Specific performance–Contract conditional on vendor obtaining deeds of grant of easements over neighbouring lands to enable services to be connected up to public installations–Condition not satisfied, in respect of surface-water drainage, by a grant in mistaken form which coincidentally permitted a junction with a 9-in pipe nearby at present used for limited disposal of foul sewage–Specific performance refused, deposit ordered to be returned–Judgment involving numerous points of potential importance to developers etc
This was a
claim by Beech Properties Ltd, of Mulcaster Street, St Helier, Jersey, against
G E Wallis & Sons Ltd, of Cosmos House, Homesdale Road, Bromley, Kent, for
specific performance of a contract for purchase by the defendants of Pennington
Place, Southborough, Kent for £540,000. The defendants counterclaimed the
return of the deposit of £54,000 and interest thereon.
A L Price QC
and J M Henty (instructed by Theodore Goddard & Co) appeared for the
plaintiffs, and F M Drake QC and T Coghlan (instructed by Vernor, Miles &
Noble) represented the defendants.
Giving
judgment, WALTON J said: This is a vendor’s action seeking specific performance
of a contract dated March 26 1974 for the sale of property called Pennington
Place, Southborough, Kent, against the purchaser. The purchase price was
£540,000, and the usual 10 per cent deposit was paid to the vendor’s
solicitors, Theodore Goddard & Co, as stakeholders. There is the usual
counterclaim for the usual declaration in relation to this deposit by the
purchaser.
The contract
was conditional, and the conditions had to be performed by September 26 1974.
Mr Price, for the plaintiff vendor, has conceded that time was of the essence
of this date, as it plainly was. The sole question for decision is whether, by
that date, there had been, in the words of clause 14 (c) of the contract:
. . . the
execution of a deed or deeds of grant of easement giving to the purchaser the
right in perpetuity to run from the development site all such foul sewers
surface water drains electricity gas and water conducting media over so much of
the land adjacent to the development site as may be necessary to bring all such
services from the development site to the public supplies or outlets such deed
or deeds of grant of easement to be executed by the freeholder or respective
freeholders of the land in question.
This is a case
where it is necessary to describe the locus in quo in some little
detail, and I shall now proceed to do so by reference to document D1, a plan of
the entire drainage systems of the whole area, which was put in by the
defendant and not challenged by the vendor in any way. To the south of the
relevant site there is another batch of houses, whose precise date I do not
know, but which were
serving these properties, and that foul sewer proceeds first of all to the east
of the development site, and then runs from east to west along a portion of the
development site, and finally turns north in a sweep to a pumping station which
was erected in 1966 or 1967. There run into the pumping station combined drains
coming from land to the west of that station, and the sewage coming from the
site to the south of the development site is there combined with the water
coming in the combined sewers and is pumped under pressure away out to the
west. Proceeding north from the pumping station, there was originally a line of
sewers which connected with the combined drains and were originally, I think, a
combined series of sewers. When the pumping station was erected, the link with
the combined sewers was disconnected and the line of sewers was led into the
pumping station itself. However, this was only, as it were, a spur into the
pumping station, designed for the occasion when the pumping station might be
overloaded or something might go wrong with the electric pumps therein, as a
result of which the pressure would fail, and therefore this spur was put on so
as to enable, under those circumstances, all the sewage and surface water at the
pumping station to flow along the old system. The old system proceeded in a
northerly and slightly easterly direction to an area by now well to the north
of the development site, in which the effluent was disposed of. With the
building of the new pumping station, this system became largely, but not
wholly, disused, and as a matter of pure fact, after the system was built it
was used only for the drainage of a large property known as The Glen, taking
foul drainage only, and subsequently in 1968 another property called Beverley
was built which was presumably difficult to connect to the existing line of
combined drains, and that was also connected to this system. So when our story
begins, this system, which it will be convenient to call the 9-in system because
that is the diameter of the pipes, was taking the sewage from two places only,
The Glen and Beverley, and taking nothing else; although it was capable of
taking an overflow from the pumping station, the evidence is that no such
overflow had in fact yet occurred.
