Public utilities – Sewers and drains – Connection – Residential development – Planning permission granted for development – Appellant water undertaker refusing connection to public sewer at respondent developer’s proposed location on ground of risk of overload to public sewerage system – Whether appellant entitled to refuse connection at proposed location and provide connection at alternative location – Appeal dismissed
In 2005, the respondent applied for planning permission for a residential development of 98 houses and a school. It proposed that the development should be connected to the public sewer at point X in the road immediately adjoining the northern boundary of the development site. The appellant water undertaker considered that the proposed development would overload the existing public sewerage system at that point, thereby creating a risk of overspill. Planning permission was granted subject to a condition requiring the submission and approval, prior to the commencement of development, of a scheme of foul water and surface water drainage, to be completed before the buildings were occupied.
The respondent served a notice on the appellant, under section 106 of the Water Industry Act 1991, of its proposal to connect to the sewer at point X. By its reply, under section 106(3), the appellant insisted that the connection should be at point Y, located between 300m and 400m to the east of point X; this would require the construction of a new connecting sewer at the respondent’s expense. The appellant concreted around the sewer at point X to prevent a connection. The local planning authority subsequently discharged the planning condition at the respondent’s request without consulting the appellant.
The respondent brought a claim for a declaration as to its entitlement to connect at point X and an injunction requiring the appellant to remove the concrete. That claim was dismissed at first instance (see [2008] EWHC 1936 (QB); [2009] PLSCS 18) but the Court of Appeal reversed the decision: see [2008] EWCA Civ 1552; [2009] 1 EGLR 55; [2009] 11 EG 120. It held that that the grounds on which connection could be refused under section 106 were narrow and related solely to the mode of construction or the condition of the connecting drain, such that a water undertaker could not refuse a connection to its existing system, or insist on a connection at an alternative location, on the ground of overloading. The appellant appealed.
Held (Lady Hale dissenting): The appeal was dismissed.
The right to connect to a public sewer afforded by section 106 of the 1991 Act and its predecessors was an absolute right. The sewerage undertaker could not refuse the connection on the ground that the additional discharge into the system would overload it. The burden of dealing with the consequences of that additional discharge fell directly on the undertaker. Under the scheme of the legislation, where connection of a development to a public sewer required consequential works to accommodate the increased load on the public sewer, the cost of those works would fall exclusively on the undertaker, although the expense would be shared by all who paid sewerage charges to it, including those who occupied the houses in the development: Brown v Dunstable Corporation [1899] 2 Ch 378, Smeaton v Ilford Corporation [1954] Ch 450 and Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42 applied.
Section 106 did not, on its natural meaning, entitle the undertaker to refuse permission to connect with a public sewer on the ground that the intended point of connection was unsatisfactory. The “drain or sewer” referred to in section 106(4) was the private drain or sewer that the developer proposed to connect to the public sewer, and the words “mode of construction” could not be extended to include the point of connection: Beech Properties Ltd v GE Wallis & Sons Ltd [1977] 1 EGLR 142; (1976) 241 EG 685 considered. Consequently, section 106 entitled a developer to connect its private drain or sewer to the public sewer, subject only to the undertaker’s rights: (i) under section 106(4), to give notice refusing connection on the ground of deficiencies in the condition of the private drain or sewer; and (ii) under section 107, to give notice that it would itself make the connection. The undertaker was not entitled to select the point of connection because of its dissatisfaction with the proposed point.
Per curiam: Although the 1991 Act afforded no such right, a case could be made for deferring the right to connect to a public sewer in order to give the sewerage undertaker a reasonable opportunity to ensure that the public sewer would be able to accommodate the increased load. The only way of achieving such a deferral was through the planning system, and it was desirable that both the undertaker and Ofwat should be consulted as part of the planning process. More thought might have to be given to the interaction of planning and water regulation systems under modern law to ensure that the different interests were adequately protected.
Lord Pannick QC, David Holgate QC, Maurice Sheridan and Jessica Simor (instructed by Geldards LLP) appeared for the appellant; Anthony Porten QC, Steven Gasztowicz QC and Clare Perry (instructed by Darwin Gray, of Cardiff) appeared for the respondent.
Sally Dobson, barrister
