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Regulatory Law

Advising regulated utilities (in particular water and energy) on a wide range of regulatory and competition law issues, including economic regulation through price controls.

We support regulated utilities in navigating the legal and regulatory landscape that applies in their sectors. This includes economic regulation, such as setting, and challenging, price controls. We also advise regulated utilities on participating in, and the development of, competitive markets.

Regulated utilities, particularly those with statutory monopoly rights for the provision of services, will frequently find themselves in scenarios in which competition law is an important factor in strategic decisions and commercial activity. We help incumbents to understand their competition law obligations and how this sits alongside the broader regulatory framework.

  • Price controls and business plans – support for drafting business plans, engaging on draft determinations and maintaining the option of a challenge
  • Price controls, interim determinations and CMA challenges – we have advised on challenges to price control settlements in the water sector (PR09, PR14 and PR19), energy sector (RIIO-2) and the air traffic control sector
  • Market opening – advise on the opening up of regulated markets to competition
  • Monopoly providers of regulated services – advise on compliance, investigations, and participation in contestable markets.
  • Regulatory issues – we support utilities on issues such as governance, compliance, licence conditions, licence modifications, and enforcement actions.

Cases worked on by the TupperS Law team* to date include:

  • Access Codes:  review and drafting of access codes and related documentation
  • Advocacy: appearing on behalf of water companies before both Ofwat and the Competition Appeal Tribunal, including the successful defence of clients in: Ofwat/Aquavitae; Southern Water/Mid-Kent; Ofwat/Albion (Bath House/Albion Yard); and Bristol Water/Lanara (Long Ashton)
  • Anti-corruption compliance: assisting water companies with the roll out of procedures to ensure compliance with the Bribery Act, 2010, including the provision of classroom-based training for management and staff
  • Asset Restructuring: advising in relation to the strategic process for splitting asset ownership and asset management within water companies
  • Bulk Supply:  advice concerning the calculation of price that conforms to the requirements of applicable competition law
  • Bulk Supply:  assisted in a dispute between two water companies regarding the sharing of supply from a reservoir
  • Common Carriage: advising various water companies with regard to the operational aspects of their network access code regime
  • Compliance advice: responding to numerous requests for assistance regarding specific compliance problems associated with both the competition regime as adopted via the Water Act 2003 (“WA ’03”) as well as more general issues relating to the application of the Competition Act 1998 (“CA ’98”)
  • Compliance programmes: assisting water companies with the roll-out of comprehensive competition law compliance programmes and was the principal adviser to the water industry’s trade federation, Water UK, with regard to the creation of its own programme
  • Court of First Instance:  successfully representing Northumbrian Water before the court of First Instance in Luxembourg with regard to a claim brought by the European Commission for the repayment of research funding
  • Development services:  advising on the rules relating to developer contributions to the cost of new infrastructure
  • Dispute resolution: assisting with disputes arising out of self-lay contracts, procurement, inset appointments, sale of infrastructure data, bulk supply agreements, competition under the WA ’03 and the CA ’98, etc.
  • Electricity supply: advice to an electricity supplier with regard to the legality of provisions contained in electricity distribution agreements
  • Energy: representing a small energy supply company in a dispute with the owner of pre-payment meters regarding the need for maintenance
  • Environmental Policy:  provision of advice regarding Water Framework Directive, Habitats Directive, environmental liability, environmental impact assessments, etc.
  • Framework Contracts: advice relating to AMP4 and AMP6 framework contracts
  • Freedom of Information: supporting clients in protecting information from disclosure, and in seeking access to information held by public bodies
  • General water regulation: advising water companies in England and Wales on a broad range of regulatory issues, including governance, compliance, licence conditions, licence modifications, enforcement actions, investigations, new appointments and variations, development services, water supply licensing, bulk supply agreements, access pricing, the sale of company data, and Ofwat determinations under the WIA 1991
  • Governance:  advising companies on Ofwat’s changing expectations with regard to governance, assurance, and the role of company Boards
  • Infrastructure data: advised a number of water-related entities regarding the commercial and regulatory constraints involved in selling water infrastructure data
  • Infrastructure data: assistance with regard to the design of a discount scheme to apply to the sale of water infrastructure data
  • Inset appointments: advice concerning inset appointment applications, including the application of the eligibility criteria
  • Infrastructure Construction: acting in relation to a contract for the construction of a mains pipeline and water treatment works
  • Interim determinations: advice to a water company regarding an interim determination of price arising out of revenue shortfall issues
  • Interim determinations: advice to a water company regarding an interim determination of price arising out of an upgrade to a treatment works
  • Inset Dispute:  assistance regarding an application for an inset covering a broad and undetermined geographical area
  • Infrastructure reinforcement:  advice concerning payments to be made by a property developer for water infrastructure reinforcement
  • Joint Purchasing:  advice regarding the joint purchasing of legal advice by the industry and provision of a collective response to a request for access to water infrastructure data
