Environment Agency determining that applicant sewerage undertaker under a duty to provide public sewerage – Applicant seeking to quash decision – Whether agency applying policy inflexibly – Whether agency erred in approach to ambit of duty – Section 101A of Water Industry Act 1991 – Application allowed
Anglian Water (the applicant) was the sewerage undertaker within the meaning of the Water Industry Act 1991. The Environment Act 1995 introduced new provisions into the Act that imposed duties upon sewerage undertakers relating the provision of public sewerage in areas previously unserved in that way. The Environment Agency (the agency) was invested with a duty 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 applicant decided that it was not under a duty to provide first-time sewerage to three villages in its area, because the statutory conditions in section 101A of the 1991 Act were not met. In relation to a fourth, it decided to provide first-time sewerage only for certain parts of the village. The residents of each village applied to the agency for determinations. The agency decided that the applicant was under a duty to provide a public sewer to serve each of the four villages.
The applicant sought to quash those decisions, contending that the agency unlawfully fettered its discretion by adopting an inflexible policy discouraging the use of cesspools. It was further submitted that the agency applied a policy of requiring public sewerage whenever an existing private system could not adequately be improved, or, in the alternative, that its decisions were informed by a general disposition against non-public sewerage, leading to a refusal to approve the replacement of one form of private sewerage with another. The applicant further contended that the agency erred in its approach to the “practicability” test in section 101A(3)(e) of the 1991 Act, by: (i) imposing upon the applicant the burden of proving that land was available for a private package treatment plant; and (ii) accepting that residents could impose a duty on the applicant to provide a public sewer by refusing to co-operate between themselves. The applicant also challenged the agency’s approach to the ambit of the section 101A duty, contending that it had unjustifiably enlarged that duty by reference to the concept of the “locality”. It was submitted that the duty was to provide a public sewer to be used for the drainage of premises, rather than of the locality.
Held: The application was allowed.
1. The agency accepted that it was erroneous to take an approach to section 101A that precluded a sewerage undertaker from assessing private alternatives that were not “like for like” and comparing them with a public sewer solution.
2. The real question was whether, in making its determinations, the agency gave any real consideration to the cesspool option, or whether its cesspool policy was inflexibly applied. The cesspool option was simply ruled out by the agency, without consideration of whether, in the particular circumstances of the relevant villages, exceptional circumstances existed, rendering the use of cesspools an appropriate solution. Its policy was therefore inflexibly applied.
3. The agency erred by imposing a burden upon the applicant that section 101A did not sanction. Parliament did not state that there was a prima facie obligation upon the sewerage undertaker to provide public sewerage where the drainage of premises was having an adverse effect on environment or amenity. The obligation to provide a public sewer for such premises only arose where it was appropriate. The conclusion on whether it was appropriate was, in turn, informed by a consideration of the “practicability” test in subsection 3(e). Furthermore, the agency proceeded upon the assumption that the residents of affected premises could, simply by refusing to co-operate amongst themselves, impose a duty upon sewerage undertakers to provide them with public sewerage. That approach overlooked the agency’s regulatory and enforcement powers. The agency could not rule out private provision as inappropriate simply on the ground that it could only be brought about by coerced compliance.
4. The agency erred in adopting the approach that, if any premises satisfied all the tests in section 101A(2) and the balancing exercise in section 101A(3), then the duty to provide first-time sewerage applied to all the premises in the locality. In considering the appropriateness of providing a public sewer to serve the entire locality, regard was to be had to section 101A(3). That subsection made it clear that the agency or sewerage undertaker must consider, in addition to the question of whether the provision of public sewerage to directly-affected properties was appropriate, the wider question of whether it was, in the circumstances, appropriate to extend public provision further. Subsections (3)(c), (d) and (e) contemplated that it might be appropriate to require the provision of public sewerage to certain premises within a locality, but not to all premises. Subsection (3) made it clear that the criteria themselves involved a consideration of the circumstances as they affected all the premises within the locality. It was not intended that the conclusion had to be provision for all or provision for none.
Beverley Lang QC (instructed by the solicitor to Anglian Water Services Ltd) appeared for the applicant; Gerard Clarke (instructed by the solicitor to the Environment Agency) appeared for the respondent.
Sarah Addenbrooke, barrister
