Guidance on the enforcement powers of local authorities in relation to private water supplies

Introduction

This guidance is intended primarily for local authorities who have duties to take certain steps in relation to private water supplies to ensure that the water provided is wholesome and sufficient for human consumption. A private water supply is defined in section 93 of The Water Industry Act 1991 (the Act) as a supply of water provided otherwise than a water undertaker (including a supply provided for the purposes of bottling water).

Other private water supplies stakeholders, including owners and consumers of private water supplies, may also find this information helpful where circumstances apply. Reference to “The Regulations” in this document relate to The Private Water Supplies (England) Regulations 2016 (as Amended), and The Private Water Supplies (Wales) Regulations 2017.

Human consumption is described in regulation 3 of The Regulations and means domestic purposes including cooking, bathing, food preparation as well as drinking, and where it is used in any food production undertaking.

A wholesome supply is one that complies with the parameter standards set out in the respective private water regulations for England and Wales¹. The Regulations constitute secondary legislation and can be found here . They are derived from The Water Industry Act 1991, known hereafter in this document as the Act, which is primary legislation.

Regulation 4 of the Regulations defines the conditions by which a supply is to be regarded as wholesome. It is not explicit in the legislation that a private water supply must be wholesome (or sufficient), but if an unwholesome supply presents a potential danger to human health, a local authority must serve a notice under regulation 18 (20 in Wales) of the respective regulations. A regulation 18 (20 in Wales) notice may be served by virtue of a regulation 6 risk assessment and or one or more breaches of the wholesomeness standards that are set out in Schedule 1 of the Regulations. Local authorities should investigate and take account of the requirements of regulation 16 (18 in Wales) of the Regulations where they suspect that a private water supply is unwholesome.

The Water Industry Act 1991

Local authority functions in relation to water quality (and sufficiency) in the Act are laid out in sections 77 to 86.

The remedial powers of local authorities concerning wholesomeness and sufficiency of private water supplies are described in section 80 of theAct. Section 80 empowers local authorities to take steps where water privately supplied to for human consumption is unwholesome, or where it is at risk of being unwholesome and or insufficient. This provision is a power granted to local authorities, meaning that they can exercise their own discretion on a case-by-case basis.

Where a supply is or is likely to become insufficient, the purpose of a section 80 notice is to ensure that those affected are given adequate notice to seek and implement an alternative water supply arrangement. The meaning of insufficiency is described in section 80(1) (b). This is applicable only where there is no obligation for the person exercising control of the supply to provide water in accordance with any property deeds or easements. A section 80 notice cannot be used to prevent a person exercising control by deliberately cutting off the supply. Further more comprehensive guidance on managing insufficiency can be found here.

Section 81 of the Act sets out the procedure for issuing and responding to a private supply notice issued under section 80. Where any written representation or objection is received by the authority in response to a regulation 80 notice; the notice will not take effect unless it is first submitted by the authority to the Secretary of State and confirmed by him/her with or without modifications (in reality, the Chief Inspector of the Drinking Water Inspectorate); or the representation or objection is withdrawn.

Under Section 81(3) of the Act the Secretary of State could request that the local authority serve the notice on additional persons or call a local inquiry.

Once the Secretary of State has confirmed (whether with or without modifications) the notice, under section 81 (4) of the Act, the local authority concerned shall serve notice of that confirmation on every person originally served with the notice under section 80.

The Act also gives local authorities rights of entry under section 84 for the purposes determining whether any of the powers or duties conferred under sections 77 or 82 should be exercised or performed, or to exercise those powers or duties directly. Anyone entering the premises on behalf of the local authority should be so designated in writing. Section 85 provides local authorities with the power to require persons to provide them with information reasonably required for the purposes of exercising or performing their functions in relation to water quality. A person who fails, without reasonable excuse, to comply with such a request shall be guilty of an offence and can be liable for a fine.

Templates and examples of enforcement notices are available on the Inspectorate’s website here.

Enforcing for unwholesome water

See flow diagram here.

Under regulation 16 (18 in Wales) a local authority must carry out an investigation to establish the cause (“of the failure” in Wales) if it suspects that a private water supply is unwholesome or that an indicator parameter does not comply with the concentrations or values prescribed in Part 2 or 3 of Schedule 1 of the Regulations (England and Wales).

