section 3 The Authority

(1) The body corporate established by Article 3 of the Energy Order as the Northern Ireland Authority for Energy Regulation shall hereafter be known as the Northern Ireland Authority for Utility Regulation.

(2) In addition to the functions referred to in paragraph (1) of that Article, the Authority shall carry out the functions conferred or imposed on it by or under this Order (referred to in this Order as the “ water and sewerage functions ” of the Authority).

(3) In Schedule 1 to the Energy Order for paragraph 1 (membership of the Authority) substitute—

(1)

(1) The Authority shall consist of—

(a) a chairman; and

(b) not fewer than three other members,

appointed by the Department of Finance and Personnel.

(2) The Department of Finance and Personnel shall consult the chairman before appointing any other member.

(4) In that Schedule for “the Department” in every other place where it occurs substitute “ the Department of Finance and Personnel ” .

Section 4 Forward work programme of the Authority

(1) The Authority shall, before each financial year, publish a document (the “forward work programme”) containing a general description of the projects which it plans to undertake during the year in the exercise of its functions under this Order (other than projects comprising routine activities in the exercise of those functions).

(2) That description shall include the objectives of each project.

(3) The forward work programme for any year shall also include an estimate of the overall expenditure which the Authority expects to incur during the year in the exercise of its functions under this Order.

(4) The forward work programme prepared under this Article may, if the Authority so decides, be combined in a single programme with the forward work programme of the Authority prepared under Article 5 of the Energy Order.

(5) Before publishing the forward work programme for any year (other than one which is combined as mentioned in paragraph (4)), the Authority shall give notice—

(a) containing a draft of the forward work programme; and

(b) specifying the time within which representations or objections to the proposals contained in it may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(6) The notice under paragraph (5) shall be published by the Authority in such manner as it considers appropriate for the purpose of bringing the matters contained in it to the attention of persons likely to be affected by them.

(7) The Authority shall send a copy of any notice given by it under paragraph (5) to the Council and the Department.

Section 5 Annual report of the Authority

(1) The Authority shall, as soon as practicable after the end of each financial year, make to the Department a report (the “annual report” for that year) on—

(a) its activities during that year in the exercise of its functions under this Order; and

(b) the activities of the CMA during that year in respect of any references made by the Authority under this Order.

(2) The annual report for each year shall include—

(a) a general survey of developments in respect of matters falling within the scope of the Authority's functions under this Order;

(b) a report on the progress of the projects described in the forward work programme for that year prepared under Article 4;

(c) a summary of final and provisional orders made, and penalties imposed, by the Authority under Part III during the year; and

(d) a report on such other matters as the Department may from time to time require.

(3) The annual report for each year shall set out any general directions given by the Department under Article 60(3).

(4) The Department shall consult the Authority before exercising the power under paragraph (2)(d) in relation to any matter.

(5) The annual report prepared under this Article may, if the Authority so decides, be combined in a single report with the annual report of the Authority prepared under Article 6 of the Energy Order.

(6) Where the annual report prepared under this Article is not so combined, the Department shall—

(a) lay a copy of the report before the Assembly; and

(b) arrange for the report to be published in such manner as the Department considers appropriate.

(7) The Authority may also—

(a) prepare other reports with respect to any matter falling within the scope of its functions under this Order; and

(b) arrange for any such report to be published in such manner as it considers appropriate.

(8) The Authority shall send—

(a) a copy of each annual report published under paragraph (6)(b) to the Council; and

(b) a copy of each report under paragraph (7) to the Department and the Council.

(9) In making or preparing any report under this Article the Authority shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where publication of that matter would or might, in the opinion of the Authority, seriously and prejudicially affect the interests of that individual or body.

Section 6 General duties with respect to water industry

(1) This Article shall have effect for imposing duties on the Department and the Authority as to when and how they should carry out the following functions—

(a) in the case of the Department, its functions under the provisions of this Order relating to the regulation of relevant undertakers; and

(b) in the case of the Authority, its functions under the provisions of this Order relating to—

(i) the regulation of relevant undertakers;

(ii) the financial conditions of requisitions; or

(iii) the movement of certain pipes.

(2) The Department or, as the case may be, the Authority shall carry out the functions mentioned in paragraph (1) in the manner that it considers is best calculated—

(a) to protect the interests of consumers in relation to the supply of water by water undertakers and the provision of sewerage services by sewerage undertakers, wherever appropriate by facilitating effective competition between persons engaged in, or in commercial activities connected with, the supply of water and the provision of sewerage services;

(b) to secure that the functions of a water undertaker and of a sewerage undertaker are properly carried out as respects every area of Northern Ireland; and

(c) to secure that companies holding appointments under Chapter I of Part III as relevant undertakers are able (in particular, by securing reasonable returns on their capital) to finance the proper carrying out of the functions of such undertakers.

(3) For the purposes of paragraph (2)(a) the Department or, as the case may be, the Authority shall have regard to the interests of—

(a) individuals who are disabled or chronically sick;

(b) individuals of pensionable age;

(c) individuals with low incomes; and

(d) individuals residing in rural areas,

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(4) The Department and the Authority may, in carrying out any of the functions mentioned in paragraph (1), have regard to—

(a) any interests of consumers in relation to electricity supplied by authorised suppliers (within the meaning of the Energy Order);

(b) any interests of consumers in relation to gas supplied by authorised suppliers (within the meaning of that Order);

(c) any interests of consumers in relation to communications services and electronic communications apparatus (within the meaning of the Communications Act 2003 (c. 21),

which are affected by the carrying out of that function.

(5) Subject to paragraph (2), the Department or, as the case may be, the Authority shall carry out the functions mentioned in paragraph (1) in the manner that it considers is best calculated—

(a) to promote economy and efficiency on the part of companies holding an appointment under Chapter I of Part III in the carrying out of the functions of a relevant undertaker;

(b) to secure that no undue preference is shown, and that there is no undue discrimination, in the fixing by such companies of water and sewerage charges;

(c) to secure that consumers are protected as respects benefits that could be secured for them by the application in a particular manner of any of the proceeds of any disposal (whenever made) of any of such a company's protected land;

(d) to ensure that consumers are also protected as respects any activities of such a company which are not attributable to the exercise of functions of a relevant undertaker, or as respects any activities of any person appearing to the Department or, as the case may be, the Authority to be connected with the company, and in particular by ensuring—

(i) that any transactions are carried out at arm's length;

(ii) that the company, in relation to the exercise of its functions as a relevant undertaker, maintains and presents accounts in a suitable form and manner;

(e) to contribute to the achievement of sustainable development.

(6) In carrying out any of the functions mentioned in paragraph (1) in accordance with the preceding provisions of this Article, the Department and the Authority shall have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed).

(7) In this Article the references to water and sewerage charges are references to—

(a) any charges in respect of any services provided in the course of the carrying out of the functions of a relevant undertaker; and

(b) amounts of any other description which such an undertaker is authorised by or under any statutory provision to require any of its customers or potential customers to pay.

(8) For the purposes of this Article—

(a) subject to paragraph (9), the reference in paragraph (1) to the provisions of this Order relating to the regulation of relevant undertakers is a reference to the provisions contained in Part III (except Article 45), or in any of Articles 66, 69 to 73, 150, 152, 214, 243, 244, 253, 254 and 259 to 261;

(b) the reference in that paragraph to the provisions relating to the financial conditions of requisitions is a reference to the provisions contained in Articles 77, 83, 88 and 155; and

(c) the reference in that paragraph to the provisions relating to the movement of certain pipes is a reference to the provisions of Article 247.

(9) Paragraphs (2) to (6) do not apply in relation to anything done by the Authority in the exercise of functions assigned to it by Article 29(3) (Competition Act functions).

(10) The Authority may nevertheless when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of paragraphs (2) to (6) if it is a matter to which the CMA could have regard when exercising that function.

(11) The duties imposed by paragraphs (2) to (6) do not affect the obligation of the Department or, as the case may be, the Authority to perform or comply with any other duty or requirement (whether arising under this Order or another statutory provision, by virtue of any assimilated obligation or otherwise).

Section 7 Guidance on social and environmental matters

(1) The Department may from time to time issue guidance about the making by the Authority in the exercise of its water and sewerage functions of a contribution towards the attainment of any social or environmental policies set out or referred to in the guidance.

(2) In formulating guidance, the Department shall, where practicable, have regard to the costs and benefits which may be expected to result from the guidance.

(3) The Authority shall, in exercising and performing the functions mentioned in Article 6(1)(subject to Article 6(6)), have regard to any guidance issued under this Article.

(4) Before issuing guidance under this Article the Department shall consult—

(a) the Authority;

(b) the Council;

(c) relevant undertakers;

(d) DOE; and

(e) such other persons, if any, as the Department considers it appropriate to consult in relation to the guidance.

(5) A draft of any guidance proposed to be issued by the Department under this Article shall be laid before the Assembly.

(6) Guidance shall not be issued by the Department under this Article until after the statutory period beginning with the day on which the draft is laid before the Assembly.

