Sewerage — Public sewers — Duties of sewerage undertakers — Environment Agency determining that respondent sewerage undertaker under duty to provide public sewerage — Determination quashed — Agency appealing — Whether agency erring in approach to ambit of duty — Whether agency taking account of irrelevant consideration — Section 101A of Water Industry Act 1991 — Appeal dismissed
The respondent was a sewerage undertaker within the meaning of the Water Industry Act 1991. It was the duty of the appellant agency to determine disputes between sewerage undertakers and owners or occupiers of premises as to whether the undertaker was under a duty to provide a public sewer. The relevant duty was contained in section 101A of the 1991 Act, inserted into that Act by the Environment Act 1995. Section 101A(1) required sewerage undertakers to provide new public sewerage to serve “premises in a particular locality” if certain conditions were satisfied, including, by section 101A(2)(c), that the drainage of any premises gave rise to such adverse environmental effects that it was appropriate to provide a public sewer for the purposes of “the premises in question”.
The respondent decided that it was not under a duty to provide new public sewerage to three villages in its area, and that it should provide sewerage only to certain parts of a fourth village. The residents of each village applied to the agency for determinations.
The agency considered that the effect of section 101A was that if the section 101A(2)(c) condition were met in respect of any of the premises in a particular locality, then a public sewer had to be provided to serve all premises in that locality. It further found, in respect of one of the villages, that a private treatment plant proposed as an alternative to public sewerage did not meet the practicability test in section 101A(3)(e) because residents would be unwilling to co-operate over such a plan. It concluded that the respondent was obliged to provide a public sewer to serve each of the four villages.
A claim by the respondent to quash those decisions was allowed on the grounds, inter alia, that the agency had: (i) misconstrued section 101A; and (ii) erred in its approach to the practicability test, by accepting that residents could impose a duty on the respondent to provide a public sewer by refusing to co-operate between themselves. The agency appealed.
Held: The appeal was dismissed.
1. The construction of section 101A applied by the agency was overly rigid and liable to produce irrational results, such as imposing a duty to provide public sewers in cases in which they were not needed. Although the phrase “the premises in question” in section 101A(2)(c) clearly referred back to “premises in a particular locality” in section 101A(1), it was not self-evident that the latter phrase meant all premises in that locality. It could, and should, be taken as capable of referring to some premises only, according to the exigencies of the case. It referred to those premises, within a particular locality, being considered for public sewerage by the statutory undertaker, and the section 101A(1) duty accordingly applied to those premises only. That construction was supported by the absence of the definite article in section 101A(1), which referred only to “premises” in a locality, not “the premises”.
2. It was not for the respondent to show that residents were willing, as well as able, to provide a site for a private plant. To treat agreement among the residents as a sine qua non of a private scheme’s practicability effectively put the provision of public sewerage at the residents’ choice, an approach rightly condemned by the judge. It followed that the residents’ unwillingness to co-operate had been an irrelevant consideration taken into account by the agency, and the judge had been right to quash its determination on that basis.
Gerard Clarke (instructed by the solicitor to the Environment Agency) appeared for the appellant; Beverley Lang QC (instructed by the solicitor to Anglian Water Services Ltd) appeared for the respondent.
Sally Dobson, barrister
