SC: Lord Phillips of Worth Matravers PSC, Lord Saville of Newdigate, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Clarke of Stone-cum-Ebony JJSC: 9 December 2009

S 106 of the Water Industry Act 1991 gave a property developer a right to connect its private sewer to the public sewer at a point of its choosing even though such a connection would overload the capacity of the sewer as it currently existed.
The Supreme Court so held (Lady Hale dissenting on that issue) in dismissing an appeal by the defendant, Dwr Cymru Cyfyngedig (Welsh Water), from a decision of the Court of Appeal (Pill, Carnwath and Lawrence Collins LJJ) [2008] EWCA Civ 1552; [2009] Env LR 25 allowing an appeal by the claimant, Barratt Homes Ltd, from a decision of Wyn Williams J [2008] EWHC 1936 (QB) dismissing the claimant?s application for, inter alia, a declaration that it was entitled to have its development at Llanfoist, Abergavenny connected with the public sewers at a point of its choosing.
LORD PHILLIPS PSC said that the right to connect to a public sewer afforded by s 106 of the 1991 Act and its predecessors had been described as an ?absolute right?. The sewerage undertaker could not refuse to permit the connection on the ground that the additional discharge into the system would overload it. The burden of dealing with the consequences of the additional discharge fell directly upon the undertaker and the consequent expense was shared by all who paid sewerage charges to the undertaker: see Ainley v Kirkheaton Local Board (1891) 60 LJ (Ch) 734. S 106 of the 1991 Act gave the developer the right to connect his private drain or sewer to a public sewer subject only to (i) the right of the sewerage undertaker to give notice refusing permission to make the communication on the ground that ?it appears to the undertaker that the mode of construction or condition of the drain or sewer?(a) does not satisfy the standards reasonably required by the undertaker ?? or (ii) the right of the sewerage undertaker to give notice that he would make the connection himself (s 107). The section conferred no express right on the sewerage undertaker to select the point of connection or to refuse permission to make the communication on the ground that the point of connection proposed by the developer was open to objection. The lengthy history of the right to communicate with a public sewer did not suggest that the point of connection had ever given difficulty in practice. The facts of the case did not illustrate that s 106 gave rise to a problem with the point of connection. It illustrated the more fundamental problem that could arise as a result of the fact that no objection could be taken by a sewerage undertaker to connection with a public sewer on the ground of lack of capacity of the sewer.
LORD SAVILLE, LORD WALKER and LORD CLARKE JJSC agreed. LADY HALE JSC delivered a judgment dissenting on that issue but concurring as to the result.
Appearances: Lord Pannick QC, David Holgate QC, Maurice Sheridan and Jessica Simor (instructed by Geldards LLP, Cardiff) for the water authority; Anthony Porten QC, Stephen Gasztowicz QC and Clare Parry (instructed by Darwin Gray, Cardiff) for the claimant.
Reported by: B L Scully, barrister.