Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water).

Barratt Homes Limited, were engaged in building a substantial development of homes and a primary school in Llanfoist, near Abergavenny in Monmouthshire. They sought to exercise the right of a property owner under s 106 Water Industry Act 1991 to connect the drains to the public sewer at a point close to the development. The sewerage undertakers, Welsh Water, argued that it was entitled to insist on a connection at point some 300m further downstream, as the sewer did not have the capacity to deal with the increased load until that point Welsh Water succeeded in the High Court but the decision was reversed on appeal and Barratt Homes made the connection at the place of its choice. Welsh Water pursued an appeal to the Supreme Court, seeking to establish that the Water Industry Act 1991, s 106 gave a sewerage undertaker the right to refuse to permit connection to the public sewer at an unsuitable point. By a majority, the Supreme Court dismissed the appeal. The right to discharge into a public sewer pursuant to s 106 was an absolute right that could not be prevented on the ground that the additional discharge would create a nuisance. The right to object to a “mode of connection” in s 106(4) did not extend to the point of connection. More thought might need to be given to the interaction between planning and water regulation systems, to reduce problems caused by the requirement to only give 21 days’ notice to a sewerage undertaker before exercising the right under 106. The real problem behind the dispute in this case lay in the requirement to give only 21 days’ notice to a sewerage undertaker before exercising the absolute right in s 106. This was manifestly unsatisfactory in relation to a development which in this case would add 25% or more to the load on the public sewer [para 41]. The only way to achieve a deferral of the right was through the planning process, in which both the sewerage undertaker and OFWAT should be consulted. More thought might need to be given to the interaction of planning and water regulation systems under modern law to ensure that the different interests were adequately protected [paras 57-58].• The 21 day limit for refusing applications to connect to the public sewer in s 106(4) wasmandatory, in view of the fact that it was a criminal offence to connect a drain after such notice had been given [para 62].