From the
description I have given, it will be seen at once that from the point of view
of development of the site there was no difficulty so far as foul sewage was
concerned. That could quite easily be connected up to the existing foul sewer
starting to the south of the development site, and we are in this case
throughout concerned only with the drainage of surface water from the
development site. In order to procure the fulfilment of the contract condition
in this respect, the vendor obtained two grants of easements over the
properties intermediate between the development site and the disposal area. The
first property belongs to a Mr and Mrs Nicholls, and as to the grant of the
easement over their land, no question arises; it proceeds from one point on
their boundary to another point on it. The second piece of land belongs to Mrs
Dunmall, and to this I shall have to return. Both grants are dated September 6
1974. No question arises in either case to the ability of the grantors to grant
the easement. Now the grant from Mrs Dunmall aimed at proceeding from the
second point on the boundary of Mr and Mrs Nicholls land to the boundaries of
the substantially disused disposal area to which I have already referred at a
point where there was a chamber, or only just short of this chamber (which was
a slight distance inside the water authority’s land), basically a settling tank
in 1974, although it may well have started life as a septic tank, shedding the
necessary pipes for fully effecting this purpose as it grew older and became
more disused. Unfortunately, the terms of this grant were such that the
wayleave thereby granted was to a range of pigsties some little way to the west
of this chamber. As, however, there was in the same locality a chamber which
could improperly but very plausibly be described as a ‘local authority
chamber,’ and as the line of the wayleave on the plan attached to the deed of
grant was the document by reference to which the wayleave itself was granted,
and it was shown as clearly proceeding to the pigsties and not to any other
possible feature, Mr Price judged (correctly) that he would have but little
hope of persuading me that the wayleave was intended to run to a wholly
different point only just short of the water authority’s chamber. I need
therefore spend no further time on the construction of this deed, or upon
dissecting the attempted correction of this mistake (which I judge it to have
been) by a subsequent deed which was, nevertheless, executed after September 26
1974. However, it will be appreciated from the general description of the area
which I have already given that on its way to a point west of the water
authority chamber the wayleave crossed the line of 9-in sewer pipes. I shall
call this ‘the point of intersection.’
Mr Price’s final refined submission was that the combined effect of the
two deeds of grant was to entitle the purchasers to construct a sewer for their
surface water to the point of intersection, and that they then had, under
section 34 of the Public Health Act 1936, a right to connect this sewer into
the 9-in sewer at this point. Accordingly the conditions of clause 14 (c) of
the contract were satisfied, and had been satisfied by September 26
1974–indeed, had at all times been satisfied since the grant of the two easements
on September 6 1974.
These are
truly remarkable submissions. Firstly, no such suggestion to the effect that
the condition had been fulfilled in this manner was ever made by the vendor to
the purchaser at any time prior to September 26; indeed, although such a claim
is indeed foreshadowed in the statement of claim served in this action on
February 20 1975, no such suggestion was ever made at all in the
correspondence, so far as I can trace it, prior to February 20 1976–17 months
after the date by which the condition should have been fulfilled and is in fact
contended was fulfilled. Secondly, I am by no means happy that what the parties
had in mind in clause 14 (c) was anything other than an ‘outlet’ in the popular
sense of the term. I am fortified in this view by observing the steps which the
vendors took to satisfy the condition, namely, although they got it, as a
matter of pure geography, wrong, the obtaining of a deed of grant for an
easement which led to an outlet in this sense. So that if the purchaser is
indeed to be held to its contract, it will be because notwithstanding that it
was not informed at the time precisely how the condition had been fulfilled,
and notwithstanding that the documents tendered to prove fulfilment were
clearly and obviously based upon the premise that an outlet of the nature I
have described had been provided for the purchaser, yet totally unknown to both
purchaser and vendor, the condition was indeed fulfilled. I should not regard a
binding agreement of this nature as one of which I ought properly to decree
specific performance. The purchaser might well have to pay damages for breach
of the agreement at law, but it appears to me that it would be most inequitable
to force specific performance of it upon him. Thus refusing specific
performance, I would be entitled under the Law of Property Act 1925, section 49
(2), to order a return of the deposit: but I apprehend that this would not
invalidate the contract or deprive the vendor of his right to damages,
following my own decision in Node Estates Ltd v Omertec Engineering
Ltd (1976).
