Agreement to construct and adopt sewer — Pipe connected to one building only — Whether a sewer under Public Health Act 1936 — Whether a sewer under the agreement — Appeal by council dismissed
In 1960 the respondents, who are builders and property developers, acquired an extensive area of development land at Morley, West Yorkshire. By 1981 one site had been developed and was occupied by Rank Hovis McDougal. By an agreement dated March 5 1981 the appellant council agreed that if the respondents constructed a sewer in the land then “in accordance with the terms of the Agreement the Authority will declare the sewer to be vested in it”. The power to enter into the agreement was section 18 of the Public Health Act 1936.
Scott J granted a declaration (July 20 1989) that the council was obliged to declare that the sewers referred to in the 1981 agreement should be vested in the Yorkshire Water Authority. The appellants appealed contending that having regard to section 343 of the Public Health Act 1936 the respondents never constructed a sewer within the meaning of the agreement because the pipe laid only served one building, that of Rank Hovis McDougal.
Held The appeal was dismissed.
Upon a proper construction of the 1981 agreement, the respondents did construct a sewer, despite the fact that it was connected to only one building. The judgment of Stamp J in Blackdown Properties Ltd v Ministry of Housing and Local Government [1967] Ch 115 can be applied: section 343 does not define a sewer and the test is not whether the article is performing functions but whether it can still be described as an article for performing them.
The appellants contention that there had been no “commissioning for use” of the sewers, because there had been no actual connection to two or more buildings and this was a condition precedent in the 1981 agreement to the vesting in the council, was wrong. By the specification in the agreement testing and proving was required. The sewer was commissioned for use because it was placed in a state fit for use in accordance with the agreement.
Patrick Ground QC and Katerine Astaniotis (instructed by Hammond Suddards, of Bradford) appeared for the appellants; and Michael Mark (instructed by Booth & Co, of Leeds) appeared for the respondents.