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 Water Industry Act 1991 authorising refusal of permission on stated environmental grounds – Claim dismissed
In 1999, land in Abergavenny was allocated for residential development. The defendant sewerage undertaker objected to the allocation on the ground that the existing sewerage system and waste-water treatment works that serviced the vicinity of the site were overloaded. It asserted that improvements to those facilities might be included under its capital investment programme for the period 2000-05 and objected to any development in advance of the planned remedial works.
Despite that objection, development remained a real possibility and, in August 2005, the claimant applied for planning permission to construct 120 dwellings on adjacent land. The application form specified that the issue of sewerage would be subject to further consideration. On receipt of the application, the local planning authority consulted the defendant, which replied that the proposed development would overload the existing public sewerage system and objected to it in order to protect the health and safety of the existing residents and to ensure that the environment would not be harmed.
The claimant issued a claim under CPR 8. It sought: (i) a declaration that it was entitled to have the drains and sewers issuing from the development connected to the defendant’s public sewers in accordance with a notice that it had served, under section 106 of the Water Industry Act 1991, to discharge foul waste; and (ii) injunctions requiring the defendant 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 defendant contended that, under section 106(4) of the 1991 Act, it was entitled to refuse a connection to be made where it considered that the mode of construction or condition of the drain or sewer was such that the connection would harm the sewerage system.
Held: The claim was dismissed.
On its proper construction, section 106(4) allowed an undertaker to refuse permission on the ground that the connection would be prejudicial to the sewerage system as a whole.
As a matter of language, the phrase “mode of construction” could include the point at which the drain or sewer connected with or communicated with the public sewer. If the making of a connection at a particular point would be prejudicial to the sewerage system as a whole, there was no reason why it could not be said, as a matter of language, that the mode of construction of the drain or sewer had caused the prejudice. Further, it was objectionable that the statute should be interpreted in such a way that the undertaker could not refuse a connection so as to prevent potentially deleterious environmental consequences. If the claimant’s interpretation was correct, the undertaker could not refuse a connection on the ground of location or capacity, irrespective of the potential harm to the environment. Although it might be possible, through planning control, to seek to avoid environmental damage, there was no reason to interpret the statute so as to remove from the undertaker an important regulatory power of control for the benefit of the public: Beech Properties Ltd v GE Wallis & Sons Ltd [1977] 1 EGLR 142; (1976) 241 EG 685 considered.
Although the undertaker might carry out works so as to alleviate or remove any environmental damage consequent upon a connection at a particular location, a refusal by that undertaker did not necessarily mean that a connection could not be made. Section 106(6) of the 1991 Act allowed the owner or occupier of a private drain to test whether the undertaker’s refusal was reasonable.
The reasonableness of any refusal could be referred to Ofwat, whose director was ideally placed to judge the reasonableness of a refusal on the ground of location and/or capacity. If he were to consider that a refusal was unreasonable, he could direct the undertaker to allow the connection.
Anthony Porten QC and Steven Gasztowicz (instructed by Darwin Gray, of Cardiff) appeared for the claimant; Maurice Sheridan (instructed by Geldards LLP, of Cardiff) appeared for the defendant.
Eileen O’Grady, barrister