Dwr Cymru Cyfyngedig (Welsh Water) (Appellant v Barratt Homes Ltd (Respondent

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lloyd Jones,Lady Justice Arden,Lord Justice Pill
Judgment Date27 March 2013
Neutral Citation[2013] EWCA Civ 233
Date27 March 2013
Docket NumberCase No: A2/2012/1082

[2013] EWCA Civ 233

IN THE COURT OF APPEAL (CIVIL DIVISION)

SITTING IN CARDIFF

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CARDIFF DISTRICT REGISTRY

HHJ SEYS LLEWELLYN QC

CLAIM NO. OCF90200

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Pill

Lady Justice Arden

and

Lord Justice Lloyd Jones

Case No: A2/2012/1082

Between:
Dwr Cymru Cyfyngedig (Welsh Water)
Appellant (Defendant)
and
Barratt Homes Limited
Respondent (Claimant)

Robert Weir QC and Jessica Simor (instructed by Geldards LLP) for the Appellant

Steven Gasztowicz QC and Clare Parry (instructed by Darwin Gray LLP) for the Respondent

Hearing dates: 29 & 30 November 2012.

Lord Justice Lloyd Jones
1

This is an appeal by Dwr Cymru Cyfyngedig ("DCC") against the decision of His Honour Judge Seys Llewellyn QC sitting as a Deputy High Court Judge, handed down on the 28 th February 2012 refusing to strike out the claims in nuisance and trespass to goods and also refusing to grant summary judgment to DCC in respect of those claims. There is a cross appeal by the respondent, Barratt Homes Limited ("Barratt"), in respect of the judge's ruling that, with the exception of a claim in respect of physical damage to a pipe and its reinstatement, the claim in negligence be struck out.

2

This appeal is the most recent stage of a prolonged legal dispute between the parties which has already been once to the Supreme Court.

3

It is convenient to start with the facts alleged by the claimant in the amended particulars of claim. On 14 May 2007 Barratt was granted planning permission by Monmouthshire County Council for the construction of a school and 98 houses at Llanfoist. On 29 May 2007 Barratt gave notice pursuant to section 106, Water Industry Act 1991 ("the 1991 Act") to the defendant, the sewerage undertaker for the area, of its intention to connect the development by its drains to the public sewer at point SO29131302 ("the connection point"). Section 106(4) provides that notice of refusal to permit the communication may be given by the undertaker within 21 days of receiving a notice under section 106. No such notice of refusal was given by the defendant. Barratt alleges that on or about 25 June 2008 DCC poured concrete into the claimant's drainage pipe by which it intended to make the connection to the public sewer pursuant to the section 106 notice, preventing the connection from taking place or disconnecting the connection. By that date the claimant had built a total of 38 houses on the development land and was in the course of constructing the school. In addition the claimant intended to build further houses on the development land pursuant to the planning permission. Barratt claims to have suffered loss and damage as a result of DCC preventing the connection, in that it had to place a temporary storage tank within the land to receive foul sewage from the houses and the school which then had to be pumped out and removed by tanker during the period to 10 December 2008.

4

In the amended particulars of claim it is alleged that DCC's conduct amounted to a breach of statutory duty and/or an act of trespass to or wrongful interference with Barratt's drainage pipe and/or a nuisance which constituted a wrongful interference with Barratt's use and enjoyment of the development land. It is further alleged that DCC "was negligent in that it failed to take reasonable care to prevent injury to the claimant in that it poured concrete into the claimant's pipes and/or prevented the claimant's lawful connection, thereby causing foreseeable loss to the claimant".

