Environment – Sewerage – Discharge – Claimant threatening to bring claim in trespass against defendant sewerage undertaker concerning unauthorised discharges into canal – Defendant seeking declaration that complaint premised only on alleged fact of discharge not actionable as private law claim – Whether common law remedies surviving where statute providing remedial and enforcement schemes – Declaration granted
The claimant was the owner of the Manchester Ship Canal. The defendant was the water and sewerage undertaker for the North West region, appointed under the Water Industry Act 1991.
The defendant issued a part 8 claim in 2018 when, following the refusal of permission to amend the remainder of its original claim, the claimant threatened to issue new proceedings in trespass, claiming damages for the unlawful discharge of inadequately treated sewage effluent from about half the total number of outfalls into the canal (the category B outfalls).
The defendant sought a declaration that the statutory scheme of powers and duties, regulation, enforcement and remedies in the 1991 Act was intended by parliament to exclude common law remedies for what would otherwise be tortious conduct of a sewerage company. The test was whether looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended to coexist with it.
The question was whether the conclusion was the same where the complaint was one of unauthorised discharge into the canal of sewage effluent through outfalls forming part of the defendant’s undertaking, rather than the escape of sewage from inadequate sewers.
Held: The declaration was granted.
(1) It was common ground that the 1991 Act did not confer authority to drain inadequately treated foul effluent into watercourses or rivers, or to contravene environmental limits and permits: sections 117(5) and 186(3). Thus, although the defendant lawfully drained properly treated effluent through the category B outfalls and into the canal regularly, in accordance with the implied statutory right to do so, as soon as the effluent was inadequately treated, the defendant had no power lawfully to drain such effluent into the canal, only the right to drain clean effluent.
Any such occurrences of unlawful discharge were the result of heavy rainfall that caused the capacity of the sewerage infrastructure to be exceeded. The entry of foul discharge rather than adequately treated effluent into the canal was therefore involuntary. The defendant had done nothing to cause or permit it to happen except abstain from building a more capacious or different system. A purely involuntary act was not an act of trespass. The true cause of action, if any existed in those circumstances, was nuisance, to which the defendant could not raise any defence of authorisation by statute, by reason of sections 117(5) and 186(3) of the 1991 Act.
(2) The real question was whether a common law cause of action in nuisance was impliedly ousted by the different remedies provided by the scheme in the 1991 Act, or whether on a true construction of that Act it was intended that an owner of land covered by or adjoining water could bring a private law action against a statutory undertaker. Whether brought in nuisance or trespass, the natural relief to seek in such a claim would be an injunction and damages.
(2) In Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2003] PLSCS 268; [2004] 2 AC 42, the court explained that the 1991 Act contained an elaborate regime for regulation of the water industry in the public interest, with a view to securing environmental benefits, improvements to the infrastructure, a reasonable return on capital for the private commercial undertaker and a better service for customers, both as regards prices charged and quality of service. The legislation contained its own enforcement and remedial schemes.
It was a misinterpretation of the decision in Marcic and of the structure of the 1991 Act to say that, in discharging into the canal in breach of the statutory provisos, the defendant was acting in breach of section 116 of the Act which conferred on a sewerage undertaker a qualified power to discontinue use of a sewer, with a related duty, where the power was exercised, to provide a replacement sewer. The unlawful discharge into the canal was not the consequence of the defendant’s exercise of that power, or a breach of the related duty.
(3) The reason (on the evidence) for such contaminated drainage as had occurred was the effect of sudden heavy rainfall, which caused flooding and resulted in the capacity of the existing system being exceeded. Any breach of duty by the defendant was therefore not a breach of one or more of the relevant sewerage provisions but a breach of the section 94 duty to make provision as was necessary from time to time for effectually dealing with the contents of the sewers in its area. In the absence of an allegation of negligence, malfunction or misconduct, the fact that insufficiently treated effluent was discharging into the canal meant that there had to be a breach of the general duty in section 94(1)(b).
(4) A claim in nuisance, where the only remedy for the nuisance was the construction of a better sewerage system, could not coexist with the statutory scheme in the 1991 Act.
Accordingly, the court would make a declaration to the effect that, upon the true construction of the 1991 Act, absent an allegation of negligence or deliberate wrongdoing, the claimant had no private law action in trespass or nuisance against the defendant in respect of discharges from the category B outfalls in contravention of section 117(5) or 186(3) of the 1991 Act.
David Hart QC, Charles Morgan and Nicholas Ostrowski (instructed by BDB Pitmans LLP) appeared for the claimant; Jonathan Karas QC, Richard Moules and James McCreath (instructed by Pinsent Masons LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Manchester Ship Canal Co Ltd v United Utilities Water Ltd
