Defendant sewerage undertaker discharging surface water into claimant’s watercourse pursuant to licence – Claimant seeking to terminate licence – Whether defendant having implied power to discharge surface water into canal under section 159 of Water Industry Act 1991 – Judge declaring defendant entitled to discharge water – Claimant’s appeal allowed
British Waterways Board (BWB) was the navigation authority for the Stourbridge Canal in the West Midlands and maintained the canal pursuant to its duty under the Water Industry Act 1991. The defendant, Severn Trent Water (STW), was the sewerage undertaker for the locality. In 1972 planning permission was granted for the construction of an extension to a housing estate near the canal at Brierley Hill. STW’s statutory predecessor sought permission from BWB for the discharge of surface water from the estate into the canal via a 9in discharge pipe. In 1976 BWB granted a licence to STW, at an annual charge of £29, allowing the discharge. By clause 2(g) of the licence, STW covenanted to remove the pipe and reinstate BWB’s property on the termination of the licence.
In September 1996 BWB gave notice terminating STW’s licence as of March 1997. STW, relying upon Durrant v Branksome Urban District Council [1897] 2 Ch 291, claimed that it did not need BWB’s consent to discharge water into the canal, by virtue of section 159 of the 1991 Act.
BWB issued proceedings seeking a declaration that, upon the true construction of section 159, STW had no power or right to discharge the contents of any sewer or disposal main into any canal or waterway vested in BWB. The judge found in favour of STW, and granted a declaration stating that STW, as a sewerage undertaker, had an implied power under section 159 to discharge surface water from the estate into the canal via the pipe that was the subject of the licence. He accordingly held that STW was not obliged to remove its pipe or to reinstate BWB’s property. BWB appealed.
Held: The appeal was allowed.
From an examination of the 1991 Act as a whole, the implication of a power to discharge was inconsistent with the provisions of that Act and could not be justified. Although it was a consolidation Act, there was no cause to look at its predecessor. The Water Resources Act 1991 (which was enacted at the same time and as part of the same group of Acts relating to water as the 1991 Act) conferred express powers upon the Environment Agency and water undertakers as to pipe laying and discharge and made provision for compensation. Further, the Highways Act 1980 conferred upon highway authorities the power to lay pipes for draining surface water, an express power of discharge and provision for compensation. This was all consistent with the absence of any implied power of discharge in the 1991 Act for sewerage undertakers. Accordingly, upon the true construction of the 1991 Act, STW had no implied power to discharge surface water from the housing estate into the canal. STW was obliged, by reason of clause 2(g) of the 1976 licence, to remove the pipe from BWB’s property and to reinstate that property to BWB’s satisfaction: Durrant v Branksome Urban District Council (supra) distinguished.
Charles Flint QC and Michael Fordham (instructed by Eversheds, of Leeds) appeared for the claimant; Michael Beloff QC and Richard Macrory (instructed by Herbert Smith) appeared for the defendant.
Thomas Elliott, barrister
