Dispute between relevant persons on a large Regulation 8 supply
This case study concerns a complex Regulation 8 supply on a large and historic military site, the owner of which is a water company customer that further distributes water from the public supply to consumers located on one of many parcels of land that have been sold off over many years. These parcels of land have been utilized in different ways with a variety of leasing and tenancy agreements in place, but none of the consumers are customers of a water company. The water supply arrangements are classified as Regulation 8 supplies under the Private Water Supplies Regulations and are complex, involving a wide ranging set of relevant persons. The relevant person is defined in Section 80 (7) of the Water Industry Act 1991 as;
• The owner or occupier of the premises supplied; and
• 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.
In June 2016, a district council in the South of England received a complaint from a resident in their area that their domestic water supply had an ammonia/urine like odour. The consumer had initially contacted their local water company who, as part of an investigation, took water quality samples from two neighbouring properties for various microbiological and chemical parameters. The company’s investigations confirmed that the supply configuration constituted a Regulation 8 private water supply and revealed that the two properties were part of a small estate comprising around 80 dwellings, which make up the secondary premises. Such an arrangement requires that it is regulated in accordance with Regulation 8 of The Private Water Supplies Regulations 2016 by the local authority as the designated regulator.
The supply to the houses on the estate is distributed via a large reservoir located on the primary premises (i.e. on separately owned land) and is subsequently disinfected by chlorine dioxide for Legionella control by the land owners prior to the water being further distributed to the secondary premises. The dosing had taken place for approximately 10 years, during which time no odour complaints had been made in relation to the water supply, thereby suggesting that the odour was unlikely to be related to the treatment. The distribution network (believed to have been installed around 1940) is extensive, covering an area of approximately 1km3. Council records indicate that there had been a history of mains fractures and breaks in the distribution network and the condition of the pipework was not fully known.
In June 2016, the council responded to the odour complaint in accordance with the requirements of Regulation 16 by taking samples for analysis. The odour was detected in the water from the taps by samplers on site but not by laboratory analysts. The results of all other parameters tested met their respective regulatory standards.
Discussions with the relevant parties confirmed that there had been a substantial reduction in occupancy across the residential properties on the estate in recent years and most were empty. In addition, several properties were subject to considerable renovation, all of which indicated a low demand for water causing low flows and water to remain static in the local pipes for extended periods. This stagnation is thought to have led to the unpleasant odour in the drinking water. The odour of water must be acceptable to consumers for it to be wholesome and as a response the council served a Section 80 Notice to those they considered appropriate relevant persons.
Although a relevant person is defined in Section 80 of the Water Industry Act 1991, it does not specify any criteria that confers ownership and accountability of costs. It is the responsibility of the local authority to determine who they consider ‘relevant’ rather than ‘responsible’ and costs must be agreed by those relevant. Control and management arrangements differ from supply to supply, in some cases they are documented in specific legal agreements between relevant persons, or they are specified in property deeds. In other situations there are unwritten community agreements or local customs in place. However, it is more common where multiple premises are supplied by a single source, for no agreements whatsoever to be in place. Where this is the case and a local authority requires remedial action to mitigate risks on a private water supply, relevant persons are liable to enter a civil dispute over the funding of the remedial work.
This case study illustrates a case in point: those identified and named as relevant persons on the council’s Section 80 Notice refused to accept any responsibility for the supply, and therefore the costs, associated with the necessary actions to resolve the odour issue. One relevant party appealed the Notice, specifically because they were (wrongly) of the belief that they had been unfairly and wrongly identified as a relevant party, and refused to co-operate with the council.
