Nuisance — Flooding — Liability of water undertaker — Drains and sewers — Statutory duty to provide effectual system of drainage — Non-feasance — Negligence — Nuisance — Rylands v Fletcher — Whether duty owed under Leakey v National Trust for Places of Historic Interest or Natural Beauty — Whether defence of statutory authority available — Whether failure to act incompatible with European Convention on Human Rights
The claimant was the owner of a substantial family house. It was frequently flooded: significantly in 1992, and regularly and seriously thereafter. The flooding included back flow of foul water from the defendant’s sewer system. The property suffered defects attributable to the flooding. Major surface water drainage works were required to significantly alleviate the risk of flooding. It would have been practicable for the defendant to carry out works to remove the risk of flooding to the claimant’s property if the necessary finance had been available. The claimant contended that the flooding constituted a nuisance for which the defendant was liable, since the subject sewers were the property of the defendant. He sought an injunction and damages. At trial, a number of specific preliminary issues were drawn up for determination.
Held: The claim was allowed. It would have been practicable for the defendant to carry out works to remove the risk of flooding if the necessary finance had been available. The claimant had no remedy under the law as it existed before the passing of the Human Rights Act 1998. The defendant was not liable in negligence, under the principle in Leakey v National Trust for Places of Historical Interest or Natural Beauty [1980] QB 485, in nuisance, or under the rule in Rylands v Fletcher (1868) LR 3 HL 330. The defendant was not liable in negligence by reason of any omission to exercise its statutory powers to execute remedial works or its omission to monitor restrictions imposed by the local planning authority in relation to the drainage of new buildings. The claimant did not have a private law remedy against the defendant for breach of statutory duty by reason of any omission to provide a system of public sewers or for any omission to make provision for effectual dealing with the contents of its sewers. However the defendant’s failure to execute remedial works was a failure to act that was incompatible with a Convention right within the meaning of section 6(1) of the Human Rights Act 1998. The claimant was entitled to damages on the “difference in value” measure in lieu of an injunction. The claimant had no cause of action for damages prior to the expiration of a period of time from 2 October 2000 (when the Human Rights Act 1998 came into force) until works necessary to end the nuisance could have been completed. The “difference in value” measure fell to be applied at that notional completion date.
The following cases are referred to in this report.
Allen v Gulf Oil Refining Ltd [1981] AC 1001; [1981] 2 WLR 188; [1981] 1 All ER 353; [1981] JPL 353, HL
Baggs v United Kingdom (1987) 9 EHRR 235
Barkerv Herbert [1911] 2 KB 633
Baron v Portslade Urban District Council [1900] 2 QB 588
British Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ 276; [2001] 3 WLR 613; [2001] 3 All ER 673
Bybrook Barn Garden Centre Ltd v Kent County Council [2001] BLR 55
Cowley v Newmarket Local Board [1892] AC 345
Dunne v North Western Gas Board [1964] 2 QB 806; [1964] 2 WLR 164; [1963] 3 All ER 916; 62 LGR 197, CA
Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102
Goldman v Hargrave [1967] 1 AC 645; [1966] 3 WLR 513; [1966] 2 All ER 989; [1966] 2 Lloyd’s Rep 65, PC
Guerra v Italy (1998) 26 EHRR 357
Heskethv Birmingham Corporation [1924] 1 KB 260
Hole v Chard Union [1894] 1 Ch 293
Jaggard v Sawyer [1995] 1 WLR 269; [1995] 2 All ER 189; [1995] 1 EGLR 146; [1995] 13 EG 132, CA
James v United Kingdom A/98 (1986) 8 EHRR 123
Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341, CA
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; [1980] 2 WLR 65; [1980] 1 All ER 17; (1979) 78 LGR 100, CA
Lopez Ostra v Spain A/303-C (1995) 20 EHRR 277
Powell v United Kingdom; Raynor v United Kingdom A/172(1990) 12 EHRR 355
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] 2 WLR 58; [1953] 1 All ER 179; (1953) 51 LGR 121; [1953] JPL 292; 117 JP 52, CA
R v Cambridge Department of Health Authority, ex parte B [1995] 1 WLR 898; [1995] 2 All ER 129
R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972
R v Ministry of Defence, ex parte Smith [1996] QB 517; [1996] 2 WLR 305; [1996] 1 All ER 257, CA
R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719
Robinson v Workington Corporation [1897] 1 QB 619
Rylands v Fletcher (1868) LR 3 HL 330
S v France (1990) 65 D&R 250
Sedleigh-Denfield v O’Callaghan; sub nom Sedleigh-Denfield v O’Callagan (Trustees for St Joseph’s Society for Foreign Missions) [1940] AC 880; [1940] 3 All ER 349; (1940) 56 TLR 887
Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287; [1891-1894] All ER Rep 838, CA
Smeaton v Ilford Corporation [1954] Ch 450; [1954] 2 WLR 668; [1954] 1 All ER 923; (1954) 52 LGR 253, CA
Stovin v Wise [1996] AC 923; [1996] 3 WLR 388; [1996] 3 All ER 801
This was a claim by Peter Marcic for an injunction and damages against Thames Water Utilities Ltd, as the statutory water and sewerage undertaker, arising out of flooding to his home.
