104.— (1) A person shall not, except with the consent of a relevant water services authority and following an application for the purposes of this section to that authority, erect or commence to erect, or cause to be so erected, any structure—

(a) over, or

(b) so close to as to cause a risk to, or interfere with, the structural integrity of or access to,

a sewer, drain, water main, distribution system, service connection or related accessories which are owned, controlled or used by another person.

(2) The obligation in subsection (1) shall apply notwithstanding any provision in any other enactment in relation to control of development, building standards or practices, or any related exemptions.

(3) A relevant water services authority may grant a consent under subsection (1) where it is satisfied that—

(a) adequate access to the pipes and related accessories affected will remain available for maintenance or renewal purposes,

(b) human health and the environment are adequately protected, and

(c) the structural integrity of the pipes and related accessories affected, and access to water services through them, will not be adversely affected,

and it may include in a consent such conditions as it considers necessary for these purposes.

(4) Where a structure to which this section applies is commenced or erected without a consent under subsection (1), or in contravention of such a consent, a relevant water services authority may by notice to the person who erected or commenced to erect the structure or caused it to be erected, or to any other person who for the time being owns the structure, direct that remedial action be taken within a specified period, including—

(a) provision of such alternative sewers, drains, water mains, distribution systems, service connections or accessories as it may specify,

(b) re-routing around the structure of such pipes as may be affected,

(c) provision of alternative or additional access to such pipes as may be affected,

(d) demolition or alteration of the structure, or

(e) incidental and related requirements.

(5) A relevant water services authority shall have a right of action for relief by way of injunction or declaration from the High Court against any person, to restrain any non-compliance, or direct any compliance with a requirement of a notice issued by the authority under subsection (4), and the Court may grant such order as it sees fit, in such manner as to achieve the purposes set out in subsection (3), including an order requiring provision of alternative pipes or related access, re-routing of pipes, or removal or alteration of a related structure within a specified period.

(6) It shall be a defence to a prosecution for a contravention of subsection (1), that all reasonable inquiry was made to ascertain the existence of any relevant pipe or related accessory before a structure to which this section refers was erected, or commenced to be erected, over it.

(7) Without prejudice to subsection (5), and whether or not a prosecution has been taken under this section, where a person on whom a notice is served under subsection (4) fails to carry out the required remedial action within the period specified in that notice or to complete any works specified in an injunction of the High Court under subsection (5), the water services authority which issued the notice, or a person authorised on its behalf, may enter the relevant land, carry out the remedial action or complete the specified works, and recover the cost from the person who fails to comply with the notice or injunction.

(8) A water services authority may charge a fee to an applicant for a consent under this section in respect of the estimated cost of processing the application, including the cost of related investigation and inspection costs, and such fee shall be recoverable from the person making the application.

(9) A water services authority may recover any costs incurred by it in connection with the exercise of its functions under subsection (4) from the person to whom the notice under that subsection is addressed.

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(11) Regulations under section 18 may provide for—

(a) the form of an application for a consent under subsection (1),

(b) the information to be provided with any such application,

(c) the time limits relating to such application, including time limits relating to—

(i) consideration of such an application, and

(ii) notification of a decision on such an application.

(12) A person who contravenes subsection (1) or who fails to comply with a notice under subsection (4) commits an offence.