I think,
however, that in spite of this lame conclusion it would be right to summarise
the course of the negotiations over the disposal of surface water as contained
in the documents shortly as follows. The first scheme for the run-off of
surface water was that it was going to the River Medway,
of a stream which eventually discharged into that river. This idea was pursued
at least from the letter of May 6 1974 from Henry Osborne Associates, chartered
architects and planners, who had been concerned with the site for some time,
doubtless originally on behalf of the vendor, but had later been engaged as
architects by the purchaser. It was pursued from that date, with variations
(such as the reconstruction of the existing pond) until at least July 30 1974,
when at a meeting between Henry Osborne Associates and the planning officers of
the Tunbridge Wells District Council a second possible solution was outlined,
namely the laying of a new surface water drain, following the line of the
existing foul sewer and continuing further to the water authority’s old septic
tanks and from thence along a further pipe direct to the major stream, thereby
taking advantage of the water authority’s statutory powers. The suggestion at
this stage, it must be clearly borne in mind, was that there would be a new
surface water pipe all the way to the water authority’s land, and indeed one on
from that land to the main stream. It was realised that it would be necessary
to drain the two houses, The Glen and Beverley, which the existing system
served, into fresh septic tanks, but this would be a comparatively trifling
problem. On August 6 1974 the Tunbridge Wells District Council (as agents for
the Southern Water Authority) wrote to say that they had no objection to the
principle of this scheme, but that it would require ‘detailed agreement.’ In the light of what subsequently happened,
it made the doubtless well-meant but in the event unfortunate suggestion that
on investigation it might be found that the length of sewer from the site to
the water authority’s land could be materially reduced: that is to say, by
connecting up with the existing 9-in sewer at some point south of that land.
However that may be, it was realised that if easements could be provided across
Mr and Mrs Leslie’s land and Mrs Dunmall’s land to the water authority land,
the condition would have been satisfied, and on August 30 1974 Theodore Goddard
wrote to the purchaser’s solicitors as follows:
The local
authority have confirmed that they accept this alternative method of disposing
of surface water from the site, and by producing easements to enable the water
to be passed through the land of the Leslies and Mrs Dunmall our client has
satisfied the condition in the contract.
Of course, the
vendor had done no such thing, for the reasons already noticed, certainly not
in the way intended. On September 4 1974 Mr Scott-White, of Scott-White &
Hookins, consulting engineers, who had been retained by the purchaser, wrote to
the Tunbridge Wells District Council in the following terms:
The
alternative proposal to the surface water is to construct a new sewer to
connect into an existing local authority storage tank which is situated below
the pumping station. The capacity of this tank, together with its outfall to
the river, is unknown and therefore a survey will have to be made. Who would be
responsible for carrying out the survey and who would be responsible for the
construction of the new drainage work and any up-grading of the existing
system?
On September
12 the Tunbridge Wells District Council replied as follows:
The
alternative proposal may well be preferable, but it will demand further survey and
investigation. The points which, inter alia, require attention are (a)
the structural and hydraulic adequacy of the tanks and outfall; (b) whether the
route of the proposal can be shortened by linking into the pipeline north of
the pumping station; (c) arrangements for the disposal of the drainage from the
adjoining dwellings. The council would expect your clients to carry out any
necessary investigation and bear the cost of all necessary works. I would,
however, be prepared to assist in the practical aspects of the survey, and
subject to my being satisfied with the proposals, I would recommend that an
agreement under section 187 of the Public Health Act be entered into for the
eventual taking over of the sewers by the council.
