Property Newsletter January 2010

Right to connect to public sewer

The recent Supreme Court judgment in Barratt Homes Ltd v Welsh Water [2009] UKSC 13 will be of interest to developers who customarily connect private drains to the public sewerage system as part of the completion of residential and other developments

Welsh Water appealed a ruling of the Court of Appeal that a sewerage undertaker cannot require a developer to connect to the public sewer at an alternative location on the ground that a connection at the developer's preferred location may overload the system.

Barratt Homes had applied for planning permission for a development of 98 homes and a school, and wanted to connect to the public sewer at a specified location in close proximity to the development.

Welsh Water, as the sewerage undertaker, carried out an assessment and concluded that a connection at that location would overload the existing public sewer to an unacceptable degree. It recommended that works be carried out to improve the public sewer at Barratt's cost or that the connection be made at another location.

The High Court held that Welsh Water was entitled to refuse permission. However, that decision was overturned by the Court of Appeal, which stated that the grounds for refusing permission for a connection were narrow and related only to "the mode of construction or the condition" of the connecting drain and not the actual point of connection.

The Supreme Court dismissed Welsh Water's appeal against that decision by a majority.  Lord Phillips said that under the statutory scheme (Water Industry Act 1991) "the sewerage undertaker cannot refuse to permit the connection on the ground that the additional discharge into the system will overload it The burden of dealing with the consequences of this additional discharge falls directly on the undertaker and the consequent expense is shared by all who pay sewerage charges to the undertaker."

Given this interpretation of the legislation, the Supreme Court considered, as an aside, the wider issues and identified the main problem for the water undertakers as being a developer's absolute right to connect to a public sewer without any requirement to give more than 21 days' notice; and that this could present both planning and budgeting difficulties for the sewage undertaker; for example, given the limitations imposed by the regulator, OFWAT, on increases in water charges; and where the water undertaker is not a statutory consultee in the planning process for developments such as this.

Also, the Court commented that if the answer to the problem - of connections of private sewers to public sewers not being adequate to bear the additional load - lies with the planning authority imposing conditions on planning permissions, then it would seem desirable that there should be input to planning decisions from both the relevant sewerage undertaker and OFWAT.

The Court noted that there were circumstances in which it would be desirable to seek a deferment of the connection date to allow the undertaker a reasonable opportunity to carry out necessary works to prevent potential flooding, as alluded to by OFWAT (the regulator and first arbiter of disputes of this nature) in historic briefings to the sewage undertakers. However, if the undertaker has had warning of a development and ought reasonably to have foreseen a likely connection (for example, if the development is included in the local structure plan), then a deferment condition in a planning consent is unlikely to be defensible.

One final point considered by the Supreme Court, albeit not relevant to this particular case, was that the 21 day time limit during which the sewage undertaker may give notice to refuse permission to make the connection ought to be construed strictly; this conclusion being reached particularly in view of the fact that it is a criminal offence for a developer to connect to a public sewer after any such notice has been served.

Supreme Court (Lord Phillips, President, Lord Saville, Lord Walker, Lady Hale and Lord Clarke) 9 December 2009.

For further information on the issues raised by this case, please contact Joe Gribble, a Partner within the Commercial Property Team at joe.gribble@michelmores.com.