QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DWR CYMRU CYFYNGEDIG
|- and -
|ENVIRONMENT AGENCY OF WALES
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr S. Hockman QC and Mr G. Stephenson (instructed by Legal Department Environment Agency Wales) for the Respondent
Crown Copyright ©
MR JUSTICE HARRISON:
This is a claim for judicial review of two decisions of the Environment Agency Wales ("the Agency") both dated 21 August 2000 made pursuant to section 101A of the Water Industry Act 1991 ("the 1991 Act"). The claimant, Welsh Water, is a water and sewerage undertaker within the meaning of the 1991 Act. The Agency is a body corporate established under the Environment Act 1995. It is required to determine disputes arising under section 101A of the 1991 Act. The two decisions made by the Agency in this case relate to different areas – one decision relates to Llantilio Pertholey near Abergavenny and the other decision relates to Rhoseberse Road, Coedpoeth near Wrexham. In both decisions, the Agency determined that Welsh Water were under a duty to provide a public sewer to certain premises in those areas. Whilst it is necessary to deal with each decision separately on its own particular facts, the relevant statutory provisions applicable to each decision are the same. I therefore start by referring to the relevant statutory provisions.
Under section 94 of the 1991 Act, a sewerage undertaker is under a duty to provide a system of public sewers for the effectual drainage of its area. Under section 98, a sewerage undertaker is under a duty to provide a public sewer for the drainage for domestic purposes of premises in a particular locality in its area when required to do so by a requisition notice, provided certain conditions are satisfied. The requisitioner has to contribute towards the cost of the public sewer provided pursuant to section 98.
"101A. – (1) Without prejudice to section 98 above, it shall be the duty of a sewerage undertaker to provide a public sewer to be used for the drainage for domestic sewerage purposes of premises in a particular locality in its area if the conditions specified in subsection (2) below are satisfied.
(2) The conditions mentioned in subsection (1) above are –
(a) that the premises in question, or any of those premises, are premises on which there are buildings each of which, with the exception of any shed, glasshouse or other outbuilding appurtenant to a dwelling and not designed or occupied as living accommodation, is a building erected before, or whose erection was substantially completed by, 20th June 1995;
(b) that the drains or sewers used for the drainage for domestic sewerage purposes of the premises in question do not either directly, or through an intermediate drain or sewer, connect with a public sewer; and
(c) that the drainage of any of the premises in question in respect of which the conditions specified in paragraph (a) above is satisfied is giving, or is likely to give, rise to such adverse effects to the environment or amenity that it is appropriate, having regard to any guidance issued under this section by the Secretary of State and all other relevant considerations, to provide a public sewer for the drainage for domestic sewerage purposes of the premises in question.
(3) Without prejudice to the generality of subsection (2)(c) above, regard shall be had to the following considerations, so far as relevant, in determining whether it is appropriate for any sewer to be provided by virtue of this section-
(a) the geology of the locality in question or of any other locality;
(b) the number of premises, being premises on which there are buildings, which might reasonably be expected to be drained by means of that sewer;
(c) the costs of providing that sewer;
(d) the nature and extent of any adverse effects to the environment or amenity arising, or likely to arise, as a result of the premises or, as the case may be, the locality in question not being drained by means of a public sewer; and
(e) the extent to which it is practicable for those effects to be overcome otherwise than by the provision (whether by virtue of this section or otherwise) of public sewers, and the costs of so overcoming those effects."
"(7) Any dispute between a sewerage undertaker and an owner or occupier of any premises in its area as to-
(a) whether the undertaker is under a duty by virtue of subsection(1) above to provide a public sewer to be used for any such drainage of those premises as is mentioned in that subsection:
shall be determined by the Environment Agency and may be referred to the Environment Agency for determination by either of the parties to the dispute."
It is by virtue of subsection (7) that the two decisions in this case came to be made by the Agency. Subsection (8) provides that the Agency has to notify the parties of the reasons for its decision and also provides that the Agency can make recommendations or give guidance in relation to the drainage of the premises or locality in question. Subsection (9) provides that the Agency's decision shall be final.
There is a dispute between the parties as to the admissibility of evidence adduced on behalf of Welsh Water in the witness statements of Mr Roberts, a civil engineer employed by Oscar Faber, the firm of consulting engineers who carried out the technical assessments at Llantilio Pertholey and at Rhoseberse Road on behalf of Welsh Water. Those witness statements contain fresh evidence which Welsh Water say it is necessary to adduce in order to substantiate their grounds of challenge. The Agency object to the admissibility of that evidence, maintaining that the evidence should be limited to that which was before the Agency when it made its decisions. Nevertheless, without prejudice to that contention, evidence in reply to Mr Roberts' witness statements has been adduced by the Agency in the form of witness statements by Mrs Blacklidge, who is a consents scientist employed by the Agency and who drafted the decision letters in this case.
