Water Infrastructure Capacity and Statutory Consultees

The recurring problem

Across major housing applications, a consistent pattern is emerging:

• Water companies confirm insufficient wastewater or potable water capacity
• They object (or qualify their response) as statutory consultees
• The local planning authority proceeds to determination without the capacity issue being resolved
• The decision relies on future works, conditions, or “ongoing engagement”

This is not a dispute about planning merits.
It is a question of what evidence lawfully existed at the moment of decision.

The role of the water company as statutory consultee

Water and wastewater undertakers are consulted because they alone can confirm:

• Whether existing treatment works have capacity
• Whether reinforcement is required
• Whether upgrades are funded, programmed, and deliverable
• Whether connection can lawfully occur without environmental harm

When a water company states that capacity is unavailable or uncertain, that is not a peripheral comment. It goes directly to whether the development is deliverable in policy and infrastructure terms.

Authorities commonly receive responses from companies such as Anglian Water, Thames Water, or Southern Water indicating that:

• Existing assets are operating at or beyond capacity, or
• Reinforcement will be required but is not yet designed, funded, or timetabled

How the objection is bypassed in practice

Rather than resolving the issue, authorities often:

1. Reframe the objection as a “technical matter” for later resolution
2. Rely on conditions requiring future capacity upgrades
3. Assume compliance via statutory regimes outside planning
4. Treat the objection as neutralised once the water company stops short of a formal refusal recommendation

The decision report may acknowledge the objection, but does not evidence how the capacity constraint has been resolved.

This is not mitigation.

It is deferral.

Why this is a decision-stage evidence failure

At the point of determination, one of two things must be true:

• Capacity exists and is evidenced, or
• Capacity does not exist and refusal or deferral is required

Where the authority instead relies on statements such as:

• “Capacity can be addressed through future upgrades”
• “Ongoing discussions with the water company”
• “Infrastructure will be delivered in due course”

…the decision is being taken without the evidential basis required to support it.

That is a classic decision-stage evidential sufficiency failure.

The statutory regime does not cure the planning failure

Authorities sometimes argue that water regulation sits outside planning control.

That misunderstands the issue.

Planning is not being asked to design infrastructure.
It is being asked to determine whether the development is capable of being lawfully delivered at the point permission is granted.

The existence of a separate regulatory regime does not allow planning decision-makers to proceed in the absence of evidence.

This is especially acute where:

• Discharge consents are constrained
• Environmental capacity is already exceeded
• Upgrades are unfunded or uncommitted

Environmental and public law consequences

Proceeding in this way creates multiple governance risks:

• Unlawful deferral of assessment
• Failure to consider material considerations
• Inadequate reasons for concluding infrastructure is acceptable
• Exposure to post-decision rationalisation

Once permission is granted, authorities frequently rely on later evidence to defend the decision — evidence that did not exist at the decision-stage.

That is precisely the boundary public law does not permit to be crossed.

Why this issue keeps recurring

The pattern persists because:

• Capacity problems are widespread and politically inconvenient
• Housing targets exert pressure to approve schemes
• Infrastructure delivery is fragmented and slow
• Decision reports prioritise narrative reassurance over evidential resolution

But repetition does not make the practice lawful.

What a lawful decision would require

A compliant approach requires one of the following before determination:

• Confirmed spare capacity, evidenced by the water company
• Funded, programmed, and deliverable upgrades tied to the development
• A clear refusal based on unresolved infrastructure constraints

Anything else is governance risk disguised as optimism.

The underlying reality being assumed

In many determinations, the local planning authority is proceeding on the assumption that:

• the water company will fund and deliver capacity upgrades
• without a committed scheme
• without secured funding
• without a delivery timetable
• and without the upgrades being required as a pre-condition of permission

In other words, the authority is assuming future compliance in the absence of evidence.

Why this assumption is unsound

Water companies are not discretionary infrastructure providers.

They are:

• Regulated monopolies
• Operating under fixed Asset Management Periods (AMPs)
• Constrained by Ofwat-approved investment plans
• Frequently carrying significant financial stress

If a water company states it cannot currently accommodate additional load, that is not a negotiable position. It reflects the limits of its regulatory and financial envelope.

The planning authority has no power to compel a water company to:

• accelerate unfunded capital works
• reallocate AMP funding
• prioritise one private development over statutory duties

What the authority is actually doing

By granting permission anyway, the authority is effectively:

• Transferring infrastructure risk downstream
• Treating an unresolved objection as a solvable future inconvenience
• Relying on the water company to “make it work” later
• Ignoring the consultee’s evidence in favour of optimism

This is not neutral.