(7) If, before the end of that period, the Assembly resolves that the guidance should not be issued, the Department shall not issue it.

(8) The Department shall arrange for any guidance issued by it under this Article to be published in such manner as it considers appropriate.

Section 8 General environmental and recreational duties

(1) It shall be the duty of each of the following—

(a) a Northern Ireland department;

(b) the Authority; and

(c) every company holding an appointment as a relevant undertaker,

in formulating or considering any proposals relating to any functions of a relevant undertaker (including, in the case of such a company, any functions which, by virtue of that appointment, are functions of the company itself) to comply with the requirements imposed in relation to the proposals by paragraphs (2) and (3).

(2) The requirements imposed by this paragraph in relation to any such proposals as are mentioned in paragraph (1) are—

(a) a requirement, so far as may be consistent—

(i) with the purposes of any statutory provision relating to the functions of the undertaker; and

(ii) in the case of the Department and the Authority, with their duties under Article 6,

so to exercise any power conferred with respect to the proposals on the body subject to the requirement as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest and, in the case of the exercise of such a power by a company holding an appointment as a relevant undertaker, as to further water conservation;

(b) a requirement to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest; and

(c) a requirement to take into account any effect which the proposals would have on the beauty or amenity of any rural or urban area or on any such flora, fauna, features, buildings, sites or objects.

(3) The requirements imposed by this paragraph in relation to any such proposals as are mentioned in paragraph (1) are, subject to the requirements imposed by paragraph (2)—

(a) a requirement to have regard to the desirability of preserving for the public any freedom of access to areas of woodland, mountains, cliff or foreshore and other places of natural beauty;

(b) a requirement to have regard to the desirability of maintaining the availability to the public of any facility for visiting or inspecting any building, site or object of archaeological, architectural or historic interest; and

(c) a requirement to take into account any effect which the proposals would have on any such freedom of access or on the availability of any such facility.

(4) Paragraphs (1) to (3) shall apply so as to impose duties on the Authority and any company holding an appointment as a relevant undertaker in relation to any proposal relating to the functions of the Department, DOE or DARD as they apply in relation to any proposals relating to the functions of such an undertaker; and for the purposes of this paragraph the reference in paragraph (2)(a) to the functions of the undertaker shall have effect as a reference to the functions of the department in question.

(5) It shall be the duty of every company holding an appointment as a relevant undertaker to take such steps as are—

(a) reasonably practicable; and

(b) consistent with the purposes of the statutory provisions relating to the functions of the undertaker in question,

for securing, so long as that company has rights to the use of water or land associated with water, that those rights are exercised so as to ensure that the water or land is made available for recreational purposes and is so made available in the best manner.

(6) It shall be the duty of a company holding an appointment as a relevant undertaker, in determining what steps to take in performance of any duty imposed by virtue of paragraph (5), to take into account the needs of persons who are chronically sick or disabled.

(7) The obligations under this Article of a company holding an appointment as a relevant undertaker shall be enforceable under Article 30 by the Department.

(8) Nothing in this Article or the following provisions of this Order shall require recreational facilities made available by a relevant undertaker to be made available free of charge.

(9) References in this Article to the functions of a relevant undertaker shall be construed, without prejudice to Article 217(7), as if those functions included the management, by a company holding an appointment as such an undertaker, of any land for the time being held by that company for any purpose whatever (whether or not connected with the carrying out of the functions of a relevant undertaker).

(10) In this Article “ building ” includes structure.

Section 9 Environmental duties with respect to areas of special interest

(1) Where DOE is of the opinion that any area of land—

(a) is of special interest by reason of its flora, fauna or geological or physiographical features; and

(b) may at any time be affected by schemes, works, operations or activities of a relevant undertaker,

DOE shall notify the fact that the land is of special interest for that reason to every relevant undertaker whose works, operations or activities may affect the land.

(2) Where a relevant undertaker has received a notification under paragraph (1) with respect to any land, that undertaker shall consult DOE before carrying out any works, operations or activities which appear to that undertaker to be likely to destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which the land is of special interest.

(3) Paragraph (2) shall not apply in relation to anything done in an emergency where particulars of what is done and of the emergency are notified to DOE as soon as practicable after that thing is done.

(4) The obligations under this Article of a relevant undertaker shall be enforceable under Article 30 by the Department.

(5) Article 8(9) shall apply, as it applies in relation to that Article, for construing (in accordance with Article 13) any references in this Article to a relevant undertaker.

Section 10 Codes of practice with respect to environmental and recreational duties

(1) The Department may by order approve any code of practice issued (whether by it or by another person) for the purpose of—

(a) giving practical guidance to relevant undertakers with respect to any of the matters for the purposes of which Articles 8 and 9 have effect; and

(b) promoting what appear to it to be desirable practices by such undertakers with respect to those matters,

and may at any time by such an order approve a modification of such a code or withdraw its approval of such a code or modification.

(2) A contravention of a code of practice as for the time being approved under this Article shall not of itself constitute a contravention of any requirement imposed by Article 8 or 9 or give rise to any criminal or civil liability.

(3) But the Department, DAERA and any other public authority shall each be under a duty to take into account whether there has been or is likely to be any such contravention in determining when and how it should exercise its powers in relation to any relevant undertaker by virtue of this Order or any other statutory provision.

(4) An order under this Article shall be subject to negative resolution.

(5) The Department shall not make an order under this Article unless it has first consulted—

(a) DAERA ;

(b) the Sports Council for Northern Ireland; and

(c) such relevant undertakers and other persons as the Department considers it appropriate to consult.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 11 Co-operation between water regulators

(1) This Article imposes duties on each of the following—

(a) the Department;

(b) DOE; and

(c) the Authority.

(2) It is the duty of each of those mentioned in paragraph (1) to make arrangements with each of the others with a view to promoting in the case of each pair of them—

(a) co-operation and the exchange of information between them; and

(b) consistency of treatment of matters which affect both of them.

(3) That duty relates only—

(a) in the case of the Authority and the Department, to their functions under this Order relating to the regulation of water and sewerage undertakers;

(b) in the case of DOE, to its functions under any statutory provision concerning water resources and water pollution so far as they relate to water and sewerage undertakers.

(4) As soon as practicable after agreement is reached on any arrangements required by this Article, the parties shall prepare a memorandum setting them out.

(5) The parties to any such arrangements shall keep them under review.

(6) As soon as practicable after agreement is reached on any changes to arrangements required by this Article, the parties shall revise their memorandum.

(7) Parties to arrangements required by this Article shall send a copy of their memorandum (and any revised memorandum) to the person mentioned in paragraph (1) who is not a party to the arrangements set out in it.

(8) The Department shall lay before the Assembly a copy of every memorandum (and revised memorandum) under this Article.

Section 12 General duties with respect to the water industry

(1) It shall be the duty of a body to which this Article applies in exercising any of its powers under any statutory provision to have particular regard to the duties imposed under Parts IV to VI on any relevant undertaker which appears to that body to be or to be likely to be affected by the exercise of the power in question.

(2) It shall also be the duty of such a body—

(a) in considering whether or not to exercise any of its powers under any statutory provision in relation to a relevant undertaker; or

(b) in deciding the manner in which to exercise any such power,

to take into account the likely costs and benefits of the exercise or non-exercise of the power or its exercise in the manner in question.

(3) Paragraph (2) does not apply to the extent that it is unreasonable for the body to comply with it in view of the nature or purpose of the power or in the circumstances of the particular case.

(4) Paragraph (2) does not affect a body's obligations to discharge any duties, comply with any requirements or pursue any objectives imposed upon or given to it otherwise than under that paragraph.

(5) This Article applies to—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) DAERA ;

(c) the Department;

(d) any other body which the Department may prescribe.

Section 13 Appointment of relevant undertakers

(1) Subject to the following provisions of this Chapter, a company may be appointed—

(a) by the Department; or

(b) with the consent of or in accordance with a general authorisation given by the Department, by the Authority,

to be the water undertaker or sewerage undertaker for any area.

(2) Without prejudice to the obligation of a company holding an appointment under this Chapter to comply with the conditions of its appointment, the appointment of a company to be the water undertaker or sewerage undertaker for any area shall have the effect, while the appointment remains in force—

(a) of requiring the company to perform any duty imposed by or under any statutory provision on an undertaker of the relevant description (that is to say, a water undertaker or, as the case may be, sewerage undertaker);

(b) of authorising the company, for the purposes of, or in connection with, the carrying out of any of the functions of an undertaker of the relevant description, to exercise any power conferred by or under any statutory provision on an undertaker of that description;

(c) of requiring statutory provisions authorising or requiring anything to be done in relation to an undertaker of the relevant description to be construed as authorising or requiring that thing to be done in relation to that company; and

(d) of requiring other references in any statutory provision to an undertaker of the relevant description, or to the area of that undertaker, to be construed, so far as necessary for the purposes of, or in connection with, the carrying out by that company of the functions of an undertaker of that description, as references to that company or, as the case may be, to that area.