The village of Llantilio Pertholey consists of six premises to the east of the Gavenney River – 1 and 2 Mitre Cottages, the Old Mitre Inn (now a private residence), St Teilo's Church, Glebe Cottage and Cherry Tree Cottage. There are three premises to the west of the river – St Teilo's Vicarage, St Teilo's House and Deri Farm Bungalow. All of those premises are served by septic tank systems.
"2.3 In order for all the premises which might reasonably be expected to be drained by means of a public sewer to be considered, please supply us with:
2.3.2 the results of percolation tests carried out for the village as a whole as well as the soakaways considered in the report."
"2.3.2 Geological maps for the area were studied prior to the commencement of the technical assessment and the information obtained indicated that the area was not suited to support soakaways and therefore no percolation tests were undertaken."
"The geology of the area is sandstone overlain by glacial till and clay drift deposits of varying depths. These deposits are of very low permeability and are not suitable for the construction of soakaways. It is considered that replacement is not a feasible solution to the problems."
"The Agency has found that more than three premises in the locality of Llantilio Pertholey give rise to adverse effects to the environment amenity, including St Teilo's Church and Glebe Cottage. Therefore the cost of the cesspool option would rise proportionately."
"Having considered the particular circumstances the Agency does not accept the Company's conclusion that cesspool installations are the appropriate response to the adverse effects caused by the pollution…..The Agency does not consider that cesspools can practicably overcome the adverse effects on the environment and amenity so as to provide a long term sustainable solution. Experience with cesspools is reflected in CIRIA technical note 146 and the recent DETR circular. Individual circumstances of a case may indicate that cesspools are the proper or perhaps the only practicable solution but in this case the Agency is of the view that a public sewerage provision is the appropriate method of dealing with the pollution problem identified in the evidence. Cesspools, compared with public sewer provision, provide only a relatively shorter term solution. In addition the need to empty cesspools on a regular basis is a considerable environment disbenefit. The frequency of the tanker visits has been underestimated as the Company's assessment relied on out of date information. The number of visits is dependent upon the amount of sewage produced by the household. BS 6297: 1983 as relied on by the Company estimates that an average household of 3 persons will produce 7m3 of sewage every 3 weeks. PPG4 (1997) reduces the period to 2 weeks.
Tanker movements to, within and from this locality are undesirable and detrimental having regard to the rural nature of the area and the roads themselves. The use of cesspools will result in a significant number of new tanker visits.
The Agency considers that the information used by the Company underestimates the number of tanker visits required. This will increase the maintenance cost of the cesspools. Also the use of tankers has an environmental impact which is absent in a public sewer provision.
23. Accordingly, the Agency having regard to the Ministerial guidance and all relevant considerations in this particular, case including, in particular, technical factors, finds that the provision of cesspools in Option 3 is not considered to be an appropriate solution.
24. The Agency has considered the submissions of the parties and in particular the options considered by the Company. The Agency finds that, in this case, the adverse environmental effects caused by the existing sewerage provision are such that the provision of a public sewer is the appropriate remedy. The costs of the provision of a public sewer have been considered as well as the costs of the Company's alternative solutions together with the environmental effects likely to arise if a public sewer is not provided. The appropriate solution is the provision of a public sewer to the village of Llantilio Pertholey."
I turn now to deal with the generality of the submissions that were made in this case before turning to the submissions that were made specifically in relation to Llantilio Pertholey.
(i) St Teilo's Church and Glebe Cottage.
It was said that the Agency were too ready to extend the public sewerage duty to St Teilo's Church and Glebe Cottage in circumstances where there was no evidence of any adverse environmental effects caused by those properties, and that the Agency failed rigorously to carry out the section 101A(3) balancing exercise.
(iii) St Teilo's House, St Teilo's Vicarage and Deri Farm Bungalow
(iv) The Agency's cesspool policy
Conclusions – Llantilio Pertholey
"Finally there was an application on behalf of the tenant to admit fresh evidence which the Divisional Court had refused to admit. Like the Divisional Court we considered the evidence de bene esse. What are the principles on which fresh evidence should be admitted on judicial review? They are (1) that the court can receive evidence to show what material was before the minister or inferior tribunal: Ashbridge Investments Ltd v Minister of Housing and Local Government  1 W.L.R. 1320, 1327, per Lord Denning M.R.; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error: see de Smith's Judicial Review of Administrative Action, 4th ed. (1980), a pp. 140, 141 and cases there cited,; and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged: see Reg. V West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974} Q.B. 24, 39, 43 per Orr and Lawton LJJ."
"It was said that those statements support the proposition that if the Secretary of State is misled by the failing of one party falling short of fraud to put before him evidence which should have been put before him, and on which he probably would have come to a different conclusion from that to which he came on the evidence which was put before him, then the court on judicial review should admit that evidence as fresh evidence. It was said that to fail to do so would be a breach of natural justice.
The Tameside case was a very special case. In effect the minister was himself reviewing the decision of the local authority and his decision was analogous to the position of the court on judicial review. The evidence was admitted in the Court of Appeal by consent. The case is not authority for the proposition relied on by Mr Rougier. Indeed there are indications in the speeches in the House of Lords to the contrary."
