HL Deb 11 July 1995 vol 565 cc1646-55

Duty to promote the efficient use of water.

93A.—(1) It shall be the duty of every water undertaker to promote the efficient use of water by its customers.

(2) The duty of a water undertaker under this section shall be enforceable under section 18 above—

  1. (a) by the Secretary of State; or
  2. (b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

(3) Nothing in this Part shall have effect to authorise or require a water undertaker to impose any requirement on any of its customers or potential customers.

Power of Director to impose requirements on water undertakers.

93B.—(1) The Director may require a water undertaker, in its performance of its duty under section 93A above, to—

  1. (a) take any such action; or
  2. (b) achieve any such overall standards of performance,
as he may specify in the document imposing the requirement.

(2) Where the Director, in the document imposing a requirement on a water undertaker under subsection (1) above, stipulates that any contravention of the requirement by the undertaker will be a breach of its duty under section 93A above, any contravention of that requirement by the undertaker shall be a breach of that duty.

(3) Without prejudice to the generality of subsection (1) above, a requirement under that subsection may—

  1. (a) require a water undertaker to make available to its customers or potential customers such facilities as may be specified in the document imposing the requirement;
  2. (b) require a water undertaker to provide or make available to its customers or potential customers such information as may be specified in the document imposing the requirement, and may specify the form in which, the times at which or the frequency with which any such information is to be provided or made available.

(4) In exercising his powers under this section in relation to any water undertaker the Director shall have regard to the extent to which water resources are available to that undertaker.

(5) Before imposing any requirement on a water undertaker under subsection (1) above the Director shall consult that undertaker.

(6) Nothing in this section authorises the Director to impose any requirement on a water undertaker which has or may have the effect of authorising or requiring that undertaker to impose any requirement on any of its customers or potential customers.

Publicity of requirements imposed under section 93B.

93C.—(1) Where, under section 93B(1) above, the Director imposes any requirement on a water undertaker, the Director may arrange for that requirement to be publicised in any such manner as he may consider appropriate for the purpose of bringing it to the attention of that undertaker's customers.

(2) Without prejudice to the generality of subsection (1) above, the Director may arrange for such publicising of the requirement as is mentioned in that subsection by—

  1. (a) himself publicising the requirement or causing it to be publicised; or
  2. (b) directing the undertaker to inform or arrange to inform its customers of the requirement.

Information as to compliance with requirements under section 93B.

93D.—(1) Where a water undertaker is subject to any requirement imposed under section 93B(1) above, the Director may arrange for there to be given to the customers of that undertaker at any such times or with such frequency, and in any such manner, as he may consider appropriate, such information about the level of performance achieved by the undertaker in relation to that requirement as appears to the Director to be expedient to be given to those customers.

(2) Without prejudice to the generality of subsection (1) above, the Director may arrange for such giving of information as is mentioned in that subsection by—

  1. (a) himself disseminating the information or causing it to be disseminated; or
  2. (b) directing the undertaker to give or arrange to give the information to its customers.

(3) At such times and in such form or manner as the Director may direct, a water undertaker shall provide the Director with such information as may be specified in the direction in connection with the undertaker's performance in relation to any requirement imposed upon the undertaker under section 93B(1) above.

(4) A water undertaker who fails without reasonable excuse to do anything required of him by virtue of subsection (3) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.".

. After section 101 of that Act (which provides for the determination of certain details in relation to requisitioned sewers) there shall be inserted—

"Provision of public sewers otherwise than by requisition

Further duty to provide sewers.

101A.—(1) Without prejudice to section 98 above, it shall be the duty of a sewerage undertaker to provide a public sewer to be used for the drainage for domestic sewerage purposes of premises in a particular locality in its area if the conditions specified in subsection (2) below are satisfied.

