![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thames Water Utilities Ltd v Hampstead Homes (London) Ltd [2002] EWCA Civ 1487 (8 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1487.html Cite as: [2002] EWCA Civ 1487, [2003] 3 All ER 1304, [2003] 1 WLR 198 |
[New search] [Printable RTF version] [Buy ICLR report: [2003] 1 WLR 198] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE CATLIN)
Strand London, WC2 Tuesday, 8th October 2002 |
||
B e f o r e :
MR JUSTICE BODEY
____________________
THAMES WATER UTILITIES LIMITED | Appellant/Claimant | |
-v- | ||
HAMPSTEAD HOMES (LONDON) LIMITED | Respondent/Defendant |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
appeared on behalf of the Appellant/Claimant.
THE RESPONDENT did not appear and was not represented.
____________________
Crown Copyright ©
"The principle of infrastructure charges is to obtain a contribution from builders and developers to the capital investment that is required by water and sewerage undertakers to develop the public water and sewerage systems to meet the demands placed on those systems from new development."
"Without prejudice to the obligation of a company holding an appointment under this Chapter to comply with the conditions of its appointment, the appointment of a company to be the water undertaker or sewerage undertaker for any area shall have the effect, while the appointment remains in force -- of"
Part III is concerned with water supply. Chapter 2 is concerned with supply duties, and relevantly to this appeal section 45 contains a duty to makes connection with a water main. Subsection (1) provides as follows:
"Subject to the following provisions of this section and to sections 46 and 47 below, it shall be the duty of a water undertaker (in accordance with section 51 below) to make a connection under this section where the owner or occupier of any premises which -
(a)consists in the whole or any part of a building; or
(b) are premises on which any person is proposing to erect any building or part of a building,
serves a notice on the undertaker requiring it, for the purpose of providing a supply of water for domestic purposes to that building or part of a building, to connect a service pipe to those premises with one of the undertaker's water mains."
"Where a notice has been served for the purposes of this section, the duty imposed by subsection (1) above shall be a duty, at the expense of the person serving the notice, to make the connection required by the notice if."
"Where a water undertaker carries out any works which it is its duty under this section to carry out at another person's expense, the undertaker shall be entitled to recover from that person an amount equal to the expenses reasonably incurred by the undertaker in carrying out the works."
"(1) Subject to the following provisions of this Chapter, the powers of every relevant undertaker shall include power -
(a) to fix charges for any services provided in the course of carrying out its functions and, in the case of a sewerage undertaker, charges to be paid in connection with the carrying out of its trade effluent functions; and
(b) to demand and recover charges fixed under this section from any persons to whom the undertaker provides services or in relation to whom it carries out trade effluent functions."
"Except in so far as this Chapter otherwise provides, a relevant undertaker may fix charges under this section by reference to such matters, and may adopt such methods and principles for the calculation and imposition of the charges, as appear to the undertaker to be appropriate."
"subject to subsection (2) below, nothing in this Chapter or in any other enactment shall entitle any relevant undertaker to fix, demand or recover an initial charge for its becoming, or for its taking steps for the purpose of becoming -
(a) the person who provides a supply of water for domestic purposes to any premises; or
(b) the person who provides sewerage services for the purposes of the drainage for domestic sewerage purposes of any premises."
"Subject to subsection (3) below, nothing in subsection (1) above or in any other enactment shall be construed as prohibiting the fixing, demand or recovery by a relevant undertaker of -
(a) a charge for the connection to a water supply of premises which have never at any previous time (whether before or after the coming into force of the restriction contained in this section) been connected to a supply of water provided for domestic purposes by a water undertaker or by any other authority or body which at that time provided supplies of water in the course of carrying out functions under any enactment; or
(b) a charge for the connection to a public sewer of premises which have never at any previous time (whether before or after the coming into force of the restriction contained in this section) been connected to a sewer used for the drainage for domestic sewerage purposes of those premises by a sewerage undertaker or by any other authority or body which at that time provided sewerage services in the course of carrying out functions under any enactment."
"I find that the buildings which contained offices were connected to water and sewage and that the existing building containing flats is connected to water and sewer. Both these buildings are within the meaning of the word 'premises' in section 146(2). Again I accept and adopt the reasons set out at page 16, paragraph 1, in the Magdalen College case. Where that case is to be distinguished on its facts to the present case, is that in my judgment the present buildings cannot be regarded as new buildings, these buildings have in my judgment previously been connected to a water supply and a sewer."