"The list of grounds for judicial review is not closed, and it would be dangerous to treat the Powis principles as a rigid or exhaustive account of grounds which might warrant resort to fresh evidence. Two examples of situations where further material may well be relevant, as going to a ground for judicial review, are as follows:
(e) Defective inquiry. Where it is alleged that the respondent has failed in its duty to acquaint itself with relevant information, it will often be essential for the applicant to demonstrate that there was material which was not before the decision-maker (but should have been) (see, e.g. R v Rochford District Council ex p. Ferdinando (unreported) 8 September 1992, Roger Henderson QC, where evidence was admissible "to show what could, upon proper inquiry, have been elicited…"). This is similar to the situation in R v Criminal as involving procedural unfairness (at pp. 345C and 347C)."
I turn then to deal with the Rhoseberse Road decision. The premises in Rhoseberse Road, Coedpoeth relevant to these proceedings are strung out along the road in a linear fashion. The northernmost properties consist of Homeleigh (thought to be 7 Rhoseberse Road) and 8 and 9 Rhoseberse Road on the west side of the road, together with Park Cottage standing on its own on the east side of the road nearby, whilst a short distance further south there are 8 premises consisting of 10 to 16 Rhoseberse Road on the west side of the road and 17 Rhoseberse Road on the east side of the road standing on its own opposite 16 Rhoseberse Road.
"Whilst no porosity tests have been carried out, at the time of construction of the new soakaway [for nos. 14 and 15 Rhoseberse Road] it is understood that the ground conditions were considered to be unsuitable by its constructor…During the interview the applicants reported that the ground had a high clay content, and that the water table was generally high in this area. The ground around the applicant's property was observed by Oscar Faber to be relatively "marshy" at the time of inspection."
The area of the soakaway, which was in a cultivated field, was found to be wet with standing water present, although no odour was detected and no fungus visible.
"Whilst no percolation tests have been carried out, ground conditions are understood to be such as to preclude the effective use of a soakaway for the disposal of effluent from a septic tank."
"the results of percolation tests/geology surveys carried out for the village as a whole as well as the soakaways considered in the report."
""Geological maps for the area were studied prior to the commencement of the Technical Assessment and the information obtained indicated that the area is generally glacial till (boulder clay) with underlying coal measures. This geology can lead to significant variations in the suitability of the ground for soakaway operation, therefore percolation tests were not undertaken. However, no evidence of pollution was found in the Park Cottage area and the soakaways were assumed to be functioning correctly."
"The high clay content of the ground, and the high water table level in this area indicate that relocation of the soakaway would not remove the pollution problem. British Geological Survey maps indicate that the geology of the area is generally glacial till (boulder clay) with underlying coal measures. This geology can lead to significant variations in the suitability of the ground for the operation of soakaways. It is considered, based on this information, that replacement is unlikely to be a feasible solution to the problems."
The report compared the environmental effects of the cesspool option and the public sewerage option both during construction and afterwards, including the effects of emptying the cesspools once a month. Overall, the public sewerage option was found to have a minor negative impact. The report concluded that septic tanks at 13, 14 and 15 Rhoseberse Road should be replaced by cesspools which would result in no negative impacts from the construction or operational phases, and substantial benefit to the environment during operation.
"If renovation of Park Cottage septic tank were left in, the private option would be £141,500 and public would be £128,900. Therefore a duty would exist to provide a public sewer."
Submissions – Rhoseberse Road
(i) 8, 9, 11, 12, 16 and 17 Rhoseberse Road
(iii) The Agency's cesspool policy
Conclusion – Rhoseberse Road
MR JUSTICE HARRISON: For the reasons contained in the judgment that has been handed down to the parties, this application to quash the decisions relating to Llantilio Pertholey and Rhoseberse Road will be dismissed.
MR HOCKMAN QC: Your Lordship, I hope, will have received some editorial corrections from me yesterday.
MR JUSTICE HARRISON: I have not only received them, but they are incorporated.
MR HOCKMAN QC: I just noticed on the first page that there is one which has not been, which is what caused me to rise, because Mr Stephenson's initial is incorrect.
MR JUSTICE HARRISON: That should be "G Stephenson" on the front page. Perhaps that could be noted by the shorthand writer.
MR HOCKMAN QC: My Lord, otherwise I have not had a chance to check, but I am sure the other points were incorporated. My Lord, may I respectfully ask for judgment accordingly, with costs in favour of the defendant, the Environment Agency of Wales.
MR JUSTICE HARRISON: Thank you very much. Mr De Marco, what do you say about that?
MR DE MARCO: My Lord, we do not oppose the application.
MR JUSTICE HARRISON: Thank you very much. Then there will be an order that the claimant should pay the defendant's costs.
MR HOCKMAN QC: I think that should be to be assessed in the normal way.
MR JUSTICE HARRISON: Yes. Is there anything else? Thank you very much.