(2) The conditions mentioned in subsection (1) above are—

  1. (a) that the premises in question, or any of those premises, are premises on which there are buildings each of which, with the exception of any shed, glasshouse or other outbuilding appurtenant to a dwelling and not designed or occupied as living accommodation, is a building erected before, or whose erection was substantially completed by, 20th June 1995;
  2. (b) that the drains or sewers used for the drainage for domestic sewerage purposes of the premises in question do not, either directly or through an intermediate drain or sewer, connect with a public sewer; and
  3. (c) that the drainage of any of the premises in question in respect of which the condition specified in paragraph (a) above is satisfied is giving, or is likely to give, rise to such adverse effects to the environment or amenity that it is appropriate, having regard to any guidance issued under this section by the Secretary of State and all other relevant considerations, to provide a public sewer for the drainage for domestic sewerage purposes of the premises in question.

(3) Without prejudice to the generality of subsection (2) (c) above, regard shall be had to the following considerations, so far as relevant, in determining whether it is appropriate for any sewer to be provided by virtue of this section—

  1. (a) the geology of the locality in question or of any other locality;
  2. (b) the number of premises, being premises on which there are buildings, which might reasonably be expected to be drained by means of that sewer;
  3. (c) the costs of providing that sewer;
    4. 1649
  4. (d) the nature and extent of any adverse effects to the environment or amenity arising, or likely to arise, as a result of the premises or, as the case may be, the locality in question not being drained by means of a public sewer; and
  5. (e) the extent to which it is practicable for those effects to be overcome otherwise than by the provision (whether by virtue of this section or otherwise) of public sewers, and the costs of so overcoming those effects.

(4) Guidance issued by the Secretary of State under this section may—

  1. (a) relate to how regard is to be had to the considerations mentioned in paragraphs (a) to (e) of subsection (3) above;
  2. (b) relate to any other matter which the Secretary of State considers may be a relevant consideration in any case and to how regard is to be had to any such matter;
  3. (c) set out considerations, other than those mentioned in paragraphs (a) to (e) of subsection (3) above, to which (so far as relevant) regard shall be had in determining whether it is appropriate for any sewer to be provided by virtue of this section;
  4. (d) relate to how regard is to be had to any such consideration as is mentioned in paragraph (c) above;
  5. (e) without prejudice to paragraphs (a) to (d) above, relate to how a sewerage undertaker is to discharge its functions under this section.

(5) Before issuing guidance under this section the Secretary of State shall consult—

  1. (a) the Environment Agency;
  2. (b) the Director; and
  3. (c) such other bodies or persons as he considers appropriate;
and the Secretary of State shall arrange for any guidance issued by him under this section to be published in such manner as he considers appropriate.

(6) Subject to the following provisions of this section, the duty of a sewerage undertaker by virtue of subsection (1) above shall be enforceable under section 18 above—

  1. (a) by the Secretary of State; or
  2. (b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

(7) Any dispute between a sewerage undertaker and an owner or occupier of any premises in its area as to—

  1. (a) whether the undertaker is under a duty by virtue of subsection (1) above to provide a public sewer to be used for any such drainage of those premises as is mentioned in that subsection;
  2. (b) the domestic sewerage purposes for which any such sewer should be provided; or
  3. (c) the time by which any such duty of the undertaker should be performed,
shall be determined by the Environment Agency, and may be referred to the Environment Agency for determination by either of the parties to the dispute.

(8) The Environment Agency—

  1. (a) shall notify the parties of the reasons for its decision on any dispute referred to it under subsection (7) above; and
  2. (b) may make any such recommendations, or give any such guidance, relating to or in connection with the drainage of the premises or locality in question as it considers appropriate.

(9) The decision of the Environment Agency on any dispute referred to it under subsection (7) above shall be final.

(10) A sewerage undertaker shall only be taken to be in breach of its duty under subsection (1) above where, and to the extent that, it has accepted, or the Environment Agency has determined under this section, that it is under such a duty and where any time accepted by it, or determined by the Environment Agency under this section, as the time by which the duty is to that extent to be performed has passed.".'.

277 Page 239, line 13, at end insert:

'.—(1) Section 142 of that Act (powers of undertakers to charge) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (2) (manner in which charging powers to be exercised) for the words "subsection (3)" there shall be substituted the words "subsections (3) and (3A)".

(3) After subsection (3) (restriction on charging by agreement for trade effluent functions) there shall be inserted— (3A) The power of a sewerage undertaker to charge, by virtue of subsection (1) above, for any services provided in the course of carrying out its duty under section 101A(1) above shall be exercisable only by or in accordance with a charges scheme under section 143 below.