(3) The appointment of a company to be a relevant undertaker shall be by service on the company of an instrument in writing containing the appointment and describing the area for which it is made.

(4) A single instrument may contain the appointment of a company to be the sewerage undertaker for an area and the appointment of the same company to be the water undertaker for the whole or any part of that area or for an area which includes the whole or any part of that area.

(5) A company shall not be appointed to be a water undertaker or a sewerage undertaker unless it is a limited company.

(6) As soon as practicable after making an appointment under this Chapter, the Department shall send a copy of the appointment to the Authority.

Section 14 Continuity of appointments, replacement appointments, etc.

(1) It shall be the duty of the Department to secure that such appointments are made under this Chapter as will ensure that for every area of Northern Ireland there is at all times both—

(a) a company holding an appointment under this Chapter as water undertaker; and

(b) whether or not the same company in relation to the whole or any part of that area, a company holding an appointment as sewerage undertaker.

(2) Subject to the following provisions of this Article—

(a) the Department; and

(b) with the consent of or in accordance with a general authorisation given by the Department, the Authority,

shall have power, by notice to a company holding an appointment under this Chapter, to terminate the appointment or to vary the area to which it relates.

(3) The appointment of a company to be a water undertaker or sewerage undertaker shall not be terminated or otherwise cease to relate to or to any part of any area except with effect from the coming into force of such appointments and variations replacing that company as a relevant undertaker as secure either—

(a) that another company becomes the water undertaker or, as the case may be, sewerage undertaker for that area or part or for an area that includes that area or part; or

(b) that two or more companies each become the water undertaker or, as the case may be, sewerage undertaker for one of a number of different areas that together constitute or include that area or part.

(4) An appointment or variation replacing a company as a relevant undertaker shall not be made in relation to the whole or any part of the area to which that company's appointment as water undertaker or, as the case may be, sewerage undertaker relates except where—

(a) that company consents to the appointment or variation;

(b) the appointment or variation relates only to parts of that area none of the premises in which is served by that company;

(c) the appointment or variation relates only to parts of that area and the conditions mentioned in paragraph (5) are satisfied in relation to each of the premises in those parts which are served by that company; or

(d) the appointment or variation is made in such circumstances as may be set out for the purposes of this paragraph in the conditions of that company's appointment.

(5) The conditions are that—

(a) the premises are, or are likely to be, supplied with not less than 100 megalitres of water in any period of 12 months; and

(b) the person who is the customer in relation to the premises consents in writing to the appointment or variation.

(6) The Department may, after consulting the Authority, make regulations amending paragraph (5)(a) by substituting, for the quantity of water for the time being specified there, such smaller quantity as the Department considers appropriate.

Section 15 Procedure with respect to appointments and variations

(1) An application for an appointment or variation replacing a company as a relevant undertaker shall be made in such manner as may be prescribed.

(2) Within 14 days after making an application under this Article, the applicant shall—

(a) serve notice of the application on the existing appointee and DOE; and

(b) publish a copy of the notice in such manner as may be prescribed.

(3) Before making an appointment or variation replacing a company as a relevant undertaker, the Department or the Authority shall give notice—

(a) stating that it proposes to make the appointment or variation;

(b) stating the reasons why it proposes to make the appointment or variation; and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed appointment or variation may be made.

(4) A notice under paragraph (3) shall be given—

(a) by publishing the notice in such manner as the Department or, as the case may be, the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the making of the proposed appointment or variation; and

(b) by serving a copy of the notice on the existing appointee and DOE.

(5) As soon as practicable after making an appointment or variation replacing a company as a relevant undertaker, the Department or the Authority shall—

(a) serve a copy of the appointment or variation on the existing appointee; and

(b) serve notice of the making of the appointment or variation on DOE.

(6) As soon as practicable after exercising any power to vary the area to which an appointment under this Chapter relates, the Department shall send a copy of the variation to the Authority.

(7) In this Article “ the existing appointee ”, in relation to an appointment or variation replacing a company as a relevant undertaker, means the company which is replaced in relation to the whole or any part of the area to which the appointment or variation relates or, where there is more than one such company, each of them.

(8) The Department may by regulations impose such additional procedural requirements as it considers appropriate for any case where the conditions mentioned in Article 14(5) are required to be satisfied in relation to an application for an appointment or variation replacing a company as a relevant undertaker.

Section 16 Duties affecting making of appointments and variations

(1) Before making an appointment or variation replacing a company as a relevant undertaker, the Department or the Authority shall consider any representations or objections which have been duly made in pursuance of the notice under Article 15(3) and have not been withdrawn.

(2) Before making an appointment or variation replacing a company as a relevant undertaker, the Department shall consult the Authority.

(3) In determining whether to make an appointment or variation by virtue of Article 14(4)(b) or (c) in relation to any part of an area, the Department or, as the case may be, the Authority shall have regard, in particular, to any arrangements made or expenditure incurred by the existing appointee for the purpose of enabling premises in that part of that area to be served by that appointee.

(4) It shall be the duty of the Department or, as the case may be, of the Authority—

(a) in making an appointment or variation replacing a company as a relevant undertaker; and

(b) where it makes such an appointment or variation, in determining what provision is to be made with respect to the fixing by the new appointee of any water or sewerage charges,

to ensure, so far as may be consistent with its duties under Part II, that the interests of the members and creditors of the existing appointee are not unfairly prejudiced as respects the terms on which the new appointee could accept transfers of property, rights and liabilities from the existing appointee.

(5) In this Article—

“ existing appointee ”, in relation to an appointment or variation replacing a company as a relevant undertaker in relation to any area or part of an area, means the company which is replaced by that appointment or variation;

“ new appointee ”, in relation to such an appointment or variation, means the company which by virtue of the appointment or variation becomes a relevant undertaker for the area or part of an area in question;

“ water or sewerage charges ” means—

charges in respect of any services provided in the course of the carrying out of the functions of a water undertaker or sewerage undertaker; or

amounts of any other description which such an undertaker is authorised by or under any statutory provision to require any person to pay.

Section 17 Transitional provision with respect to replacement appointments

(1) Schedule 1 shall have effect for enabling provision to be made with respect to cases in which a company is replaced by another as a relevant undertaker by an appointment or variation under this Chapter.

(2) Paragraphs (3) and (4) apply where, by such an appointment or variation, one company (“the new undertaker”) is to replace another company as a relevant undertaker, but the appointment or variation has not come into force.

(3) Such provisions of this Order as the Department may prescribe shall apply (with any prescribed modifications) in relation to the new undertaker as if the appointment or variation had come into force.

(4) Such of the conditions imposed on the new undertaker under Article 18 as the Authority may specify in a notice given by it to the undertaker shall have effect, in relation to the operation of any provision prescribed under paragraph (3) before the appointment or variation comes into force, as if the appointment or variation had come into force.

Section 18 Power to impose conditions

(1) An appointment under this Chapter may include—

(a) such conditions as appear to the Department or, as the case may be, the Authority to be requisite or expedient having regard to the duties imposed on it by Part II;

(b) conditions for the purposes of Article 14(4)(d); and

(c) conditions requiring the rendering to the Department or, as the case may be, the Authority of a payment on the making of an appointment, or payments while such an appointment is in force, or both, of such amount or amounts as may be determined by or under the conditions.

(2) Conditions may be included by virtue of paragraph (1)(a) in an appointment under this Chapter whether or not they are connected with the supply of water, the provision of sewerage services or the carrying out of the functions under any statutory provision of water undertakers or sewerage undertakers.

(3) Conditions included in an appointment under this Chapter may contain provision for the conditions to cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined by or under the conditions.

(4) Any provision included by virtue of paragraph (3) in an appointment under this Chapter shall have effect in addition to the provision made by this Chapter with respect to the modification of the conditions of an appointment.

(5) For the purposes of this Order where the same instrument contains an appointment of the same company to be both a water undertaker and a sewerage undertaker (whether or not for the same area), all the conditions included in that instrument by virtue of this Article shall have effect, irrespective of their subject-matter, as conditions of both appointments.

(6) Where an instrument of appointment has been served under paragraph (3) of Article 13 on any company, the coming into force of the appointment for the purposes specified in paragraph (2) of that Article shall not be affected by any contravention of the requirements of this Order with respect to the provision contained by way of conditions of appointment in that instrument.

(7) If the Department considers it appropriate to do so in consequence of any legal proceedings with respect to any such provision as is mentioned in paragraph (6), it may by order direct that such conditions as may be specified in the order are to be treated as included in the appointment in question until there is an opportunity for the provision to which the proceedings relate to be replaced by virtue of any of the other provisions of this Chapter.

(8) Any sums received by the Department or the Authority in consequence of the provisions of any condition of an appointment under this Chapter shall be paid into the Consolidated Fund.

