text:
PART 1 GENERAL
Citation and commencement
1
1
This Order may be cited as the Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008.
2
This Order comes into force at 8.00a.m on 29th September 2008.
Interpretation: general
2
In this Order —
“the 1985 Act ” means the Companies Act 1985 ;
“the 2000 Act ” means the Financial Services and Markets Act 2000 ;
“the 2006 Act ” means the Companies Act 2006 ;
“ Abbey ” means Abbey National plc, company registered number 2294747;
“ the Act ” means the Banking (Special Provisions) Act 2008;
“ the Authority ” means the Financial Services Authority;
“ the Bank ” means the Governor and Company of the Bank of England;
“ Bradford & Bingley ” means Bradford & Bingley plc, company registered number 3938288;
“ Bradford & Bingley International ” means Bradford & Bingley International Limited, a company registered in the Isle of Man, company number 052221C;
“ Bradford & Bingley’s registrar ” means the person appointed by Bradford & Bingley, as its agent, among other things to maintain its register of members;
“the COMP Sourcebook ” means the Compensation Sourcebook made by the Authority under the 2000 Act;
“the Companies Acts” has the meaning given by section 2 of the 2006 Act;
“the dated subordinated notes” means the following debt issued by Bradford & Bingley —
the £125,000,000 7.625 per cent. subordinated notes due February 2010;
the £125,000,000 6.625 per cent. subordinated notes due 16 June 2023;
the £200,000,000 fixed-rate step-up subordinated notes due 2022;
the £150,000,000 floating rate dated subordinated notes due March 2054;
the £250,000,000 fixed rate/floating rate callable step-up subordinated notes due January 2018; and
any further subordinated debt which ranks or is expressed to rank pari passu with any of the notes referred to in (a) to (e);
“eligible claimant” has the meaning given in rule 4.2.1 of the COMP Sourcebook;
“the FEES 6 Chapter ” means Chapter 6 (Financial Services Compensation Scheme Funding) of the Fees Manual made by the Authority under the 2000 Act;
“the Financial Services Compensation Scheme” means the scheme established by the Authority under Part 15 (the financial services compensation scheme) of the 2000 Act;
“the first transfer” means the transfer effected by article 3 ;
“the first transfer time” has the meaning given by article 3(2) ;
“ FSCS ” means the body corporate established by the Authority under section 212 (the scheme manager) of the 2000 Act;
“protected deposit” has the meaning given in rule 5.3.1 of the COMP Sourcebook;
“qualifying claimant” means an eligible claimant who immediately before the first transfer time had a claim against Bradford & Bingley for a protected deposit;
“relevant undertaking” means Bradford & Bingley or any of its UK subsidiary undertakings;
“retail deposits” means liabilities represented by amounts standing to the credit of retail deposit accounts including instant access accounts, fixed term and notice savings accounts, savings bonds and individual savings accounts, together with interest and other sums accruing to the benefit of such accounts;
“the second transfer” means the transfer effected by article 16 ;
“the second transfer time” has the meaning given by article 16(2) ;
“shares in Bradford & Bingley” means the ordinary shares issued by Bradford & Bingley;
“the transitional period” means the period of 18 months beginning with the date of this Order;
“the Treasury Solicitor” has the same meaning as in the Treasury Solicitor Act 1876 and whose address is One Kemble Street, London WC2B 4TS;
“UK subsidiary undertaking” means a subsidiary undertaking of Bradford & Bingley that is a body corporate incorporated, or a partnership established, under the law of any part of the United Kingdom; and
“the USRs ” means the Uncertificated Securities Regulations 2001 .
PART 2 THE FIRST TRANSFER AND RELATED PROVISIONS
The first transfer
3
1
By virtue of this Order, the shares in Bradford & Bingley are transferred to the Treasury Solicitor as nominee of the Treasury.
2
The transfer under paragraph (1) takes place at the time this Order comes into force (“the first transfer time”).
3
The transfer of the shares effected under paragraph (1) shall vest title in the Treasury Solicitor —
a
free from all trusts, liabilities and incumbrances; and
b
together with all rights, benefits or privileges which attach or accrue to or arise from such shares on or after the first transfer time.
Registration of shares and issue of certificates
4
1
The Treasury Solicitor is entitled with effect from the first transfer time to be entered in the register of members of Bradford & Bingley as holder of the shares in Bradford & Bingley without the need for delivery of any instrument of transfer or other instrument or document and notwithstanding —
a
the absence of any required consent or concurrence to or with the transfer; and
b
any other restriction relating to the transfer.
2
The operator of a relevant system in which any shares in Bradford & Bingley are held immediately prior to the first transfer time (“relevant shares”) shall forthwith after the first transfer time —
a
withdraw his permission for title to the relevant shares to be transferred by means of the relevant system with effect from the first transfer time; and
b
inform all the system-members and Bradford & Bingley’s registrar of the date and time the relevant shares ceased to be securities participating in the system.
3
Bradford & Bingley shall procure that Bradford & Bingley’s registrar shall forthwith after the first transfer time —
a
take such action as the operator of a relevant system may require to convert any relevant shares held in such a system immediately prior to the first transfer time into certificated form; and
b
register in Bradford & Bingley’s register of members (including its issuer register of members) the Treasury Solicitor as the holder of shares in Bradford & Bingley.
4
The operator of a relevant system in which any relevant shares are held immediately prior to the first transfer time, Bradford & Bingley and Bradford & Bingley’s registrar shall each —
a
provide each other with such information as shall be necessary to comply with this article; and
b
co-operate to ensure that the issuer register of members of Bradford & Bingley reconciles with the operator register of members of Bradford & Bingley immediately prior to the first transfer time.
5
From the first transfer time and until the Treasury Solicitor is entered in Bradford & Bingley’s register of members (including its issuer register of members) —
a
he is deemed for all purposes (including for the purposes of the Companies Acts and the USRs) to be —
i
the sole member of Bradford & Bingley; and
ii
entered as holder on the operator register of members of Bradford & Bingley and in Bradford & Bingley’s register of members (including its issuer register of members); and
b
no other person may exercise or purport to exercise in respect of Bradford & Bingley any right deriving from any shares in Bradford & Bingley.
6
The Treasury Solicitor is entitled from the first transfer time to all the rights and advantages of a member of Bradford & Bingley to the exclusion of all other persons, notwithstanding that he is not entered in either Bradford & Bingley’s register of members (including its issuer register of members) or the operator register of members of Bradford & Bingley.
7
Part 21 of the 2006 Act (certification and transfer of securities) applies to Bradford & Bingley with the following modifications —
a
the transfer effected by article 3(1) is deemed to be a transfer falling within section 776(2)(a) (duty of company as to issue of certificates etc on transfer); and
b
sections 776(3) and (4), 777 (issue of certificates etc: cases within the Stock Transfer Act 1982) and 778 (issue of certificates etc: allotment or transfer to financial institution) do not apply.
8
In this article “certificated”, “issuer register of members”, “operator”, “operator register of members”, “relevant system” and “system-member” have the meanings given in the USRs.
Extinguishment of rights in relation to shares in Bradford & Bingley
5
By virtue of this Order, with effect from the first transfer time, any right or entitlement of a person to receive shares in Bradford & Bingley (whether by subscription, conversion or otherwise) is extinguished if the right or entitlement was granted by —
a
a relevant undertaking; or
b
a person not within sub-paragraph (a) and is enjoyed by reason of or in connection with —
i
any person’s office or employment with a relevant undertaking; or
ii
the services provided by any person to a relevant undertaking.
Modification of interests, rights and liabilities associated with the dated subordinated notes
6
1
This article applies, with effect from the first transfer time, in respect of the dated subordinated notes.
2
By virtue of this Order, the rights and liabilities associated with the dated subordinated notes shall be modified in accordance with paragraph (3) .
3
A default in the payment of any principal due in respect of a dated subordinated note —
a
shall not constitute an event of default under the note; and
b
shall not give rise to the consequences specified in paragraph (3) of article 7 in respect of any relevant instrument under that article.
Modification of rights in relevant instruments
7
1
The consequences specified in paragraph (3) shall not arise in respect of any relevant instrument as a result of the first transfer, or any other thing done, or matter arising, by virtue of or in connection with the first transfer.
2
Any circumstances which, but for paragraph (1), would give rise to the consequences specified in paragraph (3) shall be taken not to have arisen for the purposes of any relevant instrument.
3
The consequences are —
a
the termination of the relevant instrument or any rights or obligations under it;
b
any right to terminate the relevant instrument or any right or obligation under it becoming exercisable;
c
any amount becoming due and payable or capable of being declared due and payable;
d
any other change in the amount or timing of any payment falling to be made or due to be received by any person;
e
any right to withhold, net or set off any payment becoming exercisable;
f
any event of default or breach of any right arising;
g
any right not to advance any amount becoming exercisable;
h
any obligation to provide or transfer any deposit or collateral;
i
any right to give or withhold any consent or approval; or
j
any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (i) ) arising or becoming exercisable.
4
Without prejudice to paragraph (3), any provision in a relevant instrument that, as a result of the first transfer or any other thing done, or matter arising, by virtue of or in connection with the first transfer, provides for an obligation not to be created, suspends or extinguishes (in whole or in part) such an obligation or renders such an obligation subject to conditions, shall be of no effect.