The next move
was that the vendor instructed BMMK & Partners, a firm of consulting
engineers, to act on its behalf, and that firm, acting with commendable speed,
had a report on the discharge of surface water from the site ready the day
after they had been instructed. However, acting with that speed, they made
mistakes in the terms of that report. Among other matters, they misapprehended
the course of the 9-in sewer, and produced a plan showing it as continuing past
the pumping station to at least a point south thereof, which it is convenient
to call point A. From this moment on, for a considerable period of time, both
BMMK and Mr Spashett, an architect in the office of Geering & Colyer, the
estate agents acting on behalf of the vendor, were under the impression that it
was possible to connect with the 9-in sewer at this mythical point. Mr Spashett
lost no time in writing to the Tunbridge Wells District Council, which he did
on September 25 1974. The nub of that letter is as follows:
I would,
therefore, be most grateful if you would please confirm (a) that the existing
surface water disposal system is a local authority sewer, and (b) that the
connection as shown on BMMK Drawing 4746/01 for the drainage of the development
site is acceptable to your authority.
Where Mr
Spashett got the idea that the 9-in system was a surface water disposal system,
he was totally unable to explain in the box. The ‘connection as shown’ was,
unfortunately, to the mythical point A. On October 1 1974 Mr Spashett wrote a
second letter to the Tunbridge Wells District Council in the following terms:
Following our
discussions regarding the above, we understand that you are of the opinion that
the existing council sewer between the points A and B shown on the drawing
4746/01 prepared by BMMK & Partners is not adequate to take the outfall
from the development site. You will recall that BMMK investigated this at the
council’s suggestion that this might be a more economical way of arranging the
outfall. However, we accept what you say, and we therefore propose to revert to
the attached plan. The whole of the new sewer would be run in 300 mm pipe. The
gradients have been checked and are more than adequate.
This letter,
and the plan enclosed with it, suggested of course a further alternative, which
had not previously been discussed, and for which there were certainly no
easements available to the vendor. This fresh scheme was, however, approved by
the council by a letter of October 2. It is, incidentally, to be remarked that
Mr Spashett was wholly unable to give any coherent explanation of how it came
about that he wrote the letter of October 1 in apparent complete contradiction
of his letter of September 25 without there having been, according to him, any
contact between himself and the council in the meantime. This must remain an
intriguing puzzle, as neither of the two council representatives concerned
could throw any light on it. By now, of course, one is well past the September
26 1974 deadline. Misconceptions, however, still lingered on. Theodore Goddard
wrote on October 9 to the purchaser’s solicitors reiterating that there was a
foul sewer which discharged at the mythical point A, and more surprisingly,
‘The whole of this part of the old installation is designated for surface water
disposal.’ However, when the purchaser’s
solicitors pressed the point that point A was mythical, they were sharply told
by Theodore Goddard that this assertion:
. . . clearly
indicates a profound misunderstanding of the facts. Our client has obtained
easements to lay a new surface water drain which will not involve any junction
with an existing sewer.
So even as
late as October 22 1974, the way in which it was alleged that condition 14 (c)
had been satisfied was by means of easements which enabled a new surface water
drain to be laid which would ‘not involve any junction with an existing
sewer.’ The action was in fact started
on that very day. I think it was about this time that the Southern Water
Authority
the Tunbridge Wells District Council were merely acting as their agents in
negotiating terms upon which the surface water arising from the site could be
discharged over the Southern Water Authority land. But on February 28 1975 the
Southern Water Authority made it clear to the Tunbridge Wells District Council
that they were not happy about the possibility of flooding if the water was in
fact discharged on their land, and that there was a special point as regards
surface water originating on the highway:
Further to
the recent meetings between members of our staff, I write to confirm that with
regard to the proposed development I raise no objections to the roof drainage
in the properties being allowed to connect to the disused section of the foul
sewer, such as the surface water discharges over the existing 2-acre land
treatment area, but as mentioned by yourself, I am concerned that properties or
land downstream of the erection area may be flooded if we permit the road
drainage to discharge to this system as well. As there is no agreement with the
highway authority in accordance with section 21 of the 1936 Public Health Act
enabling them to connect to this system, I would be grateful if you would
communicate with the developers and tell them that they should negotiate with
the highway authority for your area so as to enable satisfactory arrangements
for the disposal of road drainage from the development.