Section 19 Determinations under conditions of appointment

(1) Without prejudice to the generality of sub-paragraph (a) of Article 18(1), conditions included in an appointment by virtue of that sub-paragraph may—

(a) require the appointed company to comply with any direction given by the Authority as to such matters as are specified in the appointment or are of a description so specified; and

(b) require the appointed company, except in so far as the Authority consents to the company's doing or not doing them, not to do or to do such things as are specified in the appointment or are of a description so specified.

(2) Without prejudice as aforesaid, such conditions may provide for the reference to and determination by—

(a) the Department or the Authority; or

(b) on a reference by the Authority, the CMA ,

of such questions arising under the appointment and of such other matters, including (in the case of references to the CMA ) disputes as to determinations by the Authority, as are specified in the appointment or are of a description so specified.

(3) Where any question or other matter falls to be determined by the CMA in pursuance of a provision contained in an appointment under this Chapter—

(a) it shall be the duty of the Authority, on being required to do so by the company holding that appointment, to refer that question or matter to the CMA ; and

(b) it shall be the duty of the CMA to determine any question or other matter referred by virtue of sub-paragraph (a) in accordance with the principles which apply, by virtue of Part II, in relation to determinations under this Chapter by the Authority.

(4) For the purposes of paragraph (3), where—

(a) the question or matter referred to the CMA concerns the review of a price control imposed on the company holding the appointment; and

(b) the CMA is to decide to what extent it is reasonable to take into account in its determination costs incurred or borne by the company in connection with the reference,

the CMA shall also have regard to the extent to which, in its view, its determination is likely to support the company's (rather than the Authority's) claims in relation to the question or matter referred to it.

(5) Paragraphs (4) and (5) of Article 21, and Articles 26 and 27 apply to references to the CMA under this Article as they apply to references under Article 21.

(6) A report of the CMA on a reference under this Article—

(a) shall be made to the Authority; and

(b) shall include definite conclusions on the questions or other matters comprised in the reference, together with such an account of its reasons for those conclusions as, in the opinion of the CMA , is expedient for facilitating a proper understanding of those questions or other matters and of its conclusions,

and paragraphs (10) and (11) of Article 24 apply to such a report as they apply to a report on a reference under Article 21.

(7) The functions of the CMA with respect to a reference under this Article are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act, as applied by paragraph (5) read with Article 27).

Section 20 Modification by agreement

(1) Subject to the following provisions of this Article, the Authority may modify the conditions of a company's appointment under this Chapter if the company consents to the modifications.

(2) Before making modifications under this Article, the Authority shall give notice—

(a) stating that it proposes to make the modifications and setting out their effect;

(b) stating the reasons why it proposes to make the modifications; and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(3) A notice under paragraph (2) shall be given—

(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy of the notice on the company and on the Department.

(4) The Authority shall not under this Article make any modifications which the Department has, within the time specified in the notice under paragraph (2), directed the Authority not to make.

(5) The Department shall not give a direction under paragraph (4) in relation to any modification unless—

(a) the modification is a modification of provision contained in the appointment for the purposes of Article 14(4)(d);

(b) the modification is a modification of a provision of the appointment which relates to the disposal of a company's protected land and is stated in the appointment to be a provision which cannot be modified; or

(c) it appears to the Department that the modification should be made, if at all, under Article 25.

Section 21 Modification references to CMA

(1) The Authority may make to the CMA a reference which is so framed as to require the CMA to investigate and report on the questions—

(a) whether any matters which—

(i) relate to the carrying out of any function which is a function of any company by virtue of an appointment of that company under this Chapter; and

(ii) are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b) if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the company's appointment.

(2) The Authority may, at any time, by notice given to the CMA vary a reference under this Article by—

(a) adding to the matters specified in the reference; or

(b) excluding from the reference some or all of the matters so specified;

and on receipt of any such notice the CMA shall give effect to the variation.

(3) The Authority may specify in a reference under this Article, or a variation of such a reference, for the purpose of assisting the CMA in carrying out the investigation on the reference—

(a) any effects adverse to the public interest which, in its opinion, the matters specified in the reference or variation have or may be expected to have; and

(b) any modifications of the conditions of any appointment mentioned in the reference or variation by which, in its opinion, those effects could be remedied or prevented.

(4) As soon as practicable after making a reference under this Article or a variation of such a reference, the Authority shall—

(a) serve a copy of the reference or variation on the company whose appointment is mentioned in the reference or variation; and

(b) publish particulars of the reference or variation in such manner as it considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5) It shall be the duty of the Authority, for the purpose of assisting the CMA in carrying out an investigation on a reference under this Article or in carrying out functions under Article 26, to give to the CMA —

(a) any information in the Authority's possession which relates to matters falling within the scope of the investigation or the carrying out of those functions, and which is either—

(i) requested by the CMA for that purpose; or

(ii) information which, in the Authority's opinion, it would be appropriate for that purpose to give to the CMA without any such request; and

(b) any other assistance which the CMA may require, and which it is within the Authority's power to give, in relation to any such matters;

and the CMA , for the purpose of carrying out any such investigation or such functions, shall take account of any information given to them for that purpose under this paragraph.

(6) In determining for the purposes of this Article whether any particular matter operates, or may be expected to operate, against the public interest, the CMA shall have regard to the matters as respects which duties are imposed on the Department and the Authority by Part II.

(7) The functions of the CMA with respect to a reference under this Article are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act 2002, as applied by Articles 23 and 27).

Section 22 References under Article 21: time limits

(1) Every reference under Article 21 shall specify a period (not longer than 6 months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the CMA on a reference under Article 21 shall not have effect (and no action shall be taken in relation to it under Article 25) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under paragraph (3).

(3) The Authority may, if it has received representations on the subject from the CMA and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than 6 months.

(4) No more than one extension is possible under paragraph (3) in relation to the same reference.

(5) The Authority shall, in the case of an extension made by it under paragraph (3)—

(a) publish that extension in such manner as the Authority considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b) send a copy of what has been published by the Authority under sub-paragraph (a) to the company whose appointment is mentioned in the reference.

Section 23 References under Article 21: powers of investigation

(1) The following sections of Part 3 of the Enterprise Act shall apply, as they had effect immediately before the relevant date and with the modifications mentioned in paragraphs (1A), (2) and (3), for the purposes of references under Article 21 as they applied immediately before that date for the purposes of references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(1A) Section 109 shall, in its application by virtue of paragraph (1), have effect as if—

(a) for subsection (A1), there were substituted—

(A1) For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with a reference under Article 21 of the Water and Sewerage Services (Northern Ireland) Order 2006.

(b) subsection (8A) were omitted.

(2) Section 110 shall, in its application by virtue of paragraph (1), have effect as if—

(a) subsection (2) were omitted; ...

(aa) after subsection (3), there were inserted—

(3A) No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication of the report of the CMA on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.

(b) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3) Section 111(5)(b) shall, in its application by virtue of paragraph (1), have effect as if for sub-paragraph (ii) there were substituted—

(ii) if earlier, the day on which the report of the CMA on the reference concerned is made or, if no such report is made within the period permitted for that purpose, the latest day on which the report may be made within the permitted period.

(4) Provisions of Part 3 of the Enterprise Act which , immediately before the relevant date, had effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph as those provisions had effect immediately before that date .

(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.

(6) In this Article “ the relevant date ” means the date on which section 143 of the Digital Markets, Competition and Consumers Act 2024 came into force.

Section 24 Reports on modification references

(1) In making a report on a reference under Article 21, the CMA —

(a) shall include in the report definite conclusions on the questions comprised in the reference together with such an account of its reasons for those conclusions as, in its opinion, is expedient for facilitating a proper understanding of those questions and of its conclusions;

(b) where it concludes that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c) where it concludes that any adverse effects so specified could be remedied or prevented by modifications of the conditions of a company's appointment under this Chapter, shall specify in the report modifications by which those effects could be remedied or prevented.

(2) For the purposes of Article 25, a conclusion contained in a report of the CMA is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted by the chair of the CMA for the purpose of carrying out the functions of the CMA with respect to the reference in question .

(3) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 21 as the conclusions of the CMA , the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

(4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the CMA on a reference under Article 21.

(5) In making any report on a reference under Article 21 the CMA must have regard to the following considerations before disclosing any information.

(6) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the CMA thinks is contrary to the public interest.

(7) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the CMA thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or

(b) information relating to the private affairs of an individual whose disclosure the CMA thinks might significantly harm the individual's interests.

(8) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (7)(a) or (b) is necessary for the purposes of the report.

(9) A report of the CMA on a reference under Article 21 shall be made to the Authority.

(10) Subject to paragraph (11), the Authority—

(a) shall, on receiving such a report, send a copy of it to the company to whose appointment under this Chapter the report relates and to the Department; and

(b) shall, not less than 14 days after that copy is received by the Department, publish another copy of that report in such manner as the Authority considers appropriate for bringing the report to the attention of persons likely to be affected by it.

(11) If it appears to the Department that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, it may, before the end of the period of 14 days mentioned in sub-paragraph (b) of paragraph (10), direct the Authority to exclude that matter from every copy of the report to be published by virtue of that sub-paragraph; and the Authority shall comply with any such direction.