It is a substantive planning judgment taken without evidential support.

Why “conditions” do not fix this

Conditions requiring:

• “no development until capacity upgrades are agreed”
• “details of foul drainage to be submitted”
• “connection subject to statutory approvals”

do not resolve the issue unless the upgrades are:

• technically defined
• funded
• committed
• deliverable within a known timeframe

Otherwise, the condition is simply a deferral of the assessment that should have been completed before permission was granted.

That is unlawful deferral in governance terms.

The uncomfortable truth

What is really happening is this:

The authority approves the development because refusing on infrastructure grounds would constrain housing delivery — and hopes the water company will absorb the consequences.

But hope is not evidence, and planning decisions are not permitted to rely on it.

The legal boundary being crossed

At the point of determination, the authority must be able to demonstrate:

• that the development is capable of being lawfully implemented, and
• that material constraints have been resolved or properly assessed

Where a statutory consultee says capacity is unavailable or uncommitted, and the authority proceeds anyway, that boundary is crossed.

Yes — this is a standalone, contestable ground

Where a local planning authority grants permission despite a statutory water consultee confirming that capacity is unavailable or uncommitted, the decision may be challenged on the basis that:

• a material consideration (infrastructure capacity) was not properly resolved
• the authority relied on assumptions rather than evidence
• assessment was unlawfully deferred to post-permission stages
• the decision is supported only by future hope, not decision-stage proof

That is a recognised public-law failure.

You do not need to prove outcomes

This is critical.

A challenge does not require you to show that:

• flooding will occur
• pollution will happen
• upgrades will never be delivered

The question is narrower:

At the moment the decision was taken, did the authority have evidence that the development could be lawfully implemented?

If the answer is no, the decision is exposed.

Why water capacity is particularly strong

Water capacity is a hard constraint, not a planning preference.

Unlike design, layout, or appearance:

• it cannot be negotiated away
• it cannot be solved by wording
• it cannot be assumed into existence
• it cannot be deferred without evidence

If the consultee says capacity is not available, the authority must either:

• resolve it, or
• refuse / defer

Proceeding anyway is a governance failure.

How this appears in challenge terms (plain English)

A challenger would argue that the authority:

• accepted that capacity was unavailable
• failed to explain how or when it would become available
• relied on conditions that do not secure delivery
• treated a statutory objection as informational rather than determinative

That is legally intelligible, reviewable, and justiciable.

Why this keeps being missed

Because:

• it’s politically easier to approve housing
• infrastructure failure is inconvenient
• decision reports prioritise reassurance over proof
• the real risk only becomes visible after permission is granted

But courts assess the record as it stood on decision day, not later explanations.

Where this fits in a Judicial Review

This goes in as a standalone public-law ground, typically framed as one (or more) of the following:

• Failure to take into account a material consideration
  (statutory consultee objection on infrastructure capacity)
• Decision based on no evidence / inadequate evidence
  (capacity assumed, not demonstrated)
• Unlawful deferral of assessment
  (capacity left to conditions or future engagement)
• Irrationality / Wednesbury unreasonableness
  (proceeding despite acknowledged absence of capacity)

Crucially, you rely on the record at decision date:

• consultee response
• officer report treatment
• conditions relied upon
• absence of funded / committed works

No outcomes. No speculation. No hindsight.

Where it fits outside JR

The same facts can be deployed in:

• As evidence that the authority’s conclusion on infrastructure was unsound
• To show the decision was not properly reasoned or evidenced

• As a governance failure: unresolved statutory objection
• Particularly relevant to Monitoring Officer scrutiny

• Framed as systemic infrastructure deferral
• Especially where environmental capacity is constrained

• Evidence that planning decisions are being taken on assumptions
• Not aligned with deliverability or infrastructure reality

Why it works across routes

Because the argument is procedural, not merits-based:

The authority decided something without first establishing it could lawfully be delivered.

That criticism:

• does not depend on policy balance
• does not depend on housing need
• does not depend on future success or failure

It depends only on what evidence existed at the time.

The key sentence (use anywhere)

If you want one line that travels well across JR, appeal, and complaints:

The authority proceeded to grant permission despite the statutory water undertaker confirming that capacity was unavailable or uncommitted, relying instead on future assumptions and conditions that do not resolve the constraint at decision-stage.

That sentence alone flags the defect.