Peter Harrison (instructed by South & Co) appeared for the claimant; Michael Daiches (instructed by Thames Water Utilities Ltd) represented the defendant.
Giving judgment, JUDGE RICHARD HAVERY QC said:
1. This is a claim against a statutory water and sewerage undertaker by one of its customers for an injunction and damages. The claim arises|page:112| out of flooding to the claimant’s home. Shortly before the hearing, the parties’ joint valuation expert expressed his incompetence to give an opinion on the matter. Rather than vacate the date of the trial, I decided to hear all the other issues. Although I made no order for the trial of specific preliminary issues, counsel helpfully drew up an informal list of issues to be determined at this hearing. That list appears in the appendix to this judgment.
2. The claimant, Mr Peter Marcic, now aged 62, lives at 92 Old Church Lane, Stanmore, Middlesex. That property is a substantial family house, with a front garden and a large rear garden. It lies within a residential area in a street of individually built houses. It dates from the inter-war period. Mr Marcic bought the property in the mid-1970s. He began to live in the property in 1980 and has lived there ever since. The property is frequently flooded. It lies at, or near, the lowest point in Old Church Lane. It was first significantly affected by flooding on 9 June 1992. Since then, it has been regularly and seriously affected by flooding and back flow of foul water from the defendant’s sewer system.
3. Under the road there are a foul-water sewer and a surface-water sewer. Mr Marcic’s property has a dual, or combined, drainage system. That is to say, the surface water from the roof and the ground flows into the same drain as the sewage. The combined effluent flows into the foul-water sewer under the road.
4. At times of heavy rain, the footpath between the road and Mr Marcic’s property becomes flooded with surface water, sometimes emerging from the overcharged surface-water sewer. The foul-water sewer can also become overcharged by reason of widespread local use of combined drainage systems. The parties’ drainage experts agreed that it is also possible that householders, concerned about surface-water flooding at times of heavy rainfall, lift the covers of the inspection chambers within their properties, thereby allowing accumulated surface water to enter the foul sewer. In view of my finding, based upon unchallenged evidence, that the flooding is caused by both sewers, I treat references in the list of issues to surface-water sewers as including references to foul-water sewers.
5. Water on the ground in Mr Marcic’s front garden is collected from the patio through metal grilles overlying gullies that run beside the house and debouch into his foul drainage. When the foul-water sewer is overcharged, the foul water backs up and can force open the manhole cover in Mr Marcic’s front garden, thereby escaping into the garden. If the floodwater in his front garden is sufficiently deep, however, the manhole does not open. In that case, the foul water backs up through the grilles into the overlying surface water.
6. Mr Marcic has made some boards to put at the front of his property as a defence against flooding. They are not entirely satisfactory, since water can pass both underneath and over the top. He cannot keep them in position permanently since they impede access to the premises. It take him about 15 minutes to set them up in the evening or when he considers a flood to be imminent, and five minutes to take them down in the morning or after a flood has subsided.
7. In 1992 it took half an hour of heavy rainfall to cause flooding incidents at Mr Marcic’s property. The problem remained roughly the same until 1996. Since 1996 the position has progressively deteriorated. Only 15 minutes of heavy rainfall or some hours of steady drizzle are now sufficient to cause flooding.
