R (on the application of Dwr Cymru Cyfyngedig) v Environment Agency of Wales

Inadequate septic tanks at properties in small villages causing environmental damage — Owners applying to be connected to public sewer — Environment Agency ordering water authority to connect all properties in village — Judicial review — Application dismissed Property owners in two villages served by the appellant water authority applied to have their properties connected to the public sewers. The properties in both villages were served by septic-tank systems. The appellant commissioned reports and assessments that identified pollution emanating from a small number of specified properties. The reports concluded that it was not feasible to provide new soakaways for the polluting properties because of geological problems, and that the construction of a public sewer was, on balance, more environmentally damaging than the construction and maintenance of cesspits. A cost analysis also determined in favour of cesspit construction. The property owners referred their applications to the respondent Environment Agency, which found in their favour on the grounds that: (i) cesspits could not provide a long-term, sustainable solution; and (ii) the appellant had underestimated the potential for environmental damage arising from the necessity to empty the cesspits on a regular basis. It therefore ordered the appellant to provide public sewers pursuant to its duty under section 101A of the Water Industry Act 1991. The appellant applied to have that decision quashed on the general grounds that it was irrational or unreasonable. It maintained that the Environment Agency had erred in its application of section 101A(2) and (3) of the Act, in that it had mistakenly believed that if any property were found to require connection to the public sewer, this would give rise to a duty to provide sewers to all the premises in the locality. It claimed that the respondent had therefore failed to carry out the requisite balancing exercise in respect of all the affected properties. Held: The application was dismissed. Although fresh and extensive evidence had been adduced during the proceedings, the court disregarded it in order to avoid deciding the case on its merits rather than acting as a court of review. The court therefore decided the case on the basis of the evidence that had been before the Environment Agency when it had reached its decision. The agency was entitled to determine the dispute on the totality of the evidence with which it had been provided, and the appellant had been put on notice that the respondent was considering properties in the villages other than those specifically mentioned. Based upon the evidence before it, particularly the geological reports, the Environment Agency had been entitled to draw conclusions as to the damage arising from the drainage arrangements at properties other than those specifically mentioned. Its decision to do so was not unreasonable in the Wednesbury sense. On the facts, the agency did not mistakenly assume that it was necessary to provide sewers to all the properties based upon findings relevant to only a few properties, but made its decision on the basis of the totality of the evidence before it. Beverley Lang (instructed by Hugh James Ford Simey, of Cardiff) appeared for the appellant; Stephen Hockman QC and Geoffrey Stephenson (instructed by the solicitor to the Environment Agency of Wales) appeared for the respondent. Vivienne Lane, barrister