Introduction

There are two bodies, both legally constituted, who have published documents which do not cite the Law which they purport to define.

Parliament makes Laws

A discussion document [as are each one of this set of articles] is NOT the law. Only the Scottish Parliament makes laws, although Ministers can issue directions where the Law so permits - and the 2002 act enables this.

A procedure published by an executive body [even if its existence was created under an act of parliament], or a government owned company [even if its existence was created under an act of parliament] cannot be law.

The problem is that there are two bodies who have taken it on them selves to publish documents which appear to have no basis in Law. Where a law or direction is published, the authority of the document is enshrined within the document.

These bodies are:

  • The Water Commission for Scotland, and
  • CMA Scotland Ltd

The Scottish Parliament has also published a large number of discussion documents on water and drainage - but these do NOT have the force of law, to wit one could not quote them as such in a court.

Unattributed Statements - a Definition

By this is meant statements which purport to specify the law but which cannot be quoted in court because there is no legislation which affirms the discussions or intent. Please see article on Problem and Solutions. Only one such order has been made and that relates to metering for non-domestic water supplies.

Unattributed Statements from The Water Industry Commission for Scotland

These relate to Drainage Charges, and are to be found on the FAQ page of the Scotland on Tap web site. The terms and conditions under which the web site is published include so many disclaimers that it is not surprising that no references are made to the applicable law.

There are two FAQ's as follows:

  • The second third [updated 8th Feb 2018] on the list reads: But my property doesn’t even have a water connection, or I already pay for water through my landlord – why do I have to pay a supplier?
  • The ninth tenth [updated 8th Feb 2018] reads: I am being charged for Roads and Property Drainage – what’s this?

The answers to both these questions are inadequate as they fail to state the law.

The answer to second third FAQ on the list reads but is qualified [words in italics]:

Even if you don’t have a water or waste water connection, you might still need to pay charges for drainage, if any part of your property or any communal areas you have access to drain to the public sewerage system.

Even if your landlord already pays for your water, for example if you rent a unit in a shopping centre or an office building, you may need to pay drainage charges based on the Rateable Value of your property.

There is no description of the conditions attaching to the "might" or "may" which renders the answer meaningless.

The answer to the ninth tenth FAQ reads:

Property drainage is a charge to recover the cost of the sewer network transporting surface water away from your property and treating it before it is discharged back into the environment. Roads drainage is your share of the cost of draining all of Scotland's roads (not just the particular roads near your premises). It is Scottish Government policy that the cost of roads drainage is recovered from all customers connected to the Public Sewer System.

If your premises falls into any of the categories below then you will be charged for Roads and Property Drainage. To be charged your premises must either:

Drain to the Public Sewer System; or

Have a drain connected, either directly or through an intermediate sewer or drain, to the Public Sewer System; or

Have the benefit of facilities which drain to the Public Sewer System or drain so connecting; or

Have a septic tank overflow that drains to the Public Sewer System.

Roads and Property Drainage is based on the Rateable Value of your premises – please note that your charges are based on the Rateable Value assigned to your premises in 2000 unless you have altered your premises such that a new Rateable Value was assigned by the Scottish Assessors Association. If you think that the level of your charges is wrong you should speak to your water and sewage supplier.

Either this answer is badly written or its evasive. There is no law or ministerial direction upon which Scottish Water can quote that affirms that a premises without a sewerage connection viz a premises which is not an eligible premises as defined in section 27 of the 2005 water can be charged.

There are a vast number of discussion documents on the subject from a variety of sources.

The CMA Scotland Documents

CMA Scotland is a private limited company established to make sure that the various firms authorised to raise charges for the water supplied and sewerage collected by Scottish Water all operate to the same rules.

As a private limited company however it cannot make laws which is the what the Scottish Parliament does.

There is only one relevant document which they publish which is relevant to water charges which is Market Code. , and section 5.15.1 of that fails to comply with the 2005 Water Act in that it has a different definition for eligible premises.

Before one examines the code, it is necessary to review how the process of rating works. The basic document is Lands Valuation (Scotland) Act 1854 is extremely simple and well written. It is a pleasure to read the original which is available as in pdf format.

An excellent summary of the the parts which are applicable was made available by a Chartered Surveyor to the author as follows:

The rateable value is based on what the hypothetical tenant might reasonably pay in rent at a set period in time for a property. The common parts are for the use of all tenants and therefore there is no passing rent on these areas although the landlord has ultimate control and responsibility for his premises. The common areas are not included in any of the valuation areas used to assess the individual premises' or unit's rateable value.

The question of interpretation of "what is a premises" appears to be:

  • whether it is as the rating system operates, and as is usual in property management terms, which is that it is an area or room or something definable which can be separately let and thus rated, or
  • whether it is a "sub premises" within a larger premises as CMA Scotland appears to attempt to define it.

Counsel's opinion reflects the normal one as per the rating system, as opposed to that proposed by CMA Scotland. Noted that CMA Scotland are just a private body and cannot make laws, but only rules which apply to their own members.

Section 5.15 of CMA Scotland's Market Code [as at 17th February 2016] reads as follows [and appears not to have changed in some years]:

5.15 Supply Points at Eligible Premises with multiple occupancy

In relation to any Eligible Premises that is occupied as at the Go Live Date by a number of owners and/or tenants or
other occupiers, the following rules shall apply in determining the number of Supply Points for that Eligible
Premises:-

5.15.1 where the supply of Services to any Eligible Premises as a whole is Metered and there is a Rateable Value for one (1) or more Units within that Eligible Premises, the Eligible Premises will be regarded as having the following Supply Points:-
(i) one (1) for the supply of Water Services to the Eligible Premises as a whole; and
(ii) one (1) for the supply of such Sewerage Services as are provided to the Eligible Premises as a whole; and
(iii) one (1) for each Unit with a separate Rateable Value receiving Surface Water Drainage Services;

5.15.2 where the supply of Services to any Eligible Premises as a whole is Metered and none of the Units within that Eligible Premises has a separate Rateable Value, the Eligible Premises will be regarded as having the following Supply Points:-
(i) one (1) for the supply of Water Services to the Eligible Premises as a whole; and
(ii) one (1) for the supply of such Sewerage Services as are provided to the Eligible Premises as a whole;

5.15.3 where the supply of Services to any Eligible Premises as a whole is Unmeasurable or Measurable and there is a Rateable Value for one or more Units within that Eligible Premises, the Eligible Premises will be regarded as having the following Supply Points:-
(i) one (1) for the supply of Water Services to each Unit within the Eligible Premises; and
(ii) one (1) for the supply of such Sewerage Services as are provided to each Unit within the Eligible Premises; and

5.15.4 where the supply of Services to any Eligible Premises as a whole is Unmeasurable or Measurable and none of the Units within that Eligible Premises has a separate Rateable Value, the Eligible Premises will be regarded as having the following Supply Points:-
(i) one (1) for the supply of Water Services to the Eligible Premises as a whole; and
(ii) one (1) for the supply of such Sewerage Services as are provided to the Eligible Premises as a whole.

To avoid doubt, the above rules shall not apply to any Eligible Premises that have not been occupied by a number of
owners and/or tenants or other occupiers prior to the Go Live Date and the definition of Supply Point in Schedule 1
to the Market Code shall apply to such Eligible Premises without reference to this Section 5.15

The reader of this set of articles is encouraged to read them all ... if you are on the receiving end it is not a good situation to be in. Get a solicitor fast