Dwr Cymru Cyfyngedig (Welsh Water), R (on the application of) v The Environment Agency

A sewerage undertaker may review and withdraw a decision accepting a statutory duty to provide a public sewer. Withdrawal is lawful only where the earlier decision was susceptible to judicial review on ordinary public law grounds, or new circumstances compel withdrawal. The decision-maker must have regard to relevant guidance and all other relevant considerations, but need not give guidance a predetermined weight or use a particular cost-benefit methodology. The relevant considerations include the likely number of premises to be connected. Where a timing dispute is already before the Environment Agency, the Agency should not itself determine the lawfulness of withdrawal as part of that dispute.

The claimant, a sewerage undertaker, had accepted a duty under section 101A of the Water Industry Act 1991 to provide a public sewer at Freshwater East. It later purported to withdraw that decision, while a dispute about the timing of the works was before the Environment Agency under section 101A(7).

The Agency directed the claimant to provide the sewer by 31 March 2010. The claimant sought judicial review and a quashing order, arguing that it could withdraw its earlier decision because relevant considerations had not been taken into account.

1. Withdrawal of statutory decision. A public authority is not generally precluded from reviewing and withdrawing an earlier decision under section 101A. Withdrawal does not require prior sanction by the Environment Agency where affected persons accept it.
2. Lawful circumstances. The claimant could withdraw its decision only if the earlier decision was susceptible to quashing on conventional public law grounds, such as illegality, irrationality or unfairness, or if new circumstances compelled withdrawal. The claimant accepted that formulation and the court agreed.
3. Statutory decision-making. Under section 101A(2)(c), the decision-maker must identify the relevant parts of any Secretary of State guidance, identify all other relevant considerations, and give each such matter the weight reasonably considered appropriate in the circumstances. The guidance need not be followed mechanically or given greater weight than other relevant considerations.
4. Relevant considerations. The likely take-up of the proposed sewer was a relevant consideration, falling within section 101A(3)(b). On the evidence, however, the claimant and its consultants had probably considered it. The claimant also failed to show that its chosen cost-benefit methodology was unlawful. The statute required regard to the costs of providing the sewer, but prescribed no particular methodology, provided the method adopted was rational.
5. Procedure. The claimant had not established a lawful basis for withdrawing its earlier decision. The Agency therefore acted lawfully in determining the timing dispute. Where withdrawal occurs during a timing dispute, the Agency should ascertain whether the opposing party accepts its lawfulness. If lawfulness is contested but no judicial review is pursued, the Agency should ordinarily proceed on the assumption that withdrawal is lawful, unless it considers that it should itself test the issue. These procedural observations were not intended to be inflexible.
6. The application for a quashing order was refused. No declaratory relief was granted.

The judgment determined a first-instance judicial review of the Environment Agency’s determination dated 18 May 2007. The court refused to quash that determination.