Residential development – Drains and sewers – Connection – Claimant seeking connection of site to public sewer – Defendant sewerage undertaker objecting that connection would overload and be prejudicial to public sewerage system – Whether respondent entitled to require connection at alternative location – Appeal allowed
In 1999, land in Abergavenny was allocated for residential development. The respondent sewerage undertaker objected on the ground that the existing sewerage system and waste-water treatment works servicing the vicinity of the site land overloaded. It asserted that improvements to those facilities might be included under its capital investment programme for the period 2000 to 2005 and objected to any development in advance of the planned remedial works.
In 2005, the appellant applied for planning permission for a residential development of 98 houses and a school on adjacent land. On receipt of the planning application, the local planning authority consulted the respondent, which replied that the proposed development would overload the existing public sewerage system at point X. It objected to the development in order to protect the health and safety of the existing residents and to ensure that the environment was unharmed. However, it was willing to allow a connection at point Y, which was to the east of the proposed location.
The appellant subsequently made a claim under CPR 8 seeking: (i) a declaration that it was entitled to have its development, including the drains and sewers, connected to the respondent’s public sewers at point X in accordance with a notice served by the appellant under section 106 of the Water Industry Act 1991 in order to discharge foul waste; and (ii) injunctions requiring the respondent to remove the concrete that it had put in place to prevent the connection of such drains and sewers and restraining it from preventing or interfering with that connection.
The High Court held, inter alia, that, under the 1991 Act, an undertaker was entitled to require the connection to be made at an alternative site on the ground that the sewer would be overloaded at the proposed location: [2008] EWHC 1936 (QB); [2009] PLSCS 18. The appellant appealed.
Held: The appeal was allowed.
The respondent was not permitted to object to a connection on the ground that the public sewer could be overloaded. There were strict limits regarding the extent to which the undertaker was able to avoid the deleterious consequences of a connection. If parliament had intended to give it control over the location of a connection, as opposed to its condition and construction, it could have done so, but it had not: Beech Properties Ltd v GE Wallis & Sons Ltd [1977] 1 EGLR 142; (1976) 241 EG 685 and Marcic v Thames Water Utilities [2003] UKHL 66; [2004] 2 AC 42 considered.
It was important to understand section 106 of the 1991 Act in context. A developer was not given free rein to impose the burden of its drainage requirements on the water undertaker. It required planning permission. A responsible planning authority would normally refuse planning permission until they were satisfied that drainage requirements could be resolved to the satisfaction of the relevant authorities. If off-site works were required, they could impose a condition or require an agreement to ensure that such works were carried out at the developer’s expense. That appeared to have been contemplated in the instant case.
It might be necessary to have greater interaction between the planning and water regulation systems under the modern law to ensure that the different interests were adequately protected, given the significant changes that had taken place since the days when predecessor of section 106 first came into existence. However, the fact that something might have gone wrong in the instant case threw neither any doubt on the efficacy of the entire system nor any light on the correct construction of the statute.
Anthony Porten QC and Steven Gasztowicz (instructed by Darwin Gray, of Cardiff) appeared for the appellant; Maurice Sheridan (instructed by Geldards LLP, of Cardiff) appeared for the respondent.
Eileen O’Grady, barrister