Defendant sewerage undertaker discharging surface water into claimant’s watercourse – Claimant seeking to revise terms upon which defendant discharged water – Whether defendant had implied power to discharge surface water into canal – Water Industry Act 1991 section 159
Severn Trent Water (STW) was both the water and sewerage undertaker for its locality under the Water Industry Act 1991. British Waterways Board (BWB) was the navigation authority and, pursuant to its duty under that Act, maintained the Stourbridge canal. In 1973 a private developer was granted consent by BWB to lay a drainage pipe, carrying surface water from a new development at Brierley Hill and discharging it into the canal. BWB gave consent on the terms of its standard licence at an annual rent of £29. In 1976 STW adopted the drainage pipe. STW and BWB failed to reach an agreement as to the basis on which STW could discharge water into the canal. In consequence, BWB gave six months’ notice to determine the licence and claimed that STW was obliged to remove the pipe from its property or to reinstate its property. In contrast to the discharge power for water undertakers in section 165 of the Act, STW, in its capacity as a sewerage undertaker, had no express statutory power to discharge surface water into the canal. The central issue was whether STW had an implied power to discharge water into the canal by virtue of its power to lay pipes, contained in section 159 of the 1991 Act. STW submitted that it was entitled to discharge water into BWB’s canals whenever it wished and in whatever volume it wished, provided that the water was not foul, damaging or injurious. STW relied principally upon Durrant v Branksome Urban District Council [1897] Ch 291 (CA).
Held: The claim was dismissed.
There was an implied power, vested in sewerage authorities by virtue of section 159 of the Act, to discharge surface water from pipes. It was difficult to see how a sewerage undertaker could otherwise fulfill its duty under section 94(1) of the Act and make provision for “emptying” sewers. As the position of a water undertaker was different, it did not follow that if a sewerage undertaker had an implied power, so too did a water undertaker. Neither would an implied power in favour of sewerage undertakers duplicate any provision in section 165. There was no material difference between the statutory scheme in the present case and that of the Public Health Act 1875, considered in Durrant (supra). The limits on such an implied power would be those applicable to statutory powers in general in that it should be exercised in good faith. Moreover, as there was only a limited right to receive compensation for loss and damage, the sewerage undertaker should exercise the power “with all reasonable regard for the interests of other persons” (see Geddis v Proprietors of Bann Reservoir (1878) 3 AC 430).
Sarah Addenbrooke, barrister
Charles Flint QC and Michael Fordham (instructed by Eversheds) appeared for the claimant; Michael Beloff QC and Professor Richard Macrory (instructed by Herbert Smith) appeared for the defendant.