This HTML page is a text copy of part of the pdf published by The Scottish Courts and can be downloded here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017scgla47.pdf?sfvrsn=0

The Summary is presented below.

It is clear and concise and seems to be applicable to the vast majority of small business's who are tenants in business centres and the like.


SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW - [2017] SC GLA 47 - SA3155/16

NOTE BY SHERIFF S REID

SCOTTISH WATER BUSINESS STREAM LIMITED - Pursuer
MR CHRISTOPHER PHILLIPS - Defender

Glasgow, 22 August 2017

Summary

[1] The pursuer is a water services provider and sewerage services provider, in terms of the Water Services etc. (Scotland) Act 2005. That means that it is authorised, under a statutory licence, to make arrangements with the occupier of any eligible premises for the supply of water and the provision of sewerage services through the Scottish public water supply and sewerage systems, respectively.

[2] The defender is a tattoo artist. He trades from a single room “suite” located on the second floor of large commercial premises in Glasgow city centre. These large commercial premises (which I shall refer to as “the Block”) are sub-divided into various units (including the defender’s room) occupied by a variety of trading entities. The defender occupies his 2 room in terms of a contractual licence dated 21 October 2014 granted by Dunaskin Properties Limited in favour of the defender (item 5/40 of process).

[3] There is a water supply to, and there are sewerage services to and from, the Block.

[4] However, the interesting feature of the present case is that there is no water supply to, and there are no sewerage services to or from, the room occupied by the defender in terms of his contractual licence. There is no tap, sink or water pipe, and no drain, sluice, or gutter of any description, into, out of or serving the defender’s single room suite.

[5] In addition, the defender’s contractual licence confers no right of access to, or use of, any other part of the Block served by any such water supply or sewerage services (such as communal toilets, kitchen facilities or the like).

[6] In this small claim, the pursuer seeks payment of £1,215.95, being charges levied by the pursuer upon the defender for the alleged supply of water and sewerage services to the defender at his Business Premises.

[7] The pursuer’s power to levy and recover such charges (from non-domestic customers) derives from the Water Services etc. (Scotland) Act 2005 (“the 2005 Act”). It authorises the pursuer, under a statutory licence, inter alia:-

(a) to “make arrangements with the occupier of any eligible premises for or in relation to the supply of water to the premises through the public water supply system”; and
(b) to “fix, demand and recover charges for or in relation to the supply of water to any premises in respect of which the person has made such arrangements” (section 6(1)(a), 2005 Act).
A similar provision applies in relation to the provision of sewerage to, or the disposal of sewage from, any eligible premises (section 6(3)(a), 2005 Act).

[8] In this context, “eligible premises” means premises which are (or are to be) “connected” to the public water supply or public sewerage system (section 27(1)(a)&(b), 2005 Act).

[9] Separately, the Water Industry Commission for Scotland, which is the statutory regulator, is empowered to issue directions to licensed providers such as the pursuer. Such directions have been issued in a document known as the “Market Code”. Paragraph 5.15 of the Market Code makes specific provision to determine the number of “supply points” at certain types of “eligible premises”. In broad terms, the Code deems that, within certain types of “eligible premises” (being eligible premises that are in multiple occupancy as at the “Go Live Date”), any “tenantable unit” within such premises is deemed to have a supply point for water and sewerage services, notwithstanding that there is no sub-meter measuring water usage by that unit; and that the charges applicable to any such unit may be calculated by reference to the rateable value of that unit.

[10] Having heard evidence and submissions at proof, I concluded

(i) that the premises occupied by the defender under his contractual licence are not “eligible premises” in terms of 2005 Act;

(ii) that the pursuer has not made “arrangements” with the defender, as the purported occupier of any eligible premises, for or in relation to the supply of water to, or the provision of sewerage services to, or the disposal of sewage from, the premises; and

(iii) that, on the evidence, it was not established by the pursuer that paragraph 5.15 of the Market Code applies in the present case.

[11] Accordingly, I granted absolvitor in favour of the defender. I gave an ex tempore judgement briefly explaining the basis of my decision. I issue this note in order to explain my reasoning more fully.


In our view this suports the contentions that have been made on this web site regarding Section 27 of the 2005 Act.

See these two articles:

It also mentions one or two other matters, which in our view are only ancillary to the main point: if you are NOT in an Eligible Premises as defined in the 2005 Act, then you do not have any liability to pay for Water Charges.

Noted: That if Scottish Water don't get round to putting in a meter to the Landlord's account in a building let out to tenants each NOT in an Eligible Premises, that in the view of any reasonable person, cannot make such premises eligible. It is just negligence and or idleness on Scottish Water's part.

Noted: The infrastructure records held by the four water companies who were amalgamated into Scottish Water are known to have been in some disarray. Meetings were held regarding document registration and control over many years:

  • East of Scotland: 1997 to 2002
  • West of Scotland: 1993 to 2002
  • Strathclyde: Unknown.
  • North of Scotland: 1993 to 2002