Options for dealing with non-compliance with a Notice
This case study involves a small, shared domestic supply serving three properties where the private supply is the responsibility of the owner of one of the properties. The spring source arises in a field used for grazing cattle and sheep. The supply is not treated either at source or any point downstream. Users had observed that the supply was discoloured on occasions, particularly after heavy rainfall.
The risk assessment carried out by the local authority confirmed a number of hazards and concluded the supply posed a potential danger to human health. The risk assessment was verified by the detection of E.coli, coliforms and Clostridium perfringens in samples. A Regulation 18 Notice was served requiring source protection measures and the installation of appropriate treatment within 90 days; however, the deadline for the Notice passed without any remedial work having been carried out. The owner of the supply stated that they were boiling the water and in his opinion this was an appropriate remedial measure for the other users. The local authority reiterated that boiling is only a short-term safeguard until long- term remedial action as set out in the Notice was complete, ensuring that all users had a safe and secure supply by means of pipes.
The local authority identified, in discussion with the Inspectorate, that they had two main routes to progress the improvement works. Firstly, they could give short notice (for example, seven days) of their intention to revoke the Regulation 18 Notice and serve a new Section 80 Notice for unwholesomeness, as in this instance they had evidence from the sample failures. This would allow them to identify that the remedial work had not been carried out enabling the works to be carried out in default by the authority under Section 81 of the Water Industry Act 1991. Alternatively, they could take the case to the magistrates’ court for non-compliance with the existing Regulation 18 Notice, ask that it be made into an order and the works carried out in default under that mechanism. However, in this case the owner of the supply was elderly and frail, so the authority decided they would prefer to use the Section 80 Notice route.
Shortly after the Regulation 18 Notice deadline expired, the owner became ill and had to transfer power of attorney to her solicitor, a process that took several months to conclude. Once complete, the solicitor explored a number of options, including a connection to the mains supply. By then one of the other properties had already made a connection to the mains supply. The remaining property was boiling their water for drinking and cooking, and the owner’s property was vacant as she had moved into sheltered accommodation.
This case illustrates the options for dealing with non-compliance with a Notice, which can be considered on a case-by-case basis as various factors, including the particular local supply arrangements, will influence the agreed route. However, where risks to health are identified it is imperative that actions are pursued in a timely manner even when the situation is complicated. The Inspectorate reminds local authorities that their duty to secure a safe water supply is not satisfied by putting in place an open-ended boil water advice notice. It is known from behavioural studies that boil water notices are not complied with by everyone initially and over a relatively short period of time non-compliance becomes widespread, as a consequence of inconvenience or change of occupancy. As a general rule, a boil water notice must be followed up with a Regulation 18 remedial action Notice to bring about a permanent remedy, even where all that is needed is better management and maintenance (see also the Regulation 8 case study below for further evidence of the adverse consequences of issuing open ended and unqualified boil water advice).