All this left
the purchaser more than somewhat mystified as to what was actually happening,
and on March 4 1975 Mr Scott-White again wrote to the Tunbridge Wells District
Council asking, in substance, whether the council’s attitude was still
accurately reflected in the letter of September 12. Before the council replied
to that letter, in view of the Southern Water Authority’s letter, they wrote on
March 21 1975 to Mr Spashett saying that in view of the attitude of the
Southern Water Authority they were no longer able to support the
previously-agreed solution in so far as it related to highway drainage. The
reply to Mr Scott-White’s letter was dated March 21 1975, and the vital
paragraph read:
Reverting to
your letter and copies of previous correspondence attached, other than for the
specific detail outlined in the third paragraph of my letter dated September 12
1974 and listed in subparas (a), (b) and (c), the facts stated in that letter
still apply. The reason for deleting the specific detail is that depending on
the ultimate solution achieved, these facts may or may not be relevant. The
basic problem at present is highway drainage and the fact that the Southern
Water Authority are not prepared to accept highway drainage into the public
sewers without an agreement with the highway authority.
So that even
at that date, the position was the simple one that so far as the council were
concerned they had approved the scheme in principle, but it had not been
finalised. Moreover, the Southern Water Authority having raised the point about
surface water originating from the highway, if the consent of the Southern
Water Authority to the connection was required, it was not possible at all in
respect of all the surface water in question.
To complete
the history very briefly, on May 2 1975 Geering & Colyer wrote to the
Southern Water Authority putting forward an amended scheme prepared by BMMK
& Partners, together with certain calculations relating to the flow of
surface water in the whole of the system then proposed, which were stated to
have been ‘agreed’ by the Tunbridge Wells District Council. This scheme involved
a connection at a point actually on the 9-in sewer to the north-east of the
pumping station. The calculations purported to show that the 9-in sewer could
take all the surface water under the conditions that the rainfall was not worse
than what is called a one-year storm. Consent to these proposals was given by
the Tunbridge Wells Borough Council on behalf of the Southern Water Authority
on May 9 1975. I gather that the Southern Water Authority were not particularly
happy with the scheme, but felt that their freedom of action had been somewhat
curtailed by reason of the approvals in principle given by their agents the
Tunbridge Wells Borough Council on their behalf. Finally, on February 20 1976
Geering & Colyer submitted a fresh proposal, namely that the connection
should be made at the point of intersection of the wayleave and the 9-in
pipe–the proposal which is now relied upon in this action–the connection being
from a 12-in pipe into the 9-in pipe. This was agreed in principle by the
Tunbridge Wells Borough Council on February 25 1976. It is therefore plain as a
pikestaff that the conditions of clause 14 (c) of the contract had not been met
by September 26 1974, unless the local authority could have been made to accept
a solution which was never put to them until February 20 1976 (nearly 17 months
later) and which, as matters stood on September 26 1974, involved a
proposal–namely the use of a part of the 9-in drain–which they had up to that
point declined to accept otherwise than ‘in principle.’
