A developer proposing an estate development, particularly at the financial appraisal stage, will want to know that it can connect the development to the public sewer at the closest point to the development in order to avoid the expense of constructing a lengthy private sewer as part of the exercise. Section 106(1) of the Water Industry Act 1991 provides a general right for the owner or occupier of any premises, or the owner of any private sewer that drains premises, to “communicate with the public sewer of any sewerage undertaker”.
However, section 106(4) of the 1991 Act allows the sewerage undertaker to refuse to permit the communication if it appears that “the mode of construction or condition of the drain or sewer” does not satisfy the standards reasonably required by the undertaker or it is such that the making of the communication would be prejudicial to the undertaker’s sewerage system. Section 106(7) entitles the undertaker itself to make the communication, in which case the developer has to meet the cost.
The main question for the Supreme Court in Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) [2009] UKSC 13; [2009] PLSCS 343 was whether section 106(4) of the 1991 Act entitled the undertaker to refuse permission to connect with a public sewer on the ground that the intended point of communication was unsatisfactory.
There, the developer had obtained planning permission for the construction of 98 houses and a school, and proposed that the development should be connected to the public sewer at a point close to the boundary of the development site. The undertaker was concerned that this would result in an overloading of the public sewer – given its diameter at that point – and insisted that the connection should be made some 300 or so yards further away. The developer sought a declaration as to its entitlement under section 106(1).
The court (Lady Hale dissenting) held that the “drain or sewer” referred to in section 106(4) was the developer’s drain or sewer and that the words “mode of construction” could not be extended to include the point of connection. The right granted by section 106(1) was an absolute right, subject only to sections 106(4) and (7), and the undertaker could not refuse the connection on the ground that the sewer would be overloaded. The burden of dealing with that problem fell directly on the undertaker, albeit that the cost of any consequential works would ultimately be paid by those liable to sewerage charges.
John Martin is a freelance writer