Where a local authority has established through such an investigation that water from a private water supply is unwholesome, it must act as follows:

If the cause of unwholesome water is found to be due to the internal distribution system/plumbing, in domestic premises, whether that water is made available to the public or not, the local authority must first promptly inform the people likely to be affected and offer them advice on measures necessary for the protection of human health. In addition to this, the local authority must carry out as appropriate, one of three actions specified in this regulation depending on the cause and whether the unwholesome water presents a potential danger to health.

1. Where the cause is due to the distribution system within a domestic premises where the water is made available to the public, and or where the cause is NOT due to the distribution system with a domestic premises, the local authority must serve a notice under regulation 18 (20 in Wales) where the water is established to be a potential danger to human health. Where one or more regulatory parameter standard has been breached and the water is suspected to be unwholesome, local authorities should seek advice from the United Kingdom Health and Safety Agency (UKHSA) or in Wales, Public Health Wales.
2. If a supply is found to be unwholesome, but is not a danger to human health, a local authority may serve a notice in accordance with section 80 of the Act if appropriate remedial action has not been taken within 28 days of the local authority establishing the cause. Where a local authority chooses not to serve such a notice under section 80 of the Act it should advise the relevant person(s) of any remedial work that is necessary to make that water wholesome throughout a dwelling. Should the relevant person not take that advice, the local authority should keep the risk of that supply under review.
3. Alternatively, a local authority can grant the water supplier with an authorisation under regulation 17(2) for different prescribed concentrations or values than those set out in Table B in Part 1 of Schedule 1 to the Regulations (subject to a requirement to consult all affected water users and UKHSA/Public Health Wales beforehand).

In deciding whether to pursue enforcement under section 80 or authorisation under regulation 17(2) (19(2) in Wales), local authorities should consider the circumstances of each situation on a case-by-case basis. They should, in all cases, endeavour to ensure wholesomeness standards are met and must comply with regulation 18 (20 in Wales) where the water poses a potential or actual danger to human health. Local authorities are also advised to develop local enforcement policies to establish a consistent approach to unwholesome and insufficient supplies, ensuring that regulatory requirements are met in all instances where it applies.

Enforcement for insufficiency

Section 80 of the Act permits the local authority to serve at their discretion, a notice where the supply is failing, has failed or is likely to fail to provide to any house such a supply of wholesome water as is sufficient for domestic purposes.

Any supply that is, or may be, insufficient for domestic purposes (as defined in section 218 of the Act) may present or lead to unsanitary conditions. In these circumstances local authorities may wish to consider enforcement by means of other environmental health legislation, as appropriate and as they see fit.

A section 80 notice must set out the steps that the local authority requires to be taken to ensure that the supply of water is wholesome and sufficient (which can include the authority itself taking steps and can require payments to be made for expenses reasonably incurred in taking steps specified in the notice). The notice must also set out a period of at least 28 days for representations or objections to the notice to be submitted to the local authority

Further guidance and information on managing insufficiency of private water supplies can be found here.

Relevant persons

A relevant person is defined in section 80 (7) of the Act as:

• The owner or occupier of the premises supplied;
• The owner or occupier of the premises where the source of the supply is situated even if the source lies outside the local authority’s area; and
• Any other person who exercises powers of management or control in relation to that source

A section 80 notice must be served on one or more relevant person, as the local authority sees fit. This will vary from case to case and depend on the nature of the remedial work necessary to mitigate any identified risk.  

Difficulties in establishing the appropriate relevant person or persons may arise where ownership of a supply, or its constituent parts, is not known or is in dispute.

Instances of this nature are likely to arise where there are no written records to substantiate supply ownership and the responsibility for its management and maintenance. This can add complexity and cause considerable delay in the completion of any remedial work necessary to mitigate identified quality and or sufficiency risks required by enforcement or otherwise. This may mean restrictions of use for periods longer than originally intended. When this occurs, the risk must be kept under regular review at a suitable frequency, and any interim measures to mitigate the risk in the short to medium term be proportionate and relevant to the risk.