I come back
now to the precise terms of clause 14 (c) of the agreement. Picking out the
relevant words, the agreement was conditional upon ‘the execution of a deed of
grant of easement giving to the purchaser the right in perpetuity to run from
the development site all such . . . surface water drains . . . over so much of
the land adjacent to the development site as may be necessary to bring . . .
such service(s) from the development site to the public . . . outlet.’ What is meant here, in connection with this condition,
by (i) ‘surface water’ and (ii) ‘public outlet’? I do not think that there is any difference
between the parties over the scope of ‘surface water’: it includes all water
arising on the site and running off therefrom in the course of nature, including
drainage from roofs, impermeable areas, and roadways. Indeed, the calculations
of the experts on both sides of surface water run-off have been made on this
basis, and no word was directed to either expert to suggest that this was not
perfectly proper or otherwise than in strict accordance with the terms of the
agreement. As regards ‘public outlet,’ not much time was devoted to discussing
precisely what this meant, but I think that it must have meant at least a
public outlet of size sufficient to take all the surface water which was going
to be generated by the development site, and which the purchaser was to be
entitled to use as of right. I do not think that any more restricted definition
will meet the obvious requirements of the case. It would be no use offering the
purchaser an outlet which was too small, or which he might or might not be able
to use.
Now, in my
judgment, neither of these two requirements was met. On the question of
capacity, there is a regrettable conflict of evidence between Mr Maggs of BMMK
& Partners on the one hand and Mr Scott-White of Scott-White & Hookins
on the other. I have no doubt that I must prefer the evidence of Mr
Scott-White, which was not only much more convincing in itself, but was founded
upon observations actually made by him (admittedly together with an assistant,
but the kind of measurements which he made could not have been effected
single-handed) and was checked by taking levels back to the original bench
mark, to which he closed within 0.003 of a metre. The observations upon which
Mr Maggs relied were not made by him but by members of his staff, and while I
give them all credit for being careful and conscientious, it is quite
impossible to understand how they could have missed the obvious feature of a
wall, giving a steep and pronounced drop along the line of the 9-in pipe; nor
have I any evidence as to how they fared when (if they did) they closed their
measurements. The result is that, in my opinion, not only is it unsound
engineering practice to lead a 12-in pipe into a 9-in one, which was freely
conceded; it is established that the 9-in pipe would not have been sufficient
to carry the volume of surface water expected at peak periods from the
development site. In other words, the outlet was not an adequate outlet. Mr
Price sought to meet this possible difficulty in his way by saying that this
might be very
using their statutory powers under section 22 of the Public Health Act 1936 to
enlarge the diameter of the 9-in pipe. Doubtless; but I do not think that this
is what was contemplated as a satisfaction of the condition. A developer has to
live with a water authority, and for him to commence their relationship over a
site by presenting the water authority with a sizeable bill for a totally
unnecessary piece of engineering is hardly the best way to achieve a good
rapport. But this is peripheral; I interpret ‘outlet’ as a ‘sufficient’ outlet,
and the outlet here in my judgment was not, on the evidence, going to be
sufficient.
Secondly, was
the connection at this particular point one which the purchaser was entitled as
of right to make? I answer this question
also in the negative. One may start a consideration of this problem, as Mr
Price did, with a consideration of the Public Health Act 1956, section 14, but
I do not think that that carries one very much further. It confers no
individual right on any individual. Moreover, it has been repealed by section
14 (1) of the Water Act 1973, although this in substance only substitutes the
water authority as the body liable. I think one has to go straight to section
34. I read subsection (1):
Subject to
the provisions of this section, the owner or occupier of any premises, or the
owner of any private sewer, within the district of a local authority shall be
entitled to have his drains or sewer made to communicate with the public sewers
of that authority, and thereby to discharge foul water and surface water from
those premises or that private sewer: Provided that nothing in this subsection
shall entitle any person . . . (b) where separate public sewers are provided
for foul water and for surface water, to discharge, directly or indirectly, (i)
foul water into a sewer provided for surface water; or (ii) except with the
approval of the local authority, surface water into a sewer provided for foul
water. . . .
