Water Resources Act 1991 – Water abstraction – Loss and damage – Defendants excavating fishing lakes on their land – Claimants alleging that excavation causing reduction in water levels on their adjoining fishery – Whether defendants causing loss or damage to claimants by abstraction of water contrary to section 48A of 1991 Act – Whether liability depending on foreseeability of loss – Claim dismissed
In 2004, the claimants acquired a commercial fishery in Carleton Rode, Norfolk, comprising roughly 3.5 ha of land on which there were six lakes. The land was located within Carleton Rode Fen, which was designated as a Country Wildlife Site. The defendants owned adjoining land on which they had also excavated three fishing lakes. A fourth lake was excavated sometime between 2005 and 2006.
The defendants’ lakes were excavated without the required planning permission. A retrospective planning permission granted by the district council in 2007 was quashed in judicial review proceedings brought by the claimants, on grounds which included the failure of the council to require an Environment Impact Assessment (EIA). In those proceedings, the judge found that the construction of the lakes gave rise to an abstraction of water from the underground strata and that any outfall or overflow of such water from the lakes amounted to an abstraction of water for the purposes of the Water Resources Act 1991: see [2010] EWHC 1070 (Admin); [2010] PLSCS 135.
The council subsequently issued an enforcement notice in respect of the defendants’ lakes. The notice required the defendants to submit an EIA dealing with the hydrological and ecological impact of the lakes and to implement a scheme of works to reduce the total abstraction of ground water from the site to less than 20m³ per day and remedy the adverse ecological impacts of the unauthorised construction of the lakes.
The claimants brought a claim for an injunction and damages against the defendants, contending that the excavation of the defendants’ lakes had adversely affected their land, causing a significant decrease in the water levels in the claimants’ lakes, with a resulting a loss of fish which detrimentally affected the viability of the claimants’ commercial fishery. The claim alleged that the defendants had caused damage to the claimants by abstracting water from inland waters or underground strata, contrary to section 48A of the Water Resources Act 1991. The claimants also relied on causes of action in nuisance and/or negligence. The defendants denied that the excavation of their lakes had caused or contributed materially to the loss of any water supply to the claimants’ fishery and asserted that any such loss was due to other causes.
Held: The claim was dismissed.
It was accepted that the construction of the defendants’ lakes had given rise to an abstraction of water within section 48A of the 1991 Act. It was not necessary, in order for any consequent damage to be actionable, that the relevant loss or damage should be foreseeable. Section 48A(1) provided that an abstractor should not by that abstraction cause loss or damage to another person and there was no statutory limitation or qualification in relation to the loss or damage or its type. Since the abstraction of water might well cause loss or damage, section 48A put the risk on the abstractor, who was strictly liable for all loss and damage caused by his abstraction whether he could have foreseen it or not.
However, applying the normal “but for” test of causation, the claimants’ had not established that the excavation of the defendants’ lakes and abstraction of water on the defendants’ land caused a reduction in water levels in the claimants’ lakes. There were a number of potential causes of the reduction in water levels, which, on a consideration of the expert the evidence, included climatic variations including periods of reduced rainfall or drought between 2009 and 2012. It was for the claimants to prove, on the balance of probabilities, that their loss and damage would not have occurred but for the excavation of the defendants’ lakes and they had failed to do so. That required them to show that it was more likely than not that, but for the excavation of the defendants’ lakes, the crucial lowering in the water levels of the claimants’ lakes and any consequent loss and damage would not have occurred. By reason of the variety of causes for the variability or lowering of water in the claimants’ lakes, the claimants had failed to show on the balance of probabilities that, without the impact caused by the excavation of the defendants’ lakes, the lowering of the water levels in the claimants’ lakes to the degree where loss and damage occurred would not have happened anyway. It followed that the claimants had failed to prove causation and their claim under section 48A of the Water Resources Act 1991c had to fail.
The claims in negligence and nuisance failed for the same reason, and for the further reason that it was established by the case law that a landowner had a right to abstract subterranean water flowing in undefined channels beneath his land regardless of the consequences to his neighbours: Langbrook Properties Ltd v Surrey County Council [1970] 1 WLR 161 and Stephens v Anglian Water Authority [1987] 1 WLR 1381 applied.
Wayne Beglan (instructed by Simon Jackson Solicitors, of Hereford) appeared for the claimants; Wayne Clark and Joe Ollech (instructed by Mills & Reeve LLP, of Norwich) appeared for the defendants.
Sally Dobson, barrister
Click here to read transcript: Chetwynd and another v Tunmore and another
