Local authority successful in an appeal against a Regulation 18 Notice
This case study relates to a private spring water supply in a rural area which serves five properties including a children’s nursery. The nursery additionally has its own borehole supply which is satisfactory. The nursery owner could switch to either a borehole or a spring supply internally at the property, either supply would then be UV filtered.
A risk assessment carried out by the local authority identified that the spring water supply was unsatisfactory, being contaminated by E.coli. The condition of the water storage tank in the field where animals grazed (figure 14) was in extremely poor condition. The plywood cover and brickwork were defective. The spring water supply had exhibited a long history of microbiological failures, although the two most recent samples had been satisfactory.
The local authority served regulation 18 notices on all the relevant people involved with the supply. This specified restriction (boiling) of the water supply and a schedule of improvements required at the tank. As it was possible for the nursery owner to just use the borehole supply he felt that he did not have to comply with the notice. He was informed by the local authority, after consulting the DWI, that unless he physically cuts off the spring supply pipe externally at the property he is still a relevant person and the notice remains in force.
Figure 14: Spring collection chamber (left) with plywood lid (right)
The nursery owner did not want to cut off the spring supply pipe externally but offered to sign an undertaking that he would not use that supply for domestic or commercial purposes. This was refused. The Water Industry Act 1991 defines domestic purposes as drinking, washing, cooking, central heating and sanitary purposes and the Private Water Supplies Regulations made under the Act applies to water intended for human consumption for drinking, cooking, food preparation and other domestic purposes. The nursery owner appealed against the notice and a hearing took place in the local magistrate’s court in December 2012.
The owner’s appeal was based on an objection to the requirement to physically disconnect the spring, rather than leaving it connected and providing a written assurance that it would not be used. Key to the argument was what constitutes a private supply. The Inspectorate’s advice to the local authority was that it is implicit in the Act that a water supply comprises ‘all of the physical assets from source(s) to every draw off point (taps) used for domestic purposes’. On this basis, it was appropriate for the local authority Notice to require that a source (in this case the spring) be physically disconnected such that it no longer comprised a part of the private supply. The courts upheld the Notice and accepted the local authority’s argument that without a physical disconnection, spring water could still be used for domestic purposes (and was therefore part of the private supply) and this would pose a potential risk to human health (on the basis of the risk assessment).
All local authorities need to be aware of the outcome of this case, which is the first recorded appeal of a Regulation 18 Notice and provides useful reassurance about the approach courts are likely to take when hearing such appeals. In particular, the working definition of a private supply as including all assets from source(s) to tap(s) was accepted, and also risk assessment was sufficient to demonstrate that the supply posed a risk to human health, it not being considered relevant that recent sample results had been satisfactory.
The Inspectorate considers that local authorities should reference this case in future discussions with any private supply owner that is disinclined to accept the need for a risk assessment or a notice, puts undue reliance on sample results or otherwise indicates an unwillingness to comply with essential improvements highlighted as necessary based on risk assessment findings. Since the above case, there has been a second appeal against a Regulation 18 Notice in another part of the country where the local authority, with assistance from the Inspectorate, also achieved a similarly successful outcome. This second case study will be published in Drinking water 2013, but in the meanwhile, local authorities are reminded that the Inspectorate is available to provide support in relation to any potential or actual appeal situation.
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