8. When the front garden is flooded, the water reaches the brickwork of the walls of the house both below and above the level of the damp course. The water often rises to about three-quarters of an inch below the level of the front door threshold. Before carrying out some works on his property, Mr Marcic had to open his side gate and garage doors to let the water run through to the back garden, bypassing the house. That caused the back garden to be immersed. Water lay there for a few days. When it subsided, it left deposits of sludge and debris. Mr Marcic has had built a manhole connected to pipes, so that some flood water is carried back from his front garden underneath the garage and to the bottom of his back garden. That has to some extent alleviated the damage to the back garden. He considers that it is only by having carried out those works that he has prevented flood water from entering his house. He has spent some £16,000 on that system.
9. The principal incidents of flooding were two in number in 1992; one in each of the years 1993, 1994, 1995 and 1996; two in 1997; none in 1998; four in 1999; and four or five in 2000.
10. The above amount of the flooding represents my conclusions based principally upon the evidence of Mr Marcic, which was unchallenged. In his witness statement, Mr Marcic said about the effect of flooding on his property:
My house has been badly affected. Damp and a musty smell are present in my front dining room for months after each flooding. Cracks are visible all over the walls and ceiling, some quite large, showing signs of subsidence. My house is a detached property, where I have spent a good part of my life trying to do it up and make it into a home. I now cannot so easily part with it, yet I find it very difficult to live with the mess. Any measures to remove the damp and its effects such as the subsidence are pointless until the regular flooding is prevented.
The garden is also affected. On most occasions the floodwater contains levels of organic (oily) contaminants that run off streets and tarmac which poison the plants. At one time after heavy flooding I tried to use a garden hose to wash off the oily sheen from the surface but I only managed to disperse it. Some fully-grown conifers and shrubs have died. The soil has become contaminated and consolidated through persistent flooding resulting in poor drainage. The vegetation has become poorly as water-logging deprives the roots of oxygen and drowns them. Those plants that do thrive are moss and weeds which are in abundance.
I understand that the history of flooding has made my property unsaleable.
None of that evidence was challenged. The references to subsidence and the unsaleability of the property are, of course, the opinions of a layman.
11. A structural engineer, Mr Alan Myers, was jointly instructed by the parties. In his report he concluded:
There has been no subsidence or heave of the external walls of the house.
There has been subsidence of parts of the concrete ground floor slab resulting in cracking in the internal partition walls supported on the slab and in internal walls and ceilings in the first floor storey. This has been caused, or at least greatly contributed to… by floodwater entering already formed voids beneath the ground floor slab and softening the clay subsoil still in contact with the slab. It is probable that had the floodwater not been present the slab would have continued to support the internal walls without subsidence movement leading to cracking. It is also probable that had the voids not been present the floodwater would not have caused subsidence of the slab…
Cracking in the second floor storey walls has been caused by spread of the roof, most likely as a result of the slight dropping of internal vertical support to the roof structure because of the subsidence of the ground floor slab…
A full remedial work scheme could be carried out using grout injection below the ground floor slab. This would probably require detailed prior investigation beneath the slab, for example using radar survey equipment to trace the voids and help to plan grout injection positions.
I accept that evidence.
12. Mr Marcic notified his local authority, Harrow London Borough Council, of the flood that occurred on 9 June 1992. Their representative, Mr Bruce Regnier, who gave evidence before me, visited Mr Marcic at the property on 10 June. He confirmed the back flow of foul sewer water. He visited again on 22 September, when further heavy flooding occurred. A memorandum of Mr Regnier refers to back flow of the foul-water sewer through Mr Marcic’s interceptor. Mr Regnier arranged jetting of Mr Marcic’s drains. Harrow London Borough Council were at that time sewerage management contractors for the defendant in relation to drainage works in their area.
13. Correspondence in the court bundle shows that in August 1992 Mr Marcic approached his local councillor, who wrote to the head of engineering services of the council about the flooding of Mr Marcic’s property. In February 1995 Mr Marcic again approached his local councillor, who wrote to the group environmental health officer about the pollution of Mr Marcic’s back garden. In March 1995 Mr Marcic himself wrote to Harrow London Borough Council complaining that his property had been persistently flooded over a number of years, and asking for a grant to decontaminate and repair his back garden. The reply, which came from Mr Regnier, was in the following terms:|page:113|
Further to your letter dated 24 March 1995 and the subsequent telephone conversation and visit to your home by my assistant Mr V Jenkins.
As I believe Mr Jenkins explained, as the source of flooding is the main sewerage system it comes within the remit of Thames Water Utilities Ltd and therefore the council does not bear responsibility for either the cause of the flooding or its effects. Under these circumstances I must also advise you that the council does not have a mechanism for providing grants.
