Barratt South Wales v Dwr Cymru Cyfyngedig

Under section 106 of the Water Industry Act 1991, a sewerage undertaker may refuse a proposed connection where the mode of construction includes the location of the connection and making it there would prejudice the undertaker’s sewerage system. That prejudice may include increased overloading or environmental harm. The statutory power is not confined to defects in the physical construction or condition of the private drain. A refusal may be reasonable even where improvement works could make the connection possible. Questions concerning the statutory 21-day period, including possible agreement or extension, may involve mixed questions of fact and law and may be unsuitable for Part 8 determination.

The claimant sought declarations and injunctions requiring connection of drains serving a residential development to the defendant’s public sewer under section 106 of the Water Industry Act 1991. The defendant’s letter stated that the connections could be approved only if the foul-water connection was made at a different point, or after specified improvement works. The claimant contended that the letter was a conditional approval, or an invalid late refusal, and that section 106 did not permit refusal based on connection location or sewer capacity. The defendant contended that the letter refused the proposed connection and that increased overloading and environmental detriment were authorised grounds.

1. Nature of the defendant’s letter. In its factual and statutory context, the letter of 26 June 2007 objectively constituted a refusal of the specific connection proposed in the claimant’s notice. It did not amount to conditional approval. The defendant accepted connection in principle, but not at the proposed point without appropriate works.
2. Part 8 issue. The court declined to determine the effect of the 21-day period under section 106(4). Possible interpretations included a strict statutory deadline, a valid late refusal before connection, and extension by words or conduct. The alleged prior agreement also raised potentially contested mixed questions of fact and law. The claim could therefore proceed, if the claimant wished, as a Part 7 claim.
3. Construction of section 106(4). The phrase “mode of construction” was wide enough to include the point at which the private drain or sewer connected with the public sewer. A connection could be refused where its location would prejudice the undertaker’s sewerage system, including by increasing overloading and environmental harm.
4. The court followed and shared the essential reasoning of Walton J in Beech Properties Ltd v GE Wallis and Sons Ltd [1997] EGCD 735, while declining to rely on Wilkinson v Llandaff and Dinas Powis Rural District Council [1903] 2CH 695 because the statutory wording materially differed.
5. The possibility of improvement works did not alter the construction of section 106(4). Their funding might bear on the reasonableness of a refusal, but that issue was not decided. The claimant’s requested relief was refused.