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Potential development pitfalls – drainage issues

20 March 2009

If planning conditions that require improvements to drainage infrastructure are too stringent, developers may struggle to fund the work, which could lead to more disputes.

Ultimately, it will be in the interests of sewerage undertakers and developers to liaise with the planners to ensure that drainage-related planning conditions are realistic.

In this case, the dispute arose when developer Barratt Homes wanted to connect to the public sewer at a specific point. The sewerage undertaker, Welsh Water, said the connection must be made at a different location. The High Court ruled that Welsh Water was entitled to refuse permission on the grounds that the location of the connection was prejudicial to the public sewer system. The decision was reversed on appeal. Welsh Water was not permitted to make an outright refusal to a connection on the grounds that the public sewer would be overloaded. Further, they could not require connection at an alternative location to prevent overloading.

The Water Industry Act 1991 provides that, when a developer wishes to connect to a public sewer to service his development, he must give notice to the relevant sewerage undertaker. There are only two grounds on which they can refuse permission: substandard condition of the private drain or sewer or if connection would be ‘prejudicial to the sewerage system’.

Since privatisation, planning authorities have not been required to consult with sewerage and drainage undertakers during the planning process. However, the court suggested that a responsible planning authority would normally refuse consent for development unless the sewerage undertaker’s requirements could be met. The Barratt Homes case was unusual in that the planning authority discharged the drainage condition in the planning permission for the development without reference to Welsh Water.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Alasdair Garbutt LLB (Hons)
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Alasdair Garbutt
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