Barratt South Wales v Dwr Cymru Cyfyngedig.

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. The Court of Appeal allowed the appeal. The court stated that the grounds for refusing permission for a connection under section 106(4) of the WIA 1991 were narrow. They related only to the mode of construction or condition of the connecting drain. The court considered that, in some circumstances, a sewerage undertaker might reasonably be allowed ‘modest discretion' to ask a developer not to connect at a particular location. This might apply if the chosen location is not feasible or sensible. However, in this case, the undertaker had expected the developer to connect to an alternative location 300 metres away, and across land that was not within the developer's ownership or control. This went beyond the exercise of ‘modest discretion'. The court accepted that the result was unsatisfactory, because sewage from a substantial development could potentially be discharged into an inadequate sewer, having environmental and public health implications. To deal with this, however, the planning authority had imposed a planning condition, and this would have protected the undertaker's position had the condition not been discharged. The court emphasised that because something had gone wrong in this case, it did not cast doubt on the overall ability of the planning system to protect the interests of the public and sewerage undertakers. The Court of Appeal began by observing that it was beyond legal dispute that a general lack of capacity in the system was not a valid ground of objection by the undertaker. The court went on to hold that section 106 did not give an undertaker the more specific right to object to the point of connection; had this been intended clear words would have been used. Whilst it did not fall to be decided,the court also indicated that the public interest in the protection of the environment strongly suggested that the 21 day time limit under section 106 was merely directory not mandatory; the point was however left for later decision. The European dimension, whilst relevant, did not in the opinion of the court require what would amount to a modification of the domestic legislation so as to provide extra control on what might enter an inadequate system.