Barratt Homes Limted v Dwr Cymru Cyfyngedig (Welsh Water)
| Jurisdiction | England & Wales |
| Judge | Lord Saville,Lord Clarke,LADY HALE,LORD PHILLIPS,Lord Walker |
| Judgment Date | 09 December 2009 |
| Neutral Citation | [2009] UKSC 13 |
| Date | 09 December 2009 |
| Court | Supreme Court |
[2009] UKSC 13
THE SUPREME COURT
Michaelmas Term
On appeal from: [2008] EWCA 1552
Lord Phillips, President
Lord Saville
Lord Walker
Lady Hale
Lord Clarke
Appellant
Lord Pannick QC
David Holgate QC
Maurice Sheridan
Jessica Simor
(Instructed by Geldards LLP)
Respondent
Anthony Porten QC
Steven Gasztowicz QC
Clare Perry
(Instructed by Darwin Gray)
LORD PHILLIPS (with whom Lord Saville, Lord Walker and Lord Clarke agree)
Introduction
This appeal is about the right conferred by the Water Industry Act 1991 ("the Act") on a property owner to connect his private drain or sewer to a public sewer for the purpose of discharging his sewage into the public sewer. The principal issue raised is whether it is the property owner or the sewerage undertaker who is entitled to determine the point at which the property owner's drain or sewer is to connect to the public sewer. This narrow issue of statutory construction conceals, however, wider and more fundamental issues that are less easily resolved. I propose first to resolve the narrow issue, before commenting on these wider issues.
Llanfoist is a village near Abergavenny in Monmouthshire. Its surface water and foul water drainage requirements are met by a public sewerage system that terminates in a waste water treatment works ("the Treament Works") about 1/3 mile to the East of the village and below it. This system is about 60 years old.
Approximately mid-way between the village and the Treatment Works, at manhole SO29125900 ("the CSO"), the sewage pipe that links the two reduces from a diameter of 225 mm to a diameter of 150 mm and continues for a distance of 282m before it increases, at manhole SO29127901 to a diameter of 300mm for the final stretch to the Treatment Works. The narrow section, described as a "pipe bridge" determines the capacity of the system, or at least all that part of it that lies upstream of manhole SO29127901.
The Respondents, "Barratts", are in the process of building a substantial development of 98 houses and a primary school on a greenfield site contiguous to the East side of Llanfoist. They constructed a private sewer to receive the sewage from this development. They claimed a statutory right to connect their private sewer to the public sewer at a point of their own choosing, which was in the close vicinity of their development. This point of connection was not satisfactory to Welsh Water, as it would overload the system upstream of manhole SO29127901. They claimed a statutory right to refuse connection at this point, offering instead connection at manhole SO29127901, an option that would saddle Barratts with the cost of the link from their development to manhole SO29127901. Thus arose the narrow issue of the interpretation of the relevant provisions of the 1991 Act.
At first instance, in a judgment delivered on 1 August 2008, Wyn Williams J found in favour of Welsh Water [2008] EWHC 1936 (QB). His decision was reversed by the Court of Appeal on 28 November 2008 [2008] EWCA Civ 1552. Barratts then proceeded to connect the development's sewer to the public sewer at the place of their choice. Welsh Water do not seek, by this appeal, to effect a physical reversal of what has taken place. They accept that what has taken place in this case is now water under the bridge. They are anxious to establish, however, that a sewerage undertaker has a right to refuse to permit connection to be made to one of their sewers when they consider that the proposed point of connection is not suitable. Should they establish this right of refusal a further issue arises as to the effect of a statutory time limit for giving notice of refusal.
The law in relation to sewers has its origin in the reign of Henry VIII, but the modern law begins with the Public Health Act 1848. There followed a series of Acts which consolidated and amended the law, of which the 1991 Act is one. The provisions of that Act which are directly relevant to this appeal can be traced back to the Victorian legislation. They provide as follows:
"94 General duty to provide sewerage system
(1) It shall be the duty of every sewerage undertaker–
(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers and any lateral drains which belong to or vest in the undertaker as to ensure that that area is and continues to be effectually drained; and
(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers.
…
106 Right to communicate with public sewers
(1) Subject to the provisions of this section–
(a) the owner or occupier of any premises, or
(b) the owner of any private sewer which drains premises,
shall be entitled to have his drains or sewer communicate with the public sewer of any sewerage undertaker and thereby to discharge foul water and surface water from those premises or that private sewer.
…
(2) Subject to the provisions of Chapter III of this Part, nothing in subsection (1) above shall entitle any person–
(a) to discharge directly or indirectly into any public sewer–
(i) any liquid from a factory, other than domestic sewage or surface or storm water, or any liquid from a manufacturing process; or
(ii) any liquid or other matter the discharge of which into public sewers is prohibited by or under any enactment; or
(b) where separate public sewers are provided for foul water and for surface water, 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; or
(c) to have his drains or sewer made to communicate directly with a storm-water overflow sewer.
