Owners of canals and waterways can sue water companies for discharging untreated sewage and foul water into watercourses, the Supreme Court ruled today.
The six-judge panel unanimously found in favour of an appeal brought by the Manchester Ship Canal Company against United Utilities, which provides wastewater services in the North West. MSCC owns the 36-mile waterway that links Manchester to the Irish Sea.
The ruling overturns two earlier judgments in United Utilities’ favour, which had found that only the government and Ofwat can take legal action against it under the Water Act 1991. It clears the way for MSCC to bring a private case for nuisance or trespass against United Utilities over unauthorised discharges into the canal.
Handing down judgment today, Supreme Court judge Lord Reed explained the implication of the earlier judgments, and the impact of today’s ruling.
“The implication is that no owner of a canal or other watercourse or body of water can bring a claim based on nuisance or trespass against the sewerage undertaker in respect of polluting discharges into the water unless the sewerage undertaker is guilty of negligence or deliberate wrongdoing,” he said.
“A claim of this kind would be prevented however frequent these pollution discharges might be and however damaging their effects might be to their interests or their ability to enjoy their property.”
The court, he said, rejected this argument. This is because, in their analysis, the 1991 Act doesn’t authorise water companies to cause a nuisance by discharging foul water into a canal.
“The starting point is that the owner of a canal or other watercourse has property rights in the water court, including the right to preserve the quality of the water that is protected by the common law. The discharge of pollutants into a privately owned watercourse is an action of a nuisance or common law if the pollution interferes with the owners use or enjoyment of its property,” he said.
When the case was heard last year, barrister Thomas de la Mare KC, representing MSCC, said the dispute has implications for the whole country.
This ruling “will apply to every sewerage undertaker’s discharge of sewage into every river, canal, lake and pond in England and Wales, be it the Manchester Ship Canal, Lake Windermere, the rivers Test to Itching, the Wye or the Trent”, he said.
“The decision is clear,” said Joanne Holbrook, of counsel at Herbert Smith Freehills. “A course of action in private nuisance exists, but the challenges in responding, due to the operation of the regulatory regime and how it is financed, may well affect the remedies available. It further reinforces the urgent need for investment and infrastructure growth in the sector.”
“The decision is likely to be seen as a triumph for environmentalists,” said Rebecca Campbell, vice chair of the Property Litigation Association and partner at BCLP. “It will have significant repercussions for water companies, which have faced much media attention and pressure to reduce the impact of sewage discharges into watercourses.
“However, water companies may argue that the decision could open the floodgates for claims in private nuisance and/or trespass, which could divert resources away from investing in the necessary improvements to avoid future discharges.”
Manchester Ship Canal Co Ltd (No 2) v United Utilities Water Ltd
[2024] UKSC 22; [2024] PLSCS 121
Supreme Court (Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Burrows, Lord Stephens, Lady Rose and Lord Richards) 2 July 2024
