Barratt Homes Limted v Dwr Cymru Cyfyngedig (Welsh Water)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Lawrence Collins,Lord Justice Pill |
| Judgment Date | 28 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1552 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2008/2122(A); A2/2008/2122 |
| Date | 28 November 2008 |
[2008] EWCA Civ 1552
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF CITY REGISTRY
(MR JUSTICE WYN WILLIAMS)
Lord Justice Pill
Lord Justice Carnwath and
Lord Justice Lawrence Collins
Case No: A2/2008/2122(A); A2/2008/2122
Mr A Porten QC and Mr S Gasztowicz appeared on behalf of the Appellants.
Mr M Sheridan appeared on behalf of the Respondent.
Background
This is an appeal against a decision of Wyn Williams J. It raises important issues as to the nature and extent of the rights conferred by section 106 of the Water Industry Act 1991 to make connections to public sewers.
Barratt is a major house-builder. It is engaged in a development of a site at Llanfoist, Abergavenny. It has planning permission dated 14 May 2007 for 98 houses and a school. Dwr Cymru Cyfyngedig (“DCC”) is the sewerage undertaker for the area. It is the only water and sewerage company in England and Wales which is a not-for-profit organisation. Its operation and investment are funded through customer bills.
Barratt wished to connect the drains from the development to the public sewer at point X, in the road immediately adjoining the northern boundary of the development site. DCC objected to a connection at that point because of the risk of overspill in the stretch of sewer immediately downstream. It was willing to allow a connection at a location some 3–400 metres to the east, at point Y.
On 29 May 2007 Barratt served notice under section 106 of its proposal to connect at point X. DCC responded on 25 June 2007 purporting to approve the proposal, but stating that the connection must be at point Y. The letter indicated that the connection would need to be made either by laying a new sewer or by improving the existing sewer, and that the requisition procedure under section 98 of the 1991 Act could be used to overcome any problems with intervening landowners. The DCC later placed concrete round the sewer at point X to prevent any connection there.
Barratt began these proceedings against DCC for immediate relief (under CPR Part 8) by way of a declaration that it is entitled to have its development connected to the public sewer at point X in accordance with its notice, and an injunction requiring the removal of the concrete.
By the time the proceedings were begun 38 houses had been built and 31 had been sold. The school was opened in September 2008. Interim measures had been put in place for sewage to be stored and collected by tankers. Current market conditions have delayed the further progress of the development.
Three issues arise:
i) Alternative location Whether DCC was entitled to require the connection to be made at an alternative location, because of the prospect of sewer overload
ii) The 21 day limit Whether by serving its response outside the 21 day limit set by the Act, DCC lost the right to object to the connection at point X.
iii) European law Whether the answer is affected by the EC Directive on the treatment of Urban Waste Water (91/271/EEC).
The judge answered the first question in favour of Welsh Water. He held, following Walton J in Beech Properties Ltd v G E Wallis Ltd [1997] EGCD 75, that the statute permitted an undertaking to require the connection to be made at an alternative location in order to avoid prejudice to the system as a whole. He thought the second question relating to the 21 day limit was unsuitable to answer under Part 8 procedure, because it raised “somewhat intricate questions of mixed law and fact” (para 37). He found it unnecessary to rule on the issue of European law.
The statute
Section 94 imposes a general duty on every sewerage undertaker to provide and maintain a system of public sewers so as to ensure that its area is “effectually drained”. Section 98 requires an undertaker to comply with a requisition for the provision of a public sewer to be used for domestic purposes, but that is subject to payment by the person making the requisition.
Section 106, which is directly in issue, confers rights to connect to the public sewers. The relevant parts are:
“(1) Subject to the provisions of this section—
(a) the owner or occupier of any premises in the area of a sewerage undertaker; or
(b) the owner of any private sewer draining premises in the area of any such undertaker,
shall be entitled to have his drains or sewer communicate with the public sewers of that undertaker and thereby to discharge foul water and surface water from those premises or that private sewer.
(2) A person desirous of availing himself of his entitlement under this section shall give notice of his proposals to the sewerage undertaker in question.
(3) At any time within twenty-one days after a sewerage undertaker receives a notice under subsection (3) above, the undertaker may by notice to the person who gave the notice refuse to permit the communication to be made, if it appears to the undertaker that the mode of construction or condition of the drain or sewer is such that the making of the communication would be prejudicial to the undertaker's sewerage system
(4) For the purpose of examining the mode of construction and condition of a drain or sewer to which a notice under subsection (3) above relates a sewerage undertaker may, if necessary, require it to be laid open for inspection.”
Though not directly relevant to this case, I note that subsection (2) makes certain specific exclusions from the general right. For example, where separate public sewers are provided for foul water and for surface water, the section does not entitle any person “to discharge directly or indirectly—
(i) foul water into a sewer provided for surface water; or
(ii) except with the approval of the undertaker, surface water into a sewer provided for foul water…”
Section 106(6) enables a dispute as to the reasonableness of a refusal to be referred to the Director of the Office of Water Services (“OFWAT”). Although OFWAT was consulted in this case, no formal determination was sought. It is not suggested that this provision in any way limits the power of the court to rule on the legal issues.
Reference has also been made by way of comparison to subsection (8), which allows a wider discretion to refuse a connection in Greater London, where a sewer is used for the general reception of sewage from other public sewers. A private connection may be refused on “such grounds as the undertaker thinks fit”, and there is no right to apply to OFWAT to challenge the refusal.
I should also note section 107, under which the undertaker may give notice of its intention to make the communication itself rather than allowing the developer to make it; and section 108, which requires the person making the communication to give reasonable notice to the undertaker of the actual works. The standard form of a notice under section 106 used in this case provided for 48 hours' notice.
We have also been referred to section 112 of the Act, which provides the means by which the undertaker can require that the proposed drain or sewer be constructed so as to form part of the general system. Under this procedure the undertaker may require the person to construct the drain in the manner which accords with the requirements of the undertaker, but by section 112(6) the undertaker must repay to the person constructing the drain the extra expenses reasonably incurred to comply with these requirements. In my view that section sheds no light on the construction of section 106.
Factual background
Before returning to the legal issues, I need to fill in some of the factual history, in relation both to the planning proposal, and to the attempts to resolve the drainage problems.
The site had been considered suitable for housing development since at least 1999, when it was allocated in the draft Monmouthshire Unitary Development Plan. However, it was accepted that improvements to the public sewerage system (costed at that time at some £200,000) would be required to accommodate the development, and that in the meantime DCC would object to any proposal for such development.
Discussions with Barratt in 2005 and 2006 led in due course to their contributing some £13,000 for a hydraulic modelling assessment. This assessment highlighted the risk of increased spillage if the connection were made at point X. The existing system was designed to ensure that any such overspill would occur at the so called “combined sewer overflow” (CSO), located in open land to the east between points X and Y. It was calculated that the point X connection could lead to an increase of 29% in the incidents of overspill when the development was fully built. It was recommended that there should be either improvement to the relevant section of sewer, or a connection at an alternative location downstream. Discussions followed between Barratt and DCC on the alternative solutions.
The planning application for the present development was submitted to the County Council's planning authority in June 2006. The planning officer's report referred to the drainage issue, and the ongoing discussions with DCC. It was noted that, if off-site infrastructure improvements were required, they could be secured by a “Grampian” condition or a section 106 agreement. The application came before the planning committee on 12 December 2006. According to the minutes, the head of planning stated that work on constructing houses could not take place until the drainage...
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