Applicant claiming an increase in its entitlement to supply of water from reservoir – Whether extent of applicant’s entitlement to supply of water governed by the Great Ouse Water Act 1961 – Whether applicant entitled to 30 million gallons per day – Claim allowed in part
The applicant was the successor to two statutory water companies, Lee Valley and Luton. The respondent was the successor of the Great Ouse Water Authority (GOWA), a statutory water undertaker established by the Great Ouse Water Act 1961. Under the 1961 Act, GOWA was responsible for the operation of a reservoir, now known as Grafham Water. Lee Valley and Luton had a right to draw water from the reservoir in quantities set out in the 1961 Act.
Parts of the 1961 Act were extensively amended by the Great Ouse Water Order 1971 and, under those amended provisions, Lee Valley and Luton were entitled, between them, to increase the quantities drawn from the reservoir to 30 million gallons per day (mgd). Under section 57(1)(c) of the 1961 Act, as amended, entitlement to that quantity depended upon whether, in any year after 1976, any revision of entitlement to water had had effect under the provisions of section 61.
In September 1999 the applicant gave six months’ notice under section 61(3)(a) of the Act to increase its entitlement from 1 April 1999, invoking the revision provisions of the 1971 Order. The respondent contended that the applicant’s entitlement could not be increased except by agreement, due to the provisions of section 12(7) of the Water Act 1945, as substituted by the Water Act 1973. Section 12(7) applied to a “statutory water undertaker”. The respondent accepted that the applicant was not a “statutory water undertaker” within the definition provided in section 11(6) of the 1973 Act, but contended that the definition used prior to 1973 should apply on the basis that section 12(7) was a transitional provision. The respondent submitted that the relevant provisions of the 1961 Act, as amended, had been superseded by subsequent legislation and were no longer operative.
The primary issues were whether the extent of the applicant’s entitlement to a supply of water was governed by the 1961 Act, as amended, or the amended 1945 Act, and whether the right to increase the quantity to 30 mgd still existed.
Held: The claim was allowed in part.
There was no reason why the definition in section 11(6) of the 1973 Act should not apply to the 1945 Act. It was wrong to ascribe to the words of section 12(7) the meaning before the 1973 Act came into force. The respondent’s contention could not be justified in circumstances where the 1973 Act provided a definition. As it was agreed that GOWA was not a “statutory water undertaker” within the meaning of section 11(6), the extent of the applicant’s entitlement to supply was not governed by section 12(7) and was governed by the 1961 Act provisions. However, the respondent was correct in submitting that, on a proper application of sections 57 and 61 of the 1961 Act, the applicant was not entitled to the 30 mgd that it claimed.
Jonathan Sumption QC and Michael Kent QC (instructed by Simmons & Simmons) appeared for the applicant; David Pannick QC and Tom Weisselberg (instructed by Herbert Smith) appeared for the respondent.
Sarah Addenbrooke, barrister
