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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dwr Cymru Cyfyngedig (Welsh Water) v Corus UK Ltd [2007] EWCA Civ 285 (30 March 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/285.html Cite as: [2007] EWCA Civ 285 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr. Justice Hart)
HC05C02112
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MAURICE KAY
and
LORD JUSTICE MOORE-BICK
____________________
DWR CYMRU CYFYNGEDIG (WELSH WATER) |
Claimant/ Respondent |
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- and - |
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CORUS UK LIMITED |
Defendant/Appellant |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Nigel Pleming Q.C. and Mr. Aidan Robertson (instructed by Herbert Smith LLP) for the respondent
Hearing date : 6th March 2007
____________________
Crown Copyright ©
Lord Justice Moore-Bick :
"Termination
12. (1) Subject to the provisions of this Clause this Agreement shall be for a fixed term commencing on February 11th 1990 and ending on March 31st 2004.
Renewal Clause
17. On expiry of this Agreement British Steel shall continue to have the right to be supplied non-potable water for the purposes associated with iron and/or steel production or processing at the Works. The terms of such supply shall be those agreed between British Steel and Dwr Cymru at that time, or, in the event of failure to agree, determined by the Director General of Water Services under Section 56 of the Water Industry Act 1991 or any succeeding Act."
"55.— Supplies for non-domestic purposes
(1) This section applies where the owner or occupier of any premises in the area of a water undertaker requests the undertaker to provide a supply of water to those premises and—
(a) . . . . . . . . . .
(b) the requested supply is for purposes other than domestic purposes.
(2) Where this section applies, it shall be the duty of the water undertaker, in accordance with such terms and conditions as may be determined under section 56 below—
(a) to take any such steps as may be so determined in order to enable the undertaker to provide the requested supply; and
(b) having taken any such steps, to provide that supply.
56.— Determinations on requests for non-domestic supplies
(1) . . . . . . . . any terms or conditions or other matter which falls to be determined for the purposes of a request made by any person to a water undertaker for the purposes of section 55 above shall be determined—
(a) by agreement between that person and the water undertaker; or
(b) in default of agreement by the Director according to what appears to him to be reasonable.
. . . . . . . . . .
(5) The charges in respect of a supply provided in compliance with any request made for the purposes of section 55 above—
(a) shall not be determined by the Director . . . . . except in so far as, at the time of the request, no provision is in force by virtue of a charges scheme under section 143 below in respect of supplies of the applicable description; and
(b) in so far as they do fall to be determined, shall be so determined having regard to the desirability of the undertaker's—
(i) recovering the expenses of complying with its obligations under section 55 above; and
(ii) securing a reasonable return on its capital.
(6) To the extent that subsection (5)(a) above excludes any charges from a determination under this section, those charges shall be fixed from time to time by a charges scheme under section 143 below, but not otherwise."
"142.— Powers of undertakers to charge
(1) Subject to the following provisions of this Chapter, the powers of every relevant undertaker shall include power—
(a) to fix charges for any services provided in the course of carrying out its functions . . . . .
(2) . . . . . the powers conferred by subsection (1) above shall be exercisable—
(a) by or in accordance with a charges scheme under section 143 below; or
(b) by or in accordance with agreements with the persons to be charged.
. . . . . . . . . .
(4) Except in so far as this Chapter otherwise provides, a relevant undertaker may fix charges under this section by reference to such matters, and may adopt such methods and principles for the calculation and imposition of the charges, as appear to the undertaker to be appropriate.
143.— Charges Schemes
(1) A relevant undertaker may make a scheme ("a charges scheme") which . . . . . . does any one or more of the following, that is to say—
(a) fixes the charges to be paid for any services provided by the undertaker in the course of carrying out its functions;
. . . . . . . . . .
(5) Nothing in any charges scheme shall affect—
(a) any power of a relevant undertaker . . . . . to enter into such an agreement with any person in any particular case as determines the charges to be made for the services provided to that person by the undertaker;
. . . . . . . . . . "
Lord Justice Maurice Kay:
Lord Justice Ward: