Council laying pipe across private land owned by defendant – Pipe used solely for draining foul water from one property – Defendant claiming trespass and blocking pipe – Whether pipe drain or public sewer – Section 343 of Public Health Act 1936
On 27 April 1973 a notice was served on the defendant in respect of a property known as Maple Cottage, near Sevenoaks, Kent, which the defendant owned. The notice informed the defendant of the plaintiff council’s intention to lay a sewer on private land under section 15 of the Public Health Act 1936. The pipe was to be constructed to connect a neighbouring property, Maple Farm Manor, to the main sewer. The defendant refused an offer to be connected also to the main sewer. In August 1974 the pipe was constructed across the defendant’s land. In 1996, as a result of actions by the defendant, the pipe became blocked and repairs had to be carried out. The plaintiffs issued proceedings seeking an injunction to restrain the defendant from blocking or otherwise interfering with the pipe and an order that the defendant pay £3,500 in respect of costs paid by the plaintiffs in unblocking the pipe. The defendant claimed that the pipe was not a public sewer but a drain, and accordingly there were no statutory provisions permitting the plaintiffs to lay it across his land. He claimed that, accordingly, a trespass had been committed and that he had been entitled to take steps to block it. The recorder considered Beckenham Urban District Council v Wood (1896) 60 JP 49 and held that there had been no trespass since the pipe was a sewer within the meaning of section 343 of the Act, and, therefore, the plaintiffs had been entitled to construct it across Maple Cottage as private land. Accordingly he granted the injunction and awarded the plaintiffs the damages claimed. The defendant appealed.
Held: The appeal was dismissed.
Para 9.11 of the ‘Water and Drainage Law’ by John Bates stated: ‘if a pipe was built as a sewer and only received the drainage of one building, it would remain as a sewer and the pipe connecting it a building will be a drain’, and it was a correct interpretation of section 343 of the Act. On that basis it could be concluded that the pipe laid across the defendant’s land was a public sewer since it had been constructed as a sewer to serve more than one property, albeit that the defendant had exercised his right not to have his property connected to it. Therefore the plaintiffs were entitled to the injunction to restrain the defendant from further obstructing the sewer and the order that the defendant pay them the costs incurred in carrying out repairs to the pipe.
Edwin Buckett (instructed by the solicitor to Bromley London Borough Council) appeared for the plaintiffs; the defendant appeared in person.
Thomas Elliott, barrister
