I found the recent decision of the EWCA (with emphasis on the "W" this time) in Dwr Cymru Cyfyngedig (Welsh Water) v Barratt Homes Ltd (Rev 1) [2013] EWCA Civ 233 (27 March 2013) http://www.bailii.org/ew/cases/EWCA/Civ/2013/233.html very interesting (although I wish I knew how to pronounce the name of the appellant!) The case is the latest in a long litigation history, which went to the Supreme Court a few years ago (see Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) [2009] UKSC 13).

The issue at stake is this: if a developer of property wants to connect a new housing estate to the existing sewer system, can they do so at a point of their choosing? Or is it up to the sewerage "undertaker" to decide where and how a connection should be made? Under the relevant legislation, s 106 of the Water Industry Act 1991, the Supreme Court held back in 2009 that there is a "right" of the developer to connect at a point of their choosing, so long as they comply with the Act by giving 21 days' notice to the undertaker. This may seem like poor public policy (indeed, the SC decision points out that the Scottish legislation operates quite differently) but it is the wording of the Act.

Barratt Homes gave the relevant notice in relation to a new housing development. They wanted a connection right next to their houses. The Welsh Water (the unpronounceable DCC) wanted them to connect lower down the system where there was more capacity. The SC said Barratt had the right to connect where they chose. This most recent phase of the litigation is apparently an action to recover damages for the cost incurred by Barratt during the period of time when they had to manually remove sewerage until the connection was finally made.

I want to comment mainly on the "breach of statutory duty" claim, as the area of my chief interest. While Barratt initially made a claim for BSD, at some stage prior to the matter coming to trial they discovered a previous decision of Carnwath J (as he then was) in 1997 which held that no BSD claim was possible under the 1991 Act (although not specifically in relation to s 106). They persisted with claims in negligence and nuisance. But as the Court of Appeal pretty well all say, if a BSD claim was not possible then it is unlikely that these claims would succeed. The negligence claim would suffer all the difficulties of claims for economic loss generally. The nuisance claim was problematic in that any claim to a "right" to discharge sewerage into someone else's pipe is clearly not based on a common law right, but must be grounded in the statute.

The unsatisfactory nature of the decision, however, is that the majority of the Court (Lloyd Jones LJ and Arden LJ) hold that the concession by the appellants that no claim in BSD was possible meant that the issue could not be revisited in these proceedings. Having said that, it is fairly clear that Arden LJ was very reluctant to dismiss the possible BSD claim, and Pill LJ positively holds that to resolve the issue this question must be explicitly revisited (see para [95]).

The analyses offered by Arden LJ (despite her view that the matter had to be decided against the appellant, her Ladyship briefly discussed it at [71]-[76]) and Pill LJ are a good example of the issues the courts have to weigh up in deciding whether or not a statute creates a private right of civil action. One might note, as Pill LJ did at [89], that in the 2009 SC proceedings the right of a property owner to choose the point of connection was described by Lord Phillips as an "absolute right". It is a very specific obligation attaching to a limited class of persons- see [71]. Barratt as property owners were clearly within the class of persons for whose benefit the provision was intended- [73]. The duty was not a "vague" or "discretionary" one, it was specific and clear- see [109]. Counting against a possible BSD action was the fact that there were other provisions of the 1991 Act where civil actionability was expressly provided for. But a BSD action was not expressly excluded, where other common law claims were. A previous decision had accepted a civil claim for action complying with s 106- it seemed bizarre then to exclude an action where s 106 had been breached (see [76]).

Pill LJ noted other pointers to there being a possible BSD action: no criminal penalty for breach of s 106; a specific and clearly identified right- [110]-[111]. However, in the end his Lordship concluded that the presence of other explicit liability provisions, and the "general reluctance" of courts to create civil rights from statutes, finally weighed on the side of finding no civil right.

Regards

Neil