MEMORANDUM SUBMITTED BY DŴR CYMRU WELSH WATER (FW 22)
1. Dŵr Cymru Welsh Water is a statutory water and sewerage undertaker that supplies over three million people living and working in much of Wales and some adjoining areas of England. We are owned by Glas Cymru, a single purpose, not-for-profit company with no shareholders: under our unique business model any financial surpluses are reinvested in the business for the benefit of our customers.
2. Dŵr Cymru Welsh Water recognises the importance of ensuring that the essential public services that we provide - the provision of drinking water and treatment of liquid waste - are affordable for all our customers. We are also mindful of the need for our industry to prepare for climate change. In the past 5 years (AMP4) Dŵr Cymru has invested over £414m to create additional capacity in the public sewer, to reduce risk of sewer flooding in customers' homes, to reduce risk of serious pollution events and to create capacity for economic growth in Wales: the benefits of this investment could be wholly undone by new obligations introduced by the Bill.
3. The Flood and Water Management Bill ("the Bill") is intended to reduce flood risk. However, its sewerage provisions could undermine this objective by causing more sewers to become overloaded, inevitably leading to more sewage flooding and/or risk to public health and the aquatic environment.
4. Overcoming these problems is likely to represent a significant additional burden for our industry, and thus our customers.
5. We also believe that some provisions will contradict (and inadvertently render obsolete) other existing sewerage legislation, and so we regard the Bill as falling short in some respects.
6. The pressing need for a more far-reaching review of developers' automatic right to connect to public sewerage has been demonstrated by a recent Supreme Court judgement following a case in which our company was involved. We are convinced that the best way to overcome these problems is to give water companies greater control over the sewerage infrastructure we own and operate.
7. Our concerns are described more fully below.
Schedule 3 - Sustainable Drainage Systems (SUDS)
8. Dŵr Cymru Welsh Water has been at the forefront of the water industry in seeking to encourage the more widespread provision of SUDS. We believe that if SUDS can remove significant volumes of surface water from our sewers (by diverting the flows to ground or to watercourses) SUDS should reduce the risk of sewer flooding and of overflows from sewerage during storms. SUDS should therefore improve the capacity of our sewerage infrastructure to cope with the increased storminess that climate change will bring.
9. However, the Bill allows SUDS to drain into public sewers, without giving sewerage undertakers adequate control over the quantity (or quality) of the flows. This will inevitably cause more sewage flooding and/or more frequent spills from overloaded sewerage.
10. For example paragraph 11(3)(a) of Schedule 3 requires the SUDS Approving Body (SAB) only to "consult" the relevant sewerage undertaker, so the SAB will be under no obligation to accept the undertaker's advice. In contrast, under paragraph 15, the sewerage undertaker must allow approved SUDS schemes to connect to its sewers, whether or not the sewers have the capacity to cope.
11. Furthermore, paragraph 15(2) of Schedule 3 (which inserts a new Section 106A into the Water Industry Act 1991) will prevent sewerage undertakers from refusing the connection of SUDS, "on grounds that the drainage system absorbs water from more than one set of premises or sewer, or from land that is neither premises nor a sewer". This provision will allow the uncontrolled right of local/highway authorities to discharge highway run-off, at no cost to them, to the public sewer to continue. It will also add unknown flows from subsoil, land drainage and other surface run-off: sewerage undertakers currently have no responsibility to provide facilities or sewerage capacity for subsoil and land drainage, so this provision adds a major new unfunded obligation on sewerage undertakers and their customers.
12. For many years the right to communicate to the public sewer has only applied if the connection involves "premises" (see Section 106(1) of the 1991 Act). However, the Bill explicitly allows SUDS connections to be made without the requirement for there to be premises. This means that the public sewer will, for example, be required to accept subsoil, highway drainage flows and land drainage flows from sources that are neither owned by the Highway Authority nor the Land Drainage Authority. This broadens still further the scope of service that sewerage undertakers are required to provide without the associated powers and funding.
13. There is also a potential conflict that arises should a SAB grant approval for inappropriate discharges i.e. non domestic/land drainage/highway drainage. If a developer subsequently needs to requisition a public sewer (under Section 98 of the Water Industry Act 1991) in order to cross intervening third party land, the sewerage undertaker will not be able to comply with the requisition notice because the obligation upon the undertaker is to supply a sewer for "domestic purposes", which is defined in the Water Industry Act 1991. To accept discharges of land drainage is contrary to the current powers and functions of sewerage undertakers. We believe that it is also contrary to current land drainage legislation and that the responsibility for land drainage must continue to rest with the local Authorities.