5

The detail of the case which Barratt proposes to advance at trial is set out in the first witness statement of Mr. D. Huw Llewellyn, Technical Director of Barratt's South Wales Division, dated 31 December 2010. He explains that on 29 May 2007 Barratt gave notice to DCC under s 106 that it proposed to make a connection at the connection point on the public highway. No notice of refusal was served in accordance with section 106(4). On 26 June 2007 DCC informed Barratt that they could connect but specified that it should be at "the point of adequacy" some 300 metres from where Barratt wanted to connect. It is common ground that this was a refusal to permit the communication to be made. Barratt took the view that DCC had no legal right to dictate the point of connection or to refuse a connection based on lack of capacity in the system. The matter was referred to the regulator, OFWAT, which in a letter dated 25 January 2008 informed DCC that DCC had no right to prevent the proposed connection at the connection point and that, even if there had been grounds to do so, DCC had failed to serve a counter-notice in time. Nevertheless, DCC maintained the position that it could decide the point of connection and stated that in the event that Barratt tried to connect at the connection point it would take immediate legal action. In a further letter dated 20 June 2008 OFWAT maintained its position that DCC had no right to prevent the connection at the connection point. Barratt had also obtained advice from leading counsel that DCC was not entitled to refuse to allow the connection to be made. On leading counsel's advice Barratt asked Monmouthshire County Council to discharge planning condition 10, which required submission to and approval by the local authority of a scheme for sewerage and water drainage. On the 29 February 2008 the planning authority discharged that condition. Nevertheless DCC maintained its position and stated that it would take legal action if Barratt tried to connect at the connection point.

6

Mr Llewellyn states that by the beginning of April 2008 it was clear that Barratt and DCC had reached an impasse. He states that meanwhile some of the houses had been sold and were already occupied. As a result Barratt had to "plug" the on-site drainage system to allow the sewage to gather and then pump the sewage into a tanker for removal from the site. This commenced in October 2007 but the frequency increased as houses were sold and occupied and started to produce flows of sewage.

7

Mr Llewellyn states that Barratt then instructed its groundwork contractor (Macob) to build a length of sewer from where the completed on-site sewers finished to a manhole just off the site at the connection point for it to connect to DCC's drains. In the event Macob made the connection to a different manhole from that specified in the s. 106 notice. DCC issued a disconnection notice under section 109 and complained to OFWAT. Barratt apologised, disconnected the sewer and met DCC's costs of the disconnection. Barratt then instructed Macob to lay the sewage pipe up to the manhole at the connection point specified in the section 106 notice but not to connect. That manhole was beneath the highway. Macob was instructed to build a "spur" into the manhole which, when connected, would link the flow into the main sewage network. Macob inserted a pipe through the wall of the manhole and adjusted the manhole "benching" so that the pipe led to an open channel cut through the concrete benching within the manhole which in turn led to DCC's sewer. A sewage pipe was waiting to be attached to the other end of the spur. At no stage was the sewage pipe connected to Barratt's on-site network nor to Barratt's spur and so there was no communication between Barratt's sewer and DCC's sewer.

8

On 25 June 2008 DCC served a notice purportedly under section 109 notifying Barratt that this was an unlawful communication, that Barratt's conduct constituted an offence and that it intended "to disconnect the unauthorised connection". On the evening of 25 June 2008 DCC's contractors blocked the spur that had been built on behalf of Barratt thereby preventing any connection from being made. Mr Wyatt, who was then New Business Manager of DCC, states that he recommended that a stopper be placed inside DCC's existing manhole as far as possible up the new sewer, i.e. Barratt's pipe, and that there be re-benching of the manhole back to its original arrangement. He states that this was intended to form a permanent disconnection. Mr Wyatt explains that DCC operatives would have entered DCC's manhole chamber and then would have placed a stopper "within approximately the curtilage of its own manhole chamber". He states that no concrete was poured directly onto Barratt's pipes, that a small amount of concrete was placed behind the stopper within the area of DCC's manhole chamber and that the purpose was to safeguard the stopper's operation. However, these statements are explicable by the fact that Mr Wyatt considers the spur pipe to form an integral part of DCC's system. Mr Kevin Lawrence, a contract manager for Barratt, states in his witness statement that when Macob came to remove the concrete and make the connection the concrete had been poured or plugged into the benching and up the enclosed part of the spur. It was necessary to reform the benching back to the manhole wall. Mr Llewellyn states in his first witness statement that he has not been able to establish exactly how far up the spur the concrete plug reached. However he states that Macob rebuilt the spur at a cost to Barratt of £600 and this sum is claimed in these proceedings in respect of removal of the concrete plug from the manhole.

9

It is now established by the decision of the Supreme Court that Barratt had a right to connect at the connection point and that DCC had no authority to act under section 109(2).

The proceedings.

10

Barratt brought proceedings under Part 8 CPR seeking a declaration that it was entitled to connect with DCC's sewers at the connection point and also...

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