The Supreme Court issued its decision in the case of Barratt Homes Limited v Welsh Water in December 2009, ending a long running litigation to clarify the extent of rights to connect to sewerage infrastructure under the Water Industry Act 1991. The principal issue concerned the extent of a property owner or developer's right to determine the point at which their private drain or sewer will connect to a public sewer. However, the narrow point of legislative interpretation addressed by the court highlights a more fundamental issue associated with the relationship between planning authorities and sewerage undertakers in England and Wales and the proper control of drainage of new developments.
Barratt Homes Limited obtained planning permission for 98 houses and a school at a site in Monmouthshire. The permission was subject to a suspensive condition, which prohibited development until a scheme of foul drainage and surface water drainage had been submitted to and approved by the planning authority, and required its implementation before any of the units were occupied.
Barratt wanted to connect to an existing public sewer at a specified point and served notice on the statutory sewerage undertaker, Welsh Water, under section 106 of the Water Industry Act 1991. Welsh Water determined there was insufficient capacity to accommodate the development at Barratt's preferred connection location, indicating an alternative connection point outwith the developer's control that required the connection to be made through land owned by a third party.
In raising an appeal to the Supreme Court, Welsh Water sought to establish that a sewerage undertaker has a right to refuse to permit connection when they consider that the proposed site is unsuitable. The court had to consider whether the undertaker's right to object to 'the mode of construction or condition' of the sewer as being ' prejudicial to the sewerage system' as conferred by section 106 of the 1991 Act, permitted an objection to the point of connection to the public sewer.
The Supreme Court upheld the earlier decision of the Court of Appeal, finding that the 1991 Act confers no express right on the undertaker to select the connection point or to refuse permission to connect with the sewer on the ground that the proposed connection point was open to objection for any reason. In doing so, it relied upon case law which establishes the right to connect to a public sewer as an "absolute right", whereby the undertaker cannot refuse to permit connection on the basis that the additional discharge into the system will overload it. The burden of dealing with such additional discharge falls upon the undertaker in performance of its statutory duties and not the developer.
Contrastingly in Scotland, connection to the public sewer is governed by section 12(3) of the Sewerage (Scotland) Act 1968, entitling the authority to specify the mode and point of connection, and the associated cost is borne by the developer. Although both the 1991 Act applicable to England and Wales and the 1968 Act applicable in Scotland seek to consolidate the same 19th century public health legislation, there is no equivalence in the public interest protection that underpins the Scottish right to specify a point of connection to safeguard the operation of existing sewerage infrastructure.
In England and Wales, no objection can be taken by a sewerage undertaker to connection with a public sewer on the grounds of lack of capacity of the sewer at the preferred connection point. The only way of achieving a deferral of the absolute right of a developer to connect to existing sewer infrastructure, to give the sewerage undertaker a reasonable opportunity to ensure that the sewer will accommodate the increased loading from a new connection, is through the planning process. Consequently the planning authority must take steps to ensure that there is no development until the existing sewerage system can accommodate the proposed development. This may be by imposition of a Grampian condition, as the County Council sought to impose in the Barratt case, although this relies upon both the enforceability and the enforcement of a Grampian condition being effectively secured.
A sewerage authority right of veto was considered as part of the package of measures to be introduced under the Flood and Water Management Bill 2009, but rejected. A new section in the Bill, 106A, now proposes that sewerage undertakers should be included in the list of statutory consultees in the approval of SUDS and be notified at the outset of the application process. Such an amendment to the General Development Procedure Order would simply confirm the primacy of the planning authority's role in controlling the effective drainage of new developments.
Planning authorities, developers and funders alike should have regard to the efficacy of Grampian conditions which purport to fulfil this important role.