Waste-water disposal — Statutory undertaker — Water Industry Act 1991 — Charging scheme — Whether scheme falling within powers of Act — Whether common law remedy available — Appeal allowed
The appellant provided water and sewerage services to the respondent in its role as statutory undertaker under the Water Industry Act 1991. It operated a charging scheme under which sewerage charges for sites with a metered water supply were calculated on the assumption that the volume of potable water being discharged into the sewer was the same as that recorded by the meter at the point of entry. The appellant’s charging scheme provided for discretionary allowances in respect of leaks and for abatements of sewerage charges in certain other circumstances.
The respondent investigated the water and waste-water use at various army barracks and concluded that, because of pipe leakage, a significant amount of the water that entered the sites was not returning as waste water to the sewers. It sought a repayment of sewerage charges. However, the appellant maintained that the claim did not fall within its rebate policy.
The respondent brought a claim in restitution to recover the alleged overpayment. The appellant argued that its charges accorded with a charging scheme that it had the power to impose under sections 142 and 143 of the Act. It further argued that the court had no jurisdiction to hear the claim, having regard to section 18(8) of the Act, since the respondent’s sole remedy would be an enforcement order from the director general of water services in his supervisory role. The respondent contended that the statute did not permit the appellant to charge for a service that it did not in fact provide, so that charges had to be calculated by reference to the volume of waste-water services actually provided.
Preliminary issues were tried as to the court’s jurisdiction to hear the case and as to whether the appellant could charge for sewerage services on the basis of the volume of water entering the sites. The Technology and Construction Court determined that: (i) the court had jurisdiction; and (ii) that the appellant was not so entitled: see [2006] EWHC 66 (TCC); [2006] PLSCS 39. The appellant appealed.
Held: The appeal was allowed.
The charges imposed by the appellant on the respondent were lawful and the respondent had no right, by a private law claim for restitution, to recover the money allegedly overpaid, although section 18(8) did not exclude the right to bring such a claim if there was a genuine claim for restitution, for example by virtue of the faulty operation of a meter designed to measure the volume of supply: Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42; [2003] PLSCS 268 considered.
A charge based upon the amount of water supplied to the site was not beyond the powers of the Act. The services provided by an appointed sewerage undertaker, which might not be the same as the water undertaker, in the context of the statutory scheme as a whole were not limited to the acceptance and treatment of waste water. Although “services” were not defined, section 219 of the Act made it clear that “services” included “facilities” and that “sewerage services” included the disposal of sewage and any other services required to be provided by a sewerage undertaker for the purpose of carrying out its functions. Since April 2000, a sewerage undertaker had been obliged to fix charges by reference to the volume of water supplied in the circumstances identified by section 144A(9).
Vincent Nelson QC and Bernard Doherty (instructed by the legal department of Thames Water Utilities Ltd) appeared for the appellant; Jeffery Onions QC (instructed by Wragge & Co LLP, of Birmingham) appeared for the respondent.
Eileen O’Grady, barrister
