UK: Supreme Court Decides on Sewer Connection

Last Updated: 13 December 2010
Article by Aidan Thomson

In Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water), the connection of a large new housing development to the public sewer in circumstances where the public sewer lacked the necessary capacity was considered by the Supreme Court.

Section 106 of the Water Industry Act 1991 (the "Act") grants the owner or occupier of any premises, or of any private sewer that drains premises, the right to connect to the public sewerage system.

Before connecting, the owner or occupier has to give notice to the relevant sewerage undertaker of the proposed connection. The sewerage undertaker has 21 days to object. The only basis of objection is that the mode of construction or condition of the drain or sewer does not comply with the sewerage undertaker's reasonable standards, or is such that the making of the connection would be prejudicial to the sewerage system.

On 18 August 2005, Barratt applied to Monmouth County Council ("MCC") for planning permission for a development of 120 buildings. Welsh Water was consulted and, on 14 September 2005, objected to the development because it would cause its sewerage system to become overloaded and no improvements to the sewerage system were provided for in the application.

Barratt revised its planning application, reducing the number of dwellings to 98 but additionally including a school. On 14 May 2007, MCC granted planning permission, subject to a number of conditions, including:

"10. No development shall take place until a scheme of foul water drainage and surface water drainage has been submitted to, and approved, by the Local Planning Authority and the approved scheme shall be completed before the building(s) is/are occupied."

On 29 May 2007, Barratt served a notice under section 106 of the Act, stating its intention to make a connection to the public sewer at point A. Welsh Water responded to the application on 26 June 2007, outside the 21-day period allowed for objections stipulated by the Act. It did not object to a connection per se, but asked that Barratt connect to the public sewer at point B believing that a connection there would reduce the chance of overloading.

Barratt argued that Welsh Water could not dictate the point of connection. OFWAT became involved. On 25 January 2008, it wrote to Welsh Water explaining that it had objected out of time and was not entitled to refuse Barratt's connection at Point A. It pointed out that it remained for Barratt to satisfy MCC's planning condition 10.

However, with the aid of OFWAT's letter and a legal opinion, Barratt then managed to persuade MCC to treat this condition as having been discharged.

Welsh Water knew that unless something was done, Barratt's imminent connection at Point A would cause the system to overload. An escape of foul water would constitute a criminal offence on its part. However, upgrading the system to enable Barratt to connect at Point A without overloading would cost in the region of £200,000.

Welsh Water took the matter to court. Whilst the High Court found in favour of Welsh Water, this decision was overruled by the Court of Appeal. Welsh Water appealed to the Supreme Court.

On 9 December 2009, the Supreme Court confirmed that a sewerage undertaker has no right to select the point of connection or to refuse a developer the right to connect with a public sewer because of dissatisfaction with the proposed point of connection. It also made the comment that the 21-day time period for objections by a sewerage undertaker to a planned connection should be applied strictly.

The Court appeared to recognise that a system that allowed those wishing to connect to the public sewer to only give 21-days' notice was not ideal. Whilst this is unlikely to be a problem in the case of the connection of an individual dwelling, it may well be a problem where there is a large new development. This problem is exacerbated by the fact that the budgets of sewerage undertakers are set at five-yearly intervals.

The judgment suggests that more thought needs to be given to the interaction of planning and water regulation systems under the modern law, to ensure that the different interests are adequately protected

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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