I am aware of the flooding problem which exists in your area and I sympathise with difficulties and inconvenience it must cause but any investigations and solution must be funded by TWUL. The surface water sewers within this area are considered for upgrading as part of the Old Church Lane Surface Water Sewer Scheme. However, as you may be aware the work on this project is in abeyance until the National Rivers Authority have decided on the extent of the flood protection works for the upper reaches of the Edgware Brook. These works prospectively affect sections of the brook, which are the effective outfall for your local surface water sewers. It is not possible to properly resolve the hydraulic problems of these sewers until the likely conditions at the outfall are resolved.
As requested, I have passed your letter on to TWUL for consideration but I must stress that it is unusual for TWUL to make such payments. I will advise you of their response as soon as it is received and I would ask that you report any occurrences of flooding as these are recorded and are used in gauging the severity of the problem and are thus invaluable.
On 12 April 1995 Mr Regnier sent a copy of Mr Marcic’s letter to Mr T Harrington, a client manager of the defendant. In his covering letter, Mr Regnier himself briefly described the flooding and the contamination of Mr Marcic’s property, and mentioned that Mr Marcic had incurred expense by installing intercepting channels and barriers. I am satisfied, on the evidence of Mr Christopher Douch, asset planning manager within the technical services department of the water and waste-operations division of the defendant, that Mr Harrington was the appropriate person to write to. There is no evidence of any reply to Mr Regnier’s letter.
14. In May 1995 Mr Marcic himself wrote to the defendant, enclosing a copy of his letter of March to Harrow London Borough Council and asking the defendant to do something about his “serious flooding problem”, which was connected with sewer water. The defendant promptly acknowledged his letter and promised to write again. Mr Marcic pressed the defendant by a further letter in July, again referring to persistent sewer flooding over a period of time. That letter was acknowledged. In March 1996, having heard no more, Mr Marcic wrote to the managing director of the defendant. He offered £40 to Mr Marcic, and a cheque was sent a few days later. Mr Marcic returned the cheque.
15. In October 1997 Mr Marcic’s solicitors wrote to the Secretary of State for the Environment about the problem. Three months later, they received a reply from the Department of the Environment, referring them to the customer services committee of the Office of Water Services. In the letter, it was explained that sewerage undertakers’ duties under section 94 of the Water Industry Act 1991 were enforceable under section 18 of the Act by the director general of water services, who was the independent economic regulator for the water industry. The letter went on to explain that customer service committees had been set up by the director general to assist him in his role of protecting customers’ interests and investigating complaints. No approach was made to the Office of Water Services by or on behalf of Mr Marcic.
16. On 6 March 1998 Mr Marcic telephoned the defendant in Swindon, asking to speak to someone who had a good knowledge of sewer systems and flooding problems. After some further telephone calls and a visit from a Mr Ellis, representing the defendant, Mr Arumainayagam Sitaranjan, senior operations co-ordinator for waste water in the defendant’s customer network services division, visited Mr Marcic at his home. Mr Sitaranjan gave evidence before me. Mr Sitaranjan arranged for the jetting of the surface water sewer and of the foul-water sewer over the whole length of Old Church Lane and halfway down an adjacent road. That work was done on 9 March 1998. He visited Mr Marcic again in the company of his area service manager on or about 19 May 1998. He noticed that the highway gullies needed clearing. He subsequently asked Harrow London Borough Council to clear them. He also checked the records held on the defendant’s database. The only record of flooding at Mr Marcic’s property related to external (ie out of doors only) flooding by foul sewage following a heavy rainfall event in 1992. The database showed three other properties in Old Church Lane with single flooding events on separate dates between 1987 and 1998. After these proceedings started, and the defendant became aware of all the incidents of flooding, those incidents were added to the database.
