A supply provided at a public waterspout – case study update
The ambiguity around ownership, regulation and who is responsible for water available to the public sometimes is more complex than might be expected. One such case concerned a waterspout fed from a spring located at a roadside within central England. Being available to the public, protection of public health is central to assuring the supply is suitable for use, and the local authority was rightly concerned about this. The local authority tested the supply and when a problem arose with the results, they sought to determine what the supply was being used for, who was responsible for it, and where the legal responsibility for its regulation lay.
This case study describes that pathway of investigation and discovery up until late 2022.
The waterspout in this case study is a local heritage feature and tourist attraction, and therefore of importance both historically and how it was being used from a public health perspective. It was originally created by a 1905 Act of Parliament to provide a supply of water to serve the local district and has remained in place since, even though the district has long since received a modern treated public mains system. As the waterspout provides untreated water and is regularly used by the public as a source of water for multiple purposes, it represents a potential unmitigated risk. From 2010, when new private water supply regulations in England and Wales were implemented, the water quality from this spout was regularly tested and risk assessed by the local authority as a private water supply. In 2021 when the presence of faecal indicators was detected in samples, the local authority needed to act to protect the public health. As this requires the serving of an enforcement notice, the question of who is actually responsible, provided the first challenge. The local authority initially believed this to be the landowner, but this changed following local intelligence that the asset belonged to the local water company. This had come about via a series of historical asset transfers from its predecessors over decades. This proved difficult to substantiate using local authority records.
Without knowing who was responsible for the supply, accountability for making it safe to consume remained in question. Meantime, in the interests of public health, temporary signage at the spout was erected by the local authority to deter its use for human consumption. Unfortunately, attempts to maintain signage were continually thwarted by its vandalism, further driving the need for a timely resolution. Despite their resolute efforts to protect consumers, the local authority was unable to make any further progress and as a result, sought intervention from the Inspectorate to facilitate a way forward.
In response to this, the Inspectorate approached the water company seeking legal confirmation of their ownership (or not) of this supply as the supply was created by an Act of Parliament and was a supply to the public in law. In so doing, this required the water undertaker whose area of supply this waterspout was located to demonstrate robust and evidenced reasons why this supply should not be subject to enforcement by the Inspectorate under the equivalent public supplies legislation. The company referred the matter to its legal team and confirmed that they believed that the supply belonged to them as the legacy obligation arising from the 1905 Act. They considered the spout to be an historic artefact and confirmed importantly that it was physically and entirely separate from the mains potable water supply. The water company explained that the water provided at the spout was not intended for domestic purposes, as defined in section 218 of The Water Industry Act (WIA) 1991. Scrutiny of the 1905 Act had revealed that the company’s obligation was to continue to provide a historic ‘supply of water’, rather than a domestic supply. The requirement to provide a domestic supply being a separate and distinct obligation, imposed by this Act.
Since the water was not being provided to its customers for domestic purposes, which includes drinking, the duties conferred on water undertakers under section 68 of the Act was not applicable. This requires that water undertakers ensure that water supplied is wholesome, where their supply system is used for the purpose of supplying water to any premises for domestic or food production purposes. Consequently, the supply was not within scope of the Water Supply (Water Quality) Regulations 2016, as amended. This interpretation was subsequently ratified by a Defra lawyer, who was of the view that the 1905 Act, was practically unhelpful on the basis that it substantially predated modern water industry legislation and that and it did not seem to still be law in the sense that the provisions within it were not in effect.
In summary, although historically the spout was constructed to provide “a supply of water” by virtue of an existing act of Parliament, it is today a heritage water feature that is not intended for public consumption. For this reason, the water company has since committed to the provision of permanent signage at the site to deter use for the water from the spout for these purposes. Whilst the Inspectorate recognises this measure to be a best endeavour to protect public health, it considers that this does not fully mitigate the risk. For example, some children and those unable to read the warning notice remain vulnerable.
The Inspectorate updated the local authority of these conclusions and informed them that the supply was no longer within scope of the private water supplies regulations. The Inspectorate suggested nevertheless that the local authority keep a watchful eye on the site to ensure that any signage erected by the owners to deter consumption of water from the spout, remained intact and visible.
This case study illustrates the necessity for confirming the ownership of a supply and its intended purpose where there is doubt. In these situations, this is essential to understand the relevance of any applicable primary legislation and regulatory requirements. Any uncertainty should be clarified within the law in force if necessary, and the conclusions of these investigations must be agreed by the relevant stakeholders. This is to ensure that any supplies that are intended for human consumption are regulated under the appropriate legislation to protect public health. Or, as in this case study, regulation is confirmed not to be a requirement. Regardless of any such investigation, the relevant authorities should discharge a duty of care where there is a risk that unwholesome water may be consumed by the public.