5
This article does not apply to any action taken by the Treasury under article 10 .
6
In this article, “relevant instrument” has the meaning given in paragraph 4(3) of Schedule 1 to the Act and the specified connection referred to in paragraph 4(3)(c) of that Schedule is between Bradford & Bingley and those undertakings whose assets and liabilities, profits and losses are consolidated in the consolidated accounts of Bradford & Bingley.
PART 3 MEMBERS, MEETINGS, DIRECTORS AND PROCEEDINGS
Minimum membership for carrying on business
8
1
While Bradford & Bingley is wholly owned by the Treasury, section 24 of the 1985 Act (minimum membership for carrying on business) shall not apply in relation to Bradford & Bingley or any member of Bradford & Bingley.
2
While Bradford & Bingley is wholly owned by the Treasury, no petition shall be presented for the winding up of Bradford & Bingley on the ground that the number of its members is less than the number required by law, nor shall any person be liable on that ground as a member of the company for the payment of any of its debts.
Resolutions and meetings
9
1
While Bradford & Bingley is wholly owned by the Treasury, any meeting of members of Bradford & Bingley shall, if the Treasury Solicitor is present in person, by proxy or authorises a corporate representative to attend, be deemed to be a duly constituted general meeting of the company notwithstanding that it may not have been properly called, or notice of it may not have been properly given, or any quorum required by Bradford & Bingley’s articles of association may not be present.
2
Notwithstanding any provision in the articles of association of Bradford & Bingley, an appointment of a proxy for the Treasury Solicitor —
a
may be in any written form (including in an electronic communication);
b
need not be given with any period of notice;
c
shall not require the approval of the board of Bradford & Bingley; and
d
is deemed to be given in accordance with the articles of association.
3
A resolution of the company adopted after the first transfer time is effective notwithstanding that special notice (notice of intention to move it given to company at least 28 days before the meeting at which it is moved) of the resolution is required by any provision of the 1985 Act or 2006 Act but has not been given.
Removal of directors
10
1
While Bradford & Bingley is wholly owned by the Treasury, the Treasury may in accordance with this article —
a
remove any person as a director of a relevant undertaking;
b
terminate a director’s service contract with any relevant undertaking.
2
For the purposes of any contract or arrangement between a person and a relevant undertaking, action taken under paragraph (1) shall be treated as having been carried out by the relevant undertaking and, in the case of paragraph (1)(a), under and in accordance with its articles of association.
3
The Treasury may remove a person as a director of a relevant undertaking and may terminate his service contract by written notice to the relevant undertaking.
4
Any notice given in accordance with paragraph (3) shall take effect from the date specified in the notice.
5
A relevant undertaking which receives notice under paragraph (3) shall notify the person to whom the notice relates of that fact as soon as reasonably practicable.
6
A person —
a
removed as director of a relevant undertaking, or
b
whose service contract with a relevant undertaking is terminated,
in accordance with this article shall not have any right or claim against the Treasury or any company wholly owned by the Treasury (other than a relevant undertaking) in consequence of the Treasury’s actions under this article.
7
This article does not —
a
deprive any person removed under it of compensation or damages payable to him by a relevant undertaking in respect of —
i
the termination of his appointment as director or of any appointment terminating with that as director; or
ii
the termination of his service contract; or
b
derogate from any power to remove a director or to terminate a director’s service contract that may exist apart from this article.
8
In this article and in article 11 , “service contract” has the meaning given by section 227 of the 2006 Act (directors’ service contracts).
Appointment of directors
11
1
While Bradford & Bingley is wholly owned by the Treasury, the Treasury may appoint one or more directors of a relevant undertaking in accordance with this article and notwithstanding any provision in the articles of association of the relevant undertaking.
2
The Treasury may appoint a director of a relevant undertaking by written notice to the relevant undertaking provided the appointee has agreed to act in such a capacity.
3
The appointment shall take effect from the date specified in the notice.
4
The Treasury may determine the terms (including remuneration) of the service contract of a person appointed as a director under this article in whatever written form they see fit.
5
Any appointment, contract or arrangement which is made or the terms of which are determined under this article is to be treated as made or entered into by the relevant undertaking in question.
6
This article does not derogate from any power to appoint a director or determine the remuneration and other terms and conditions of a director’s service contract that may exist apart from this article.
Proceedings against directors
12
1
No director of a relevant undertaking shall be liable for any act or omission of the director, acting in such capacity, which occurs while Bradford & Bingley is wholly owned by the Treasury and accordingly no proceedings may be brought (or in Scotland, raised) against any such director in respect of such matters.
2
The Treasury may in writing —
a
disapply paragraph (1), and
b
give consent to bring (or in Scotland, raise) such proceedings against such directors.
3
Where paragraph (1) applies, section 232 of the 2006 Act (provisions protecting directors from liability) shall not apply to a relevant undertaking.
4
In this article —
“proceedings” includes proceedings under Part 11 of the 2006 Act (derivative claims and proceedings by members);
“director” means —
a person who is appointed as a director while Bradford & Bingley is wholly owned by the Treasury, whether or not he has ceased to be a director when proceedings in respect of that liability commenced;
a person who was a director immediately before the first transfer time and whose continuing appointment as director while Bradford & Bingley is wholly owned by the Treasury, the Treasury approves in writing, whether or not he has ceased to be a director at the time when proceedings in respect of that liability commenced; and
an alternate director of a person falling within sub-paragraph (a) or (b).
Shadow directorship
13
1
While Bradford & Bingley is wholly owned by the Treasury, for the purposes of the provisions listed in Schedule 1 to this Order, none of the persons listed in paragraph (3) shall be regarded as a shadow director of or (unless otherwise appointed as a director) a person discharging managerial responsibilities of a relevant undertaking.
2
For the purposes of the definition of “director” in section 417 of the 2000 Act (definitions), while Bradford & Bingley is wholly owned by the Treasury, none of the persons listed in paragraph (3) shall be regarded as a person in accordance with whose directions or instructions (not being advice given in a professional capacity) the directors of a relevant undertaking are accustomed to act.
3
The persons are —
a
a Minister of the Crown;
b
the Treasury;
c
the Treasury Solicitor;
d
the Bank;
e
persons —
i
employed by or under; or
ii
acting on behalf of,
any of the persons specified in sub-paragraphs (a) to (d) .
PART 4 DE-LISTING, APPROVAL ETC.
De-listing
14
1
By virtue of this Order, the listing of any shares of Bradford & Bingley is discontinued with effect from the first transfer time without the need for any notice to, or consent of, Bradford & Bingley or any other person.
2
In paragraph (1), “listing” has the meaning given in section 74 of the 2000 Act (the official list) .
Approved persons
15
1
While Bradford & Bingley is wholly owned by the Treasury, the requirements imposed on a relevant undertaking by section 59 of the 2000 Act (approval for particular arrangements) in relation to directors (including non-executive directors) and the chief executive officer shall be deemed to be satisfied in relation to the relevant undertaking, provided that at all material times the Authority is satisfied that at least two individuals who effectively direct the business of the relevant undertaking are of sufficiently good repute and have sufficient experience to perform controlled functions in that respect.
2
The Treasury may give written notice to the Authority that paragraph (1) is no longer to apply in respect of a relevant undertaking.
3
At least one month prior to giving a notice under paragraph (2) the Treasury shall give written notice to the relevant undertaking of their intention to give a notice to the Authority under that paragraph.
4
In paragraph (1), “controlled functions” has the meaning given in section 59(3) of the 2000 Act.
PART 5 THE SECOND TRANSFER
The second transfer
16
1
By virtue of this Order —
a
the rights and liabilities of Bradford & Bingley specified in paragraph 1 of Schedule 2;
b
the property specified in paragraph 3 of Schedule 2;
c
the contracts, agreements and other arrangements specified in paragraph 4 of Schedule 2;
d
the personal property specified in paragraph 5 of Schedule 2; and
e
the intellectual property specified in paragraph 6 of Schedule 2,
are transferred to Abbey.
2
The transfer under paragraph (1) takes place immediately after the first transfer time (“the second transfer time”).
Isle of Man deposits
17
1
Subject to the prior approval of the Financial Services Commission of the Isle of Man of the proposed change of control of Bradford & Bingley International, as soon as practicable after the second transfer time, Bradford & Bingley shall —
a
transfer the Bradford & Bingley International shares to Abbey; and
b
take such steps as are reasonably necessary to ensure that —
i
the transfer in sub-paragraph (a) is effective under Manx law (including but not limited to duly executing requisite transfers, paying related Manx taxes such as stamp duty and delivering the relevant share certificates to Abbey);
ii
the Bradford & Bingley International shares are transferred to Abbey free from all trusts, liabilities and incumbrances;
iii
any right or other entitlement to receive shares in Bradford & Bingley International (whether by subscription, conversion or otherwise) is extinguished with effect from the relevant time; and
iv
Abbey is entered in the register of members of Bradford & Bingley International.
2
By virtue of this Order —
a
the intercompany undertaking is terminated from the relevant time, except in relation to liabilities arising from or in respect of a breach of contract or other duty or of any legal or regulatory requirement occurring before the relevant time; and
b
subject to sub-paragraph (a) any interests, rights, entitlements or claims that have accrued in connection with the intercompany undertaking are extinguished.