"The phrase does not appear in the Act. It does appear in a number of documents which have been drawn to my attention. Although helpful in understanding the general position, none of the documents has statutory force. If the 1991 Act does not provide for infrastructure charges, none of the documents I am about to refer to can provide a basis to claim them."
"Sections 45 and 46 entitle Thames Water to claim expenses incurred in making connections. In addition, Parliament gave the water and sewerage undertaking the power, within specified circumstances, to make charges. It gave the undertaker a broad discretion in setting them.
2. Section 142(1) gives the undertaker the power to fix, demand and recover charges. Section 142(2)(A) provides that the power shall be exercised, among other things, in accordance with a charges scheme under section 143. Section 143(4) permits the undertaker to take into account the circumstances of a particular case. Section 142(4) provides the undertaker with a very wide discretion in setting those charges. Section 146 limits the circumstances in which the charges can be made. They cannot be made for taking steps to become or becoming an undertaker (section 146(1)). They can be made for connection of premises which have never previously been connected (section 146(2)).
3. The limits set upon the undertaker in fixing the charges are specified in the provisions. Provided the undertaker acts within those limits, it can set charges and decide the factors it wishes to take into account. Although infrastructure issues are not specifically mentioned as a factor, I can see no reason at all why they should not be. The provisions do not prevent it. There is nothing surprising in a water undertaking wishing, in setting its charges, to take into account such matters as capital investment and its general capacity to provide connections.
4. Parliament intended that the consumer should be protected by the regulatory framework set out in the Act. This is to provide the balance between the undertaker's need to impose charges to enable it adequately to finance its statutory functions and the protection of the consumer. This case has demonstrated an example of the Director General acting to protect the consumer. He required undertakings to lower their charges.
5. It comes to this. Parliament conferred and must have intended to confer a wide discretion on the water undertaker in setting its charges. It intended to protect the consumer by regulation. The undertaker can take such issues as the infrastructure into account when setting those charges. Thames Water did that here. It has followed the charges scheme approved by the Director. If the charges claimed are in accordance with section 146(2) of the 1991 Act, they are recoverable."
"The meaning of 'premises' in section 146(2) is on its face and in its context quite straightforward. It is being used, not in a technical sense, but a natural and ordinary way. It relates to buildings in the way Miss Baxendale submits.
2. The halls of residence are new buildings. By definition, they are premises which have never previously been connected to a water supply or a sewer.
3. What Parliament intended is clear. It was to permit the undertaker to charge in respect of buildings never previously connected."
"United Utilities Water plc, a water and sewerage undertaker for the North West, claims in this action an 'infrastructure charge' of £23,072.16 from the defendant, Albany Homes Ltd, which in about 1998 purchased property in Cobourg Street, Manchester, known as Stonebridge House. It was an old textile mill or warehouse; but, whichever it was, the water supplied to it was not used in any manufacturing process, but was used for domestic purposes within the meaning of the legislation I shall mention."
"Therefore even if the word might in some contexts have a wider meaning I do not think the word in section 146(2) should have a different meaning from that in sections 41 and 45. It seems to me therefore that each one of the flats, being a part of a building, is something, properly to be described as 'premises', never at any previous time connected. Each flat, the premises, was simply not there in 1998 and before. The purpose of the development was to create 42 of them so that each could be separately sold or let as individual premises, and not to sell or let identifiable parts of the old mill building as it used to stand with its floor and rooms before it was gutted. I am therefore satisfied that the claimant has established that the 42 flats are each premises never at any previous time connected."
"Premises in the sections of the Act I have referred to cannot exist without a building, but are not in my judgment to be equated with buildings."
"It seems to me therefore that the existence of the same building is not conclusive of the question whether the premises are new so as never previously to have been connected. For example, if the building is not demolished and the existing floors are simply let out separately as self contained units it would probably not be correct to regard any one floor as premises never at any previous time connected. The more each floor was altered in layout or design or in its capacity to use the water and sewerage systems the more readily could it be said that new premises had been created which had never at any previous time been connected."
"Section 146(2)(b) inter alia allows under section 2 an undertaking to make a connection charge ie a charge 'for' the connection to a public sewer of premises which have never at any previous time been connected to a sewer for the drainage of domestic sewerage purposes. A connection charge arises notwithstanding the fact that connection might be made by the developers and not the defendants. It is the acceptance of that sewerage into the undertaking system which is material. In my judgment a connection of the services is in itself the provision of services. I do not see that it matters if such a service is described as being an 'infrastructure charge'. Such an expression is not used in the primary legislation."
Order: Appeal allowed; order of county court set aside and varied so that there be judgment for the claimant; no order for costs in relation to the trial below; no order as to costs of the appeal.