Waterway – Water abstraction – Payments – Respondent holding licence to abstract water from river – Respondent being obliged to make payments to appellant as body under statutory duty to maintain waterways – High Court making declarations concerning amount of payments – Appellant appealing – Whether payments being contribution towards cost of waterway or as consideration at market value for water extracted – Whether other bases upon which defendant obliged to make payments – Appeal dismissed
The appellant was the immediate successor to the British Waterways Board, which was under a statutory duty, among other things, to maintain commercial and cruising waterways. The appellant’s income was derived from a funding agreement with the government, licensing of boats and moorings, marinas, utilities including the sale of water, investments, joint ventures and contributions and donations. All of its income was used to meet its statutory obligations. The respondent was a private utilities company responsible for the public water supply and treatment of waste water in large parts of the south of England and elsewhere. The respondent held two licences to extract water from the River Lee, both of which had been granted in September 1966.
A dispute arose between the parties concerning the amount of the payments which the respondent was obliged to make to the appellant in respect of water it abstracted from the River Lee. The High Court held that, under the River Lee Water Act 1855, the rights that the appellant’s predecessors once had to the water in the River Lee were given up once and for all and in perpetuity and transferred to respondent’s predecessors. The payments that the respondent was obliged to make under the 1855 Act related to the whole quantity of water that it abstracted from the River Lee. Those payments related to the maintenance and repair of the river and to the once and for all transfer of rights under the 1855 Act. The appellant was not entitled to make any claim against the respondent on any other basis in respect of the abstraction of water from the river: see [2016] EWHC 1547 (Ch); [2016] PLSCS 188.
The appellant appealed. The issues raised were: (i) what was the nature of the transfer effected by section 9 of the 1855 Act; (ii) were the payments under section 5 of the 1855 Act for maintenance and repair only, or did they include payment for water; and (iii) if the section 5 payments were for water, what was the quantity of water for which the payments were made.
Held: The appeal was dismissed.
(1) Under the 1855 Act, the rights that the appellant’s predecessors once had to the water in the River Lee were given up once and for all and in perpetuity and transferred to the respondent’s predecessors. The effect of section 9 of the Act was to vest the statutory property interest in the water in respondent’s predecessors. The judge had correctly found that the effect of section 9 was a once and for all transfer of all of the water flowing into and down the River Lee. The fact that the payments under section 5 were regular annual payments did not affect that conclusion. Amendments to the 1855 Act by the Lee Conservancy Catchment Board (New Functions of River Authorities) Order 1965 had no impact on the respondent’s property rights in the water.
(2) The payments which the respondent was obliged to make to the appellant under the 1855 Act were not solely for the maintenance and repair of the river, but also for water. The purpose of the annual special payment, which the respondent was required to make to the appellant pursuant to section 5 of the Act, was to pay for both the maintenance and repair of the River Lee and the once and for all transfer of the rights to all of the water in the River Lee which the appellant had a right to sell in 1855, except for that which was necessary for navigation.
(3) The value of the water abstracted was a material consideration in calculating the amount of the payments under the 1855 Act. However, that was just one of a number of material considerations that the Secretary of State was entitled to take into account when determining a just and reasonable payment.
(4) The payments under the 1855 Act related to all of the water in the River Lee that was transferred to the respondent’s predecessors under the 1855 Act. Both before and after the 1965 Order, the respondent and its predecessors had been paying for the property in the same quantity of water, namely all the water in the River Lee in excess of the quantity required for navigation. The declaration made by the judge would modified to that effect.
Stephen Tromans QC and Catherine Dobson (instructed by Eversheds Sutherland (International) LLP) appeared for the appellant; Sa’ad Hossain QC and Sarah Abram (instructed by Berwin Leighton Paisner LLP) appeared for the respondent.
Click here to read transcript: Canal & River Trust v Thames Water Utilities Ltd