3
Articles 18 to 22 apply to any transfer made under this article as they apply to the second transfer.
4
In this article —
“the Bradford & Bingley International shares” means all shares in Bradford & Bingley International held by or on behalf of Bradford & Bingley at the relevant time;
“the intercompany undertaking” means the undertaking by Bradford & Bingley, dated 4 December 2000, to discharge the liabilities of Bradford & Bingley International;
“the relevant time” means the time at which the transfer under paragraph (1) is effected.
No consent or concurrence required
18
The second transfer is effective despite the absence of any required consent or concurrence to or with the transfer.
Associated liability and interference
19
1
The second transfer takes effect as if —
a
no associated liability existed in respect of any failure to comply with any requirement in respect of the transfer; and
b
there were no associated interference with the property, rights and liabilities transferred.
2
In this article, “associated liability” and “associated interference” have the meanings given in paragraph 2(2) of Schedule 2 to the Act.
Termination etc. of interest or right
20
1
Subject to paragraph (2) —
a
from the coming into force of this Order until the second transfer time, no person is entitled to terminate, modify, acquire or claim any interest or right to be transferred by article 16 , or to treat such an interest or right as terminated or modified; and
b
any purported termination, modification, acquisition or claim in contravention of sub-paragraph (a), and any action taken in consequence of a contravention of that sub-paragraph, shall have no effect.
2
This article shall not apply to the ordinary course of dealings by a depositor in relation to his retail deposit.
Interests, rights and liabilities of third parties relating to property, rights and liabilities transferred
21
1
No interest or right of any third party relating to any property, right or liability of Bradford & Bingley, whether or not it is transferred by article 16 , shall arise or become exercisable by virtue of or in connection with the second transfer.
2
Save as otherwise provided in this Order, no third party shall, by virtue of or in connection with the second transfer, incur any liability or be subject to any obligation relating to any property, right or liability of Bradford & Bingley, whether or not it is transferred by article 16 .
3
Without prejudice to the generality of paragraphs (1) and (2) —
a
the consequences specified in paragraph (4) shall not arise in respect of any relevant instrument as a result of the second transfer or any other thing done, or matter arising, by virtue of or in connection with that transfer; and
b
any circumstances which, but for sub-paragraph (a), would give rise to the consequences specified in paragraph (4) shall be taken not to have arisen for the purposes of any relevant instrument.
4
The consequences are —
a
the termination of a relevant instrument or any rights or obligations under it;
b
any right to terminate a relevant instrument or any right or obligation under it becoming exercisable;
c
any amount becoming due and payable or capable of being declared due and payable;
d
any other change in the amount or timing of any payment falling to be made or due to be received by any person;
e
any right to withhold, net or set off any payment becoming exercisable;
f
any event of default or breach of any right arising;
g
any right not to advance any amount becoming exercisable;
h
any obligation to provide or transfer any deposit or collateral;
i
any right to give or withhold any consent or approval; or
j
any other right or remedy (whether or not similar in kind to those referred to in sub-paragraphs (a) to (i)) arising or becoming exercisable.
5
Without prejudice to paragraph (4), any provision in a relevant instrument that, as a result of the second transfer or any other thing done, or matter arising, by virtue of or in connection with that transfer, provides for an obligation not to be created, suspends or extinguishes (in whole or in part) such an obligation or renders such an obligation subject to conditions, shall be of no effect.
6
In this article —
“relevant instrument” has the same meaning as in paragraph 4(3) of Schedule 1 to the Act and the specified connection referred to in paragraph 4(3)(c) of that Schedule is between Bradford & Bingley and those undertakings whose assets and liabilities, profits and losses are consolidated in the consolidated accounts of Bradford & Bingley; and
“third party” shall be construed in accordance with paragraph 2(3) of Schedule 2 to the Act.
Modification of rights and liabilities transferred
22
1
Where a transferred obligation conflicts with an obligation of Abbey existing at the second transfer time, the transferred obligation is modified to the extent required to avoid that conflict.
2
No person shall be entitled to acquire, claim, modify or terminate any interest or right by virtue of or in connection with paragraph (1) .
3
In this article a “transferred obligation” means an obligation, covenant, undertaking or restriction under a contract, agreement or arrangement transferred to Abbey under article 16(1)(c) or treated as made or done by or in relation to Abbey in accordance with article 25(a) .
Foreign property etc.
23
Bradford & Bingley must take such steps as are reasonably requested by Abbey for securing the vesting in Abbey under the relevant foreign law of any foreign property, foreign rights or liabilities expressed to be transferred by article 16 .
Subsequent transactions
24
1
To the extent that any property, rights or liabilities —
a
transferred by Bradford & Bingley to Abbey in connection with the second transfer do not relate mainly to the retail deposit business or to any property, rights or liabilities transferred to Abbey by article 16(1)(b) or (d) ; or
b
retained by Bradford & Bingley after the second transfer time relate mainly to the retail deposit business or to any property, rights or liabilities transferred to Abbey by article 16(1)(b) or (d) ,
the Treasury Solicitor and Abbey shall procure that such property, rights and liabilities are promptly transferred for no further consideration to Bradford & Bingley or Abbey as appropriate.
2
This article shall not apply to any contract of employment or qualifying financial contract.
3
Articles 18 to 22 apply to any transfer made under this article as they apply to the second transfer.
4
For the purposes of this article “qualifying financial contract” means any agreement entered into either with the purpose of borrowing or lending money (not being a retail deposit), or in connection with a transaction on the financial markets, including (howsoever documented) any loan agreement, securities contract, derivative contract, commodities contract, forward contract, repurchase contract, swap agreement, margin lending agreement and master agreement.
Construction of documents etc.
25
As from the second transfer time, and save as otherwise provided in this Order —
a
agreements made or other things done by or in relation to Bradford & Bingley shall be treated, so far as may be necessary for the purposes of or in connection with the second transfer, but not otherwise, as made or done by or in relation to Abbey, as the case may be; and
b
references to Bradford & Bingley, or to any officer or employee of Bradford & Bingley, in instruments or documents relating to the property, rights and liabilities transferred by or under article 16 shall have effect as if they were references to Abbey, or to any officer or employee of Abbey, as the case may be.
Pensions
26
Schedule 3 shall have effect.
Employees
27
1
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (the “transfer regulations”) and sections 257 and 258 of the Pensions Act 2004 shall apply upon the second transfer on the basis that any individual other than a director of Bradford & Bingley who is employed by a relevant undertaking and —
a
whose work relates wholly or mainly to —
i
the retail deposit business of Bradford and Bingley; or
ii
any property, rights or liabilities transferred to Abbey by article 16(1)(b) or (d) ; or
b
whose normal place of work is any real property transferred by article 16(1)(b) ,
is assigned to the organised grouping of resources or employees that is subject to the relevant transfer.
2
Paragraph (1) is without prejudice to the application of the transfer regulations or sections 257 and 258 of the Pensions Act 2004 in respect of any individual not referred to in that paragraph.
PART 6 FINANCIAL SERVICES COMPENSATION SCHEME
Sums to be paid to Abbey following the second transfer
28
1
The following liabilities arise on the occurrence of the second transfer —
a
the FSCS is liable to pay, as soon as practicable, to Abbey an amount equal to the amount that qualifying claimants would, immediately before the first transfer time, have been entitled to claim from the FSCS in respect of claims against Bradford & Bingley for protected deposits; and
b
the Treasury are liable to pay, as soon as practicable, to Abbey an amount equal to the aggregate amount of the liabilities transferred to Abbey under article 16(1)(a) less the amount specified in sub-paragraph (a) and less £612 000 000,
and the Treasury shall subsequently make the necessary adjustments such that Bradford & Bingley obtains the benefit of the reduction of £612 000 000 referred to in sub-paragraph (b) .
2
For the purposes of paragraph (1)(a), if the quantification date for a claim would have been a date other than the date on which Bradford & Bingley was determined to be in default for the purposes of section 6.3 of the COMP Sourcebook, the amount that a qualifying claimant would have been entitled to claim from the FSCS is the lesser of —
a
the amount which the FSCS quantifies as being the value of that claim as at immediately before the first transfer time; and
b
the amount that would have been payable at the quantification date, if different, for that claim.
3
In paragraph (2), “quantification date” has the meaning given in rule 12.3.1 of the COMP Sourcebook.
4
Immediately after the second transfer time —
a
Bradford & Bingley shall estimate the aggregate amount of the liabilities transferred to Abbey under article 16(1)(a) ;
b
the FSCS shall pay to Abbey the amount it is liable to pay under paragraph (1)(a) as estimated by the Authority; and
c
the Treasury shall pay to Abbey an amount equal to the amount estimated by Bradford & Bingley in accordance with sub-paragraph (a) less the amount estimated by the Authority in accordance with sub-paragraph (b) and less £612 000 000.
5
From time to time —
a
the FSCS may revise the estimate of its liability under paragraph (1)(a); and
b
Bradford & Bingley may revise the estimate of the aggregate amount of the liabilities transferred to Abbey under article 16(1)(a) ,
and the FSCS, the Treasury and Abbey shall make such corresponding payments to each other as are necessary to ensure that the FSCS and the Treasury have each paid to Abbey the amount required to meet their liability under paragraph (1) (and no more than such amount).
