Welsh Water v Barratt Homes Ltd [2013] EWCA Civ 233

A property developer, Barratt Homes, connected a surface water drainage system to a public foul sewer. The Court of Appeal held this was unlawful, clarifying that the statutory right to connect under the Water Industry Act 1991 is primarily for domestic premises, not for discharging surface water alone.

Facts

The appellant, Dŵr Cymru Cyfyngedig (Welsh Water), is the statutory sewerage undertaker for Wales. The respondent, Barratt Homes Ltd, is a property developer. Barratt Homes constructed a new residential development in Abergavenny and, in doing so, connected a new surface water drainage system serving the development to an existing public foul water sewer owned by Welsh Water. Welsh Water contended that this connection was unlawful and constituted a trespass and/or nuisance, seeking an injunction to stop the discharge. Barratt Homes argued that it had a statutory right to make the connection under section 106(1) of the Water Industry Act 1991 (‘WIA 1991’). At first instance, the judge found in favour of Barratt Homes, holding that section 106(1) conferred the right to make such a connection. Welsh Water appealed this decision to the Court of Appeal.

Issues

The central legal issue was the correct interpretation of the right to connect to a public sewer granted by section 106(1) of the WIA 1991. Specifically, the court had to determine whether this statutory right entitled a developer to connect a drain used exclusively for surface water from a new development to a public foul water sewer.

Judgment

The Court of Appeal (Lord Justice Lloyd Jones giving the leading judgment, with which Lord Justice Toulson and Sir Stephen Sedley agreed) unanimously allowed the appeal, overturning the decision of the lower court.

The Court’s Reasoning

The court engaged in a detailed analysis of the statutory framework of the WIA 1991, looking beyond the specific wording of section 106 to its broader context within the Act. The judgment emphasised that the right conferred by section 106(1) is not absolute or unqualified.

Lord Justice Lloyd Jones identified the crux of the matter as being the nature of the right to drain ‘premises’. He stated:

In my judgment, the solution to the present problem is to be found in the fact that s.106(1) creates a right to drain premises. The entitlement is ‘to have his drains or sewer communicate with the public sewer of that undertaker and thereby to discharge foul water and surface water from those premises into that sewer’.

The court reasoned that ‘premises’ in this context referred to buildings and their appurtenant land. The right was to drain these premises of both foul and surface water, not a right to drain surface water from a wider development site disconnected from any specific building’s foul drainage system.

The right is to drain the premises which, in the context of residential development such as this, means the right to drain foul water and surface water from the buildings and land appurtenant to the buildings. It is not, for example, a right to drain surface water from a field which forms no part of the curtilage of any building.

Crucially, the court concluded that the right to discharge surface water under section 106(1) was not an independent right separable from the right to discharge foul water. It was to be exercised in conjunction with the primary purpose of draining premises of domestic sewage.

It is in this context that one must consider the right to discharge ‘surface water from those premises into that sewer’ in s.106(1)(a). In my view this is not a separate and independent right to discharge surface water alone. It is a right to discharge surface water from the premises in conjunction with the discharge of foul water. It is a right to use a foul water drainage system for the additional purpose of discharging surface water arising on the premises.

Therefore, a connection made solely for the discharge of surface water into a public foul sewer was held to be outside the scope of the right granted by section 106(1) and was consequently unlawful without the sewerage undertaker’s specific permission.

Implications

The decision significantly clarifies the limits of developers’ statutory rights under the Water Industry Act 1991. It establishes that developers cannot presume a right to connect new, large-scale surface water drainage systems to existing public foul sewers. The ruling underscores the statutory distinction between foul water and surface water drainage systems. It has major practical and financial implications for property developers, who must now ensure they provide for separate surface water drainage or secure an express agreement with the relevant sewerage undertaker, potentially at a significant cost, before making such connections.

Verdict: The appeal by Welsh Water was allowed. The connection made by Barratt Homes was declared unlawful.

Source: Welsh Water v Barratt Homes Ltd [2013] EWCA Civ 233