Property Notepad - January 2010

2. CONNECTION TO PUBLIC SEWERS

In the case of Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) (2009) the Supreme Court upheld the Court of Appeal's decision that a sewerage undertaker cannot refuse permission for a developer to connect into a public sewer on the grounds that the developer's preferred and intended location is deemed unsatisfactory.

Under section 106(4) of the Water Industry Act 1991, a sewerage undertaker can only refuse permission if it appears that the mode of construction or condition of the private drain or sewer is not to a standard reasonably required by the undertaker, or is such that the proposed connection would be prejudicial to the sewerage system. (OFWAT had ruled some years previously that it was not reasonable to refuse a connection solely on the grounds of lack of capacity in a public sewer, and additional flow into the public sewer could only justify refusal in very specific circumstances, e.g. if a high pressure flow could damage the public sewer.)

The Supreme Court said that the provisions of the Water Act were also to be considered in light of the general requirement to obtain planning permission, and so there was an assumption that permission for a development would generally be refused unless the sewerage undertaker's requirements could be met. However, in this instance the planning authority had, for reasons which were unclear, prematurely discharged (at Barratt Homes' request) the planning condition relating to drainage. Otherwise the dispute might have been avoided.

This case clarifies to some extent developers' statutory rights under the Water Act, but perhaps more importantly highlights the importance of close consultation at the pre-planning stage between developers, planning and water authorities as to proposed connection points, to reduce the risk of subsequent and costly delays and disputes.

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