14. As noted above, we believe these changes will cause public sewerage to become more overloaded. In addition, we cannot see how they can be reconciled with many existing statutory obligations placed on sewerage undertakers. Examples include Section 94 of the Water Industry Act 1991 which requires sewerage undertakers to provide a system of public sewers to ensure that their areas are effectually drained, and our duty under The Urban Waste Water Treatment (England and Wales) Regulations 1994 (SI 1994, No 2841 which transposed EC Directive 91/271/EEC) which, amongst other things, requires undertakers to provide sewage collecting systems which limit the pollution of receiving waters due to storm water overflows (i.e. spills from overloaded sewers).
15. Dŵr Cymru Welsh Water believes that the Bill must give sewerage undertakers a veto if they can reasonably demonstrate that SUDS (or any other proposed connections) could overload their sewers. Use of such a veto could be safeguarded by a right of appeal to the Water Services Regulation Authority ("Ofwat"), or to Ministers.
16. If SUDS are connected to public sewers, this should be limited to surface water sewers. Connection to foul sewers or to combined (surface and foul) sewers must be prohibited because of the almost inevitable probability of downstream foul flooding (the Bill at paragraph 1(3) of Schedule 3 currently fails to make this distinction, relying instead on the very broad definition of "public sewers" in Section 219(1) of the Water Industry Act 1991). If developers/landowners have the right to connect to foul or combined sewers, sewerage undertakers will be at risk - through no fault of their own - of causing or knowingly permitting discharges to the environment i.e. both to watercourses and to land. This is a criminal offence under the Water Resources Act 1991 and punishable by a fine of up to £20,000 in the Magistrates Court or, in a Crown Court, to an unlimited fine and imprisonment for a period of up to 2 years for a Director. We also believe that if SUDs are connected to foul/combined sewers, they may surcharge; this might then cause sewage to back up into - and contaminate - the SUDs facilities, and in some instances (such as open channels etc.) cause a real risk to public health and environmental harm.
17. The 21 day notice period that was in Section 106 of the Water Industry Act 1991 seems to have disappeared entirely. This means that the sewerage undertaker will have no time to consider the notice and proposals submitted for connection. In practice it means that anyone who has a SUDS scheme approved by the SAB can apply for the connection on one day and then make that connection on the following day. This effectively makes Section 107 and Section 108 Water Industry Act 1991 obsolete and limits the use of Section 112 of the 1991 Act. The consequences of losing a notice period for approving or refusing a connection, widens to both foul and combined connections and hence not just surface water connections following approval by the SAB. We therefore urge that the 21 day notice period be reinstated for all proposed connections, notwithstanding our other observations in this document.
Clause 41 - Agreements on new drainage systems
18. Clause 41 amends the Water Industry Act 1991. The new Section 106B to be inserted into the 1991 Act provides that, inter alia, a person may only connect new sewers and lateral drains to a public sewer if he first enters into an agreement (under Section 104) with the sewerage undertaker: that agreement must normally include provisions that the pipes will be constructed in accordance with the universal build standards to be prescribed by Ministers.
19. However, Sub-section 106B(7) means that a sewerage undertaker cannot subsequently refuse connection if, for example, the making of the connection would be prejudicial to the public sewerage system, or even if the person has not complied with the Section 104 agreement.
20. This is unreasonable. If developers can ignore the Section 104 agreement due process is frustrated. This provision will weaken still further sewerage undertakers' control over their own infrastructure.
21. Dŵr Cymru Welsh Water therefore strongly recommends that the proposed Sub-section 106B(7) of the Water Industry Act 1991 be deleted.
22. More fundamentally we believe that sewerage undertakers must, under certain circumstances, be allowed to refuse permission to connect to their sewers, subject to a right of appeal to Ofwat or Ministers if needs be. The pressing need for this change has been demonstrated by a recent Supreme Court judgement.
23. The Supreme Court judgment (Barratt Homes Ltd v Dwr Cymru Cyf) reinforces the developer's right to connect (under Section 106 of the Water Industry Act 1991) at a point to be determined by the developer rather than the sewerage undertaker; this is regardless of any adverse impact or consequences to existing customers or the environment. The Court held that control over a sewerage undertaker's assets effectively rests with the local Planning Authority and confirmed that water industry legislation currently does not provide even basic protection for sewerage undertakers and, in turn, fails to protect the public and environment. It said that "...more thought may need to be given to the interaction of planning and water regulation systems under the modern law to ensure that the different interests are adequately protected." If consideration and amendments are not made to ensure control of the public sewerage system is provided, then this completely undermines the purpose of this Bill to reduce flood risk and in consequence places a greater financial burden on sewerage undertakers and their customers.
24. The Government has, rightly, made much of wanting to improve water management and improving water management is a central theme of this Bill. However, Dŵr Cymru Welsh Water believes that sewerage undertakers will not be able to manage their assets and contribute effectively to an overall reduction of flood risk unless they can make reasonable requirements of those wishing to connect to their infrastructure. This must be underpinned by right to refuse to allow connections in certain circumstances and to specify the point of connection so as to protect customers from the risk of sewer flooding.