(3) A person desirous of availing himself of his entitlement under this section shall give notice of his proposals to the sewerage undertaker in question.
(4) 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–
(a) does not satisfy the standards reasonably required by the undertaker; or
(b) is such that the making of the communication would be prejudicial to the undertaker's sewerage system.
(5) 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."
In this judgment I shall, where appropriate, refer to "the developer" as shorthand for the "owner or occupier" of premises who enjoys rights under section 106.
Section 106(6) provides that any question as to the reasonableness of an undertaker's refusal to permit a communication to be made or of a requirement under subsection (5) may be referred for determination by the Director of the Office of Water Services ("OFWAT").
Section 107 entitles the sewerage undertaker to give notice within 14 days of receipt of a notice under section 106(3) that the undertaker intends to make the communication himself. In that event the developer has to pay the reasonable cost of the work.
The point of connection
Submissions
Mr Porten QC for Barratts submitted that the provisions of section 106 of the 1991 Act were clear. Subsection (1) gave a property owner the right to connect to a public sewer, subject only to such limitations as were imposed by other provisions of the section itself. That right was a right to connect at whatever point the property owner chose to do so. The only restrictions on that right were those set out in subsection (4). Those restrictions were very limited. They gave the undertaker the right to refuse to permit the connection only on grounds of the inadequacy of the mode of construction or condition of the private drain or sewer that was to be joined to the public sewer. No objection could be made to the point of connection, however inconvenient that might be for the undertaker.
Lord Pannick QC for Welsh Water submitted that the Court should not accept this interpretation, for its consequences ran counter to the object of the legislation. That object was the protection of health and of the environment. Parliament cannot have intended that a property owner should be entitled to insist on a specific point of connection however great the harm that this would cause to the environment or to public health and however reasonable it might be to require the property owner to connect elsewhere.
The potential harm identified by Lord Pannick was damage to the environment or to health as a result of the escape of foul water from the sewage system. The overload on the system consequent upon the point of connection chosen by Barratts had increased the risk of escape of foul water at the CSO. The CSO was intended to act as an escape point for sewage to a limited extent deemed acceptable in conditions of overload caused by exceptional rainfall in storm conditions. The additional loading on the system as a result of connecting Barratts' sewer upstream rather than downstream of the pipe bridge was calculated to lead to escape of foul water beyond the limit that was acceptable. Such escape would result in Welsh Water committing criminal offences of strict liability under section 85 of the Water Resources Act 1991 and would infringe provisions of Directive 91/271/EEC concerning the collection, treatment and discharge of urban waste water...
To continue reading
Request your trial
-
Manchester Ship Canal Company Ltd v United Utilities Water Plc
...General v Peacock [1926] Ch 241Barrett Homes Ltd v Dŵr Cymru Cyfyngedig (Welsh Water) [2008] EWCA Civ 1552; [2009] Env LR 547, CA; [2009] UKSC 13; [2010] PTSR 651; [2010] 1 All ER 965, SC(E)Co-operative Insurance Society Ltd v Hastings Borough Council [1993] 2 EGLR 19Dean v Wiesengrund [195......
-
The Manchester Ship Canal Company Ltd v United Utilities Water Ltd
... ... to a public sewer (as to which, see Barratt Homes Ltd v Dwr Cymru Cyf (Welsh Water) [2009] ... ...
-
Mrs. Patricia Anderson V. Shetland Islands Council+scottish Water+nicolson Bros
...[15] When the case was at avizandum our attention was drawn to the decision of the Supreme Court in Barratt Homes Limited v Welsh Water [2009] UKSC 13. We have given consideration to that judgment and have concluded that it does not alter the views expressed above. Accordingly we shall refu......
-
Mustafa v London Borough of Enfield
... ... Borough of Enfield (2) Thames Water Company Respondents ... in Victorian times, as appears from Barratt Homes Limited v DWR Cymru Cyfyngedig (Welsh ... ...
-
Case Law Update - Issue 3 (2010)
...design duty to design and build contractor and cost issues. Right to connect to sewer Barratt Homes Ltd v Dwr Cymru Cyfyngedig [2010] 128 Con LR 1 Supreme Court A majority of the Supreme Court (Lady Hale dissenting) held that where connection of development to a public sewer required additi......
-
Case Law Review.
...design duty to design and build contractor and cost issues. Right to connect to sewer Barratt Homes Ltd v Dwr Cymru Cyfyngedig [2010] 128 Con LR 1 Supreme A majority of the Supreme Court (Lady Hale dissenting) held that where connection of development to a public sewer required additional w......