. In section 143 of that Act (charges schemes) after subsection (3) (charges which may be imposed in certain cases) there shall be inserted— (3A) A sewerage undertaker is under a duty to ensure that any charges scheme made by the undertaker, so far as having effect to recover the undertaker's costs of providing a sewer by virtue of its duty under section 101A(1) above, causes those costs to be borne by the undertaker's customers generally; and a sewerage undertaker's duty under this subsection shall be enforceable under section 18 above—

  1. (a) by the Secretary of State; or
  2. (b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director."

. Section 151 of that Act shall cease to have effect.'.

Earl Ferrers

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 276 and 277 en bloc. I should like to speak also to Amendments Nos. 279, 280, 317 and 328.

During our consideration of this Bill, a number of amendments were moved that would place a duty on water undertakers to promote the efficient use of water by their customers. My noble friend Lord Ullswater was sympathetic to this intention, and the Government undertook to consider such provisions during the passage of the Bill through Parliament.

The first part of Amendment No. 276 places a duty on water undertakers to promote the efficient use of water by their customers. Some water undertakers already consider this part of their customer care service; others could do more. The duty is backed up by a discretionary power for the Director General of Water Services to set standards of performance, where necessary, after taking account of the water resource situation in the undertaker's area and after consultation with the undertaker. The standards that the director general sets, and the undertaker's performance in meeting them will be made available to customers.

We expect those standards to include the offering to customers of facilities, such as a low-cost voluntary metering scheme, and information on water use, which will enable them to make informed choices about how to use water efficiently. But there will be no compulsion on customers. The tone is one of encouragement. There is a dearth of information about the efficient use of water available to customers. Inefficient use of water will lead to requirements for new resources to be developed, the construction of new or expanded water treatment and waste water treatment plant and a consequent increase in customers' bills to pay for all that capital expenditure. I believe that the proposals here will help to inform customers and lead to a reduction in water use.

The second part of Amendment No. 276 will make easier the provision of first-time connection to mains sewerage of existing premises. It puts a new requirement on a sewerage undertaker to provide public sewers to be used for the drainage for domestic purposes of premises in any locality in its area where there are adverse effects to the environment or amenity arising from the existing system, and where this is the most cost-effective solution.

In the event of any dispute there is provision for a right to apply to the new Environment Agency to rule on whether there is a case for extending the mains sewerage network. These powers relate only to existing properties and do not cover future development. My department will issue guidance to the undertakers and the agency on the relevant issues to be taken into account in assessing the cost-effectiveness of the various solutions.

Amendment No. 279 is a technical amendment. In Committee my noble friend Lord Crickhowell moved an amendment very similar to Amendment No. 280 to enable the agency to issue drought permits under certain circumstances on application by water undertakers, which we agreed to consider. Amendment No. 280 allows the agency to issue drought permits which would have the same effect as drought orders. The new power is to be parallel to the existing drought order powers. The power of the agency to issue such permits is to be exercisable in the same circumstances as the present power to make drought orders. I commend the amendments to the House.

Moved, That the House do agree with the Commons in their Amendments Nos. 276 and 277 en bloc.—(.Earl Ferrers.)

Baroness Nicol

My Lords, I welcome Amendment No. 276, which fulfils the aims of an amendment that I put forward at an earlier stage. I particularly welcome the noble Earl's interpretation of the provisions which will mean that water metering will not be compulsorily imposed on customers.

However, I have one niggle. All the emphasis is placed on the efficient use of water by customers. Why should we not include the efficient use of water by water companies? The mains which supply water to customers have been leaking with a 25 per cent. loss throughout the time that I have discussed the subject as a Member of your Lordships' House. Despite the work they have done recently, I understand that that figure is still roughly the same. It seems to me that the water companies should be included in the need to make efficient use of water, but, apart from that, I welcome the amendment.

Baroness Thomas of Walliswood

My Lords, I wish to make some comments and ask the Minister some questions about Amendments Nos. 276 and 277. I have given the Minister notice, and I am grateful to him for outlining the contents of Amendment No. 276 so that I do not have to explain how my queries fit into that in any great detail.