  • Joint Venture:  advising two appointed water companies on the creation of a jointly controlled water supply licensee for participation in the new non-household retail market
  • Licence conditions: interpreting licence conditions; advising Boards of their responsibilities under those conditions; advising on proposed licence changes; managing the risk of enforcement actions under the licence; and considering how to challenge Ofwat actions in relation to the licence and potential changes
  • Licence Condition Amendments:  assisting a water company to draft a proposed licence condition amendment to take account of a universal metering programme
  • License condition breach: assisting water companies faced with the prospect of a financial penalty as a result of a breach of license conditions
  • Licence modification process: advice regarding the current and proposed new process for licence modifications and the implications of Defra’s proposals
  • Long-term Framework Contracts: advising a utility with regard to the use of a collaborative form of agreement for its long-term framework contracts in the procurement of infrastructure
  • Long-term Supply Agreements:  advice concerning the legality of long-term exclusive supply agreements
  • Metering: advising a water company concerning the pricing of meter reading services provided by neighbouring water companies
  • Multi-utility Services: advising a major UK water company in relation to its entry into the electricity, gas and telecoms retail market
  • New Appointments and Variations: advising on the development of Ofwat’s approach to NAVs and the compliance status of various companies internal and external facing policies and procedures
  • New Appointments and Variations: advising on challenges by NAVs, including those with a full service offering, to the approach of incumbent water companies, including allegations of anti-competitive conduct
  • New competitive markets: supporting water companies in managing the competition and level playing field risks that arise from participating in competitive markets – whether directly by the appointed company or through an associated group entity
  • Non-household retail market opening: advising water companies on the options for participation in the new market and their preferred strategies, including the creation of joint ventures, approaches to pricing, managing competition and regulatory compliance within the appointed business and broader group and providing assurance on level playing field issues
  • Non-household retail market: supporting the owner of a second home in challenging its classification as commercial premises falling within the non-household retail market, including a request for determination by Ofwat
  • Outsourcing:  advice concerning the public procurement related implications arising out of the sale of support service business
  • Price reviews – Ofwat: advising on various issues regarding price reviews, including assisting various water companies during the 2009, 2014 and 2019 price review processes with regard to business plans, responding to draft and final determinations, discussions with Ofwat and preparing for potential referrals to the CC/CMA
  • Price reviews – CC/CMA: advising Bristol Water on its successful references to the CC/CMA for the redetermination of its PR09 and PR14 price controls. During the PR14 challenge Lisa spent around 6-12 months working from Bristol Water’s Head Office as part of the core project team responsible for strategy, drafting and delivery of the submissions required during the formal process
  • Private Sewers: advice concerning provision of maintenance and repair services
  • Public procurement: providing a range of advisory services regarding the EU’s public procurement requirements and their application to regulated utilities in the UK, including procedures, thresholds, challenges, dispute resolution, exemptions, outsourcing, etc.
  • Regulatory Relationships: advising water companies in relation to their regulatory relationship with Ofwat
  • Raw water: supporting a water company on an anticipated arbitration with the supplier of a major source of raw water regarding the price to be charged for that water
  • Regulatory affairs: involvement in several legislative/regulatory consultations, on behalf of individual water companies as well as the industry as a whole and providing a range of regulatory advocacy services, including engagement with Ofwat on behalf of companies as well as the preparation and delivery of written and oral submissions
  • Risk assessments: assisting companies in carrying out competition and regulatory risk assessments of both new and potential activities in light of changing market dynamics, regulatory frameworks and their market positions.
  • Self-lay:  advice concerning a dispute arising out of an infrastructure improvement programme and the availability of a self-lay alternative
  • Sewerage services: advice concerning the long-term provision of sewerage services and the constraints flowing from competition law
  • Ship-wreck clause:  advice concerning the use of the so-called ship-wreck interim price determination clause contained in water undertaker licences
  • Smart energy meters: advice regarding a challenge to the so-called SMETS1 “end-date”
  • Utilita: representing Utilita regarding achieving change to the rules regarding the allocation and pricing of wholesale gas
  • Utilities: advice to a major UK utility on the creation and clearance of e-marketplaces
  • Waste Water: advice to a statutory water undertaker concerning the supply of waste water to industrial customers for cooling purposes
  • Water Savings:  review of arrangements designed to encourage the purchasing of water savings devices
  • Water Supply Licence:   advice on the calculation of access prices, including the interpretation of s66E WIA ’91
  • Water Supply Licence:  advice on the creation of a licenced entity by an appointed company
  • Wholesale Master Agreements:  negotiation of wholesale master agreements plus advice concerning possible disputes

*Some of these are matters worked on by the team prior to joining TupperS Law

Contact us

If you have any questions please contact us and a member of the team will be happy to help.

TupperS Law

22 Disraeli Road, London W5 5HP


0203 637 4660