Dwr Cymru Cyfyngedig (Welsh Water) v Barratt Homes Ltd (Rev 1)

A statutory entitlement to connect a private drain or sewer to a public sewer under Water Industry Act 1991, section 106, does not of itself confer a right to damages. A claimant cannot obtain damages in nuisance where the alleged interference is essentially the sewerage undertaker’s failure to perform that statutory duty and there is no independent common-law nuisance.

Further, a physical obstruction is not an operative cause of loss merely because it accompanies the statutory dispute. Where the proposed drain was never connected, the effective cause of costs incurred in dealing with sewage was the refusal to permit connection, not the concrete used to block an unconnected spur.

Barratt Homes gave notice of its intention to connect a housing and school development to Dŵr Cymru’s public sewer. Dŵr Cymru refused to allow the proposed connection and later blocked a spur pipe with concrete. Earlier proceedings established that Barratt had been entitled to connect at its chosen point and that Dŵr Cymru had no power to disconnect under section 109 of the Water Industry Act 1991.

In this damages action, the High Court refused to strike out claims in nuisance and trespass to goods, but struck out the negligence claim except for physical damage to, and reinstatement of, the pipe. Dŵr Cymru appealed the first ruling and Barratt cross-appealed the second. The central issues were whether section 106 could found a private nuisance claim and whether the concrete blockage caused Barratt’s claimed economic loss.

1. Appeal allowed; cross-appeal dismissed. The court struck out the nuisance and trespass claims, and upheld the dismissal of the negligence claim except insofar as it concerned the cost of repairing or reinstating the damaged pipe.

2. Per Lloyd Jones LJ, with Pill LJ agreeing, section 106 of the Water Industry Act 1991 gave Barratt an entitlement to connect but did not create a private right to damages for breach. The alleged nuisance was not free-standing. Its essential basis was Dŵr Cymru’s statutory obligation to permit connection and receive sewage. Allowing damages in nuisance would therefore circumvent the statutory policy that section 106 did not confer compensation for breach.

3. Lady Justice Arden agreed that, because Barratt had not appealed the ruling that no statutory claim for damages lay, it could not use nuisance to undermine that ruling in these proceedings. She reserved her position on the broader question whether nuisance might otherwise have been available. Pill LJ considered that the concession did not prevent the court deciding that broader question, but agreed that the statutory scheme disclosed no intended private damages remedy.

4. Independently, the concrete was not an operative or effective cause of Barratt’s claimed economic loss. The spur had never been connected to Barratt’s drainage system. The concrete was incidental to the statutory dispute; the effective cause of the expense of tankering sewage was Dŵr Cymru’s refusal to permit connection and discharge.

5. The court also stated, obiter, that if a nuisance action had otherwise been maintainable, interference with drainage could affect the enjoyment of development land. Nuisance did not invariably require a use of land by the defendant or an emanation onto the claimant’s land. A balancing exercise concerning reasonable user did not arise once Dŵr Cymru’s conduct had been established to be unlawful.

• Court of Appeal (Civil Division) — allowed Dŵr Cymru’s appeal and dismissed Barratt’s cross-appeal: [2013] EWCA Civ 233 .
• High Court, Queen’s Bench Division, Cardiff District Registry — on 28 February 2012, Judge Seys Llewellyn QC refused to strike out the nuisance and trespass claims, but struck out the negligence claim save for physical damage to, and reinstatement of, the pipe.
• Earlier proceedings — Barratt obtained injunctive relief concerning its entitlement to connect under section 106 of the Water Industry Act 1991. Dŵr Cymru’s subsequent appeal to the Supreme Court was unsuccessful.