Section 25 Modifications following report

(1) Where a report of the CMA on a reference under Article 21—

(a) includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest;

(b) specifies effects adverse to the public interest which those matters have or may be expected to have;

(c) includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of a company's appointment under this Chapter; and

(d) specifies modifications by which those effects could be remedied or prevented,

the Authority shall, subject to the following provisions of this Article, make such modifications of the conditions of that appointment as appear to the Authority requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(2) Before making modifications under this Article, the Authority shall have regard to the modifications specified in the report.

(3) Before making modifications under this Article, the Authority shall give notice—

(a) stating that it proposes to make the modifications and setting out their effect;

(b) stating the reasons why it proposes to make the modifications; and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under paragraph (3) shall be given—

(a) by publishing the notice in such manner as the Authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy of the notice on the company whose appointment it is proposed to modify.

(5) After considering any representations or objections made in response to proposals set out in a notice under paragraph (3), the Authority shall give notice to the CMA —

(a) setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and

(b) stating the reasons for making the modifications.

(6) The Authority shall include with the notice under paragraph (5) a copy of any representations or objections received in relation to the notice under paragraph (3).

(7) If the period of 4 weeks from the date on which the notice under paragraph (5) is given elapses without a direction under Article 26(1)(a) having been given to it, the Authority shall—

(a) make the modifications set out in the notice; or

(b) if a direction under Article 26(1)(b) has been given, make the modifications which are not specified in the direction.

(8) The Authority shall not under this Article make any modification of any provisions of a company's appointment under this Chapter which—

(a) are contained in that appointment for the purposes of Article 14(4)(d); or

(b) being provisions relating to the disposal of a company's protected land, are stated in the appointment to be provisions which cannot be modified.

Section 26 CMA's power of veto following report

(1) The CMA may, within the period of 4 weeks after the date on which it is given a notice under Article 25(5), direct the Authority—

(a) not to make the modifications set out in that notice; or

(b) not to make such of the modifications as may be specified in the direction;

and the Authority shall comply with any such direction.

(2) The Department may, within the period of 4 weeks after the date on which the CMA is given a notice under Article 25(5) and on the application of the CMA , direct that the period for giving a direction under paragraph (1) (and, accordingly, the period mentioned in Article 25(7)) shall be extended by 14 days.

(3) The power to give a direction under paragraph (1) may only be exercised in respect of such of the modifications set out in the notice under Article 25(5)(a) as appear to the CMA not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.

(4) If the CMA gives a direction under paragraph (1), it—

(a) shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and

(b) shall itself make such modifications as appear to it to be requisite for the purpose of remedying or preventing—

(i) if the direction was given under paragraph (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications;

(ii) if the direction was given under paragraph (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under Article 25(7)(b).

(5) In exercising its power under paragraph (4)(b), the CMA shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a company's appointment.

(6) Before making modifications under paragraph (4)(b) the CMA shall give notice—

(a) stating that it proposes to make the modifications and setting them out;

(b) stating the reason why it proposes to make them;

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7) A notice under paragraph (4)(a) or (6) shall be given—

(a) by publishing the notice in such manner as the CMA considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy on the Authority and the company whose conditions of appointment it is proposed should be modified.

(8) The CMA may not make any modification under this Article which the Authority could not make under Article 25.

(9) After making modifications under this Article the CMA shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.

Section 27 CMA's power of veto following report: supplementary

(1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph (4)(a), (6) or (9) of Article 26.

(2) In giving any notice under paragraph (4)(a) or (6) of Article 26, or publishing any notice under paragraph (9) of that Article, the CMA must have regard to the following considerations before disclosing any information.

(3) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the CMA thinks is contrary to the public interest.

(4) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the CMA thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or

(b) information relating to the private affairs of an individual whose disclosure the CMA thinks might significantly harm the individual's interests.

(5) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (4)(a) or (b) is necessary for the purposes of the notice.

(6) The following sections of Part 3 of the Enterprise Act shall apply, as they had effect immediately before the relevant date and with the modifications mentioned in paragraphs (6A), (7) and (8), for the purposes of any investigation by the CMA for the purposes of the exercise of its functions under Article 26, as they applied immediately before that date for the purposes of any investigations on references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc );

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(6A) Section 109 shall, in its application by virtue of paragraph (6), have effect as if—

(a) for subsection (A1), there were substituted—

(A1) For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with an investigation for the purposes of the exercise of its functions under Article 26 of the Water and Sewerage Services (Northern Ireland) Order 2006.

(b) subsection (8A) were omitted.

(7) Section 110 shall, in its application by virtue of paragraph (6), have effect as if—

(a) subsection (2) were omitted;

(b) after subsection (3), there were inserted—

(3A) No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication by the CMA of a notice under Article 26(9) of the Water and Sewerage Services (Northern Ireland) Order 2006 in connection with the reference concerned or, if no direction has been given by the CMA under Article 26(1) of that Order in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.

(c) in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(8) Section 111(5)(b) shall, in its application by virtue of paragraph (6), have effect as if for sub-paragraph (ii) there were substituted—

(ii) if earlier, the day on which a notice is published by the CMA under Article 26(9) of the Water and Sewerage Services (Northern Ireland) Order 2006 in connection with the reference concerned or, if no direction is given by the CMA under Article 26(1) of that Order in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.

(9) Provisions of Part 3 of the Enterprise Act which , immediately before the relevant date, had effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (6), have effect in relation to those sections as applied by virtue of that paragraph as those provisions had effect immediately before that date .

(10) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph.

(11) In this Article “ the relevant date ” means the date on which section 143 of the Digital Markets, Competition and Consumers Act 2024 came into force.

Section 28 Modification by order under other statutory provisions

(1) Where the CMA or (as the case may be) the Secretary of State makes a relevant order, the order may, subject to paragraph (3), also provide for the modification of the conditions of a company's appointment under this Chapter to such extent as may appear to the CMA or (as the case may be) the Secretary of State to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

(2) In paragraph (1) “ relevant order ” means—

(a) an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act where—

(i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was carried on by a relevant undertaker; or

(ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is carried on by a relevant undertaker; or

(b) an order under section 160 or 161 of the Enterprise Act where the feature, or combination of features, of the market or markets in the United Kingdom for goods or services which prevents, restricts or distorts competition is—

(i) the structure or an aspect of the structure of a market for the supply of goods or services by a relevant undertaker; or

(ii) the conduct of a relevant undertaker or of customers of a relevant undertaker.

(3) No modification shall be made by virtue of this Article of any provisions of a company's appointment under this Chapter which—

(a) are contained in that appointment for the purposes of Article 14(4)(d); or

(b) being provisions relating to the disposal of a company's protected land, are stated in the appointment to be provisions which cannot be modified.

(4) Expressions used in paragraph (2) and in Part 3 or (as the case may be) Part 4 of the Enterprise Act have the same meanings in that paragraph as in that Part.

Section 29 Functions of the Authority with respect to competition

(1) The functions to which paragraph (2) apply shall be concurrent functions of the Authority and the CMA .

(2) This paragraph applies to the functions of the CMA under Part 4 of the Enterprise Act (other than sections 166 , 167C , 171 and 174E ) so far as those functions—

(a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b) relate to commercial activities connected with the supply of water or the provision of sewerage services.

(3) The Authority shall be entitled to exercise, concurrently with the CMA , the functions of the CMA under the provisions of Part 1 of the Competition Act 1998 (c. 41) (other then sections 31D(1) to (6) , 35C , 38(1) to (6) , 40B(1) to (4) and 51), so far as relating to—

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b) conduct of the kind mentioned in section 18(1) of that Act, or

(c) transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),

in relation to commercial activities connected with the supply of water or securing the supply of water or the provision or securing the provision of sewerage services.

(4) So far as necessary for the purposes of, or in connection with, the provisions of paragraph (1) and (2)—

(a) references in Part 4 of the Enterprise Act to the CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to the Authority (except in sections 166 , 167C , 171 and 174E of that Act and in any other provision of that Act where the context otherwise requires);

(b) references in that Part to section 5 of the Act of 2002 are to be construed as including references to Article 60(1) and (2) of this Order.

(4A) Section 130A of the Enterprise Act 2002 is to have effect in its application to the Authority by virtue of paragraphs (1) and (2)—

(a) as if for subsection (1) of that section there were substituted—

(1) Where the Northern Ireland Authority for Utility Regulation—

(a) is proposing to carry out its functions under Article 60(1) and (2) of the Water and Sewerage Services (Northern Ireland) Order 2006 in relation to a matter for the purposes mentioned in subsection (2), and

(b) considers that the matter is one in respect of which it would be appropriate for the Authority to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

the Authority must publish a notice under this section (referred to in this Part as a “market study notice”).

(b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with the supply of water or the provision of sewerage services (within the meaning given by Article 2 of the Water and Sewerage Services (Northern Ireland) Order 2006)”.

