Lawbite: Falling foul of property rights – sewerage undertakers cause a nuisance (England & Wales)

The Supreme Court has (England & Wales) overturned the decision of the Court of Appeal and found that owners of bodies of water have property rights vested in it, including the right to preserve the quality of the water. Therefore, the Supreme Court concluded that there exists an actionable nuisance if such property rights are interfered with.

The decision will be of particular interest to landowners, water companies and owners of private watercourses across England and Wales.

The context of proceedings

The Manchester Ship Canal Company Ltd (“MSCC”) is the owner of the Manchester Ship Canal (“the Canal”). United Utilities Water Ltd (“UU”) are the appointed sewerage undertaker for the North West of England.

The dispute between MSCC and UU initially arose because UU had discharged foul water into the Canal.

MSCC claimed that UU required its consent to do so, alongside paying an appropriate licence fee.

UU’s position was that it can do so free of charge and without consent because they were lawfully exercising their statutory authority under the Water Industry Act 1991 (“the Act”). Broadly, the Act provides statutory undertakers with certain rights in relation to its use of outfalls.

The question put to the Supreme Court was one of statutory interpretation – did the Act bar MSCC from bringing actions in nuisance against UU because Parliament had “authorised” the use of the outfalls (and, by implication, any nuisance or trespass caused as a result)?

The Supreme Court's decision

The Act does not authorise sewerage undertakers to cause a nuisance or trespass by discharging untreated sewerage into watercourses. This cannot be taken to be the inevitable consequence of the performance of UU’s statutory authority under the Act.

The SC’s interpretation of the Act was that it does not contain an express “ouster” of all common law causes of action and remedies to protect the individual’s right to the peaceful enjoyment of their property.

Key points

• UU acknowledged that enforcement action could be taken against them by the Secretary of State or Ofwat, pursuant to the Act. UU took issue with action being taken against them by MSCC, in circumstances where no negligence or deliberate wrongdoing had occurred;
  
  
• Interestingly, however, it was acknowledged that the Supreme Court’s conclusion (i.e. the grant of injunctions against sewerage undertakers) could potentially interfere with the purpose of the Act (which was intended to facilitate water supply and enhance sewerage infrastructure). In that respect, the Supreme Court gave an indication that each case will need to be considered on its own facts, recognising there will be cases where an injunction is not appropriate (and instead, the appropriate remedy would be in damages).