Drains and sewerage – Provision of public sewer – Section 101A of Water Industry Act 1991 – Claimant deciding duty to provide sewer arising – Dispute referred to defendant regarding timing of provision – Claimant subsequently purporting to withdraw earlier decision as to existence of duty – Defendant making order as to timing of provision of sewer – Whether claimant entitled to withdraw earlier decision – Whether defendant entitled to make order in respect of timing – Claim dismissed
The claimant was a statutory sewerage and water undertaker under the Water Industry Act 1991. In 1998, it received complaints from residents of the Freshwater East area of Pembroke, Wales, which the local authority communicated on their behalf, concerning the sewerage system serving their homes. The claimant commissioned a firm of independent consultants to determine whether a duty to provide a public sewer arose under section 101A of the Act. Initially, it concluded that the duty did not arise. However, it subsequently reviewed its decision, following which it revised its view. In 2005, it informed the local authority that a duty under section 101A did arise.
Soon after, it had a further change of heart, and indicated that it was contemplating a further review. It sent a circular to the residents outlining concerns over the cost-effectiveness of providing public sewers. The local authority referred the dispute to the defendant for determination, pursuant to section 101A(7). In February 2007, the claimant sent a further letter stating that its 2005 decision that Freshwater East qualified for a public sewer was “formally withdrawn”. The defendant determined the dispute on the basis that it related only to the timescale for the provision of a public sewer within section 101(7)(c), and not the fact of its provision within section 101(7)(a). It ordered that a public sewer be provided by the end of March 2010.
The claimant brought a claim for judicial review of that decision. The central issue was whether, and in what circumstances, the claimant was entitled to revoke or withdraw a decision, communicated to interested parties, to the effect that a duty to provide a public sewer in a particular locality had arisen under section 101A.
Held: The claim was dismissed.
No principle of public law, or provision in the 1991 Act, precluded the claimant, in all circumstances, from reviewing, withdrawing or revoking a decision under section 101A of the Act. The claimant was entitled to review a decision, and thereafter to revoke or withdraw it, if it was satisfied that its earlier decision was susceptible to being quashed on conventional public law grounds if a person with a sufficient interest sought a quashing order. Further, there was no requirement for such a withdrawal or revocation to have the sanction of the defendant in order to be effective. The defendant’s role was to determine disputes between the claimant and persons affected by its decisions and, in any given case, the persons affected might accept the withdrawal or revocation.
The decision as to whether the conditions in section 101A(2) were satisfied, thus giving rise to a duty to provide a public sewer, called for an exercise of judgment on the part of the decision maker. The decision maker had to: (i) identify the relevant parts of any guidance issued by the secretary of state under section 101A(4); (ii) identify all other considerations that were relevant to the decision in question; and (iii) reach a decision by taking account of the guidance and relevant considerations, giving such weight to each as it thought reasonably appropriate. The claimant had not demonstrated any failure to have regard to relevant considerations in reaching its 2005 decision. The considerations it claimed to have overlooked, such as the likely take-up by house owners and the environmental cost-benefit analysis, had been taken into account in that decision. It had established no legal basis upon which it was entitled to withdraw or revoke its 2005 decision to the effect that a duty to provide a sewer existed. Accordingly, the defendant had acted lawfully in setting a time by which that sewer should be provided.
Where a dispute had been referred to the defendant by an interested person under section 101A(7), the defendant should ordinarily resolve it. If, after the referral of a dispute as to timing, the claimant purported to revoke or withdraw its decision regarding the existence of a duty to provide a sewer, the defendant should ascertain whether the opposing party wanted to challenge the lawfulness of that decision by way of judicial review. If not, the defendant should ordinarily proceed to determine the dispute as to whether the duty to provide a sewer arose.
Maurice Sheridan (instructed by the legal department of Dwr Cymru Cyfyngedig) appeared for the claimant; Gerard Clarke (instructed by the legal department of the Environment Agency) appeared for the defendant.
Sally Dobson, barrister