(5) So far as necessary for the purposes of, or in connection with, the provisions of paragraph (3), references in Part I of the Competition Act 1998 (including references in provisions of the Enterprise Act 2002 applied by that Part) to the CMA are to be read as including a reference to the Authority (except in sections 31D(1) to (6) , 35C , 38(1) to (6) , 40B(1) to (4) , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).

(6) Before the CMA or the Authority first exercises in relation to any matter functions which are exercisable concurrently by virtue of paragraph (1), it shall consult the other.

(7) Neither the CMA nor the Authority shall exercise in relation to any matter any functions which are exercisable concurrently by virtue of paragraph (1) if functions which are so exercisable have been exercised in relation to that matter by the other.

(8) It shall be the duty of the Authority, for the purpose of assisting a CMA group in carrying out an investigation on a market investigation reference made by the Authority (under section 131 of the Act of 2002), and by virtue of paragraph (2), to give to the group —

(a) any information which is in the Authority's possession and which relates to matters falling within the scope of the investigation, and which is either requested by the group for that purpose or is information which in the Authority's opinion it would be appropriate for that purpose to give to the group without any such request; and

(b) any other assistance which the group may require, and which it is within the Authority's power to give, in relation to any such matters,

and the group shall, for the purposes of carrying out any such investigation, take into account any information given to it for that purpose under this paragraph.

(9) If any question arises as to whether paragraph (2) or (3) applies to any particular case, that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a) Part 4 of the Enterprise Act; or

(b) Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) , 35C , 38(1) to (6) , 40B(1) to (4) and 51),

by or in relation to the Authority on the ground that it should have been done by or in relation to the CMA .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) In making any decision, or otherwise taking action, for the purposes of any of its functions that—

(a) by virtue of this Article, are functions exercisable concurrently with the CMA, and

(b) in the case of functions under the Competition Act 1998, are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule,

the Authority must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.

Section 30 Orders for securing compliance with certain provisions

(1) Subject to paragraph (2) and Articles 31 and 32, where in the case of any company holding an appointment under Chapter I an enforcing authority is satisfied—

(a) that that company is contravening—

(i) any condition of the company's appointment in relation to which it is the relevant enforcement authority; or

(ii) any statutory or other requirement which is enforceable under this Article and in relation to which it is the relevant enforcement authority; or

(b) that that company is likely to contravene any such condition or requirement,

it shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

(2) Subject to Article 31, where in the case of any company holding an appointment under Chapter I—

(a) it appears to an enforcement authority as mentioned in sub-paragraph (a) or (b) of paragraph (1); and

(b) it appears to that authority that it is requisite that a provisional enforcement order be made,

the enforcement authority may (instead of taking steps towards the making of a final order) by a provisional enforcement order make such provision as appears to it requisite for the purpose of securing compliance with the condition or requirement in question.

(3) In determining for the purposes of paragraph (2)(b) whether it is requisite that a provisional enforcement order be made, an enforcement authority shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of any condition or of any statutory or other requirement enforceable under this Article, is likely to be done, or omitted to be done, before a final enforcement order may be made.

(4) Subject to Articles 31 and 32, where an enforcement authority has made a provisional enforcement order, it shall confirm the order, with or without modifications, if—

(a) it is satisfied that the company to which the order relates—

(i) is contravening any condition or statutory or other requirement in relation to which it is the enforcement authority; or

(ii) is likely to contravene any such condition or requirement; and

(b) the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.

(5) An enforcement order—

(a) shall require the company to which it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

(c) may be revoked at any time by the enforcement authority which made it.

(6) For the purposes of this Article and the following provisions of this Order—

(a) the statutory and other requirements which are enforceable under this Article in relation to a company holding an appointment under Chapter I are such of the requirements of any statutory provision as—

(i) are imposed in consequence of that appointment; and

(ii) are made so enforceable by that statutory provision;

(b) the Authority shall be the relevant enforcement authority in relation to the conditions of an appointment under Chapter I; and

(c) the relevant enforcement authority in relation to each of the statutory and other requirements enforceable under this Article shall be—

(i) the Department;

(ia) DOE;

(ii) the Authority; or

(iii) any of the above,

according to whatever provision is made by the statutory provision by which the requirement is made so enforceable.

(7) In this Article and the following provisions of this Chapter—

“ enforcement authority ” means—

the Department;

DOE; or

the Authority;

“ enforcement order ” means a final enforcement order or a provisional enforcement order;

“ final enforcement order ” means an order under this Article other than a provisional enforcement order;

“ provisional enforcement order ” means an order under this Article which, if not previously confirmed in accordance with paragraph (4), will cease to have effect at the end of such period (not exceeding 3 months) as is determined by or under the order.

(8) Where any act or omission constitutes a contravention of a condition of an appointment under Chapter I or of a statutory or other requirement enforceable under this Article, the only remedies for that contravention, apart from those available by virtue of this Article, shall be those for which express provision is made by or under any statutory provision and those that are available in respect of that act or omission otherwise than by virtue of its constituting such a contravention.

Section 31 Exceptions to the duty to enforce

(1) An enforcement authority shall not be required to make an enforcement order in relation to any company, or to confirm a provisional enforcement order so made, if it is satisfied—

(a) that the contraventions were, or the apprehended contraventions are, of a trivial nature;

(b) that, in such circumstance or subject to such conditions as may be prescribed, the company has given, and is complying with, an undertaking to take all such steps as it appears to the enforcement authority for the time being to be appropriate for the company to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or

(c) that the duties imposed on the enforcement authority by Part II preclude the making or, as the case may be, the confirmation of the order; ...

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1A) Before making an enforcement order or confirming a provisional enforcement order under Article 30, the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

(1B) The Authority shall not make an enforcement order or confirm a provisional enforcement order under that Article if it considers that it would be more appropriate to proceed under the Competition Act 1998.

(2) The requirement to comply with an undertaking given for the purposes of paragraph (1)(b) shall be treated as a statutory requirement enforceable under Article 30—

(a) by the Department or DOE ; or

(b) with the consent of or in accordance with a general authorisation given by the Department or DOE , by the Authority.

(3) Where an enforcement authority, having notified a company that it is considering the making in relation to the company of an enforcement order or the confirmation of a provisional enforcement order so made, is satisfied as mentioned in sub-paragraph (a), (b) or (c) of paragraph (1) or decides that it would be more appropriate to proceed under the Competition Act 1998 , it shall—

(a) serve notice that it is so satisfied or has so decided on the company;

(b) publish in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them—

(i) a copy of the notice, and

(ii) where the enforcement authority is satisfied as mentioned in sub-paragraph (b) of paragraph (1) above, a summary of the undertaking describing the steps to be taken in it; and

(c) in a case where the enforcement authority is satisfied as mentioned in the said sub-paragraph (b), serve a copy of the notice and of the undertaking given for the purposes of that sub-paragraph on the other enforcement authority.

(4) The requirements of paragraph (3) shall not apply, in the case of any proposed order or confirmation in respect of a direction under Article 294, to the extent that the Secretary of State directs that they should not be complied with in the interests of national security.

Section 32 Procedure for enforcement orders

(1) Before making a final order or confirming a provisional order, an enforcement authority shall give notice—

(a) stating that it proposes to make or confirm the order and setting out its effect;

(b) setting out—

(i) the relevant condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed;

(ii) the acts or omissions which, in the enforcement authority's opinion, constitute or would constitute contraventions of that condition or requirement; and

(iii) the other facts which, in its opinion, justify the making or confirmation of the order; and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) A notice under paragraph (1) shall be given—

(a) by publishing the notice in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b) by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the company to which the order relates and on the other enforcement authority.

(3) An enforcement authority shall not make a final order with modifications, or confirm a provisional order with modifications, except—

(a) with the consent to the modifications of the company to which the order relates; or

(b) after complying with the requirements of paragraph (4).

(4) The requirements mentioned in paragraph (3) are that the enforcement authority shall—

(a) serve on the company to which the order relates such notice as appears to it to be requisite of its proposal to make or confirm the order with modifications;

(b) in that notice specify the period (not being less than 28 days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(c) consider any representations or objections which are duly made and not withdrawn.

(5) As soon as practicable after making an enforcement order or confirming a provisional order, the enforcement authority shall—

(a) serve a copy of the order on the company to which the order relates and on the other enforcement authority; and

(b) publish such a copy in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(6) Before revoking a final enforcement order or a provisional order which has been confirmed, the enforcement authority shall give notice—

(a) stating that it proposes to revoke the order and setting out its effect; and

(b) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7) If, after giving a notice under paragraph (6), the enforcement authority decides not to revoke the order to which the notice relates, it shall give notice of that decision.

(8) A notice under paragraph (6) or (7) shall be given—

(a) by publishing the notice in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b) by serving a copy of the notice on the company to which the order relates and on the other enforcement authority.

(9) The requirements of the preceding provisions of the Article shall not apply, in the case of any order in respect of contravention of a direction under Article 294, to the extent that the Secretary of State directs that they should not be complied with in the interests of national security.