6
The liability referred to in paragraph (1)(a) shall be assessed by the FSCS and, in doing so, the FSCS may calculate, by any methodology or approach it considers appropriate, the total amounts of compensation that would have been paid to all qualifying claimants, if (and to the extent that) it considers that the costs of ascertaining the entitlement to and amount of compensation by reference to each qualifying claimant would exceed or be disproportionate to the benefit of doing so.
Payment to Abbey to constitute payment of compensation for the purposes of the Financial Services Compensation Scheme
29
For the purposes of Part 15 (the financial services compensation scheme) of the 2000 Act, the COMP Sourcebook and the FEES 6 Chapter (including, without limitation, the power of the FSCS to impose levies) —
a
all payments by the FSCS to Abbey under article 28 shall constitute the payment of compensation to each qualifying claimant under the Financial Services Compensation Scheme in accordance with their respective entitlements in respect of claims against Bradford & Bingley for protected deposits;
b
each qualifying claimant —
i
is deemed to have made an application for compensation for the purposes of rule 3.2.1(1) of the COMP Sourcebook; and
ii
is deemed to have accepted an offer of compensation made by the FSCS and to have received payment of such compensation for the purposes of rule 11.2.1 of the COMP Sourcebook,
and, accordingly, a qualifying claimant has no right to claim, and the FSCS has no obligation to pay, for a protected deposit any further compensation under the Financial Services Compensation Scheme in respect of the default of Bradford & Bingley determined by the Authority under section 6.3 of the COMP Sourcebook.
Liability of Bradford & Bingley to the FSCS and the Treasury
30
1
Bradford & Bingley is liable to the FSCS in respect of an amount equal to the aggregate of —
a
the amount which the FSCS is liable to pay under article 28(1)(a) ; and
b
the amount which the Treasury are liable to pay under article 28(1)(b) .
2
Bradford & Bingley, the FSCS and the Treasury shall agree terms on which, subject to paragraph (6) , the amount of Bradford & Bingley’s liability to the FSCS under paragraph (1) is to be reduced out of excess cash flow and other proceeds.
3
The FSCS shall determine the proportion of any amount which it receives or recovers from Bradford & Bingley which is properly attributable to each type of liability described below and shall promptly on receipt account to the Treasury as follows —
a
in full, where the liability is a liability which has been transferred under article 16(1)(a) and the person to whom such transferred liability is owed would not have been entitled to make a claim for compensation from the FSCS immediately before the first transfer time; and
b
up to the amount of the excess, where the liability is a liability owed by Bradford & Bingley to a qualifying claimant and the amount of such liability exceeds the maximum compensation that the qualifying claimant would have been entitled to claim from the FSCS immediately before the first transfer time,
and, where the liability is a liability owed by Bradford and Bingley to a qualifying claimant and the amount of such liability is equal to or less than the maximum compensation that the qualifying claimant would have been entitled to claim from the FSCS immediately before the first transfer time, that amount shall be for the account of the FSCS.
4
Once all the assets of Bradford & Bingley have been realised and distributed, if the claim of the FSCS against Bradford & Bingley has not been satisfied in full, Bradford & Bingley’s liability for the shortfall shall be extinguished, without prejudice to any claim the FSCS may have against any other party.
5
The FSCS shall not take or join in any corporate action or other steps or legal proceedings for the winding-up, dissolution or re-organisation or for the appointment of an administrator, liquidator or similar appointment in respect of Bradford & Bingley, or any analogous step or proceeding in any other jurisdiction.
6
Nothing in this Part shall have the effect that the FSCS recovers less than it would have recovered if this Order had not been made and Bradford and Bingley had gone into liquidation following the declaration of default by the Authority in relation to Bradford and Bingley for the purposes of section 6.3 of the COMP Sourcebook.
Co-operation with the FSCS
31
1
Bradford & Bingley and Abbey must each —
a
comply with any request of the FSCS for the provision of information; and
b
provide the FSCS with any other information which Bradford & Bingley or Abbey, as the case may be, considers may be useful for the purpose of co-operating in the fulfilment of the FSCS’s functions under the COMP Sourcebook and the FEES 6 Chapter.
2
Nothing in this article affects the power of the FSCS to require information under section 219 of the 2000 Act (scheme manager’s power to require information).
Statutory immunity
32
For the purposes of section 222 (statutory immunity) of the 2000 Act the scheme manager’s functions shall include any acts or omissions carried out by the FSCS pursuant to or in connection with this Order.
PART 7 TRANSITIONAL PROVISIONS
Services and facilities
33
The agreement dated 29th September 2009 between the Treasury and Abbey relating to the provision of transitional services by Bradford & Bingley and Abbey to one another shall bind Bradford & Bingley as if it were a party.
Use of the Bradford & Bingley brand by Abbey
34
Bradford & Bingley shall grant to Abbey a non-exclusive royalty-free licence for a period of three years to use the Bradford & Bingley brand for the purposes of carrying on the business transferred to Abbey by the second transfer.
Termination etc. of interest or right
35
1
Except with the consent of the Treasury or the permission of the court, during the transitional period —
a
no person is entitled —
i
to terminate or modify any contract or agreement, or any right or obligation under any contract or agreement where such contract or agreement is for the services and facilities reasonably required by —
aa
Bradford & Bingley to carry on the business retained by it after the second transfer; or
bb
Abbey to carry on the retail deposit business, or
ii
to treat such a contract, agreement, right, obligation or interest as terminated or modified,
by virtue of or in connection with the first or second transfer; and
b
any counterparty to such contract or agreement must perform their obligations in accordance with that contract or agreement.
2
Any purported termination or modification of any contract, agreement, right, obligation or interest in contravention of paragraph (1), and any action taken in consequence of any such purported termination or modification, shall have no effect.
3
Paragraph (1) does not apply where —
a
Bradford & Bingley or Abbey, as the case may be, has failed to perform its payment obligations under the relevant contract or agreement and such non-payment is not remedied within 7 days of Bradford & Bingley becoming aware of the non-performance; or
b
Bradford & Bingley or Abbey, as the case may be, fails to notify the counterparty to the relevant contract or agreement within 14 days of his becoming aware of the request for consent to such termination, modification or non-performance of an obligation, that such consent has been withheld.
4
Without prejudice to the generality of paragraph (1), neither the first nor second transfer shall have the effect of terminating or otherwise changing the terms of Bradford & Bingley’s membership of any payment system, including, in particular, BACS, CHAPS and the LINK payments systems.
5
This article is subject to any requirement of Community law.
Provision of information
36
Bradford & Bingley shall provide Abbey with such information as is reasonably requested by Abbey in relation to anything transferred by or under article 16 .
PART 8 SUPPLEMENTARY
Modification to Authority’s rule-making power
37
1
Subsections (1) and (1A) of section 138 of the 2000 Act (general rule-making power) have effect as if modified by inserting after “protecting the interests of consumers” —
or for the purposes of, to facilitate or in consequence of, a transfer under section 3 or 8 of the Banking (Special Provisions) Act 2008
.
2
Section 148(2) of the 2000 Act (modification or waiver of rules) shall also apply in relation to a relevant undertaking —
a
in the absence of an application by a person subject to rules made by the Authority; and
b
without any requirement for the consent of such a person.
3
Section 148(4) of the 2000 Act shall not prevent the Authority from modifying or waiving rules in relation to a relevant undertaking under section 148 of that Act provided that the Authority is satisfied that the modification or waiver is necessary for the purposes of, to facilitate or in consequence of the first or second transfer.
Modification to Authority’s duty to consult on rule changes
38
1
Section 155(7) of the 2000 Act (consultation) has effect as if modified by adding at the end —
or if it is making rules for the purposes of, or to facilitate or in consequence of, a transfer under section 3 or 8 of the Banking (Special Provisions) Act 2008.
2
Section 157 of the 2000 Act (guidance) has effect as if modified by adding after subsection (3) —
3A
Section 155(7) applies to proposed guidance as it applies to proposed rules with the modification made by article 39(1) of the Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008.
.
Modification of provision on liability in relation to operator’s functions
39
1
Section 291 of the 2000 Act (liability in relation to recognised body’s regulatory functions) shall have effect for the purposes of this Order as if the following modifications are made.
2
In subsection (1) —
a
after “its officers and staff” add “and an operator and its officers and staff”;
b
after “recognised body’s” add “or the operator’s”.
3
In subsection (3) at the end add —
and the functions of the operator so far as relating to, or matters arising out of, the obligations to which the operator is subject under the Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008.
4
In this section, “operator” has the meaning given in the Uncertificated Securities Regulations 2001.
.
Enterprise Act 2002
40
Part 3 of the Enterprise Act 2002 (mergers) shall not apply to the first or second transfer save insofar as it gives effect to an obligation under Community law.
Freedom of information
41
For the purposes of section 3 of the Freedom of Information Act 2000 (public authorities) , while Bradford & Bingley is wholly owned by the Treasury, a relevant undertaking shall be deemed —
a
not to be a publicly-owned company for the purposes of subsection (1)(b);
b
not to hold information on behalf of the Treasury for the purposes of subsection (2)(b).
Notification requirement
42
1
The Treasury must notify the Authority of the making of this Order.
