The Supreme Court has handed down judgment in The Manchester Ship Canal Company Ltd v United Utilities Water Ltd (overturning previous High Court and Court of Appeal decisions) and held that a private law claim in nuisance and/or trespass can be brought in respect of unauthorised discharges of untreated foul water into a watercourse, such as a canal.
The foul water discharge
This was a long-running dispute concerning discharges into the Manchester Ship Canal from sewers operated by the sewerage undertaker for the North West of England. The owner of the canal had threatened to bring a private law claim in nuisance and/or trespass in respect of unauthorised discharges of untreated sewerage foul water by the undertaker into the canal.
In response, the undertaker applied to the court for a declaration that no such cause of action was available to the owner (absent an allegation of negligence or deliberate wrongdoing). The essence of the undertaker's argument was that the proposed private law claims were impliedly ousted by the Water Industry Act 1991, which provides a statutory enforcement mechanism for breaches of duty by sewerage undertakers.
Of the undertaker's operations, it was said that when it is operating within its hydraulic capacity, the discharges are of surface water or treated effluent, but when the system’s hydraulic capacity is exceeded at least some of the outfalls discharge foul water into the canal. There was no suggestion that these polluting discharges were caused by negligence or deliberate wrongdoing on the part of the undertaker. However, it was accepted that they could be avoided had the undertaker invested in improved infrastructure and treatment processes.
Nuisance at common law and in statute
The discharge of polluting effluent into a privately-owned watercourse is an actionable nuisance at common law, if the pollution interferes with the owner’s use or enjoyment of its property. A body which exercises statutory powers, such as a sewerage undertaker, is liable in the same way as any other person if it is responsible for a nuisance, trespass or other tort, unless either it: (i) is acting within its statutory powers, or (ii) has been granted some statutory immunity.
The court turned to numerous parts of the 1991 Act to support its view that the 1991 Act did not in any way intend to remove the common law powers of individual property owners; and, because the undertaker could have avoided making the discharges had infrastructure improvements been made, it could not be said the outcome was impliedly authorised under the 1991 Act.
Supreme Court Judgment
The Supreme Court unanimously allowed the appeal, holding that the statutory process contained within the 1991 Act did not prevent the canal owner from bringing a claim in nuisance or trespass when the canal is polluted by discharges of foul water from undertaker's outfalls, even if there has been no negligence or deliberate misconduct.
If you are a landowner, occupier or utilities company dealing with issues of nuisance or trespass, or you have any questions about how these issues may impact you or your business, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.
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