I welcome the duty now proposed to be laid upon the undertakers to provide new sewerage systems, in effect, for residential premises in their area, but it is not clear in practice what the local authorities' role will now be in requisitioning new or extended sewerage schemes in rural areas. I would be grateful if the Minister could explain how, in practice, he envisages the new system working with the old.

There has been a marked decline in the number of new sewerage systems in recent years, although I think that I was mistaken in the note I sent the Minister when I said that that was especially since the Water Industry Act 1991. I do not believe that that was true. Given the undertakers' reluctance, acting under the present legislation, does the Minister anticipate that more rural sewerage schemes will be built as a result of the Bill, as amended by this schedule, coming into force? Such improved drainage is still urgently required in many rural areas, even though everyone will recognise that not every house can reasonably be expected to be connected to a main sewerage scheme.

A further point relates to what considerations should be taken into account when determining whether it is appropriate for the new sewerage scheme to be provided. That comes under new Section 101A(3). As I understand it, local authorities retain their duty to ensure that private drainage systems do not pollute groundwater or damage local amenities. Will the undertakers be able to defend themselves from a request for a new or extended sewerage scheme by saying that the local authority should exercise those powers rather than attempt to requisition a new scheme? Is that what is intended by new Section 101A(3) (e)?

I move now to new Section 101A(4) which relates to the guidance which will be issued by the Secretary of State. It can often be cheaper, and yet environmentally acceptable, to build small local treatment plants to provide main sewerage to a village community; that is to say, to do that rather than connect such communities to distant existing schemes. Yet a sewerage undertaker can frustrate a scheme by imposing engineering proposals to make the scheme financially unviable to the district council or to the residents, whomsoever is the requisitioner. Will the Government guidance indicate when the option of local treatment schemes will be acceptable?

The powers of the environment agency to determine disputes between property owners, occupiers and the undertakers, on matters other than cost (new Section 101A(7)) are welcome, but will those powers enable also such small local schemes to be put in place where they are environmentally acceptable?

On the matter of the settling of disputes, it is my understanding that in disputes between a requisitioning local authority and an undertaker, the local authority can seek arbitration only on matters of cost. That, at any rate, seems to be the current interpretation of Section 99(6) of the Water Industry Act 1991. Is it possible for the Government, through their guidance, to extend the scope of that arbitration to cover whether the undertaker has proposed a means of providing sewerage in the most economical or cost-effective way?

That brings me to my final point, which is related to Amendment No. 277. Part of the amendment proposes the repeal of Section 151 of the 1991 Act; that is the discontinuance of the government grant to support local authorities' repayments to the undertakers. I am sure that I do not need to explain that at present the requisitioning local authority proposes that the undertaker does the work and then the local authority pays the amount back over a 12-year period. Let us suppose that the Government still see a role for local authorities in requisitioning sewerage schemes. Will the Minister consider extending the repayment period beyond the existing 12 years to a period which more closely reflects the life of the asset created by the new or extended scheme? Such an amendment or guidance would be some compensation to local authorities for their loss of grant.

I am grateful to the Minister for enabling me to ask those questions.

Lord Wise

My Lords, I am somewhat dismayed by the fact that Amendment No. 317 abolishes the government grants being paid to farmers towards first-time connections to the mains water supply and sewerage. I appreciate that much progress has been made during the past few years but, nevertheless, there are cases in which the continued availability of grants would provide a valuable incentive for farmers to connect to the mains. For example, that may be desirable in cases in which tougher environmental standards dictate that mains connection is desirable in substitution for private supplies and also the means of disposal. I am saddened that the grants will be removed. They are a great incentive and I would like to see them remain.

Earl Ferrers

My Lords, I am grateful to the noble Baroness, Lady Nicol, for her welcome of Amendment No. 276 because it met the points about which she was anxious. She said that she was glad that the meters would not be compulsory. I must say that I have a sneaking sympathy in sharing that view too. There is a forceful argument about meters. The fact is that if supplies are metered people use less and that if people use more one must pay for the construction of reservoirs, filtering plants and heaven knows what else. All of these are expensive and so up go the water rates. Therefore, there is a sound argument for saying that people should pay for what they use and they should be encouraged not to waste water.