Now it is
obvious that the right thereby given is not an absolute, but a qualified,
right: ‘Subject to the provisions of this section.’ That refers principally to subsection (3). In
limine, however, it is very difficult to say what is meant by the words
‘where separate public sewers are provided for foul water and for surface
water’ in proviso (b). Earlier, the section has referred to sewers ‘within the
district of a local authority’; now this is to be read as a reference to a
water authority and its area (Water Act 1973, section 14 (2)), and these areas
are considerably larger in all cases than the local authority areas. Can it be
that because there is a surface water sewer in one part of the area, and a foul
sewer in an entirely different part of the area, the proviso comes into
effect? Fortunately, I do not, I think,
need to discuss this problem. It appears to me that the 9-in sewer, although at
the present time only used for foul sewage, was originally provided for both
foul and surface water, and that, although it is now only as a matter of fact
used for foul sewage, is still provided for both, in that it is possible for
water from the pumping station, both foul and surface, to be discharged into it
when required. I cannot therefore regard it as a sewer ‘provided’ for foul
water alone. It is in my judgment a sewer provided for both foul and surface
water, but at the moment actually only used for foul, although at any moment it
may be required to take a combined mixture. Accordingly, in my judgment there
is no point on proviso (b) which would assist the defendant.
However, it
does appear to me that, wide as the words of subsection (1) may be, and for the
moment ignoring the opening qualification, they do not confer upon an
individual the right to connect his sewer to the water authority’s sewer at any
point which he may choose. In most cases, of course, the matter will be quite
academic. There will be the water authority’s sewer, going along the road; a
new house is built in the road; and quite obviously and clearly the owner will
expect to have a right to drain into that sewer, and it would be very
difficult, assuming that there are no problems under the proviso to subsection
(1), to imagine a set of circumstances where the water authority would be
entitled to say that he must not connect to that sewer but to some other sewer.
Even so, if the new house was built at a crossroads and there were available sewers
in both roads, I can see no reason why the owner should be entitled to drain
into the sewer of his choice if the water authority required him to drain into
the other, which might, for example, well be a relief sewer expressly provided
for the district because the other sewer was approaching capacity. Similarly, I
see no reason why the owner is entitled to connect at point X rather than an
adjacent point Y, if the water authority requires him to connect at Y. I think
that I am only saying here in less felicitous language what has already been
said in very much more forthright terms by Romer and Stirling LJJ, particularly
the latter, in Wilkinson v Llandaff & Dinas Powis Rural District
Council [1903] 2 Ch 695; see also Halsbury’s Laws of England, 3rd
ed, vol 31, p 211, n (1), where all the relevant cases are collected.
Of course, it
may be said that in the present case the water authority, through its agent the
Tunbridge Wells District Council, raised no objection in principle, and finally
no objection tout court, to a connection with the 9-in sewer. This is
perfectly true: the local authority, through its officers, was trying to be as
helpful as it possibly could be to assist the proposed development. But I do
not think that at the end of the day this counts for anything. What is equally
clear is that the water authority, the principal, was far from happy about the
proposed connection. Again, it is true to say that, so far as one can see, its
unhappiness had its roots in financial, rather than in engineering, matters.
But it was definitely unhappy, and only finally agreed to the proposal–one
which it made perfectly clear was not to be taken as a precedent, hence by
implication asserting its rights to deny connection with the 9-in sewer to any
developer–because it felt that its position had to some extent been compromised
by the actions of its agents. The whole of this factual history has, however,
to be read against the background that the calculations which were presented to
the local authority, and which the local authority checked only in the sense of
redoing the calculations and not in the sense of checking the assumed data,
were themselves inaccurate. As they led to the conclusion that the 9-in pipe
was adequate to take the projected flow, naturally the local authority never
gave any consideration to what the position would have been if the reverse had
been the case, as I find that it undoubtedly was. In so far as it is a matter
of inference from the surrounding circumstances of the case, I am prepared to infer
that the local authority would certainly not have agreed (if only for the
reason that it would obviously have involved their principal, the Southern
Water Authority, in additional expense), and that beyond all conceivable
question the Southern Water Authority itself, if presented with the correct
data, would never have agreed. But, be that as it may, neither principal nor
agent ever did agree, for the simple reason that the correct facts were never
presented to either.
