Environment – Nuisance – River – Dispute arising between claimant turbine owner and defendant Environment Agency concerning operation of fish pass in river – Claimant complaining that fish pass interfered with operation of turbine at times of river low flow – Claimant seeking declaratory relief – Whether defendant prima facie liable in nuisance by keeping fish pass open at low flow – Judgment accordingly
Since 1977, the claimant had been the freehold owner of The Mill House, Mill Lane, Padworth, Berkshire, on the River Kennet. The claimant owned a turbine which generated electricity using the power of river water. In 1999, the defendant Environment Agency constructed a fish pass through an island in the river immediately to the south of the property to enable fish to swim through and restore a self-sustaining population of salmon. The pass diverted water away from the turbine.
From 2015 on, the claimant alleged that, in some lower flow conditions, his turbine generated less electricity. When the fish pass was open, some water flowed through it rather than through the channel where the turbine was located. When the fish pass was closed, the water flowed through the other channels, including the turbine channel. If the fish pass was open when the amount of water flowing down the river was low, the electricity generating potential of the turbine could be affected. The claimant complained to the defendant. He said that the defendant should undertake to close the fish pass at low water and pay him damages.
The claimant commenced proceedings seeking declarations to the effect that, contrary to section 10 of the Salmon and Freshwater Fisheries Act 1975, the fish pass, as constructed and maintained, injured the milling power enjoyed by the claimant by diverting a significant flow of water from the intake to the claimant’s turbine so that the claimant was unable to operate his turbine to its maximum operational capacity at times of low flow, causing loss and damage.
Held: Judgment was given accordingly.
(1) A person entitled to an estate in land adjacent to water flowing in a defined channel was a “riparian owner”. In the case of a natural watercourse such as the River Kennet, a riparian owner had a number of natural inherent rights. It was different to an acquired right, which had to be granted expressly or impliedly, or acquired by long user by prescription, or pursuant to the doctrine of lost modern grant, or under the Prescription Act 1832. A natural right was not an easement, to be granted or reserved as appurtenant to an estate in land. Rather, it was incident to the ownership of an estate in the land: Portsmouth Borough Waterworks Co v London Brighton and South Coast Railway (1909) 26 TLR 173 followed.
The natural rights of a riparian owner of land adjacent to a natural watercourse included a right of user and a right of flow which were relevant in the present case. The right of user included the right for the riparian owner to use the flow of the water in the natural channel to turn the wheels of a mill or turbine on his riparian land, provided they did not thereby adversely affect the flow of the stream over or past the land of other riparian owners. The right of flow was the right to have the water flow to them in its natural state in flow, quality and quantity. Any person who affected the flow without a right to do so, by making the flow materially stronger or weaker, committed the tort of nuisance. Unlike some other forms of nuisance, interference with the enjoyment of a property right did not require proof of special damage. In the present case, the claimant made no claim except in respect of the period from 2015 on. The fish pass was not in place for more than 20 years prior to the claimant’s complaints first being made, and so there was no question of a prescriptive right to keep it in place having been acquired: Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 applied.
On the evidence, the effect of the fish pass at low water was to materially reduce the flow of water over the property, interfering with the claimant’s natural right to the flow of that water in its natural state in flow and quantity. Accordingly, subject to the impact of any relevant statutory provisions, the defendant was prima facie liable to the claimant for the tort of nuisance by keeping the fish pass open at times of low water in respect of the period from 2015 on.
(2) The purpose of section 10 was to enable a fish pass to be constructed and maintained in, or in connection with, a dam without causing an injury to the milling power of the river. An interpretation which made it impossible to ever construct such a fish pass would produce a result contrary to the purpose of section 10, and was to be avoided if possible by interpreting “injury” as requiring that the alteration in the flow of the water caused by the fish pass actually caused a tangible injury to someone seeking to take advantage of the milling power of the river.
Interpreted in that way, section 10 did not produce a result inconsistent with its purpose. If a fish pass caused no injury when it was installed, but began to cause an injury later due to a change in circumstances, the statutory authority to maintain it in place ceased. Nothing in the definition of “milling” in section 41(1) indicated that only power supplied to mills in existence when the fish pass was first constructed was to be taken into account.
(3) As the defendant had no power, other than that derived from section 10, to keep the fish pass open at low water, it could not rely on the defence of statutory authority. Section 10 gave the defendant a statutory power to keep a fish pass in place and operational. If the conditions for the exercise of the section 10 power were not satisfied, and there was no other power authorising the defendant to keep the fish pass open, the defendant would be liable to the claimant for the tort of nuisance. There was no warrant for interpreting section 10 as imposing a statutory duty on the defendant not to injure the claimant.
Nigel Thomas (instructed by Aaron and Partners LLP) appeared for the claimant; Richard Turney (instructed by the Environment Agency legal department) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Pigot v Environment Agency
