Hot topic
Barratt ruling emphasises sewerage
undertakers' responsibilities
Barratt Homes Limited v Dwr Cymru
Cyfyngedig (Welsh Water) [2009]
UKSC 13
Facts
Barratt proposed a development of approximately 100
houses and a new primary school at a site in
Llanfoist, near Abergavenny. The site was promoted
through the Unitary Development Plan and
subsequently obtained planning permission. Barratt
exercised the right of a property owner under section
106 of the Water Industry Act 1991 ("the Act") to
connect to a public sewer. Welsh Water objected to
Barratt's chosen point of connection to the public
sewer and insisted that the connection be made
300m further away from the site. This would have
caused significant further expense to Barratt, but
Welsh Water argued that the sewer had insufficient
capacity at the chosen point of connection, and that if
the connection were allowed, it may result in flooding.
Decision.
The Supreme Court decided that:
 a property owner had an absolute right to connect
to a public sewer under section 106, and that right
could not be denied on the basis that it might cause
a nuisance
 a sewerage undertaker's right to object to the 'mode
of construction' contained in section 106 did not
extend to the point of connection
 The 21 day time limit within which an undertaker
had to respond to a section 106 notice was an
absolute time limit, after which the undertaker loses
any right to object
 The Court considered that the real problem was not
that the developer had an absolute right to connect,
but that it had the right to do so on the giving of only
21 days notice. The Court suggested that there
should be better interaction between water
regulation, OFWAT and the planning system to
ensure that large developments were adequately
planned for
As a consequence of the decision developers need to
be monitoring drainage issues both at the preapplication and the application stage. When a
development is at development plan stage
developers should be consulting with undertakers,
identifying any capacity shortfall issues and making
undertakers aware of the likely capacity of
developments. This should give the undertaker ample
time to plan for any upgrade work and obtain OFWAT
approvals if necessary. Details of consultations
should be shared with the planning authority.
At application stage developers should be making
representations to the planning authority that
Grampian Conditions restricting development until
upgrade works are completed are unnecessary where
the undertaker has been consulted on the
development and has had ample time to plan for
upgrade works. Grampian conditions should not be
used to prevent an impact on the drainage system
merely as a result of the undertaker failing to provide
sufficient capacity. OFWAT has indicated that it will
use its enforcement powers to remedy a failure of the
undertaker to provide capacity as is its duty under
section 94 of the Act and developers should consider
applying to OFWAT to use its powers where
appropriate.
In certain circumstances, especially where
development is unplanned, Grampian conditions
preventing development commencing until upgrade
works have been completed may be appropriate
and developers may as a consequence be forced to
pay for the works to release the development earlier.
This highlights the need to engage with undertakers
at the earliest opportunity, document that
engagement and communicate it to the planning
authority where it forms development planning.
Developers should also seek to review with
undertakers their business plan submissions to
OFWAT and ensure that necessary upgrades are
accounted for. These reviews only take place every
five years, the latest just having been concluded,
underlining how important it is to be consulting now
on medium and long term developments.
David Shakesby
Associate
[email protected]
Neil Bromwich
Associate
[email protected]
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