Section 33 Validity and effect of enforcement orders

(1) If the company to which an enforcement order relates is aggrieved by the order and desires to question its validity on the ground—

(a) that its making or confirmation was not within the powers of Article 30; or

(b) that any of the requirements of Article 32 have not been complied with in relation to it,

the company may, within 42 days from the date of service on it of a copy of the order, make an application to the High Court under this Article.

(2) On any such application the High Court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the company have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.

(3) Except as provided by this Article, the validity of a final or provisional order shall not be questioned by any legal proceedings whatsoever.

Section 34 Effect of enforcement order

(1) The obligation to comply with an enforcement order shall be a duty owed to any person who may be affected by a contravention of the order.

(2) Where a duty is owed under paragraph (1) to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.

(3) In any proceedings brought against a company in pursuance of paragraph (2), other than proceedings in respect of so much of a contravention of any order as consists in a breach of the duty imposed by virtue of Article 108(1)(a), it shall be a defence for the company to prove that it took all reasonable steps and exercised all due diligence to avoid contravening the order.

(4) Without prejudice to any right which any person may have by virtue of paragraph (1) to bring civil proceedings in respect of any contravention or apprehended contravention of an enforcement order, compliance with any such order shall be enforceable by civil proceedings for an injunction or for any other appropriate relief at the suit of the body which is the relevant enforcement authority in relation to the condition or requirement compliance with which was to be secured by the order.

Section 35 Financial penalties

(1) Where the Authority is satisfied in the case of any company holding an appointment under Chapter I that the company—

(a) has contravened or is contravening any condition of the appointment; or

(b) has failed or is failing to achieve any standard of performance prescribed under Article 66(2) or 150(2),

the Authority may, subject to Article 37, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.

(2) Where an enforcement authority is satisfied in the case of any company holding an appointment under Chapter I that the company has contravened or is contravening any statutory or other requirement which is enforceable under Article 30 and in relation to which it is the relevant enforcement authority, the enforcement authority may, subject to Article 37, impose on the company a penalty of such amount as is reasonable in all the circumstances of the case.

(3) Before imposing a penalty on a company under paragraph (1) or (2) an enforcement authority shall give notice—

(a) stating that it proposes to impose a penalty and the amount of the penalty proposed to be imposed;

(b) setting out the relevant condition or requirement or the standard of performance in question;

(c) specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of a penalty and the amount of the penalty proposed; and

(d) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) Before varying any proposal stated in a notice under paragraph (3)(a) the enforcement authority shall give notice—

(a) setting out the proposed variation and the reasons for it; and

(b) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed variation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) As soon as practicable after imposing a penalty, the enforcement authority shall give notice—

(a) stating that it has imposed a penalty on the company and its amount;

(b) setting out the condition, requirement or standard of performance in question;

(c) specifying the acts or omissions which, in the opinion of the enforcement authority, constitute the contravention or failure in question and the other facts which, in the opinion of the enforcement authority, justify the imposition of the penalty and its amount; and

(d) specifying a date, no earlier than the end of the period of 42 days from the date of service of the notice on the company, by which the penalty is required to be paid.

(6) The company may, within 28 days of the date of service on it of a notice under paragraph (5), make an application to the enforcement authority for it to specify different dates by which different portions of the penalty are to be paid.

(7) Any notice required to be given by an enforcement authority under this Article shall be given—

(a) by publishing the notice in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them;

(b) by serving a copy of the notice on the company to which it relates;

(c) by serving a copy of the notice on the Council; and

(d) by serving a copy of the notice on the other enforcement authority.

(8) Any sums received by an enforcement authority by way of penalty under this Article shall be paid into the Consolidated Fund.

(9) The power of an enforcement authority to impose a penalty under this Article is not exercisable in respect of any contravention or failure before the coming into operation of this Article.

(10) No penalty imposed by an enforcement authority under this Article may exceed 10 per cent. of the turnover of the company (determined in accordance with provisions specified in an order made by the Department subject to negative resolution).

(11) Before imposing a penalty under this Article the Authority shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

(12) The Authority shall not impose a penalty under this Article if it considers that it would be more appropriate to proceed under the Competition Act 1998.

Section 36 Statement of policy with respect to penalties

(1) Each enforcement authority shall prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.

(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention or failure the enforcement authority shall have regard to its statement of policy most recently published at the time when the contravention or failure occurred.

(3) An enforcement authority may revise its statement of policy and where it does so shall publish the revised statement.

(4) Publication under this Article shall be in such manner as the enforcement authority considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them.

(5) An enforcement authority shall undertake such consultation as it considers appropriate when preparing or revising its statement of policy.

Section 37 Time limits on the imposition of financial penalties

(1) Where no final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure later than the end of the period of 12 months from the time of the contravention or failure, unless before the end of that period—

(a) the notice under Article 35(3) relating to the penalty is served on the company under Article 35(7); or

(b) a notice relating to the contravention or failure is served on the company under Article 261(2).

(2) Where a final or provisional order has been made in relation to a contravention or failure, an enforcement authority may not impose a penalty in respect of the contravention or failure unless the notice relating to the penalty under Article 35(3) was served on the company under Article 35(7)—

(a) within 3 months from the confirmation of the provisional order or the making of the final order; or

(b) where the provisional order is not confirmed, within 6 months from the making of the provisional order.

Section 38 Interest and payment of instalments

(1) If the whole or any part of a penalty is not paid by the date by which it is required to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being prescribed under Article 127 of the Judgments Enforcement (Northern Ireland) Order 1981 (NI 6).

(2) If an application is made under paragraph (6) of Article 35 in relation to a penalty, the penalty is not required to be paid until the application has been determined.

(3) If the enforcement authority grants an application under that paragraph in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the enforcement authority under that paragraph, that authority may where it considers it appropriate require so much of the penalty as has not already been paid to be paid immediately.

Section 39 Appeals

(1) If the company on which a penalty is imposed is aggrieved by—

(a) the imposition of the penalty;

(b) the amount of the penalty; or

(c) the date by which the penalty is required to be paid, or the different dates by which different portions of the penalty are required to be paid,

the company may make an application to the High Court under this Article.

(2) An application under paragraph (1) must be made—

(a) within 42 days from the date of service on the company of a notice under Article 35(5): or

(b) where the application relates to a decision of an enforcement authority on an application by the company under Article 35(6), within 42 days from the date the company is notified of the decision.

(3) On any such application, where the High Court considers it appropriate to do so in all the circumstances of the case and is satisfied of one or more of the grounds falling within paragraph (4), that Court—

(a) may quash the penalty;

(b) may substitute a penalty of such lesser amount as that Court considers appropriate in all the circumstances of the case; or

(c) in the case of an application under paragraph (1)(c), may substitute for the date or dates imposed by the enforcement authority an alternative date or dates.

(4) The grounds falling within this paragraph are—

(a) that the imposition of the penalty was not within the power of the enforcement authority under Article 35;

(b) that any of the requirements of paragraphs (3) to (5) or (7) of Article 35 have not been complied with in relation to the imposition of the penalty and the interests of the company have been substantially prejudiced by the non-compliance; or

(c) that it was unreasonable of the enforcement authority to require the penalty imposed, or any portion of it, to be paid by the date or dates by which it was required to be paid.

(5) If an application is made under this Article in relation to a penalty, the penalty is not required to be paid until the application has been determined.

(6) Where the High Court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it considers just and equitable.

(7) Where the High Court specifies as a date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application under this Article it may require the payment of interest on the penalty, or portion, from that date at such rate as it considers just and equitable.

(8) Except as provided by this Article, the validity of a penalty shall not be questioned by any legal proceedings whatsoever.

Section 40 Recovery of penalties

Where a penalty imposed under Article 35(1) or (2), or any portion of it, has not been paid by the date on which it is required to be paid and—

(a) no application relating to the penalty has been made under Article 39 during the period within which such an application can be made; or

(b) an application has been made under that Article and determined,

the enforcement authority may recover from the company, as a civil debt due to it, any of the penalty and any interest which has not been paid.

Section 41 Meaning and effect of special administration order

(1) A special administration order is an order of the High Court made in accordance with Article 42 or 43 in relation to a company holding an appointment under Chapter I of this Part and directing that, during the period for which the order is in force, the affairs, business and property of the company shall be managed, by a person appointed by the High Court—

(a) for the achievement of the purposes of such an order; and

(b) in a manner which protects the respective interests of the members, creditors and customers of the company.

(2) The purposes of a special administration order made in relation to any company shall be—

(a) the transfer to another company, or (as respects different parts of the area to which the company's appointment relates, or different parts of its undertaking) to two or more different companies, as a going concern, of so much of the company's undertaking as it is necessary to transfer in order to ensure that the functions which have been vested in the company by virtue of its appointment may be properly carried out; and

(b) the carrying out of those functions pending the making of the transfer and the vesting of those functions in the other company or companies (whether by virtue of the transfer or of an appointment or variation which replaces the former company as a relevant undertaker).

