Residential development – Public sewer – Connection – Respondent developer obtaining planning permission for development – Appellant water undertaker refusing connection – Respondent claiming damages for nuisance, negligence and trespass to goods – High Court refusing to strike out nuisance and trespass claims or grant summary judgment – Appellant appealing – Respondent cross-appealing against strike out of negligence claim – Appeal allowed – Cross-appeal dismissed In May 2007, the respondent property developer was granted planning permission for the construction of a school and 98 houses at LLanfoist in Wales. Two weeks later, the respondent gave notice pursuant to s 106 of the Water Industry Act 1991 to the appellant sewerage undertaker of its intention to connect the development by its drains to the public sewer at a specified connection point. Section 106(4) of the 1991 Act provided that notice of refusal to permit the communication might be given by the undertaker within 21 days of receiving a notice under section 106. No such notice of refusal was given by the appellant. The respondent alleged that, on about 25 June 2008, the appellant had poured concrete into the respondent’s drainage pipe by which it had intended to make the connection to the public sewer, preventing that connection from taking place. By that date, the respondent had built 38 houses and was in the course of constructing the school. The respondent had to place a temporary storage tank within the development and had the sewage pumped out and removed by tanker. The Supreme Court subsequently ruled that the respondent had had an absolute right to connect at the connection point and upheld the grant of injunctive relief restraining the appellant from preventing or interfering with such connection: [2009] UKSC 13; [2009] PLSCS 343; [2009] 50 EG 67 (CS). In April 2010, the respondent issued proceedings alleging that the appellant’s conduct had amounted to a breach of statutory duty and/or an act of trespass to or wrongful interference with the pipe and/or a nuisance and/or negligence. The High Court dismissed the appellant’s application to strike out the respondent’s claims in nuisance and trespass to goods and refused to grant summary judgment to the respondent in respect of those claims. The appellant appealed. The respondent cross-appealed against the judge’s ruling that, with the exception of a claim in respect of physical damage to a pipe and its reinstatement, the claim in negligence should be struck out. Held: The appeal was allowed. The cross-appeal was dismissed. (1) The right conferred by section 106 of the 1991 Act could not be invoked by the respondent as the basis of a cause of action in nuisance. The policy of the statute was clear: section 106 was not intended to confer a right to compensation for breach. If failure to perform a statutory duty did not give rise to a private right to sue for damages for breach it was difficult to see how it could provide the essential basis for a cause of action for damages in nuisance. Section 106 could not be used as a basis for a private law claim in damages and the respondent had no cause of action in nuisance to the extent that such a claim was founded on its rights under section 106: Lingke v Mayor of Christchurch [1912] 3 KB 595, Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 and Dobson v Thames Water Utilities Ltd [2009] 1 EGLR 167 distinguished. Bowden v South West Water Services Ltd (unreported, 17 December 1997), X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and Stovin v Wise [1996] AC 923 considered. (2) This was not a case where a third part had interfered and prevented discharge by the respondent of sewage from the development. The complaint in the present case was essentially bound up with the refusal of the appellant to permit connection and discharge in breach of its statutory duty. The essential nub of the complaint was the refusal to permit connection and discharge. Accordingly, it was not arguable by the respondent that the appellant’s act of blocking the pipe with concrete had been an operative or effective cause of the loss which it had suffered. The dispute between the parties had been essentially about and bound into the statutory scheme. The use of cement to close the access pipe had been merely incidental. The operative and effective cause of the loss suffered had been the appellant’s refusal to permit connection and discharge. (3) In all the circumstances, the appeal would be allowed since the respondent’s claim for damages in nuisance and trespass could not succeed and would be struck out. The cross-appeal would be dismissed. Robert Weir QC and Jessica Simor (instructed by Geldards LLP, of Cardiff) appeared for the appellant; Steven Gasztowicz QC and Clare Parry (instructed by Darwin Gray LLP, of Cardiff) appeared for the respondent. Eileen O’Grady, barrister
