In the Barratt Homes / Welsh Water case, in which judgment was handed down on Wednesday, the Supreme Court turned its attentions to a thorny issue of planning law. In particular, the Court was asked to consider a property owner’s right to connect their private drain to a public sewer, and whether the property owner or public authority should be entitled to decide the point of connection. The Justices deliberated over this issue at length, and concluded that it is the property owner and not the sewerage undertaker who is entitled to determine the point where private and public pipes become connected. However, Lord Phillips was keen to highlight that “this narrow issue of statutory construction conceals, however, wider and more fundamental issues that are less easily resolved”.
Lord Phillips was referring to the apparent “absolute” right conferred by Section 106 of The Water Industry Act 1991 (“the Act”) which appears to permit an occupier of premises to connect those premises to a public sewer without any requirement to give more than 21 days notice. On face value this might appear reasonable, yet the Court has suggested that it is wholly unsatisfactory if, as was the case here, the public sewer does not have surplus capacity capable of accommodating the increased load without the risk of flooding. In such a case, a public water authority, which, with only 21 days notice, is unable to accommodate further sewerage capacity, runs the risk of committing strict liability criminal offences by permitting the escape of foul water which may cause a public nuisance.
Nonetheless, by a majority verdict of four to one, the Supreme Court dismissed the appeal of Welsh Water, and upheld the Court of Appeal decision which found that the right of an individual to connect their drain to a public sewer should not be fettered. Indeed, whilst the Court of Appeal and Supreme Court acknowledged the practical difficulties placed upon water authorities, imposed by Section 106 of the Act, their decision was guided by the fact that planning authorities are in a position to support the public water authorities.
The Supreme Court noted that, since the building of a development requires planning permission under the Town and Country Planning Act 1990, planning authorities are able to make planning permission conditional upon the public water authority first taking steps to ensure that the public sewer can accommodate any increased flow. Thus the planning authority has the power which the water authority lacks.
Of course, and this was noted by the Appellants, some planning authorities don’t always appear to make the right decision so far as demands on the sewerage system are concerned. Further, the relevant water authority is not always consulted by the planning authorities when making their decision. Indeed, irrespective of these practical issues, there remains the question of whether it is in fact reasonable to expect a public water authority to upgrade a sewerage system to accommodate linkage with a private drain irrespective of the costs this will involve. Going forward, it might well be the case that more thought should be given to the interaction between planning and public water authorities to ensure that each party is afforded appropriate protection, since, as it stands, public water authorities appear somewhat exposed.
In the meantime though, the position for water authorities in this area remains problematical. Nonetheless, they will take comfort in the knowledge that, not only did Lady Hale dissent from the Supreme Court’s judgement, but that in nearly a century and a half, this was the first time that a dispute had arisen between a property owner and a sewerage undertaker as to the point of connection of a private drain to a public sewer. Indeed, Lord Phillps noted that:
“The lengthy history of the right to communicate with a public sewer does not suggest that the point of connection has ever given difficulty in practice.“
For further commentary on the decision, refer to the Court’s press summary available here
Simone Ketchell is an associate in Olswang’s Real Estate Litigation Team