(3) The Department may by regulations—

(a) make provision for applying provisions of the Insolvency (Northern Ireland) Order 1989 (NI 19) (with or without modifications) in relation to a special administration order or an application for such an order;

(b) make consequential or supplementary provision (including provision modifying other statutory provisions) in relation to special administration orders.

(4) Schedule 1 shall have effect for enabling provision to be made with respect to cases in which a company is replaced by another as a relevant undertaker without an appointment or variation under Chapter I of this Part in pursuance of a special administration order.

(5) In this Article “ business ” and “ property ” have the same meanings as in the Insolvency (Northern Ireland) Order 1989 (NI 19).

Section 42 Special administration orders made on application of Department or Authority

(1) If, on an application made to the High Court—

(a) by the Department; or

(b) with the consent of the Department, by the Authority,

that Court is satisfied in relation to any company which holds an appointment under Chapter I that any one or more of the grounds specified in paragraph (2) is satisfied in relation to that company, that Court may make a special administration order in relation to that company.

(2) The grounds mentioned in paragraph (1) are, in relation to any company—

(a) that there has been, is or is likely to be such a contravention by the company of any principal duty, not being a contravention in respect of which a notice has been served under paragraph (3) of Article 31, as is serious enough to make it inappropriate for the company to continue to hold its appointment;

(b) that there has been, is or is likely to be such a contravention by the company of the provisions of any enforcement order which—

(i) is not for the time being the subject-matter of proceedings brought by virtue of Article 33(1); and

(ii) if it is a provisional enforcement order, has been confirmed,

as is serious enough to make it inappropriate for the company to continue to hold its appointment;

(c) that the company is or is likely to be unable to pay its debts;

(d) that, in a case in which DETI has certified that it would be appropriate, but for Article 43, for it to petition for the winding up of the company under Article 104A of the Insolvency (Northern Ireland) Order 1989 (NI 19) (winding-up on grounds of public interest), it would be just and equitable, as mentioned in that Article, for the company to be wound up if it did not hold an appointment under Chapter I; or

(e) that the company is unable or unwilling adequately to participate in arrangements certified by the Department or the Authority to be necessary by reason of, or in connection with, a proposal for the making by virtue of Article 14(4)(d) of any appointment or variation replacing a company as a relevant undertaker.

(3) Notice of any application under this Article for a special administration order shall be given forthwith to such persons and in such manner as may be prescribed by rules made under Article 359 of the Insolvency (Northern Ireland) Order 1989 (NI 19); and no such application shall be withdrawn except with the leave of the High Court.

(4) For the purposes of this Article a company is unable to pay its debts if—

(a) it is a limited company which is deemed to be so unable under Article 103 of the Insolvency (Northern Ireland) Order 1989 (NI 19) (definition of inability to pay debts); or

(b) it is an unregistered company which is deemed, by virtue of any of Articles 186 to 188 of that Order, to be so unable for the purposes of Article 185 of that Order (winding up of unregistered companies).

(5) In this Article “ principal duty ”, in relation to a company, means a requirement imposed on the company by Article 65 or 149.

Section 43 Power to make special administration order on winding-up petition

On an application made to any court for the winding up of a company which holds an appointment under Chapter I —

(a) the court shall not make a winding-up order in relation to the company; but

(b) if the court is satisfied that it would be appropriate to make such an order if the company were not a company holding such an appointment, it shall, instead, make a special administration order in relation to the company.

Section 44 Restrictions on voluntary winding up and insolvency proceedings

(1) Where a company holds an appointment under Chapter I—

(a) the company shall not be wound up voluntarily;

(b) no administration order or appointment of an administrator shall be made in relation to the company under Schedule B1 to the Insolvency (Northern Ireland) Order 1989 (NI 19);

(c) no appointment shall be made under Part IV of that Order (receivers and managers) in relation to the company; and

(d) no other step shall be taken by any person to enforce any security over the company's property except where that person has served 14 days' notice of his intention to take that step on the Department and on the Authority.

(2) In this Article “ security ” and “ property ” have the same meanings as in Parts II to VII of the Insolvency (Northern Ireland) Order 1989 (NI 19).

Section 45 The General Consumer Council: preliminary

(1) This Chapter confers functions on the General Consumer Council for Northern Ireland (“ the Council ”) in relation to consumer matters.

(2) In this Chapter—

“ consumer matter ” means any matter connected with the interests of consumers;

“ the interests of consumers ” means the interests of consumers in relation to—

the supply of water to premises by water undertakers; and

the provision of sewerage services by sewerage undertakers.

(3) In considering the interests of consumers the Council shall have regard to the interests of—

(a) individuals who are disabled or chronically sick;

(b) individuals of pensionable age;

(c) individuals with low incomes; and

(d) individuals residing in rural areas,

but that is not to be taken as implying that regard may not be had to the interests of other descriptions of consumer.

(4) The Council shall carry out its functions under this Chapter in the manner which it considers is best calculated to contribute to the achievement of sustainable development.

(5) The Council shall establish a group in connection with the exercise of its functions under this Chapter.

(6) Accordingly, in paragraph 10(1) of Schedule 1 to the General Consumer Council (Northern Ireland) Order 1984 (NI 12) (“ the 1984 Order ”) after head (bb) there shall be inserted—

(bbb) a group in connection with the exercise of its functions under Chapter III of Part III of the Water and Sewerage Services (Northern Ireland) Order 2006.

(7) Nothing in paragraph (5) or (6) or Article 9(1) or (2) of the Energy Order (establishment of group in relation to energy) affects the power conferred by paragraph 10(8) of Schedule 1 to the 1984 Order (power by order to reduce number of groups); and accordingly an order under paragraph 10(8) of that Schedule may repeal paragraphs (5) and (6) and Article 9(1) and (2) of the Energy Order.

(8) Nothing in Article 4 of the 1984 Order authorises or requires the Council to carry out any function in relation to a consumer matter otherwise than in accordance with this Chapter.

(9) The Council shall send to the Department a copy of every annual report prepared by it under paragraph 12 of Schedule 1 to the 1984 Order.

Section 46 Forward work programme of the Council

(1) The Council shall, before each financial year, publish a document (the “forward work programme”) containing a general description of the projects which it plans to undertake during the year in the exercise of its functions under this Chapter (other than projects comprising routine activities in the exercise of those functions).

(2) That description shall include the objectives of each project.

(3) The forward work programme for any year shall also include an estimate of the overall expenditure which the Council expects to incur during the year in the exercise of its functions under this Chapter.

(4) The forward work programme prepared under this Article may, if the Council so decides, be combined in a single programme with the forward work programme of the Council prepared under Article 10 of the Energy Order.

(5) Before publishing the forward work programme for any year (other than one which is combined as mentioned in paragraph (4)), the Council shall give notice—

(a) containing a draft of the forward work programme; and

(b) specifying the time within which representations or objections to the proposals contained in it may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(6) The notice under paragraph (5) shall be published by the Council in such manner as it considers appropriate for the purpose of bringing the matters contained in it to the attention of persons likely to be affected by them.

(7) The Council shall send a copy of any notice given by it under paragraph (5) to the Authority and the Department.

Section 47 Co-operation between the Council and other authorities

(1) This Article imposes duties on—

(a) the Authority and the Council;

(b) the Council and the Department;

but those duties extend only to their respective functions under this Order.

(2) It shall be the duty of the bodies mentioned in each sub-paragraph of paragraph (1) to make arrangements with a view to securing—

(a) co-operation and the exchange of information between them; and

(b) the consistent treatment of matters which affect both of them.

(3) As soon as practicable after agreement is reached on any arrangements required by this Article, the parties shall prepare a memorandum setting them out.

(4) Arrangements under this Article shall be kept under review by the parties.

(5) As soon as practicable after agreement is reached on any changes to arrangements under this Article, the parties shall revise their memorandum.

(6) Parties to arrangements required by this Article shall send a copy of their memorandum, and any revised memorandum, to each other body mentioned in paragraph (1) who is not a party to the arrangements set out in the memorandum (or revised memorandum).

(7) The Department shall lay a copy of every memorandum or revised memorandum under this Article before the Assembly.

Section 48 Acquisition and review of information

(1) The Council shall obtain and keep under review—

(a) information about consumer matters; and

(b) information about the views of consumers on such matters.

(2) Where the Authority is required by any provision of this Order to publish a notice or any other document, it shall send a copy of the document to the Council.

Section 49 Provision of advice and information to public authorities and other persons

Subject to Article 57, the Council may—

(a) make proposals, or provide advice and information, about consumer matters; and

(b) represent the views of consumers on such matters,

to public authorities, companies holding an appointment under Chapter I and other persons whose activities may affect the interests of consumers.

Section 50 Provision of information to consumers

(1) The Council may provide information to consumers about consumer matters in such form as appears to the Council to be most useful to the recipients.

(2) That power may be exercised by—

(a) publishing information in any manner the Council thinks appropriate for the purpose of bringing it to the attention of those likely to be interested; or

(b) furnishing information to any consumer (whether in response to a request or otherwise).