The decision of the Supreme Court in the case of Barratt Homes Limited v Welsh Water  UKSC 13, in December 2009 marks the end of a long running litigation seeking to clarify the extent of rights under the Water Industry Act to connect to sewerage infrastructure. The case principally addressed the extent of a property owner or developer's right to determine the point at which his private drain or sewer can connect to a public sewer. A more fundamental issue is however highlighted through the narrow point of legislative interpretation treated by the court, on the proper control of drainage of new developments and the relationship between sewerage undertakers and planning authorities in England and Wales.
Making a connection
Planning permission obtained by Barratt Homes in Monmouthshire for 98 houses and a school was subject to a suspensive condition which required implementation of a particular scheme before the occupation of any of the units was permitted. The scheme prohibited commencement of development until a foul drainage and surface water drainage scheme had been submitted and approved by the local planning authority. Barratt hoped to connect to an existing public sewer and with this in mind served notice on Welsh Water who, as statutory sewerage undertaker, were to be informed in terms of section 106 of the Water Industry Act 1991. Welsh Water was however of the view that insufficient capacity was available at Barratt's chosen connection point and so suggested an alternative site where connection could be made. Unfortunately, the alternative site was owned and under the control of a third party. Welsh Water raised an appeal to the Supreme Court to establish whether, in circumstances where a sewerage undertaker considers a connection point to be unsuitable, they have the right to refuse to permit connection. The narrow point of interpretation which the court had to consider was whether an objection to the point at which the connection to the public sewer is to be made is permitted by 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.
The Supreme Court found that there is no right conferred by the 1991 Act on the statutory undertaker to select the point of connection or to refuse permission to connect to the sewer on the basis that the proposed point of connection is for some reason open to objection. In doing this the Supreme Court relied upon case law which establishes an "absolute right" of a landowner or developer to connect to a public sewer, meaning that the undertaker cannot refuse to permit the connection, even where the sewer will be overloaded by the additional discharge. In performance of its statutory duties the burden of dealing with such additional discharge falls on the undertaker and not the developer.
Connection in Scotland
Contrast this with the position in Scotland, where section 12(3) of the Sewerage (Scotland) Act 1968 governs connection to the public sewer. This provision expressly entitles the authority to govern the mode and point of connection and provides that the associated cost, including any ransom created in relation to third party land, is borne by the developer. Although legislation in both England and Wales and Scotland seeks to consolidate the same 19th century public health legislation, the public interest protection which underpins the right in the 1968 Act in Scotland to specify a point of connection in order to safeguard the operation of existing sewerage infrastructure finds no equivalent in the 1991 Act applicable to England and Wales.
The role of planning authorities
It follows that no objection can be taken by a sewerage undertaker in England and Wales 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 in order to give the sewerage undertaker a reasonable opportunity to make sure that the public sewer will be able to accommodate the increased loading that a new connection would bring is through the planning process. In other words, it is the planning authority and not the sewerage undertaker who must take steps to ensure that there is no commencement of development until the capacity of the existing sewerage system is demonstrated to be sufficient to accommodate the proposed development. This may be by imposition of a "Grampian" condition, which prevents the start of development until certain specified events have taken place, often works being completed on third party land. The County Council sought to impose a condition of this type in the Barratt case, although the efficacy of this approach 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. The Bill (which applies only to England and Wales) now proposes a new section 106A to the 1991 Act which provides that sewerage undertakers should be included in the list of statutory consultees in the approval of sustainable drainage systems (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.