Some months passed, during which time the council attempted to facilitate a way forward by hosting meetings between the relevant persons, but none were amenable to this and the situation remained unchanged. The council sought advice from the Inspectorate, who explained that their options were limited and in such situations the council would be advised to undertake the necessary remedial work themselves and later recover costs (often described as ‘works in default’). However, whilst putting in place the necessary measures to implement this, the situation took a new turn:
On the 3 April 2017, the council was made aware that consumers on the housing estate, which constituted the secondary premises supply, had experienced a loss of supply. It transpired that the cause of this was a small stone that had become lodged in the supply pipe to the reservoir on the primary premises and restricted the flow. With a reduced flow to the reservoir demand exceeded the available water being supplied downstream. Water remained unavailable for several hours until the cause was found, after which the water facilities manager for the primary land owner began to refill the reservoir by tanker. Council officers were concerned that owing to the nature and fault history of the distribution network and the potential legacy contamination that the supply should not be reinstated without flushing. As this could not take place immediately, bottled water was provided to residents overnight. Letters were issued by the council the next day recommending that tap water be boiled before consumption as a short-term precautionary measure.
Arrangements were made for the supply to be flushed by the primary land owner’s water management contractors, although initially flushing only took place within the commercial area of the estate, so causing further delays to the reinstatement of water to the residential areas. When the water was finally restored, the council undertook sampling from the consumers’ taps at the end of the supply system and found the water to be brown in colour. An investigation into the cause of this revealed that the entire network on both the primary and secondary premises had not been adequately flushed. Re-flushing of the system was undertaken and sampling for both microbiological and some chemical parameters was carried out to verify that this had resolved the problem. Whilst this showed the system was now running clear, E.coli was detected in samples taken from two of the houses in the secondary premises on the Regulation 8 supply, thus indicating a risk to human health. As required under Regulation 18, the council duly served a Notice to compel relevant persons to immediately protect consumers and put in place suitable control measures to mitigate the cause. Public Health England, as a stakeholder, was also informed.
The Notice was appealed by the legal representatives of one relevant person (primary land owner), on the basis that the E.coli detection from one of the samples was derived from an outside tap and was therefore not representative of the supply. Whilst this is indeed a possibility, the primary premises owner failed to recognise that the detection was not in isolation, nor that the supply system had a history of depressurised mains through bursts, or that sampling from an outside tap was poor practice in the first place. The council therefore defended their decision to serve the Notice on the basis that the collective information to date indicated a risk to human health and that they were duty bound under Regulation 18 to act accordingly to protect consumers. As part of their defence the council also challenged the competency and credibility of the sampling methodology of the water management contractors on a number of technical points. The sampling procedure was found not to be UKAS accredited.
A preliminary appeal date was set, but this appeal was later withdrawn and the council received written correspondence from the representatives of the primary premises that their clients would now resolve the matter. Following this, discussions were held between the primary premises owner and other relevant persons to remediate the root causes of the water quality issues associated with this supply.
Following this, a report on site hazards was compiled and provided to the council by a consultant working on behalf of the primary premises owner. This concluded that good management and maintenance of the supply system was required to mitigate risks. Accountabilities between relevant persons were agreed and an action plan developed to rectify the deficiencies highlighted in the report. This included improved communication between relevant parties, robust monitoring arrangements, regular asset checks and the installation of a level alarm on the reservoir.
The council were then satisfied that the necessary and appropriate actions required to mitigate existing risks, and resolve the odour issue, were in place and the Notice was revoked.
This case study highlights the level of complexity that can arise when water quality issues on Regulation 8 supplies manifest. It is common where there are multiple stakeholders, that all refute any responsibility for the remediation of deficiencies on the supply. Additionally these supply systems are often complicated; locations of assets are not always known, network operation inadequate, the assets can be in multiple ownership, and responsibility for their control and management as a whole is rarely established by agreements between the relevant persons.
The Inspectorate has found that such cases will often result in a civil dispute between the relevant persons, usually in relation to apportioning cost and in some cases they will contact the Inspectorate seeking clarification for their responsibilities. On these occasions the Inspectorate is obliged to refer them to seek legal professional advice.
This case study also illustrates the need for relevant persons to proactively establish agreements in regard to responsibilities for the operation and management of a supply so that where necessary, risks can be mitigated promptly. As this case study shows, once agreements have been reached the matter can be resolved relatively quickly and measures put in place to prevent a recurrence of the fundamental issue that led to any dispute. In this case, it was unfortunate that this was only after lengthy and costly professional legal input.
The Inspectorate encourages local authorities to facilitate agreements between relevant persons, where they are absent, to ensure clarity of responsibilities in the event of issues arising.