17. Mr Regnier gave expert engineering evidence on behalf of the defendant. Mr Richard Lawman gave expert engineering evidence on behalf of Mr Marcic. Those gentlemen made an agreed statement as to the works necessary to alleviate the flooding. They described four schemes, which, by reference to their paragraph numbers in the joint statement, I shall call schemes 2.2, 2.3, 2.4 and 2.5. Those schemes related only to surface water drainage. No doubt the implementation of any of them would alleviate the surface water flooding, but it is not apparent that it would cure the backing up of the foul sewers. I have not heard any evidence about curing that. Mr Regnier and Mr Lawman were agreed that major surface water drainage works only would significantly alleviate the risk of flooding. Minor works, either within the vicinity of, or in the grounds of, 92 Old Church Lane would not be capable of removing or storing the extensive accumulation of surface water at times of heavy rainfall. The schemes they described were briefly as follows:
2.2 Major Scheme submitted to TWUL by London Borough of Harrow in August 1998.
Construction of twin 600mm diameter pipes laid along Abercorn Road to provide an overflow from the existing surface water sewer in Old Church Lane to discharge into the Edgware Brook.
Estimated cost at the time, £100,000, not including utility company diversions or other related costs. Figure revised to £140,000 in 1995. Likely present cost, about £200,000.
2.3 Silk Stream and Edgware Brook Flood Alleviation Scheme.
Major flood alleviation works within the Edgware Brook and Silk Stream catchments, including construction of large storage facility within Whitchurch playing fields and of new culvert along Abercorn Road from its junction with Old Church Lane. Total cost unknown. Cost of overflow connection from Old Church Lane to culvert in Abercorn Road, about £25,000.
2.4 Alternative Scheme proposed by Alexander Associates in May 2000.
Construction of 450mm diameter pipe from Old Church Lane along Abercorn Lane to open section of Edgware Brook within Whitchurch playing fields, with overflow on to Whitchurch playing fields acting as a flood plain. To reduce the risk of overland flooding it would be necessary to install a number of large gullies or grids to intercept the surface water run off at strategic locations in Lansdowne Road and Old Church Lane. Cost, about £60,000.
2.5 Further Alternative Scheme proposed by Alexander Associates in May 2000.
Construction of 450mm diameter pipe from Old Church Lane along Abercorn Lane as far as north-west corner of Whitchurch playing fields, discharging into balancing pond to be constructed in that corner, from which there would be a low-flow discharge to existing surface water sewer. This scheme would also require the gullies or grids mentioned in 2.4. Cost about £70,000 not including acquisition of land and other related costs.
The references to Alexander Associates are references to a firm in which Mr Lawman is senior partner.
18. Mr Regnier gave evidence in relation to the schemes. He is an engineer and the director of his own engineering consultancy. Between 1968 and 1997, apart from a period of six months in 1970, Mr Regnier was employed by Harrow London Borough Council in various positions, mostly with the drainage section. He has been sectional engineer and principal engineer in the section. For the past five years of his employment with Harrow London Borough Council, he was contract manager for the sewerage management contract between that borough and the defendant. The findings set out in the next few paragraphs are based largely upon Mr Regnier’s evidence, but also upon the joint report of Mr Regnier and Mr Lawman.
19. Scheme 2.2 was proposed in August 1988. It requires the consent of the Environment Agency (formerly the National Rivers Authority) to|page:114| the necessary additional discharge to the Edgware Brook. It was proposed by Harrow London Borough Council at the instigation of Mr Regnier, who had designed it. He believed that the works were necessary and justifiable to alleviate the flooding problem in Old Church Lane. There were no obstacles to implementing the plan at that stage, but the National Rivers Authority did not agree to the additional discharge into the Edgware Brook, since it was concerned about the possibility of increasing the risk of flooding downstream. That authority commissioned a study of the problem. Thames Water Authority, predecessor of the defendant, considered the cost effectiveness of the scheme to the marginal and deferred the scheme. There was an alternative solution, not requiring any increase in the rate of discharge into Edgware Brook, involving larger diameter sewer pipes to increase storage capacity. That, according to Mr Regnier, would have been technically difficult owing to lack of available cover, and would have considerably escalated the cost of the scheme. That was unacceptable to Thames Water Authority. But because of the uncertainty as to what further works might be proposed by the National Rivers Authority, scheme 2.2 was retained in the capital programme of Thames Water Authority, to be reviewed later. It was transferred to the defendant’s capital programme after the transfer of sewerage responsibilities to the defendant in 1989, with an assigned provisional start date in 1994/95.
20. Mr Regnier referred to measures taken by the owner of 90 Old Church Lane after flooding that occurred on 8 May 1988. That property, situated next door to Mr Marcic’s property, had been flooded inside the building on at least two previously recorded occasions. It was that internal flooding that was the principal reason for including scheme 2.2 in the Thames Water capital programme. Number 90 was removed from the defendant’s “at risk” register. Mr Regnier considered that the reason was that no 90 was no longer a high-risk property, since the works had been carried out there. Thus, the works carried out at no 90 may have had the effect of reducing the priority of scheme 2.2.
