Veolia Water Central Ltd v London Fire & Emergency Planning Authority

Where a water company encounters a minor fire-hydrant leak, it may repair or replace the hydrant under section 57(3) only if the statutory conditions identified by the court are met. The notice must report that the particular hydrant has a minor leak and state the intention to repair it. A bare notice of an intention to repair, or a description such as a need for a repack without explaining the leak’s nature or severity, is insufficient. The claimant must reasonably believe that the fire authority will not take reasonably prompt steps to inspect the hydrant and assess whether it may become inoperable before its next inspection, and that failure must in fact occur. The precise satisfaction of those conditions is a matter of evidence.

The judgment concerned the precise form of declaratory relief following the court’s earlier decision concerning responsibility for repairing fire hydrants. The claimant sought a declaration that, where it notified the defendant of an intention to repair a hydrant with a minor leak, and the defendant failed to undertake prompt inspection and assessment, the claimant could carry out the repair under section 57(3) of the Water Industry Act 1991.

The defendant objected that the proposed wording required only notice of an intention to repair and did not require the claimant to describe the nature or extent of the leak. The issue was whether the declaration fairly reflected the qualification imposed by the earlier judgment.

1. Declaration reformulated. The claimant was entitled to a declaration in revised terms. The notice must state that the particular hydrant has, or had on its last inspection, a minor leak, being one that cannot be remedied by tightening the valve or adjustment within the slack angle, and must also state an intention to repair the hydrant.
2. The claimant must reasonably believe that the defendant will not take reasonably prompt steps to inspect the hydrant and satisfy itself that it is unlikely to become inoperable before its next inspection. The defendant must in fact fail to take those steps. If those conditions are satisfied, the claimant may carry out such repair or replacement as is reasonably necessary to remedy the leak, notwithstanding that the defect would not otherwise justify repair or replacement under section 57(3) of the Water Industry Act 1991.
3. A notice must describe the leak as minor. A general notice of an intention to repair, or a notice stating that a hydrant requires a repack without explaining the nature or severity of the leak, does not fairly implement the qualification. Whether the conditions have been met in any individual claim is a matter of evidence.
4. The declaration does not affect the claimant’s separate entitlement to recover repair costs in cases covered by the earlier judgment. The court also stated that it would not have granted the claimant’s broader formulation if that would allow recovery of costs incurred in complying with its duty under section 37 of the Water Industry Act 1991 or Ofwat requirements.

The parties were permitted to check the wording for consistency, and costs remained outstanding.