Therefore it
appears to me that on this ground the claim of the plaintiff that the
conditions of clause 14 (c) of the agreement of March 26 1974 were satisfied by
September 26 1974–or at all–must fail. I now proceed, however, to consider the
implications of subsection (3) of section 34. This subsection of course
requires notice of the intended connection to be given to the water authority.
Mr Drake sought to submit that for this reason alone the suggested outlet was
not sufficient to satisfy the conditions of clause 14 (c), since no such notice
had been given by September 5 1974, or indeed at all. Of course, case after
case in the books stresses the importance of the giving of such notice; but if
this had been the only point at issue, I should have been against Mr Drake’s
submission. An outlet would nevertheless have satisfied the conditions of that
subsection even though
through, before it could actually be used, if there could be no conceivable
doubt as to the outcome of the procedure. The subsection provides, however,
that the water authority may refuse to permit the connection to be made. It is,
of course, perfectly true that such refusal can only be on a limited number of
grounds, and that if such refusal is not based on reasonable grounds it may be
overruled by a court of summary jurisdiction. In the present case, the grounds
include the ground that the mode of construction of the sewer proposed to be
connected to the water authority sewer is such that the making of the
communication would be prejudicial to the water authority’s sewer. Now I do not
know what the water authority would have done if application had been made to
them to connect a 12-in sewer to their existing 9-in sewer and they had at the
same time been in possession of the fact that what was proposed was of the same
general nature as pouring a quart into a pint pot. I have the shrewdest
possible suspicion that they would have objected violently, and none the less
because the quart into pint pot could have been solved by the expenditure of
money by them in enlarging the existing 9-in sewer into a 12-in. Since the
question was never posed to the water authority, it never answered it. But
whether I am right or wrong in my deduction as to what their attitude would
have been, it is quite impossible for anybody to predicate with certainty that
it would not have been such as I think it would. Nor is it possible to
predicate with any certainty that if the water authority had taken that view,
any court of summary jurisdiction would have overruled their determination. The
conclusion is that in spite of Mr Price’s silken oratory, it is quite
impossible for it to be predicated even now–and still less was this possible on
September 26 1974–that beyond all question the purchaser would have been
entitled to connect its sewer to the water authority’s existing 9-in drain at
the point of intersection, or indeed at all. So for this complementary reason
also, the conditions of clause 14 (c) were not satisfied on September 26 1974,
or indeed subsequently.
Mr Drake also
had a third point, based on the question of highway drainage. It will be
recalled that some of the surface water drainage arising from the development
site arises from water draining off the highways. One of the points–indeed, the
main point–taken by the water authority when refusing in its letter of February
28 1975 to permit the discharge was that this in part related to surface water
arising from the highway, and that there was no agreement under section 21 of
the Public Health Act 1936 in existence. Subsection (1) of that section reads
as follows:
Subject to
the provisions of this section, a county council and a local authority may
agree that (a) any drain or sewer which is vested in the county council in their
capacity of highway authority may, upon such terms as may be agreed, be used by
the local authority for the purpose of conveying surface water from premises or
streets; (b) any public sewer vested in the local authority may, upon such
terms as may be agreed, be used by the county council for conveying surface
water from roads repairable by the county council.
It does not,
however, appear to me that this point was a good one. The term ‘surface water’
is not really defined in the Act (though see section 90 (1) for a partial
definition), but I see nothing in any of the provisions of the Act to limit the
width of that term, or to restrict the rights of any person under section 34 so
as to exclude the drainage of surface water from roadways forming part of his
premises. I can well appreciate why the Southern Water Authority might have
wished to have the matter dealt with by means of such an agreement as is
specified in section 21, because doubtless any such agreement would contain
financial provisions in its favour; but I cannot myself so construe the
provision of section 21 as to exclude from the ambit of section 34 highway
surface water. However, for the reasons already given, I propose to dismiss the
action, and allow the counterclaim.
