Requisitioning a public sewer - kicking up a stink?
If the route of a foul sewer for a proposed development will need to pass over land owned by a third party then the developer will of course need to approach those owners to see if they would be willing to grant the necessary rights. However, if they are not prepared to co-operate, then the developer may have no alternative but to requisition the sewerage undertaker to provide a public sewer for the development.
The Water Industry Act 1991 imposes a duty on a sewerage undertaker to provide a public sewer for drainage for domestic purposes and this duty is not restricted to residential dwellings but extends to commercial and industrial premises too. This is an absolute right and favours developers in that a sewerage undertaker can only refuse permission on a limited ground. This is that the mode or connection of the sewer does not satisfy reasonable standards or the proposed connection would be prejudicial to the sewerage system. The sewerage undertaker cannot refuse connection on the grounds that the sewer system lacks the necessary capacity or that the proposed connection will overload the system. The courts have upheld the rights of developers. Recently in Barratt Homes Limited v Welsh Water [2009] UK SC 13, the court held that the burden caused by the additional sewerage connection fell on the statutory undertaker and could not form the basis of grounds by the undertaker to refuse connection. The judge also held that the undertaker could not refuse connection merely because it felt that the intended point of connection to the sewer was unsatisfactory.
However, the automatic right to connect is going to change. This will occur when the relevant provisions of the Flood and Water Management Act 2010 come into force. The new provisions require a developer first to enter into an adoption agreement before it can exercise the right to connection. Once the adoption agreement has been concluded then the sewerage undertaker will not be able to refuse connection. The concern is that the undertaker could refuse to enter into an adoption agreement as a means to frustrate a developer’s attempt to connect to a public sewer. If a sewerage undertaker did unreasonably refuse to enter into an adoption agreement, the courts would be likely to hold this to be an unlawful exercise of the undertaker’s powers. Nevertheless, the undertaker might be able to secure concessions from developers by delaying entering into an adoption agreement for reasons which under the existing regime would have no relevance, such as the sewer system lacking sufficient capacity or the proposed new connection overloading the system.
No date has yet been set for the commencement of the new provisions although the Act hit the statute books on 1st October 2010. It allows Ministers to make regulations regarding adoption agreements and the phasing in is likely to be gradual. Once the provisions are fully in force, a developer who needs to requisition a public sewer should approach the sewerage undertaker to start negotiations at an early stage. It should also try to reach agreement on the technical details of any proposed connection in order to minimise any issues the sewerage undertaker may have with the connection so that completion of the adoption agreement is not likely to be delayed. Once the agreement is secured then the developer will be back in the same position in which he was before this Act, namely he will have a right to requisition a public sewer to serve the new development.
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