2
A notification under paragraph (1) —
a
may be given by such means as the Treasury consider appropriate;
b
must be given to the Authority as soon as reasonably practicable after the first transfer time.
Gordon Brown
Alistair Darling
Two of the Lords Commissioners of Her Majesty’s Treasury
29th September 2008


type: legislation

jurisdiction: UK

text:
Citation
1
These Regulations may be cited as the Water Supply and Sewerage Services (Customer Service Standards) Regulations 2008.
Commencement
2
These Regulations come into force on 1st April 2008.
Extent
3
These Regulations extend to England and Wales only.
Interpretation
4
1
In these Regulations —
“customer” includes —
a potential customer; and
an occupier of premises whose supply of water or sewerage services is the subject of a separate charge for which a person other than the occupier is liable,
but does not include a customer of a licensed water supplier;
“domestic premises” means premises used wholly or partly as a dwelling or intended for that use;
“outbuilding” means a shed, garage or similar building that is not attached to any other building other than another outbuilding;
“the WIA” means the Water Industry Act 1991 ; and
“working day” means any day that is not a Saturday, a Sunday, Christmas Day, Good Friday nor a bank holiday under the Banking and Financial Dealings Act 1971 .
2
For the purposes of these Regulations, a licensed water supplier is not a customer of a water undertaker that supplies water to it.
Exclusions
5
1
Nothing in these Regulations requires a relevant undertaker —
a
to give notice to more than one person in respect of the same premises; or
b
to make a payment to more than one person in respect of any one claim.
2
Nothing in these Regulations, and nothing done by a relevant undertaker in consequence of these Regulations, determines who is beneficially entitled to a payment made under these Regulations, or in respect of any one act or omission relating to the same premises.
Keeping of appointments
6
1
This regulation applies if a representative of a relevant undertaker is to visit a customer’s premises in connection with the provision of water supply services or sewerage services.
2
If the representative requires access to the premises, or it would otherwise be reasonable to expect the customer or a person acting on the customer’s behalf to be on the premises, the undertaker must —
a
consult the customer orally or in writing to try to agree on a day to attend the premises; and
b
give the customer notice, orally or in writing, of when the representative will attend the premises.
3
The undertaker’s notice must specify —
a
the premises;
b
the date that the representative will attend them;
c
either —
i
if the customer so requests, a period of two hours during which the visit will be made; or
ii
otherwise, whether the visit will be made during the morning or the afternoon; and
d
if the notice specifies that the visit will be made during the morning or afternoon, at what times the undertaker regards the morning or the afternoon, as the case requires, as beginning and ending.
4
Subject to paragraph (6) , the undertaker must pay the customer £20 if —
a
the undertaker gives a notice that is not in accordance with paragraph (3) ;
b
a representative does not attend the premises on the date specified in the notice; or
c
a representative does attend the premises on that date, but —
i
if the notice specified a two-hour period for the attendance, the representative does not attend during the specified period; or
ii
if the notice specified that the representative would attend during the morning or afternoon, the representative does not attend during the period specified in the notice as being the period of the morning or the afternoon, as the case requires.
5
No application by the customer for the payment is necessary.
6
However, the undertaker need not pay the customer under paragraph (4) if —
a
the customer cancels the appointment;
b
the undertaker cancels the appointment by giving the customer at least 24 hours’ notice, orally or in writing, of the cancellation; or
c
it became impracticable, for a reason mentioned in paragraph (7) , for the representative to keep the appointment, and the undertaker could not reasonably have so foreseen in time to enable it —
i
to cancel the appointment giving 24 hours’ notice; or
ii
to make other suitable arrangements for a representative to attend the premises at the arranged time.
7
The reasons are —
a
severe weather;
b
industrial action by employees of the undertaker; and
c
the act or default of a person who is not —
i
an officer, employee or agent of the undertaker; or
ii
a person acting on behalf of the undertaker or of an agent of the undertaker.
8
The representative of an undertaker who attended a customer’s premises may make and sign a written record stating that the representative attended the premises and the time and date of attendance.
9
Unless the customer establishes that the record is incorrect, it is taken to confirm that the representative attended the premises as stated in the record.
Complaints, account queries and requests about payment arrangements
7
1
This regulation applies where a customer of a relevant undertaker —
a
complains in writing about the supply of water or the provision of sewerage services by the undertaker;
b
queries, in writing, the correctness of an account for the supply of water or the provision of sewerage services; or
c
asks, in writing, for a change to payment arrangements.
2
The undertaker must provide a substantive reply to the customer —
a
in the cases of a reply to a complaint or a query, within 10 working days; or
b
if the request is for a change to payment arrangements and the request cannot be met, within 5 working days.
3
The first day of the period for reply is the day after the day when the undertaker receives the complaint, query or request.
4
Subject to paragraph (6) , if the undertaker does not comply with paragraph (2) , it must pay the customer £20.
5
No application by the customer for the payment is necessary.
6
However, the undertaker need not pay the customer under paragraph (4) if —
a
the address that the customer wrote to was not a notified address of the undertaker for a complaint, query or request of that kind;
b
the customer does not wish to pursue the complaint, query, or request and has so informed the undertaker;
c
it was impracticable for the undertaker to send a reply within the required period because of —
i
industrial action by employees of the undertaker; or
ii
the act or default of a person who is not —
aa
an officer, employee or agent of the undertaker; or
bb
a person acting on behalf of the undertaker or of an agent of the undertaker; or
d
in the case of a reply to a complaint or query —
i
the complaint or query was frivolous or vexatious; or
ii
the undertaker reasonably considered that a visit was necessary before replying, and severe weather made that visit impracticable.
7
For the purposes of paragraph (6)(a) , an address of an undertaker is a notified address of the undertaker for a complaint, query or request of a particular kind if the undertaker has notified that address to its customers as the appropriate address for a complaint, query or request of that kind by —
a
publishing it in a telephone directory;
b
notifying it on the undertaker’s website; or
c
showing it on the undertaker’s publicity material.
8
For the purposes of this regulation —
a
“undertaker” includes a service provider that is carrying out sewerage functions on behalf of an undertaker under arrangements entered into, or to be treated as entered into, for the purposes of section 97 of the WIA; and
b
a complaint, query or request to such a service provider is taken, for the purposes of paragraph (2) , to have been received by the undertaker on whose behalf the service provider provides services on the date on which the undertaker received it from the service provider.
9
In this regulation —
“payment arrangements” means the arrangements by which a customer makes payments (including instalment payments) to the undertaker; and
“a change to payment arrangements” includes a change to the frequency of payments (including instalment payments).
Notice of interruption of supply
8
1
This regulation applies where a water undertaker exercises its power under section 60(1) of the WIA (disconnections for the carrying out of necessary works).
2
If under section 60(3) of the WIA the undertaker is required to serve a notice, the undertaker must —
a
specify in the notice —
i
the earliest date and time after which the undertaker reasonably expects that the supply will be interrupted or cut off; and
ii
the latest date and time by which the undertaker reasonably expects that the supply will be restored; and
b
if the water is to be cut off for more than four hours, give at least 48 hours’ notice before the supply is interrupted or cut off.
3
Paragraph (4) applies if, because of an emergency, a water undertaker —
a
interrupts or cuts off the supply of water to the premises of a customer; and
b
is excused from the requirement under section 60(3) of the WIA to serve a notice.
4
If this paragraph applies the undertaker must, as soon as is reasonably practicable, take all reasonable steps to notify each affected customer —
a
that the supply has been interrupted or cut off;
b
where an alternative supply can be obtained;
c
of the time by which it is proposed the supply should be restored; and
d
of the telephone number of an office from which further information may be obtained.
5
Subject to paragraph (6) , if the undertaker fails to comply with paragraph (2)(b) , it must pay each customer whose supply of water was disconnected or cut off —
a
if the supply is to domestic premises, £20; and
b
if the supply is to premises of any other kind, £50.
6
No application by the customer for the payment is necessary unless the undertaker could not practicably have identified the customer as having been affected.
7
However, the undertaker need not pay the customer under paragraph (5) —
a
if it was impracticable to give notice by the time required because of —
i
industrial action by employees of the undertaker; or
ii
the act or default of a person who is not —
aa
an officer, employee or agent of the undertaker; or
bb
a person acting on behalf of the undertaker or of an agent of the undertaker; or
b
if —
i
the undertaker could not practicably have identified the customer as having been affected, and
ii
the customer does not claim (orally or in writing) a payment under this regulation within the 3 months following the date on which the supply was cut off.
Entitlement to payment or credit where supply not restored as promised
9
1
This regulation applies if a water undertaker interrupts or cuts off the supply of water to premises, as described in regulation 8 .
2
However, this regulation does not apply if the undertaker interrupts or cuts off the supply because of drought.
3
The undertaker must restore the supply —
a
by the time and date specified in the notice, if the undertaker has served a notice stating when the supply is to be restored;
b
within 48 hours after it first became aware that the supply was interrupted or cut off, if the supply was interrupted or cut off in an emergency because of a leak or burst in a strategic main; or
c
within 12 hours after it first became aware that the supply was interrupted or cut off, if the supply was interrupted or cut off in an emergency, but not because of a leak or burst in a strategic main.
