The Supreme Court has upheld the right of a developer to connect to a public sewer, even if the statutory undertaker is concerned that the additional discharge will overburden the sewage system. The cost of any necessary works will fall on the sewage undertaker (and not on the developer).

In reaching this decision, the Supreme Court has confirmed the earlier decision of the CA. Under Water Industry Act 1991, a property owner is entitled to be connected to a public sewer, provided that notice is first given under s106. The sewage undertaker then has 21 days to refuse permission, but that can only be done on the basis that (i) the proposed connection would be prejudicial to the sewage system, or (ii) the private drain is not up to the standard reasonably required. What the Supreme Court has done is to confirm that this is an ‘absolute right’ and that the provisions of the Act must be construed strictly. In particular, the sewage company can only refuse a connection if that refusal is based on the mode of construction or condition of the private drain. The undertaker cannot require the connection to be at a particular point, and the fact that the connection will cause over-capacity of the sewage system is not relevant. Likewise, the 21-day time limit will be strictly applied.

At the same time, the case does highlight that the existing procedures are flawed (the 21-day period is too strict; it should be possible to require the sewage system to be upgraded before it becomes overloaded). The practical way around these problems is for the local planning authority to enclose conditions in the planning consent (eg preventing the developer from connecting to the public sewer until it has been upgraded). Thus, the answer lies in planning conditions. Barratt Homes v Welsh Water [2009] UKSC 13 (access free at www.practicalconveyancing.co.uk). Source: www.practicallaw.com (subscription service).