Water Act 1973, section 16(1)(b) — Duty of water authority to provide a public sewer for the drainage of new buildings — Whether authority fulfilled its duty by bringing public sewer to boundary of owners’ estate, although the private sewer with which it was to communicate was at a lower point — Private sewer could not discharge into public sewer without a pump and rising main — Correct interpretation of discretion given to authority by section 16(3)(a) to provide a sewer communicating ‘in such manner and in such place as the authority consider appropriate’ — Held that authority must provide ‘a communicating sewer’, not merely a sewer which the owner can cause to communicate with the private sewer at another point on his land — Appeal from decision of Sir Douglas Frank QC dismissed
This was an
appeal by the Severn Trent Water Authority from a decision of Sir Douglas Frank
QC, sitting as a deputy judge of the Queen’s Bench Division, in favour of the
respondents, William Leech (Midlands) Ltd, owners of land abutting on Ordsall
Road, Retford, Nottinghamshire. The respondents as plaintiffs had claimed a
declaration that, in effect, the authority must provide a public sewer which
communicated with the private sewer on the respondents’ land.
A R Vandermeer
QC and Harry Wolton (instructed by Sharpe, Pritchard & Co, agents for John
Stevenson, of Birmingham) appeared on behalf of the appellants; G E Moriarty QC
and John A R Grove (instructed by Gregory, Rowcliffe & Co, agents for T G W
Dinning, of Newcastle upon Tyne) represented the respondents.
Giving the
first judgment at the invitation of Stephenson LJ, SHAW LJ said: This appeal
raises a short but important point as to the operation and effect of section 16
of the Water Act 1973. By subsection (1) it is provided that:
It shall be
the duty of a water authority to provide any public sewer to be used for
domestic purposes for the drainage of premises in the area:
(a) if the owners or occupiers of the premises
require the authority to provide a public sewer, otherwise than for the
drainage of new buildings which they propose to erect on the premises, and the
conditions mentioned in subsection (2) below are satisfied; or
(b) if the owners of the premises require the
authority to provide a public sewer for the drainage of new buildings which
they propose to erect on the premises and the conditions mentioned in
subsection (3) below are satisfied; or
(c) if the conditions specified in subsection
(4) below are satisfied.
At material
times in the history giving rise to this appeal, the respondent has been the
owner (and is hereafter so referred to) of land abutting on Ordsall Road,
Retford, in Nottinghamshire, while the appellant has been the water authority
(referred to as ‘the authority’) for the area in which that land is situated.
In 1978 the
owner proposed to erect 61 dwelling-houses on the land. A requisition was
accordingly addressed to the authority by the owner pursuant to section
16(1)(b) requiring provision of a public sewer for the drainage of the new
houses the erection of which was contemplated. Some of those houses lay south
of
‘D’ on a plan used in these proceedings. From that point the land dropped down
to the southern extremity of the estate. The private sewer laid by the owner to
serve the new houses was situated at a point denominated by the letter ‘C’ near
the southern extremity of the estate and it was to that point that the sewage was
carried by the force of gravity. The public sewer which then existed terminated
at a point ‘A’ which was north of the point ‘D’ in Ordsall Road. In response to
the owner’s requisition the authority proposed to carry the existing public
sewer southward from ‘A’ to ‘D’, that is to say to bring it to the boundary of
the estate. This of itself could serve no practical purpose, since the private
sewer at ‘C’ lay lower than the land at ‘D’. Thus the contents of the private
sewer at ‘C’ could not discharge from there to ‘D’ without the mechanical
assistance of a pump installed at ‘C’ and a rising main laid from there to ‘D’.
The authority
contends that it has fulfilled its statutory obligation in compliance with the
conditions prescribed in section 16(3). It is there enacted that:
In a case to
which paragraph (b) of subsection (1) applies, the conditions which must be
satisfied are:
(a) that the sewer which the owners of the
premises require the water authority to provide is a sewer communicating (in
such manner and in such place as the authority consider appropriate) with a
private sewer provided by the owners; and
(b) that the owners undertake to meet any
relevant deficit.
It is the
effect and operation of the sentence in parenthesis which is the subject of
contention. The authority asserts that it has fulfilled the duty imposed by
section 16(1)(b) if it brings a public sewer to such place on the land
concerned as the authority ‘consider appropriate’. What it may be necessary to
do in order to provide for the discharge of sewage into that sewer from a
private sewer on the land is the owner’s concern and not that of the authority.
The opposing argument of the owner was that the condition in subsection 3(a)
gave a discretion to the authority to determine, not where the public sewer
communicated with the land, but where it communicated with the private sewer on
the land. If the authority were right, the owner would have to bear the cost of
the rising main as well as the incidental and recurring cost of maintaining that
equipment. If the owner’s contention were right the burden would fall on the
authority.
The owner
claimed a declaration pursuant to their contention. The terse response pleaded
by the authority was that they considered it appropriate to install the sewer
as they proposed, and that, in effect, was an end of the matter on a proper
construction of section 16(3)(a).
When the
matter came before Sir Douglas Frank QC (sitting as a deputy judge of the High
Court) he observed ‘although the main question is a short one of construction,
I find it difficult because I do not think that the provisions of section 16
were thought out adequately’. I express no opinion as to that comment, but in
my view he was clearly right when he went on to say that ‘the words in brackets
although appearing on the face of them to give the authority a wide discretion,
must be construed as limited by the duty imposed by the section.’ He concluded that ‘giving the words in
paragraph 3(a) their literal meaning, the duty is on the authority to cause the
public sewer to communicate with the existing private sewer described in the
owner’s requisition.’
Part II of the
1973 Act beginning with section 9 is headed ‘Functions of Water Authorities’.
Section 14(1) enacts that ‘It shall be the duty of every water authority to
provide . . . such public sewers as may be necessary for effectually draining
their area . . .’. This general duty is supplemented by the particular duty
imposed by section 16. This requires the provision of an effective public sewer
‘communicating’ with a private sewer. This is the overriding obligation. The
manner and place of communication are placed in the discretion of the authority
so long as they provide ‘a communicating sewer’ and not merely a sewer which
the owner can cause to communicate with the private sewer on his land.
The point of
construction is a compact one and neither requires nor lends itself to
elaborate analysis.
The main theme
of the argument for the authority was that the construction adopted by the
learned deputy judge might cast severe financial burdens on water authorities
and did in this case. That may be so, although provision is made to recompense
those authorities for expense and outlay. Such a fortuitous consequence cannot,
however, serve to obfuscate what appears to me to be the plain import of
section 16. No doubt in practice building owners consult in advance with water
authorities and work out a scheme acceptable to both parties. This is obviously
a sensible course. In the present case the lie of the land introduced special
problems, but their existence does nothing to modify the plain statutory duty
of the appellant authority or to relieve them of the obligation to fulfil it.
I would
dismiss the appeal.
DONALDSON LJ:
I agree.
STEPHENSON LJ:
I also agree.
The appeal
was dismissed with costs. Leave to appeal to the House of Lords was refused.
