New Judgment: Barratt Homes Ltd v DWR Cymru Cyfyngedig (Welsh Water)  UKSC 13
09 Wednesday Dec 2009
On appeal from:  EWCA Civ 1552.
Welsh Water pursued an appeal to the Supreme Court, seeking to establish that the Water Industry Act 1991, s 106 gave a sewerage undertaker the right to refuse to permit connection to the public sewer at an unsuitable point. By a majority, the Supreme Court dismissed the appeal. The right to discharge into a public sewer pursuant to s 106 was an absolute right that could not be prevented on the ground that the additional discharge would create a nuisance. The right to object to a “mode of connection” in s 106(4) did not extend to the point of connection. More thought might need to be given to the interaction between planning and water regulation systems, to reduce problems caused by the requirement to only give 21 days’ notice to a sewerage undertaker before exercising the right under 106. Lady Hale, dissenting, would have allowed the appeal on the construction of s 106(4). She felt that the legislative history led her to conclude that Parliament had not intended to cut down the scope of the local authority’s power to control the place and manner of connection in the Public Health Act 1936, while leaving the position in Scotland unchanged.