Our rivers are drained of water and filled with raw sewage. The lack of investment in water resources and sewage treatment has driven our rivers to breaking point. The planned housebuilding will make matters worse unless water companies can say no to connecting new homes unless or until they have the water and sewage capacity. Justin Neal, our in-house solicitor, sets out the problem and explains WildFish’s simple solution.
We currently take 14 billion litres of water per day in England (1) and in 2023, 464,056 sewage spills into rivers and the sea (2). There is no sign that the amount of sewage spilled into our rivers is decreasing and we fear that high temperatures and increased demand will see more dried out riverbeds.
Government growth strategy threatens our rivers
Meanwhile, the government is relentlessly in pursuit of growth: growth in infrastructure (including new reservoirs, which we of course applaud), but also growth in terms of housing. But more houses mean more demand on sewage infrastructure and water resources. Development must (and can be) sustainable.
At one end of the process, abstraction and sewage are subject to licensing and permitting. At the other, the economic regulator deals (in theory at least) with the long-term plans and investment for supply. But permits and licences seldom reflect what it is necessary for the water company to do to meet capacity requirements. So, the pumps keep pumping to meet increased demand and the sewage flows into our streams and rivers in breach of permits designed for less populated times.
The failure of planning
We say that there are problems with how demand is predicted. Water companies consider “Growth scenarios” in their planning for water resources and wastewater. That should include future housing demand. But it is difficult to predict demand and the plans are often out of date by the time they are approved by Defra – yet they remain often unamended for a five-year period.
Water and sewage companies are consulted by local planning authorities in the drafting of their Local Development Plans (LDPs). But the clear lack of capacity demonstrates that this system does not work in accurately predicting demand and required supply.
Equally, the council cannot rely on the Water Resource Management Plans (WRMPs) from water companies to understand whether there is capacity, partly because the WRMPs do not deal with the detail of individual developments and will be out of step with planning applications (3).
In practice, the water company’s role is highly reactive: it will respond to planning applications, when it is consulted (which is never guaranteed), indicating whether it has capacity.
Meanwhile, the planning guidance and the National Planning Policy Framework (NPPF) are really too strategic and insufficiently prescriptive. A local authority can include conditions in a planning permission that require that the question of capacity be resolved. But, in our experience, water companies can be fatalistic about their obligation to connect to overwhelmed sewers and councils just accept the inevitable. Leaving the issue to be dealt with by local planning authorities cannot be the answer.
Water companies must be able to say no
The biggest problem is the obligation for water companies to comply with water mains and sewer requisition under s 106 and 41 of the Water Industry Act 1991. But this is not the case north of the border in Scotland where the public authority (Scottish Water) can refuse permission for connection or require that the developer pays to upgrade sewers.
Wildfish recommends that the law be changed by amending the Water Industry Act 1990 to allow for water companies to refuse to connect when there is no capacity for sewage treatment and water resource demands. This takes the responsibility away from non-specialist councils and puts the onus on the developer to only make applications where there is capacity.
Wildfish recommends that the law be changed by amending the Water Industry Act 1990 to allow for water companies to refuse to connect when there is no capacity for sewage treatment and water resource demands. This takes the responsibility away from non-specialist councils and puts the onus on the developer to only make applications where there is capacity.
We also think planning guidance and the NPPF should be amended to say planning permission should be refused where there is no capacity.
Water companies should always be consulted on new housing development and, lastly, the law should be changed to make the developer pay for upgrades to sewage treatment or invest in water resources – or be refused permission.
This is not a perfect solution – but it is better than simply allowing large housing estates to be built where the system cannot cope.
To find out more see our Planning Report.
(2) Raw sewage discharges in England and Wales hit record
(3) See, for instance, the Draft Water Resources Plan for Southern Water, para 8.2, “The HRA of the draft WRMP24 provides a strategic, plan-level assessment to support the WRMP. It is not an application-specific (“project” level) assessment. A more detailed, project-level HRA (with Stage 2 Appropriate Assessment where required) will be needed to support any actual planning application and environmental permit or consent. https://www.southernwater.co.uk/media .pdf.
Despite the unreliability of WRMPs, the EA has recently lifted its objections for a massive development project in Cambridgeshire, assuming that the WRMP will have the right provisions for supply to make the development sustainable. But the WRMP will always be one step behind what is really required. Council approves Waterbeach new town homes after water concerns – BBC News
(3) See, for instance, reference to an appeal by the Post Office to a refusal by Yorkshire Water to connect – discussed at paragraph 46 of Barratt Homes v Dwr Cymru [2009] UKSC 13
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