Dwr Cymru Cyfyngedig v Environment Agency of Wales

When determining whether a sewerage undertaker must provide a public sewer, the Environment Agency must consider the statutory conditions and weigh the relevant factors in Water Industry Act 1991, section 101A. It may include additional premises within the particular locality, including premises not causing actual harm, where adverse effects are likely, provided the undertaker has notice and a proper evidential opportunity to address them.

Judicial review ordinarily proceeds on the material before the decision-maker. Fresh evidence is admissible only exceptionally, including where it establishes a jurisdictional or procedural error, misconduct, or a comparable fundamental defect. A lawful general policy favouring public sewers must nevertheless be applied with regard to the individual circumstances. The Agency’s decisions were not irrational or unlawfully reached.

The claimant, a sewerage undertaker, challenged two decisions made by the Environment Agency of Wales under section 101A of the Water Industry Act 1991. The Agency had determined that public sewers should be provided for localities at Llantilio Pertholey and Rhoseberse Road, despite the claimant’s preference for private sewerage solutions, including cesspools.

The claimant alleged defective inquiry, material errors of fact, failure to consider statutory factors and costs, irrationality, and inflexible application of the Agency’s cesspool policy. It also sought to rely on fresh evidence concerning geology, drainage and costs.

1. Fresh evidence. The claim was determined on the evidence before the Agency. The principles in R v Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584 provide an approved and sensible basis, although judicial review is developing and exceptional departure may be justified for justice and fairness. The disputed engineering evidence would require the court to resolve the merits rather than review the Agency’s decision, and was therefore not admitted.
2. Additional premises. Section 101A permits premises beyond those in the original application to be included in the duty. Where the Agency proposes to include them, it should notify the undertaker and seek relevant information. In both localities the claimant had been put on notice, had supplied information, and the Agency was entitled to conclude that adverse effects were actual or likely.
3. Statutory assessment. The Agency considered the relevant matters under section 101A(2) and (3), including geology, the number of premises, costs, environmental and amenity effects, and alternative means of overcoming those effects. The weighing of those factors was a matter for the Agency. The decisions were not Wednesbury unreasonable.
4. Errors and costs. The Agency’s conclusions were reasonably open on the material before it. Certain cost comparisons were imperfectly expressed, and the Agency made an unsatisfactory conclusion about properties outside the relevant locality, but neither matter materially infected the decisions. The proper comparison at Rhoseberse Road was between options for all premises in the locality, on which public sewerage was plainly cheaper than the necessary cesspool provision.
5. Cesspool policy. The Agency’s general preference for public sewers over cesspools was lawful. Its consideration of rural conditions, tanker movements, sustainability, costs and the individual circumstances showed that the policy had not been applied inflexibly.
6. The application to quash both decisions was dismissed. The claimant was ordered to pay the defendant’s costs, to be assessed in the normal way.

First-instance judicial review proceedings. The application to quash the Environment Agency’s decisions was dismissed, with costs to the defendant.