4
Subject to paragraph (6) , if the undertaker fails to restore the supply by the time by which the undertaker should, under paragraph (3) , have done so, the undertaker must pay the customer —
a
where the supply is to domestic premises, £20;
b
where the supply is to premises of any other kind, £50; and
c
for each subsequent full period of 24 hours during which the supply has not been restored —
i
where the supply is to domestic premises, £10; and
ii
where the supply is to premises of any other kind, £25.
5
No application by the customer for the payment is necessary unless the undertaker could not practicably have identified the customer as having been affected.
6
The undertaker need not pay the customer under paragraph (4) —
a
if (or, as the case may be, so long as) the undertaker was prevented from restoring the supply by —
i
severe weather;
ii
industrial action by employees of the undertaker; or
iii
the act or default of a person who is not —
aa
an officer, employee or agent of the undertaker; or
bb
a person acting on behalf of the undertaker or of an agent of the undertaker;
b
in a case described in paragraph (3)(b) or (c) , if the circumstances are so exceptional that it is unreasonable to expect the supply to be restored within the relevant period; or
c
if —
i
the undertaker could not practicably have identified the customer as having been affected, and
ii
the customer does not claim (orally or in writing) a payment under this regulation within the 3 months following the date on which the supply was cut off.
7
In this regulation, “strategic main” means a main that conveys water in bulk to centres of population that have no other supply that can fully meet normal demand.
Pressure standard
10
1
A water undertaker must maintain, in a communication pipe serving premises supplied with water, a minimum water pressure of seven metres static head.
2
If in a period of 28 days the pressure in the communication pipe serving a customer’s premises falls below seven metres static head on two occasions each lasting one hour or longer, the undertaker must, except in the circumstances described in paragraph (3), pay the customer £25.
3
Paragraph (2) does not apply if the pressure falls below seven metres static head in connection with the carrying out of necessary works or because of drought.
4
No application by the customer for the payment is necessary unless the undertaker could not practicably have identified the customer as having been affected.
5
However, the undertaker need not pay the customer under paragraph (2) where —
a
the undertaker has already made a payment under this regulation to the customer in respect of another such failure in the same financial year;
b
if —
i
the undertaker could not practicably have identified the customer as having been affected, and
ii
the customer does not claim (orally or in writing) a payment under this regulation within the 3 months following the date of the second relevant occasion on which the pressure fell below seven metres static head for an hour or more; or
c
it was impracticable to maintain the pressure referred to in paragraph (1) because of —
i
industrial action by employees of the undertaker; or
ii
the act or default of a person who is not —
aa
an officer, employee or agent of the undertaker; or
bb
a person acting on behalf of the undertaker or an agent of the undertaker.
6
In this regulation, “communication pipe” means —
a
the part of a service pipe between a water undertaker’s water main and the boundary of the street in which the water main is laid; or
b
if the premises supplied with water abut on the part of the street in which the water main is laid, and the service pipe —
i
enters those premises otherwise than through the outer wall of a building abutting on the street; and
ii
has a stopcock in those premises as near to the boundary of the street as reasonably practicable;
the part of the service pipe between the water main and that stopcock.
Flooding from sewers — internal flooding of buildings
11
1
Effluent from a sewer that is vested in a sewerage undertaker must not enter a customer’s building.
2
Subject to paragraphs (3) and (5) , if effluent from a sewer that is vested in a sewerage undertaker enters a building (other than an outbuilding) of a customer, the undertaker must pay the customer, in respect of each incident of such entry, the lesser of —
a
a sum equal to the sewerage charges payable by the customer to the undertaker for the financial year in which the incident occurs; and
b
£1,000.
3
If the amount that an undertaker would be required to pay a particular customer for an incident, worked out in accordance with paragraph (2), would be less than £150, the undertaker must pay the customer £150.
4
No application by the customer for the payment is necessary unless the undertaker could not practicably have identified the customer as having been affected.
5
The undertaker need not pay the customer under paragraph (2) if —
a
the entry of effluent was caused by one or more of the following —
i
exceptional weather;
ii
industrial action by employees of the undertaker;
iii
an action of the customer;
iv
a defect, inadequacy or blockage in the customer’s drain or sewer; or
b
if —
i
the undertaker could not practicably have identified the customer as having been affected, and
ii
the customer does not claim (orally or in writing) a payment under this regulation within the 3 months following the date on which the effluent entered the building.
6
For the purposes of this regulation —
a
in the case of a building that has a suspended floor, the space beneath that floor is part of the building;
b
effluent is not taken to have entered a building while it is in a drain or sewer.
Flooding from sewers — external flooding
12
1
Effluent from a sewer that is vested in a sewerage undertaker must not enter a customer’s land or property.
2
Subject to paragraphs (3) and (5) , if effluent from a sewer that is vested in a sewerage undertaker enters the land or property (including any outbuilding) of a customer, the undertaker must pay the customer, for each incident of such entry, the lesser of —
a
a sum equal to 50% of the sewerage charges payable by the customer to the undertaker for the financial year in which the incident occurs; or
b
£500.
3
If the amount that an undertaker would be required to pay a particular customer for an incident, worked out in accordance with paragraph (2) , would be less than £75, the undertaker must pay the customer £75.
4
However, the undertaker need not pay the customer under paragraph (2) if —
a
the entry of effluent was caused by one or more of the following —
i
exceptional weather;
ii
industrial action by employees of the undertaker;
iii
an action of the customer;
iv
a defect, inadequacy or blockage in the customer’s drain or sewer;
b
the undertaker was required, by regulation 11 , to make a payment to the same customer in respect of the same incident;
c
the customer was not materially affected by the incident; or
d
the customer does not claim the payment in accordance with paragraph (5) within the 3 months following the date on which the effluent entered the customer’s land or property.
5
With the customer’s claim for the payment the customer must provide a written statement showing the effect of the entry of effluent on the customer’s land or property.
6
In deciding whether a customer was materially affected by the entry of effluent during an incident of flooding, an undertaker must take into account —
a
what parts of the customer’s land or property the effluent entered;
b
the duration of the flooding;
c
the extent of the flooding;
d
whether the flooding restricted the access to the land or property;
e
whether the flooding restricted the use of the land or property; and
f
any other relevant considerations of which the undertaker is aware.
7
For the purposes of this regulation, effluent is not taken to have entered land while it is in a drain or sewer.
Timing of payments
13
1
If regulation 6 or 7 requires a relevant undertaker to make a payment to a customer, the undertaker must make it within 10 working days of its becoming payable.
2
If the undertaker fails to make the payment in accordance with paragraph (1) , the undertaker must pay the customer a further £10 if the customer makes a written claim for payment under this paragraph within 3 months after the payment referred to in paragraph (1) becomes payable.
3
If regulation 8 , 9 , 11 or 12 requires a relevant undertaker to make a payment to a customer, the undertaker must make it within 20 working days of its becoming payable.
4
If the undertaker fails to make the payment in accordance with paragraph (3) , the undertaker must pay the customer —
a
in the case of a payment in relation to the supply of water to domestic premises, a further £20; and
b
in any other case, a further £50.
5
For the purposes of this regulation, a payment payable under any of regulations 6 to 9 , 11 or 12 becomes payable —
a
if the customer concerned must make an application for the payment, at the end of the day on which the undertaker receives that application; or
b
if no such application is necessary, at the end of the day on which the relevant breach of a service standard occurred.
Means of payment, including where customer is in arrears
14
1
Subject to paragraph (2) , a customer who is entitled to payment under these Regulations may ask the relevant undertaker concerned to make the payment directly to the customer.
2
If the customer has not asked for direct payment, the undertaker may make the payment directly to the customer or by credit to the customer’s account.
3
If —
a
a customer of a relevant undertaker is entitled to a payment under these Regulations but owes money to the undertaker; and
b
at the material time, the customer’s debt to the undertaker has been outstanding for more than 6 weeks;
the undertaker must make the payment, or so much of it as does not exceed the amount that the customer owes, by credit to the customer’s account.
4
For the purposes of paragraph (3) (3)(b) , “the material time” is —
a
if the payment is payable without a written claim being made, the time when it becomes payable; or
b
otherwise, the time when the customer makes a written claim for it.
Payments not to affect other legal liabilities
15
1
The making of a payment by a relevant undertaker to a customer in consequence of a claim or potential claim for a payment under these Regulations is not an admission by that undertaker of any liability other than an obligation to comply with these Regulations.
2
The acceptance by a customer of a payment or credit made in consequence of these Regulations does not affect any liability of the undertaker to the customer other than its liability under these Regulations.
Notice of rights to be given to customers
16
1
A relevant undertaker must, at least once in every financial year, give every customer to whom it sends an account in that year a detailed statement of the rights provided by these Regulations.
2
If a relevant undertaker is aware that accounts to a customer cover the supply of water or sewerage services to other customers, it must —
a
give the customer enough copies of the statement referred to in paragraph (1) to enable the customer to give a copy to each of those other customers; or
b
send a copy of the statement to each of those other customers directly.
Reference of disputes to the Authority
17
1
If a dispute arises between a relevant undertaker and a customer as to the right of the customer to a payment or a credit to the customer’s account under these Regulations, either party may refer the matter to the Authority for determination.
