Barratt Homes Limited v Dwr Cymru Cyfyngedig

A property owner’s statutory right to connect a private drain or sewer to a public sewer is subject only to the restrictions specified by the Water Industry Act 1991. A sewerage undertaker cannot select the connection point or refuse a connection because the proposed point is unsuitable or the public sewer lacks capacity.

The expression “mode of construction” in section 106(4) concerns the private drain or sewer. It does not encompass its proposed connection point. A refusal under section 106(4), or notice that the undertaker will make the connection under section 107(1), must be given within the applicable statutory period. Those time limits are strict.

Barratt Homes Limited was developing 98 houses and a primary school near Llanfoist. It proposed connecting its private foul sewer to a nearby public sewer operated by Dwr Cymru Cyfyngedig. Dwr Cymru objected because the proposed connection would increase loading upstream of a capacity-constraining pipe. It offered a more distant connection that would impose additional costs on the developer.

Wyn Williams J upheld Dwr Cymru’s position in [2008] EWHC 1936 (QB). The Court of Appeal reversed that decision in [2008] EWCA Civ 1552. The principal issue before the Supreme Court was whether section 106 of the Water Industry Act 1991 entitled the developer or the sewerage undertaker to determine the connection point. A further issue concerned whether the statutory 21-day period for refusing permission was mandatory.

1. Appeal dismissed by a majority. Lord Phillips, with whom Lord Saville, Lord Walker and Lord Clarke agreed, held that section 106 of the Water Industry Act 1991 did not entitle a sewerage undertaker to select the connection point or refuse a connection because it objected to the developer’s proposed point.

2. On its natural construction, section 106 gives a developer a right to connect a private drain or sewer to a public sewer. That right is subject to the undertaker’s power under section 106(4) to refuse because of deficiencies in the private drain or sewer, and its power under section 107 to undertake the connection work itself. The “drain or sewer” and its “mode of construction” in section 106(4) refer to the developer’s private infrastructure. Those words cannot naturally encompass the proposed point of connection.

3. The right to connect cannot be refused merely because the additional discharge would overload the public sewer. Section 94 places responsibility for accommodating the consequential loading upon the undertaker. By contrast, works used exclusively by a development ordinarily fall to the developer. The statutory scheme expressly permits the undertaker to require different construction in specified circumstances, but then makes the undertaker bear the additional expense.

4. The legislative history, environmental consequences and wider statutory context did not justify departing from the natural meaning of section 106. The real difficulty was the developer’s ability to connect on short notice to a sewer lacking capacity, rather than its choice between connection points. Any necessary deferral appeared achievable through planning control. The Court observed that sewerage undertakers and OFWAT should be consulted in that process.

5. The 21-day period under section 106(4) and the 14-day period under section 107(1) must be strictly applied. The relevant notices remove an otherwise vested right to connect, and breach after such a notice may attract criminal liability.

6. Lady Hale dissented on the construction of section 106. Relying on legislative history, she considered that “mode of construction or condition” included the manner and place of connection. On that interpretation, OFWAT would determine whether the undertaker’s refusal was reasonable.

1. United Kingdom Supreme Court: By a majority, dismissed Dwr Cymru’s appeal and upheld the Court of Appeal’s construction of section 106 of the Water Industry Act 1991.

2. Court of Appeal: In [2008] EWCA Civ 1552, reversed the first-instance decision and held that the undertaker could not refuse the proposed connection because of its location.

3. High Court: In [2008] EWHC 1936 (QB), Wyn Williams J found for Dwr Cymru and held that the undertaker could object to the proposed connection point.