Sewerage undertaker Whether claimant having duty to provide public sewer — Whether absence of power to insist that residents use communal drainage scheme relevant in determining practicability of such a scheme — Whether defendant breaching rules of natural justice — Claim allowed
The claimant was a sewerage undertaker within the meaning of the Water Industry Act 1991. In April 1998, it received an application from a resident of Bent Hill, Buckinghamshire, for the provision of a public sewer to serve the properties in that area, pursuant to section 101A of the 1991 Act. The claimant considered that it was under no duty to provide a public sewer, despite the unsuitability of the existing drainage arrangements because the most cost-effective solution was for the residents to install and maintain a private treatment plant. By section 101A(3)(e), it was relevant, when considering the appropriateness of providing a public sewer, to take into account the extent to which it was practicable for any adverse effects caused by the current drainage arrangements to be overcome otherwise than by the provision of public sewers, and the cost of so doing.
The defendant agency allowed the Bent Hill residents’ appeal against the claimant’s decision, and determined that the claimant was under a duty to provide a public sewer. That initial determination was later quashed (see: [2000] PLSCS 227 and [2002] PLSCS 20), but the agency reached the same conclusion on a redetermination of the matter. It rejected the claimant’s recommended solution partly because of the lack of any power to insist that residents connect to a communal plant, and partly because of costs issues not fully determined by the claimant that called into question the economic practicability of such a scheme.
The claimant brought further judicial review proceedings, contending that the agency had: (i) breached the rules of natural justice by failing to provide the claimant with copies of letters sent to the agency, providing evidence of the residents’ reasons for considering a private plant impracticable; (ii) wrongly applied the practicability test; and (iii) erred in failing to obtain independent advice on costing.
Held: The claim was allowed.
1. The agency should have provided the claimant with copies of the residents’ letters. The letters set out detailed reasons, not advanced before the first determination, for the residents’ objections to a private scheme, and the agency should have given the claimant the opportunity to comment upon their contents. Its failure to do so was a procedural flaw that rendered the decision-making process unfair.
2. The agency had erred in taking into account the fact that, under the existing legislation, it had no power to insist that the residents connect to a communal plant. The practicability of a private treatment scheme could not depend upon the absence of power in the agency to enforce its use, otherwise the bare unwillingness of residents to co-operate in the provision of a private scheme would always be decisive. If a sewerage undertaker was not under a duty to provide a public sewer, then it was a matter for the residents concerned as to whether they wished to join a communal scheme or continue to rely upon their individual arrangements for the disposal of sewage.
3. The agency had been entitled to take into account the fact that costs issues had not been fully determined by the claimant; it had not been obliged itself to seek independent advice on cost-effectiveness before making its decision. Its role had been to resolve the dispute, and it had been fully entitled to consider the material submitted on both sides as to cost of the rival schemes and to conclude that it was not satisfied as to the costings advanced by the claimant.
Beverley Lang QC (instructed by the solicitor to Anglian Water Services Ltd) appeared for the claimant; Gerard Clarke (instructed by the solicitor to the Environment Agency) appeared for the defendant.
Sally Dobson, barrister
