We had an interesting notice from our Water authority (Yorkshire Water) just before Christmas and we have just nicely started to deal with it in detail. I thought it was worth this very brief article which is not intended to be our normal legal analysis because the notice will be quite rare I expect. However, there are some interesting points worthy of quick note.
Basically, just over a week before Christmas 2014, we received a call from Yorkshire Water who told us that there was a leak within the mains water pipe running through a property we let out. This mains pipe serves 20 to 26 Waterloo Street and used to run in the back yards of all the properties. However, now, all the properties (including ours) have had extensions built over the years meaning the mains water goes underneath the kitchens and bathrooms of all the properties.
We explained that there was no way of doing this work before Christmas and despite this, a notice was served on 17 December 2014 under section 75 Water Industry Act 1991 requiring the works to be completed within 14 days.
We haven’t done the work and again spoke to Yorkshire Water on our return on or about 5 January 2015.
Previously they had told us they would go to the property with a listening device and pinpoint with rough accuracy the actual location of the leak. Although this was done, they were unable to pinpoint an exact location and in-fact don’t even know if the leak is in our property! All they know for certain is that there is a leak between 20 and 26. They are now refusing to assist any further as it is in private property.
Obviously our time has now expired in respect of the notice so what now? Will the water authority just do the works? What are the requirements of a section 75 water notice?
There is no evidence of water anywhere under any of the properties at the moment and no evidence of damage being caused so the job is not urgent but clearly needs to be sorted. It is worth noting that it is highly likely we will have to remove parts of the kitchen and the bathroom to dig up the concrete floor to see if we can find the leak. We don’t even know for certain exactly where the pipe runs (the divining rods will have to come out for that I think)!
Section 75 Water Industry Act 1991
Section 75 Water Industry Act 1991 provides that a water authority may serve a notice if there is reason for believing-
- that damage to persons or property is being or is likely to be caused by any damage to, or defect in, any water fitting used in connection with the supply of water to those premises which is not a service pipe belonging to the undertaker;
- that water which has been or is to be so supplied is being or is likely to be wasted or, having regard to the purposes for which it is supplied, misused or unduly consumed,
A notice under subsection 2(b) may require “such steps as may be specified in the notice as necessary to secure that the damage, contamination, waste, misuse or undue consumption ceases or, as the case may be, does not occur.”
A section 75 notice must allow at least seven days for any works specified to be taken.
Crucially for landlords, the notice may only be served on the “consumer” . As it turns out therefore, in this case we’ve not had any notice from the water authority as it can only be served on the consumer which is our tenant. As a result, we are not bound by the 14 days.
Recovery of expenses
Where there is a failure to carry out the works within the specified period, the water authority may take the steps itself and recover the expenses. Those expenses may only be recovered from “the person on whom the notice was served” .
What if the landlord fails to carry out the works, the water authority take the steps and bills the tenant consumer? Does the landlord now owe the tenant?
This will all depend on the circumstances of the case in question. It is submitted the landlord will only owe the tenant if the landlord is in breach of any repairing duties under the tenancy and section 11 Landlord and Tenant Act 1985.
A landlord is not in breach of repairing obligations under section 11 if, after receiving notice of the defect (which can be from a third party such as a water authority) and if the works are carried out with reasonable expedition. In our genuine case, I submit we are still within the realms of “reasonable expedition”. There was no way we were going to rip out a kitchen and bathroom, then rip up a concrete floor to find a water pipe one week before Christmas. Since our return after the break we have been making enquiries, arranging estimates and so forth. No damage is yet being done (but I don’t deny damage could be caused soon). Indeed, by the water authorities own admission, the leak may not even be in our property.
Because the pipe is shared, I will need the consent of all the occupiers / owners of the other properties serviced by the pipe because they will all have to contribute an equal amount to the cost. I have no intention of going ahead until I know they will pay.
Crucially for our case, there is no 14 day limit despite what the water authority may think or have tried to threaten upon us. It will take as long as it takes and frankly if they wish to enter and carry out the works themselves, I will be quite grateful!
What if there is no leak?
A very important part of section 75 which could easily be missed and worth the production of this article is subsection (10). This provides that if any steps are taken by virtue of section 75 and it is shown that, in the circumstances of the case, those steps were not necessary, the water authority-
- shall not be entitled to recover any expenses incurred by it in taking those steps; and
- shall be liable to pay to any other person who took any of those steps an amount equal to any expenses reasonably incurred by that person in taking any of those steps.
To summarise, if the work is found not to be necessary, the water authority shall repay all reasonable expenses incurred by the person who carried out any works as a result of a notice.
The wording is important here. In respect of serving the notice and recovering expenses if the work is not carried out, the section specifically refers to the “consumer” and no other person. However, in respect of repaying expenses incurred that are found not to be necessary, they are repayable to “any person” who takes the steps specified in the notice.
This means we as landlords are not bound by the notice in any way. But, if we decide to do the works and it turns out they were not necessary, the water authority must repay us all the expenses reasonably incurred because we are “any person” incurring the expense.
The lesson here is to always read the legislation behind any notice received. It may turn out to be not quite as bad as first thought.