Barratt Homes Ltd v DWR Cymru Cyfyngedig (Welsh Water)

Section 106 of the Water Industry Act 1991 confers a right to connect drains to public sewers, subject to narrow statutory grounds of refusal. An undertaker may object where the mode of construction or condition of the connecting drain prejudices the sewerage system, but may not refuse or relocate a connection merely because the public sewer may be overloaded. A modest discretion may exist where the proposed point is infeasible or plainly unsuitable. The 21-day response issue was left open. European waste-water obligations do not authorise the court to rewrite section 106 or transfer infrastructure costs from the undertaker to the developer.

Barratt Homes was developing 98 houses and a school near Abergavenny. It wished to connect to the public sewer at point X. Dwr Cymru objected because of possible downstream overspill, but approved a connection at point Y, approximately 300–400 metres away.

Barratt commenced Part 8 proceedings seeking a declaration that it could connect at point X and an injunction requiring removal of concrete placed over the sewer. Wyn Williams J held that the undertaker could require an alternative location, but left open the effect of the late counter-notice and did not decide the European-law issue. The appeal concerned those three questions.

Appeal allowed. Carnwath LJ gave the leading judgment. Lawrence Collins LJ and Pill LJ agreed. Relief was to be considered following judgment.

1. Scope of the statutory right. Section 106 of the Water Industry Act 1991 gives an owner or occupier the right to communicate with the public sewers, subject to the statutory exclusions. The grounds of refusal concern the mode of construction or condition of the connecting drain or sewer. They do not include overloading of the public sewer. That construction was supported by the statutory history, including Smeaton v Ilford Corporation [1954] 1 Ch 450, and was treated as settled by Marcic v Thames Water Utilities [2004] 2AC 42.
2. Location of the connection. The expression mode of construction does not confer control over the location of the connection. Parliament could have given an undertaker that power but did not do so. The reasoning of Walton J in Beech Properties Ltd v G E Wallis Ltd [1997] EGCD 75 was rejected as obiter and did not justify requiring a new sewer to a point 300 metres away. Wilkinson v Llandaff RDC [1903] 2 Ch 695 concerned materially different statutory wording. Pill LJ added that a modest discretion might exist where the proposed point was infeasible or plainly unsuitable, but the demand made here was outside it.
3. Twenty-one-day limit. Carnwath LJ considered that a flexible, context-sensitive approach might apply where a short delay caused no prejudice, but left the issue open. Pill LJ was similarly inclined to regard a short delay as non-fatal, having regard to the absence of prejudice and the possible health and environmental consequences of invalidating the counter-notice.
4. European law. The Urban Waste Water Treatment Regulations 1994 and Directive 91/271/EEC might be relevant in planning, but did not require restrictions on new connections or alter the statutory allocation of improvement costs. The court followed Re Friends of the Earth [2007] Env LR 7.
5. Planning context. The statutory connection right did not override planning conditions. Planning mechanisms could require drainage works and protect the public interest, without enlarging the undertaker’s powers under section 106.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 1552; appeal allowed.
• High Court of Justice, Queen’s Bench Division, Cardiff City Registry — Wyn Williams J held that the undertaker could require connection at an alternative location, left the 21-day issue undecided, and found it unnecessary to determine the European-law issue.