The noble Baroness said that it was fine to say that customers should not waste water but what about the companies which waste water all over the place—

Lord Williams of Elvel

My Lords, I am sorry to interrupt the Minister. He appeared to imply that he was sympathetic to the idea of compulsory water metering. I hope that even at this late stage he will reiterate his personal view and the view of the Government; that they are against compulsory water metering.

Earl Ferrers

My Lords, it is too late to be put on the spot by the noble Lord, Lord Williams. I was merely trying to explain to the noble Baroness, Lady Nicol, that I too had a certain amount of sympathy with her view. However, there is the other side to the issue. It is a question of, on the one hand, this and, on the other hand, that. I thought that I was travelling a narrow course. I was saying that there are arguments for compulsory metering but that compulsory metering is not on the menu at the moment.

The noble Baroness was concerned about the fact that consumers appear to be encouraged to save water but not the companies. Section 37 places a duty on water companies to provide an efficient and economic system of water supply. They would not do that if they wasted their water in an unsatisfactory way.

The noble Baroness, Lady Thomas of Walliswood, was kind enough to give me notice of some of the questions which she asked and I am deeply grateful to her for that.

She referred to the continuing role of local authorities in requisitioning. I can assure the noble Baroness that they will continue to be able to requisition the provision of sewers in rural areas. The second part of Amendment No. 276 imposes a new duty on sewerage undertakers to provide public sewers where there are environmental problems and public sewers are the most appropriate solution in all the circumstances.

She was concerned about whether there would be more rural sewerage schemes as a result of this Bill. It is possible that, overall, there will be more rural sewerage schemes since the new arrangements will have to provide sewers where there are environmental problems which cannot be dealt with satisfactorily by existing systems such as cesspits and septic tanks.

She asked whether sewerage undertakers would try to avoid their obligations by suggesting that local authorities should instead use their powers. It is not intended that Section 101A(3) (e) should be used to allow a sewerage undertaker to pass the responsibility to the local authority to deal with environmental problems. Each case for connection under the new duty will be looked at on its merits. Section 101A(3) (e) is intended to allow consideration of the practicality of alternatives to public sewerage such as the maintenance or repair of existing cesspits or septic tanks and to decide on which is the most cost effective solution.

She was concerned also about small local treatment plants. Once it has been agreed or determined under the new arrangements that the undertaker has a duty to provide a public sewer, it will be for the undertaker to decide which method of disposal and treatment should be used to carry out its existing duty under Section 94 of the Water Industry Act to make the necessary provision for the disposal of sewage. The guidance under the new provisions will not deal with specific options for sewage disposal.

The noble Baroness asked whether the agency would be able to determine that small local schemes should be used. Again, where it has been agreed or determined under the new provisions that it is appropriate to provide a public sewer—in other words, where there are environmental problems and that is the best solution in all the circumstances—the decision on the type of system will be for the undertaker. The agency will be able to make non-binding recommendations about that.

The noble Baroness asked whether the Government would extend the scope of arbitration under the requisitioning provisions and would consider extending the existing 12-year repayment period for those who requisition, for example, local authorities. Both those matters concern the requisitioning provisions in Section 99 of the Act which are not the subject of the amendments which we are considering this evening. Those amendments introduce a new duty to provide sewers where there are environmental problems and mains sewerage is the most appropriate solution.

My noble friend Lord Wise said that he is sorry that grants to farmers are being stopped and that it was better for farmers to be connected to the mains rather than using private supplies. I understand his feelings in that regard but we feel that grants have outlived their usefulness. The number of properties not connected to the mains has reduced significantly since grants were first introduced and a more practical solution for the remaining properties is now required. If a householder's sewerage is causing problems, that can be rectified without the need for it to be connected to the mains, such as by renewing the cesspit, and that is the most cost-effective solution. It is considered that the taxpayer's money should not be used to meet those costs.

I hope that your Lordships are satisfied with regard to the points that have been raised and I commend the amendments.

On Question, Motion agreed to.