Mustafa v London Borough of Enfield & Anor

For the purposes of section 59 of the Building Act 1984, satisfactory provision for drainage may extend beyond pipes within a building or its curtilage. It may include satisfactory arrangements for conveying foul water into an appropriate sewer or lateral drain, including the connection between the building’s pipe and that system.

A local authority may therefore serve a section 59 notice on the building owner where foul water is connected to a surface-water sewer rather than a foul-water sewer, even if the connection lies outside the owner’s land and the owner did not cause the defect. The statutory scheme focuses on whether satisfactory drainage provision exists, not on fault. A possible power to allocate costs under section 102(3) was left undecided.

The appellant owned a building containing three flats. Foul water from the flats passed through pipes connected, beneath an adjoining alleyway, to a surface-water sewer rather than a foul-water sewer.

The London Borough of Enfield served a notice under section 59 of the Building Act 1984, requiring the appellant to connect the foul-water pipe to a foul drain. The Highbury Corner Magistrates’ Court dismissed his appeal under section 102. The appellant appealed by way of case stated, arguing that the drainage within his property was satisfactory, that the defect was outside his curtilage, and that responsibility lay with the local authority or water company.

The central issue was whether section 59 extended to the arrangements connecting a building’s waste-water pipe to the appropriate sewer.

The appeal was dismissed. The Magistrates’ Court had been entitled to uphold the notice under section 59 of the Building Act 1984.

1. Meaning of satisfactory drainage. Section 59(1)(a), read with section 59(6), concerns satisfactory provision for the conveyance of refuse water from a building. That provision is not confined to physical pipes within the building or its curtilage. It can include the arrangements for connecting the pipe carrying foul water to an adequate sewer or lateral drain.
2. Application. A connection conveying foul water into a surface-water sewer rather than a foul-water sewer is capable of constituting unsatisfactory drainage. The fact that the connection is outside the building’s curtilage, or that the owner did not create the defect, does not prevent service of a section 59 notice.
3. Statutory context. Section 21(4) of the Act supported this interpretation because it contemplated drainage arrangements connecting a building’s pipe to a sewer. The approach was also consistent with Chesterton Rural District Council v Ralph Thompson Limited [1947] KB 300, although the mere existence of a sewer connection does not itself establish satisfactory drainage; the circumstances must be considered.
4. Responsibility and costs. The statutory scheme was directed to safeguarding public and environmental health. Prima facie, the owner could be required to bear the cost of necessary works, whether the connection had been made by a developer or a sewage undertaker. The possible power under section 102(3) to require another person to contribute to the cost was not decided because it had not been raised or determined below.
5. The Water Industry Schemes for Adoption of Private Sewers Regulations 2011 addressed responsibility for private sewers, not the distinct question whether the connection formed part of satisfactory drainage under section 59.

The question stated by the Magistrates’ Court was answered in the affirmative.

1. High Court (Administrative Court): The appeal by way of case stated from the Highbury Corner Magistrates’ Court was dismissed. The Magistrates’ Court had been entitled to find that the drainage provision was unsatisfactory and to uphold the section 59 notice.
2. Highbury Corner Magistrates’ Court: The appellant’s appeal against the notice was dismissed.