2
The parties to a dispute that has been referred to the Authority must give it any evidence or information that it reasonably requires to enable it to determine the dispute.
3
If the Authority determines the dispute in the customer’s favour but the undertaker fails to give effect to the determination, the customer may set off the amount in question against any liability that he has to the undertaker.
Revocation
18
The Regulations set out in the Schedule are revoked.
Signed by authority of the Secretary of State
Phil Woolas
Minister of State
Department for Environment, Food and Rural Affairs
3rd March 2008
Jane Davidson
Minister for Environment, Sustainability and Housing, one of the Welsh Ministers
4th March 2008


text:
Citation, commencement, interpretation and application
1
1
These Regulations may be cited as the Town and Country Planning (Environmental Impact Assessment) (Mineral Permissions and Amendment) (England) Regulations 2008 and shall come into force on 22nd July 2008.
2
In these Regulations —
“the 1990 Act ” means the Town and Country Planning Act 1990 ;
“the 1999 Regulations ” means the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ;
“by site display” means by posting a copy of the notification by firm affixture to some object on the land or, as the case may be, on the surface of the land above the interest in question, sited and displayed in such a way as to be easily visible to, and readable by, members of the public without going on to the land;
“ EIA development” has the same meaning as in the 1999 Regulations;
“minerals” has the same meaning as in section 336 of the 1990 Act;
“relevant mineral planning authority” means the body to whom it falls, fell, or would, but for a direction under paragraph —
7 of Schedule 2 to the Planning and Compensation Act 1991 ;
13 of Schedule 13 to the Environment Act 1995 ; or
8 of Schedule 14 to the Environment Act 1995,
fall to determine the ROMP application in question;
“ROMP application” means an application to a relevant mineral planning authority to determine the conditions to which a planning permission is to be subject under paragraph —
2(2) of Schedule 2 to the Planning and Compensation Act 1991 (registration of old mining permissions);
9(1) of Schedule 13 to the Environment Act 1995 (review of old mineral planning permissions); or
6(1) of Schedule 14 to the Environment Act 1995 (periodic review of mineral planning permissions); and
“undetermined ROMP application” means a ROMP application which was received by the authority with whom it was lodged before 15th November 2000 but which was not determined by 22nd July 2008.
3
These Regulations apply in relation to England only.
Application of the 1999 Regulations to undetermined ROMP applications
2
1
For the purposes of the 1999 Regulations, an undetermined ROMP application shall be treated as if it were a ROMP application received by the authority with whom it is lodged on or after 15th November 2000 and the 1999 Regulations shall, subject to the following modifications, apply accordingly.
2
In regulation 5 (requests for screening opinions of the local planning authority) —
a
for paragraph (3) substitute —
3
An authority receiving a request for a screening opinion shall, if they consider that they have not been provided with sufficient information to adopt an opinion, on, or as soon as reasonably practicable after, 22nd July 2008, notify in writing the person making the request of the points on which they require additional information and of the matters specified in sub-paragraphs (e) and (f) of paragraph (7).
3A
The authority shall publicise the notification in paragraph (3), by site display, within 14 days of that notification, for a period of at least 14 days.
;
b
in paragraph (4) for the words “within three weeks” to the end substitute “on, or as soon as reasonably practicable after, 22nd July 2008”;
c
in paragraph 6 after “may” insert “, within three weeks beginning with the date of the notification in paragraph (7) or such other period as may be agreed in writing with the Secretary of State,” and omit sub-paragraph (a);
d
omit paragraph (7); and
e
after paragraph (6) insert —
7
Subject to paragraph (7A), when the authority comply with paragraph (5) they shall notify in writing the applicant of —
a
the period within which compliance with regulation 7(4) is required to avoid the suspension of minerals development;
b
the period within which an environmental statement and compliance with regulation 14(5) is required;
c
the fact that they will now proceed to adopt a scoping opinion;
d
any further information required pursuant to a notification under regulation 10(3);
e
the fact that minerals development will automatically be suspended under regulation 26A(18) if the applicant does not take the steps specified in regulation 26A(17) within the specified periods; and
f
the authority’s duty to make an order under paragraph 3 of Schedule 9 to the Act after two years suspension under regulation 26A(18).
7A
Paragraph (7) does not apply where the authority have adopted a screening opinion to the effect that the development is not EIA development.
7B
The notification in paragraph (7) shall accompany the notification under regulation 7(2).
7C
The authority shall publicise the notification in paragraph (7) with details of where the screening opinion can be inspected, by site display, within 14 days of that notification, for a period of at least 14 days.
7D
The applicant shall affix firmly to some object on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the letter referred to in regulation 7(4), sited and displayed in such a way as to be easily visible to, and readable by, members of the public without going on to the land within 14 days of the date of that letter, for a period of at least 14 days.
3
In regulation 6 (requests for screening directions of the Secretary of State) —
a
for paragraph (3) substitute —
3
On, or as soon as reasonably practicable after, 22nd July 2008 the Secretary of State shall, if he considers that he has not been provided with sufficient information to make a screening direction, notify in writing the applicant or appellant, as the case may be, of the points on which he requires additional information and of the matters specified in sub-paragraphs (e) and (f) of paragraph (7), and may request the relevant planning authority to provide such information as they can on any of those points.
3A
The Secretary of State shall send a copy of the notification in paragraph (3) to the relevant mineral planning authority.
3B
The authority, or the applicant where a request has been made under regulation 5(6), shall publicise the notification in paragraph (3), by site display, within 14 days of that notification, for a period of at least 14 days.
; and
b
after paragraph (5) insert —
6
An applicant receiving a copy of a screening direction to the effect that the development is EIA development pursuant to a request under regulation 5(6) may, within 3 weeks beginning with the date of the screening direction, or within such other period as may be agreed with the authority in writing, write to the authority stating that he is providing an environmental statement.
7
Subject to paragraph (7A), when the Secretary of State complies with paragraph (5) he shall notify in writing the applicant or appellant, as the case may be, of —
a
the period within which compliance with regulation 6(6), 8(4) or 9(5) is required to avoid the suspension of minerals development;
b
the period within which an environmental statement and compliance with regulation 14(5) is required;
c
in the case of an application referred to the Secretary of State or an appeal to the Secretary of State, the fact that he will now proceed to issue a scoping direction;
d
in the case of an application referred to the Secretary of State or an appeal to the Secretary of State, any further information required pursuant to a notification under regulation 11(3);
e
the fact that minerals development will automatically be suspended under regulation 26A(18) if the applicant or appellant does not take the steps specified in regulation 26A(17) within the specified periods; and
f
the authority’s duty to make an order under paragraph 3 of Schedule 9 to the Act after two years suspension under regulation 26A(18).
7A
Paragraph (7) does not apply where the Secretary of State has issued a screening direction to the effect that the development is not EIA development.
7B
The notification in paragraph (7) shall accompany the notification under regulation 8(2) or 9(4), as the case may be.
7C
The Secretary of State shall send a copy of the notification in paragraph (7) to the relevant mineral planning authority.
7D
The authority shall publicise the notification in paragraph (7) with details of where the screening direction can be inspected, by site display, within 14 days of that notification, for a period of at least 14 days.
7E
The applicant or appellant, as the case may be, shall affix firmly to some object on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the letter referred to in regulation 6(6), 8(4) or 9(5), displayed in such a way as to be easily visible to, and readable by, members of the public without going on to the land within 14 days of the date of that letter, for a period of at least 14 days.
4
In regulation 7 (application made to a local planning authority without an environmental statement) —
a
paragraph (1) shall apply as if the conditions in sub-paragraphs (a), (b) and (c) had been met and the request had been made on 22nd July 2008;
b
in paragraph (3) —
i
for “within three weeks beginning with the date of receipt of the application or such longer period as may be agreed in writing with the applicant” substitute “on, or as soon as reasonably practicable after, 22nd July 2008”; and
ii
omit “, after the expiry of that period of three weeks or of any longer period so agreed,”; and
c
in paragraph (4)(b) for the words “is writing” substitute “has written”.
5
In regulation 8 (application referred to the Secretary of State without an environmental statement) —
a
paragraph (1) shall apply as if —
i
the conditions in sub-paragraphs (a), (b) and (c) had been met and the request had been made on 22nd July 2008; and
ii
at the end of paragraph (1) there were inserted “and as if the reference to three weeks in paragraph (4) of regulation 6 was replaced with “on, or as soon as reasonably practicable after, 22nd July 2008””;
b
in paragraph (3), for the words “within three weeks” to the end substitute “on, or as soon as reasonably practicable after, 22nd July 2008”; and
c
after paragraph (6) insert —
7
An applicant may ask the Secretary of State to make a scoping direction under paragraph (1) of regulation 11.
.
6
In regulation 9 (appeal to the Secretary of State without an environmental statement) —
a
paragraph (1) shall apply as if —
i
the conditions in sub-paragraphs (a), (b) and (c) had been met and the request had been made on 22nd July 2008; and
ii
at the end of paragraph (1) there were inserted “and as if the reference to three weeks in paragraph (4) of regulation 6 was replaced with “on, or as soon as reasonably practicable after, 22nd July 2008””;
b
In paragraph (4), after “notify the appellant in writing” insert “on, or as soon as reasonably practicable after, 22nd July 2008”; and
c
after paragraph (7) insert —
8
An appellant may ask the Secretary of State to make a scoping direction under paragraph (1) of regulation 11.
