Barratt Homes Limited (Respondents) v Dwr Cymru Cyfyngedig (Welsh Water) (Appellants)

Case summary

Case ID

UKSC/2009/0038

Parties

Appellant(s)

Dwr Cymru Cyfyngedig (Welsh Water)

Respondent(s)

Barratt Homes Limited

Issue

Whether sewerage undertakers have any power under section 106 of the 1991 Act to control the location at which a developer may connect a new development to an existing sewerage network by rejecting the point of connection selected by the developer [‘Point X’] and/or by determining an alternative location [‘Point Y’] at which a connection would be suitable.

Facts

The Appellant is the statutory sewerage undertaker for Wales and English border counties under the Water Industry Act 1991, regulated by OFWAT. On 30 June 2006, Barratts applied for planning permission to develop a site at Gypsy Lane, Abergavenny to construct 98 houses and a primary school. The Appellant’s position was that the public sewerage system needed to be upgraded in order to accommodate further development in the Gypsy Lane area: as no funding had been provided by OFWAT for the upgrade, the improvement would need to be funded by developers. On 14 May 2007, Monmouthshire County Council granted planning permission subject to a condition [‘Condition 10’] that no development should take place until a scheme of drainage had been submitted to, and approved, by the Local Planning Authority. The Planning Authority decided on 3 March 2008 that Condition 10 had been discharged, relying upon material submitted by Barratts. At the Court of Appeal, it was accepted that the Appellant had not been consulted upon, nor aware of the material. On 29 May 2007, Barratts sent to the Appellant two notices under section 106 of the 1991 Act, proposing to connect foul water and surface water drains from their proposed development to the public sewer of the Appellant near Gypsy Lane. The Appellant responded by refusing to permit a connection as regards the foul water connection. On 3 July 2008, Barratts commenced Part 8 proceedings seeking a declaration that it was entitled to connect to the Appellant’s drainage system in accordance with the section 106 notice; and an injunction requiring the Appellant to remove concrete which it had put in place in order to prevent that connection.

Date of issue

8 April 2009

Judgment appealed

Judgment details

Judgment date

9 December 2009

Neutral citation

[2009] UKSC 13

Judgment links

Judgment summary

9 December 2009

Appeal

Justices

Lord Phillips

Lord Saville

Lord Walker

Lady Hale

Lord Clarke

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