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Dwr Cymru Cyfyngedig (Welsh Water), R (on the application of) v The Environment Agency.

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Mar 10, 2009
Source
UNEP, InforMEA
Court name
High Court
Judge
Wyn Williams.
Reference number
[2009] EWHC 435 (Admin)
Language
English
Subject
Water, Land & soil
Keyword
Land-use planning Water rights Effluent waste water/discharge
Abstract
The present case concerned a request by local residents to a water undertaker for provision of a public sewer pursuant to section 101A of the Water Industry Act 1991. Section 101A(3) sets out criteria upon which an undertaker may conclude that provision of a sewer is appropriate, whereupon a duty to provide it arises. Section 101A(7) provides for any dispute between owners/ occupiers and the undertaker to be determined by the Environment Agency. In this case the undertaker initially decided, applying the criteria in section 101A(3), that provision of a sewer was not appropriate, against which decision the occupiers appealed to Environment Agency. Whilst that appeal was pending, the undertaker then stated that it would review its decision and on its own review decided that provision was appropriate. The appeal was thus withdrawn. The undertaker then changed its mind again on grounds of cost-effectiveness. The Environment Agency took the view that once the undertaker had concluded that a duty had arisen it could not revisit its own decision. The local council sought redetermination by the Environment Agency of the second refusal. The undertaker then formally withdrew its decision to provide the sewer. The Environment Agency nevertheless proceeded to determine the appeal as being one concerning only the timing of the provision and directed that the sewer must be provided by the end of March 2010. The undertaker sought to quash that decision and in the process to impeach its own decision to provide the sewer as made without regard to relevant circumstances, in particular relative costs and benefits, in order to justify and to legitimise its later withdrawal of it. The Administrative Court thus had to decide:(1) whether an undertaker could withdraw a decision under section 101A to the effect that a duty has arisen;(2) if so, in what circumstances? and (3) on the facts, was the withdrawal lawful? The Judge held that an undertaker can withdraw a decision under section 101A to the effect that a duty has arisen, on conventional public law grounds applicable to judicial review. In deciding whether to do so an undertaker must have regard to, but need not follow, Defra guidance given under section 101A(2)(c). On the facts, the court found that the undertaker had no sound basis for withdrawal. The judgment also contains some general observations concerning cost-benefit assessment in the environmental field and upon procedure in disputes referred to the Environment Agency under section 101A(7).