.
7
Unless the authority have adopted a screening opinion or the Secretary of State has made a screening direction to the effect that the development is not EIA development, for the purposes of regulation 10, a request for the relevant planning authority to make a scoping opinion shall be deemed to have been made under paragraph (1) of that regulation on 22nd July 2008.
8
In regulation 10 (scoping opinions of the local planning authority) —
a
for paragraph (3) substitute —
3
On, or as soon as reasonably practicable after, 22nd July 2008 an authority receiving a request under paragraph (1) shall, if they consider that they have not been provided with sufficient information to adopt a scoping opinion, notify in writing the person making the request of the points on which they require additional information and of the matters specified in sub-paragraphs (c) and (d) of paragraph (10).
3A
The authority shall publicise the notification in paragraph (3), by site display, within 14 days of that notification, for a period of at least 14 days.
;
b
for paragraph (4) substitute —
4
An authority shall not adopt a scoping opinion in response to a request under paragraph (1) until they have consulted the person who made the request and the consultation bodies, but shall, on, or as soon as reasonably practicable after the date they adopted a screening opinion, adopt a scoping opinion and send a copy to the person who made the request.
;
c
omit paragraph (5);
d
for paragraph (7) substitute —
7
The person who requested the opinion may, within three weeks beginning with the date on which the scoping opinion was adopted or such longer period as may be agreed in writing with the Secretary of State —
a
write to the authority stating that he accepts their view and is providing an environmental statement; or
b
request the Secretary of State to make a direction pursuant to regulation 11 as to the information to be provided in the environmental statement (a “scoping direction”) and notify the authority in writing that he has written to the Secretary of State to request such a direction.
; and
e
after paragraph (9) insert —
10
When the authority comply with paragraph (4) they shall notify in writing the applicant of —
a
the period within which compliance with regulation 10(7) is required to avoid the suspension of minerals development;
b
the period within which an environmental statement and compliance with regulation 14(5) is required;
c
the fact that minerals development will automatically be suspended under regulation 26A(18) if the applicant or appellant does not take the steps specified in regulation 26A(17) within the specified periods; and
d
the authority’s duty to make an order under paragraph 3 of Schedule 9 to the Act after two years suspension under regulation 26A(18).
10A
The authority shall publicise the notification in paragraph (10) with details of where the scoping opinion can be inspected, by site display, within 14 days of that notification, for a period of at least 14 days.
.
9
Unless the Secretary of State has made a screening direction to the effect that the development is not EIA development, in the case of an application referred to the Secretary of State or an appeal to the Secretary of State, for the purposes of regulation 11, a request for the Secretary of State to make a scoping direction shall be deemed to have been made under paragraph (1) of that regulation on the date that the screening direction was made.
10
In regulation 11 (scoping directions of the Secretary of State) —
a
in paragraph (1)(a) for “the relevant request to the relevant planning authority” substitute “the relevant request to the relevant planning authority where one has been made”;
b
in paragraph (3) —
i
before “notify in writing” insert “on, or as soon as reasonably practicable after, 22nd July 2008”; and
ii
after “scoping direction” insert “and of the matters specified in sub-paragraphs (c) and (d) of paragraph (8)”;
c
after paragraph (3) insert —
3A
The authority, or the applicant where a request has been made under regulation 10(7), shall publicise the notification in paragraph (3), by site display, within 14 days of that notification, for a period of at least 14 days.
; and
d
after paragraph (6) insert —
7
An applicant or appellant receiving a copy of a scoping direction pursuant to paragraph (4) may, within 3 weeks beginning with the date of the scoping direction, or within such other period as may be agreed in writing with the authority or the Secretary of State , as the case may be —
a
in the case of an application referred to the Secretary of State or an appeal, write to the Secretary of State stating that he accepts his view and is providing an environmental statement; or
b
where a scoping direction has been requested under regulation 10(7), write to the authority stating that he proposes to provide an environmental statement.
8
When the Secretary of State complies with paragraph (4) he shall notify in writing the applicant or appellant, as the case may be, of —
a
the period within which compliance with regulation 11(7) is required to avoid the suspension of permission for minerals development;
b
the period within which an environmental statement and compliance with regulation 14(5) is required;
c
the fact that minerals development will automatically be suspended under regulation 26A(18) if the applicant or appellant does not take the steps specified in regulation 26A(17) within the specified periods; and
d
the authority’s duty to make an order under paragraph 3 of Schedule 9 to the Act after two years suspension under regulation 26A(18).
8A
The Secretary of State shall send a copy of the notification in paragraph (8) to the relevant mineral planning authority.
8B
The authority shall publicise the notification in paragraph (8) with details of where the scoping direction can be inspected, by site display, within 14 days of the notification in paragraph (8), for a period of at least 14 days.
8C
The applicant or appellant, as the case may be, shall affix firmly to some object on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the letter referred to in paragraph (7), displayed in such a way as to be easily visible to, and readable by, members of the public without going on to the land within 14 days of the date of that letter, for a period of at least 14 days.
.
11
In regulation 20(1) (availability of opinions, directions etc for inspection) for sub-paragraph (e) substitute —
e
notification given under regulation 5(3), 5(8), 6(3), 6(7), 7(2), 8(2), 9(4), 10(3), 10(10), 11(3) or 11(8);
.
12
In regulation 26A (ROMP applications) —
a
in paragraph (3) omit sub-paragraph (a) and in sub-paragraph (b) for “the authority” substitute “the Secretary of State”;
b
in paragraph (5) omit sub-paragraph (a);
c
in paragraph (17) for sub-paragraphs (a) to (c) substitute —
a
write to the authority or the Secretary of State within the three week or other period agreed pursuant to regulation 6(6), 7(4), 8(4), 9(5), 10(7) or 11(7);
b
submit an environmental statement and comply with regulation 14(5) within four months beginning with the date of the notification in regulation 10(10) or, where a scoping direction has been requested under regulation 11(1), the date of the scoping direction, or within such other period as may be agreed in writing by the authority or the Secretary of State, as the case may be;
c
provide additional information in accordance with regulation 19(1) within the period specified by the authority, the Secretary of State or an inspector in accordance with paragraph (16), or within such other period as may be agreed in writing by the authority, the Secretary of State or an inspector, as the case may be; or
;
d
in paragraph (18), in sub-paragraph (a) for “six” substitute “three” and for “paragraph (17)(a)” substitute “paragraphs (17)(a) and (d)”;
e
in paragraph (22)(a) omit “unless either the mineral planning authority has adopted a screening opinion or the Secretary of State has made a screening direction to the effect that the ROMP development in question is not EIA development”; and
f
after paragraph (27) insert —
27A
This paragraph applies —
a
where an authority has adopted a screening opinion, or the Secretary of State has made a screening direction, to the effect that the ROMP development in question is not EIA development;
b
in determining for the purposes of paragraphs 2(6)(b) of Schedule 2 to the 1991 Act, 9(9) of Schedule 13 to the 1995 Act and 6(8) of Schedule 14 to the 1995 Act (determination of conditions) the time which has elapsed without the mineral planning authority giving the applicant written notice of their determination;
and where this paragraph applies, no account shall be taken of any period before the adoption of the opinion or the making of the screening direction.
.
ROMP applications: suspension of planning permission for minerals development if screening or scoping information is not provided
3
In regulation 26A(17) (ROMP applications) of the 1999 Regulations —
a
at the end of sub-paragraph (b) omit “or”;
b
at the end of sub-paragraph (c) for “writing.” substitute “writing; or”; and
c
after sub-paragraph (c) insert —
d
where a notification under regulation 5(3), 6(3), 10(3) or 11(3) has been received, provide the additional information requested within three weeks beginning with the date of the notification, or within such other period as may be agreed in writing with the authority or the Secretary of State, as the case may be.
.
ROMP applications: duty to make a prohibition order after two years suspension of permission
4
1
This regulation applies if, in relation to a minerals development —
a
a period of two years beginning with the suspension date has expired, and
b
the steps specified in regulation 26A(17) of the 1999 Regulations have yet to be taken.
2
The “suspension date” is the date on which the suspension of minerals development (within the meaning of regulation 26A(18) of the 1999 Regulations) begins.
3
Paragraph 3 of Schedule 9 to the 1990 Act has effect in relation to any part of a site as it has effect in relation to the whole site.
4
Sub-paragraph (1) of that paragraph has effect as if for the words from “the mineral planning authority may by order” to the end there were substituted —
the mineral planning authority —
i
must by order prohibit the resumption of the winning and working or the depositing; and
ii
may in the order impose, in relation to the site, any such requirement as is specified in sub-paragraph (3).
5
In sub-paragraphs (2)(a) and (b) of that paragraph, references to winning and working or depositing are to be read as references to winning and working or depositing for which permission is not suspended by virtue of regulation 26A(18) of the 1999 Regulations.
6
Paragraph 4(7) of Schedule 9 to the 1990 Act has effect as if for “have effect” there were substituted “authorise that development”.
Signed by authority of the Secretary of State for Communities and Local Government
Kay Andrews
Parliamentary Under Secretary of State
Department for Communities and Local Government
12th June 2008