In situations where facts or the existence of any legal obligation are in dispute, local authorities are advised to furnish themselves with any relevant information on the legal situation on a case-by-case basis before serving a notice. A section 85 notice can be served to obtain information from any person if necessary. This may involve the relevant person(s) seeking advice from a property lawyer about easements or covenants that may exist within the Title Register and property deeds.

Local authorities are advised to encourage proactively local agreements to manage and maintain shared supplies between relevant persons, where none exist.

As previously described, it may not be obvious or straight forward to determine who constitutes the relevant person(s). There may be people or organisations who fall within the description of ‘relevant person’ under the statutory definition who won’t be the person who can or should take the steps required, and therefore that person shouldn’t be served with the section 80 notice. 

In the first instance an assessment of ownership and responsibility for the supply should be conducted. Local authorities may wish to consult their legal teams for advice on a case-by-case basis in these instances.

When serving a section 80 notice the local authority must decide the following:

1. Which persons fall into the statutory definition of a relevant person in respect of the supply on the facts of the case; then
2. Who out of this pool of relevant persons should take the steps required to ensure that there is a supply of water to those premises which is both wholesome and sufficient for domestic purposes; then:
3. Who, out of this pool of relevant persons should make payments to another relevant person, or to the local authority in respect of expenses reasonably occurred in taking any of the specified steps in the notice.

In respect of decision 1 – in every instance of a private supply there will be a number of persons and or organisations who potentially fall into the definitions in section 80(7), depending on the facts of land occupation/ownership and management and control. The local authority can choose from this pool of eligible people on whom they serve a notice on in the exercise of their section 80 remedial powers. An individual could dispute that they fall within the definition of a relevant person in section 80(7), for example: they are not the owner of the premises on which the source of the supply is situated, they don’t exercise powers of management or control over that source. An assessment of responsibility over the source may be relevant here.

In respect of decisions 2 and 3 – the local authority can exercise their discretion as to which steps are required to be taken, and correspondingly who should undertake and/or reimburse expenses occurred while taking these steps. An individual could dispute that they are a person who is able take the steps required to ensure there is a wholesome/sufficient supply, therefore the decision to serve the notice on them is irrational. An assessment of responsibility is relevant here too and the local authorities should take account of the factual circumstances including any which are in dispute before serving a notice.

Works in default

The legislation makes provision for a local authority to recover any expense reasonably incurred by it, or any person acting on behalf of it, where a relevant person or person fails to carry out the steps within the time specified in a notice.  This applies both to notices served under regulation 18 (20 in Wales) where the water is a potential danger to human health, and those served under section 80 of The Act.  This is commonly known as carrying out works in default.

Appeals against regulation 18 (20 in Wales) notices

Regulation 19 (21 in Wales) makes provision for an appeal mechanism for relevant person(s) or any other person who is aggrieved by a notice served under regulation 18 (20 in Wales). The person may appeal to the magistrates’ court by way of a complaint within 28 days of the notice being served. The notice remains in force during the appeal (because it is still necessary to protect human health) unless it is suspended by the court. The court may either cancel the notice or confirm it with or without modifications.

Further information on appeals and penalties in relation to regulation 18 (20 in Wales) notices can be found here (England) and here (Wales).

Objections against Section 80 notices

Written objections or representations against the issuing of section 80 notices can be sent to the local authority, who must consider these before the notice takes effect (section 81 of the Act). This correspondence must be submitted by the local authority to the Secretary of State (through the Chief Inspector of the Drinking Water Inspectorate) who must confirm or withdraw the notice either with or without modifications. Alternatively, the Secretary of State can instruct a local inquiry to be held for the purpose of reaching its decision. The representation or objection may be withdrawn. It is essential that any civil dispute in relation to the supply of water being pursued by involved parties through the courts is made known to the Chief Inspector via the local authority as part of this process. In making the decision to confirm a private supply notice (with or without modifications), the Chief Inspector must take account of any asserted existing private law right to a supply of water, for example from a neighbouring property. Disputes relating to any private law right should be determined by the Civil Courts before an appeal is made.

The Secretary of State does not have the same role in respect of notices served by local authorities.