Residential development – Public sewer – Connection – Respondent developer obtaining planning permission for development – Appellant water undertaker refusing connection – Respondent claiming damages for nuisance, negligence and trespass to goods – High Court refusing to strike out nuisance and trespass claims or grant summary judgment – Appellant appealing – Respondent cross-appealing against strike out of negligence claim – Appeal allowed – Cross-appeal dismissed In May 2007, the respondent property developer was granted planning permission for the construction of a school and 98 houses at LLanfoist in Wales. Two weeks later, the respondent gave notice pursuant to s 106 of the Water Industry Act 1991 to the appellant sewerage undertaker of its intention to connect the development by its drains to the public sewer at a specified connection point. Section 106(4) of the 1991 Act provided that notice of refusal to permit the communication might be given by the undertaker within 21 days of receiving a notice under section 106. No such notice of refusal was given by the appellant. The respondent alleged that, on about 25 June 2008, the appellant had poured concrete into the respondent’s drainage pipe by which it had intended to make the connection to the public sewer, preventing that connection from taking place. By that date, the respondent had built 38 houses and was in the course of constructing the school. The respondent had to place a temporary storage tank within the development and had the sewage pumped out and removed by tanker. The Supreme Court subsequently ruled that the respondent had had an absolute right to connect at the connection point and upheld the grant of injunctive relief restraining the appellant from preventing or interfering with such connection: [2009] UKSC 13; [2009] PLSCS 343; [2009] 50 EG 67 (CS). In April 2010, the respondent issued proceedings alleging that the appellant’s conduct had amounted to a breach of statutory duty and/or an act of trespass to or wrongful interference with the pipe and/or a nuisance and/or negligence. The High Court dismissed the appellant’s application to strike out the respondent’s claims in nuisance and trespass to goods and refused to grant summary judgment to the respondent in respect of those claims. The appellant appealed. The respondent cross-appealed against the judge’s ruling that, with the exception of a claim in respect of physical damage to a pipe and its reinstatement, the claim in negligence should be struck out. Held: The appeal was allowed. The cross-appeal was dismissed. (1) The right conferred by section 106 of the 1991 Act could not be invoked by the respondent as the basis of a cause of action in nuisance. The policy of the statute was clear: section 106 was not intended to confer a right to compensation for breach. If failure to perform a statutory duty did not give rise to a private right to sue for damages for breach it was difficult to see how it could provide the essential basis for a cause of action for damages in nuisance. Section 106 could not be used as a basis for a private law claim in damages and the respondent had no cause of action in nuisance to the extent that such a claim was founded on its rights under section 106: Lingke v Mayor of Christchurch [1912] 3 KB 595, Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 and Dobson v Thames Water Utilities Ltd [2009] 1 EGLR 167 distinguished. Bowden v South West Water Services Ltd (unreported, 17 December 1997), X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and Stovin v Wise [1996] AC 923 considered. (2) This was not a case where a third part had interfered and prevented discharge by the respondent of sewage from the development. The complaint in the present case was essentially bound up with the refusal of the appellant to permit connection and discharge in breach of its statutory duty. The essential nub of the complaint was the refusal to permit connection and discharge. Accordingly, it was not arguable by the respondent that the appellant’s act of blocking the pipe with concrete had been an operative or effective cause of the loss which it had suffered. The dispute between the parties had been essentially about and bound into the statutory scheme. The use of cement to close the access pipe had been merely incidental. The operative and effective cause of the loss suffered had been the appellant’s refusal to permit connection and discharge. (3) In all the circumstances, the appeal would be allowed since the respondent’s claim for damages in nuisance and trespass could not succeed and would be struck out. The cross-appeal would be dismissed. Robert Weir QC and Jessica Simor (instructed by Geldards LLP, of Cardiff) appeared for the appellant; Steven Gasztowicz QC and Clare Parry (instructed by Darwin Gray LLP, of Cardiff) appeared for the respondent. Eileen O’Grady, barrister
