Enforcement action where covenants exist
This case study describes a common barrier that was encountered repeatedly by one local authority when seeking to improve various private supplies in its area. After identifying the need for a supply to be improved through risk assessment, the local authority would then be confronted by the supply owner seeking to fall back on property deeds, as a justification for refusing to carry out the required supply improvements. This situation arose in relation to both Regulation 9 and Regulation 10 supplies. It occurred even in cases when the potential danger to health of the supply had been verified by sampling and additionally showed the water was not wholesome.
Property deeds (or covenants) are concerned with the rights of a premises owner to access a source of water that arises on another person’s land. They can also confer duties on one premises owner to give access to their premises to other persons for the purpose of allowing them to draw on and maintain the source, and associated tanks, pumps or pipes. These deeds made under property law are put in place to deal with what in lay terms is usually referred to as the ‘right to water’. The purpose of these deeds and covenants is to provide a framework for the use of a common water resource in private ownership and they provide a means of redress in civil law if one party acts outside the framework to the detriment of the other parties; however, such civil agreements do not negate or overrule the duty that falls to a relevant person to ensure that a water supply for domestic purposes is wholesome, sufficient and safe, as set out by Parliament in the Water Industry Act 1991 (and associated regulations). Accordingly an owner of a private supply may only have recourse to such deeds and covenants as a means of clarifying to the local authority the persons responsible for access or maintenance, and therefore either directly or indirectly who is responsible for the costs of any required improvements. Where such deeds or covenants are silent regarding the costs of protecting or treating the water to ensure it is wholesome at the point of use, then these costs fall on all relevant persons as defined by the Water Industry Act 1991.
In this case, the Inspectorate advised the local authority that when dealing with a failing private supply where there are deeds or covenants in place, they should explain that the Water Industry Act 1991 puts a duty on each and every relevant person to ensure that the supply is sufficient and wholesome, and the deeds and covenants can serve only to indicate where the duty has been assigned differently. For example, if a deed or covenant establishes a committee or a company or a responsible person and assigns to them full responsibility for management or control of the supply. The Inspectorate also advised the local authority that it should not be overly prescriptive about the technical means by which a supply is improved. While it is important that supply owners are given advice about the nature of the risk and best practice in terms of mitigation of these risks, relevant persons must be afforded the opportunity to choose between methods of source protection and water treatment that are equally effective. Fo example, central treatment versus point of use treatment can be equally effective, but have different maintenance requirements and those concerned must be cognisant of what is entailed, including the keeping of records.
After receipt of the Inspectorate’s advice, this local authority has been able to more confidently deal with this type of barrier. For example, in one case the private supply was abandoned in favour of a connection to the mains supply. In summary, the existence of property deeds and covenants, are not a barrier to improving failing private supplies. A Regulation 18 Notice should be served on all relevant persons requiring improvement action. The Notice should specify the nature of the risks and what constitutes an appropriate mitigating control measure, and require proposals for remediation to be put forward by a given date. If the Notice is not complied with then a magistrate should be asked to convert the Notice to an Order. To date, magistrates have always upheld Regulation 18 Notices in the face of objections from supply owners.
Local authorities should be confident that the typical argument put up by a supply owner that ‘they have drunk the water and breached the Act for years but have not come to harm’ is not a due diligence defence. Local authorities should be aware that the Inspectorate is able to act as independent technical expert and can be asked to give evidence in support of any hearing in the magistrates’ courts about a private supply notice.