Public water supply — Right of landowner to uncontaminated water supply — Liability for interference with right — Pollution — Water found to be “wholesome” — Subsequent change in criteria — High Court dismissing claim for injunctive relief and damages in respect of pollution of ground water — Court of Appeal allowing appeal against that decision — Strict liability for interference with natural right
The appellant was a statutory water company with responsibility for providing a public water supply within an area of 453 sq miles, which included the city of Cambridge. The population supplied was approximately 275,000. In 1976, the appellant purchased premises previously used for paper-making, which were situated 1.3 miles north west of the village of Sawston and known as Sawston Mill. The premises included a bore hole to a depth of 30m by means of which water could be pumped from the chalk aquifer. The water from the bore hole was declared “wholesome” in accordance with the then current standards of water quality.
On July 15 1980 the Council of the European Communities issued a directive relating to the quality of water intended for human consumption (No 80/778). That directive required member states to fix specified parameters applicable to water quality. One of the parameters was of the maximum admissible concentration of certain compounds, one of which was “PCE”. In 1976 when Sawston Mill was purchased, the presence of PCE in a public water supply was not a matter of concern and water was not tested with PCE in mind.
Following the issue of the directive, the water was tested and showed concentrations of PCE many times higher than permitted by the directive. The appellant ceased pumping for water at Sawston and an inquiry followed. In the light of information produced thereby, the appellant claimed that the PCE had originated from the respondent’s premises in Sawston and commenced proceedings for injunctive relief and damages in respect of the pollution of ground water, which had prevented the plaintiff from continuing to use water pumped at the Sawston Mill bore hole for the purpose of providing a public water supply. Kennedy J in the High Court dismissed the appellant’s claim. The appellant appealed.
Held The appeal was allowed.
1. The tort of nuisance, uncertain in its boundary, might comprise a wide variety of situations in some of which negligence played no part, in others it was decisive: per Lord Wilberforce in Goldman v Hargrave [1967] 1 AC 645 at p 657.
2. The situation in the present case was one where the appellant alleged an interference with a right enjoyed as an incident of its ownership of Sawston Mill. Rights which the courts had identified as an incident of the ownership of land had often been described as “natural” rights. One of those rights was that of an owner in regard to naturally occurring water which came beneath his land by percolation through undefined underground channels. The owner’s right was to have such of the water as he appropriated by abstraction come to him in an uncontaminated condition.
3. Where a nuisance was an interference with a natural right incident to ownership then the liability was strict: see Ballard v Tomlinson (1835) 29 ChD 115.
4. The actor acted at his peril in that if his actions resulted by the operation of ordinary natural processes in an interference with the right, then he was liable to compensate for any damage suffered by the owner. The operation was whether the user was or was not the violation of a right of the plaintiff.
5. On the present case PCE was found to have been spilt by the actions of the respondent’s servants and the damage which was suffered by the appellant resulted from the operation of natural processes of seepage. Accordingly, Ballard v Tomlinson was determinate in favour of the appellant.
6. The court could not attach any important to the fact that the appellant suffered damage only when quality standards were raised three years after its abstraction commenced and many years after the respondent had ceased to spill PCE.
7. Moreover, the rule in Rylands v Fletcher (1868) LR 3 HL 330 (which made a person liable for the event of an escape rather than for his actions) was inapposite in the present case. This case was one where liability attached by reason of actions of the respondent in spilling PCE.
Piers Ashworth QC and Lawrence West (instructed by Barlow Lyde Gilbert) appeared for the appellant; Philip Vallance QC and David Hart (instructed by Berrymans) appeared for the respondent.