21. In 1995 the relevant responsibilities of the National Rivers Authority were taken over by the Environment Agency. Mr Regnier thought that there had been no discussions between the defendant and the Environment Agency relating to scheme 2.2 since 1995. There would have been no point, he said, until the study mentioned above, undertaken by the National Rivers Authority, had been completed. That study was adopted by the Environment Agency, following the demise of the National Rivers Authority. The study was enlarged by the Environment Agency to include the Silk Stream catchment following severe storms that occurred in 1992. The study is nearing completion, and a draft report has been produced. That report contains provisional proposals for the construction of major flood-alleviation works within the Edgware Brook and Silk Stream catchments. Those works would be in the hands of the Environment Agency. They include a proposal for the construction of the storage facility in Whitchurch playing fields mentioned under scheme 2.3 above. If the major works were carried out by the Environment Agency, the defendant would then be able to construct the overflow proposed in scheme 2.2 and connect it into the new culvert that would be laid along Abercorn Road from its junction with Old Church Lane. Restrictions on the rate of discharge into the Edgware Brook would not then prevent scheme 2.3, with modifications, being implemented if the requisite finance were available.
22. Scheme 2.4 would probably not be permitted by the Environment Agency, since it would involve the diversion of flood water into the Edgware Brook, which is already overloaded. Scheme 2.5 was proposed as an alternative. Mr Regnier said in relation to scheme 2.5 that the relevant land was owned by Harrow London Borough Council. Unless that borough had other proposals for the land, he considered that there would be no difficulty in implementing the scheme apart from the provision of the necessary finance.
23. Mr Regnier said that a major flood-alleviation scheme, known as the Marsh Lane foul sewer, was designed and constructed by Harrow London Borough Council on behalf of Thames Water. It was completed during the early 1980s. It was designed to relieve persistent and severe foul flooding to properties in Marsh Lane and Green Verges. The scheme comprised the construction of a low-level 1200mm diameter tunnel connected into the Thames Water trunk sewer. The existing 381mm diameter foul sewer in Marsh Lane and the foul sewer in Old Church Lane were diverted into the relief sewer through a new 525mm diameter connection. The cost appears to have been £260,000.
24. I conclude that it would be practical for the defendant to carry out works to remove the risk of flooding from Mr Marcic’s property if the necessary finance were available. Indeed, no point has been taken to the contrary.
25. Mr Peter Harrison, counsel for the claimant, submitted that the flooding of Mr Marcic’s property constituted a nuisance for which the defendant was liable. The sewers are the property of the defendant, which is the statutory undertaker responsible for their operation and maintenance. It is not suggested that the sewers were not built in accordance with the standards that prevailed at the time they were built, or have not been property maintained. Mr Harrison submitted that the defendant was liable both at common law and under the Human Rights Act 1998. I shall consider first the position at common law, ignoring the effect of the Human Rights Act.
26. As to the common law, I was referred to Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102, Robinson v Workington Corporation [1897] 1 QB 619 and Hesketh v Birmingham Corporation [1924] 1 KB 260. Those were all cases of nonfeasance, where the defendant statutory undertaker was held not liable for nuisances caused by the escape or discharge of sewage by reason of increases in the flow of sewage in drainage systems. The nonfeasance in question consisted of neglect to perform a statutory duty to make an effectual system of drainage. James LJ said in Glossop at p116:
I think myself the Court ought to hesitate a great deal before it interferes with respect to a wrong done to a whole district, when the remedy provided by the Legislature would be quite sufficient for the purpose. These provisions of course do not oust the jurisdiction of any Court… in the case of any legal wrong done; I use that word as distinct from neglect to perform the new duties imposed by this Act.
At p115, with reference to an injunction having the effect of a mandatory injunction, he said
That would be a proper injunction to restrain them from doing that which would be wrong if the thing itself were legally wrong, independently of the neglect to make an effectual system of drainage.
The headnote in the report of Glossop accurately summarises the decision as follows:
if a local board do no act themselves to cause a nuisance, but neglect to perform their duty of providing a satisfactory and healthy system of drainage, it is no ground of action by an individual for damages or an injunction, but the remedy is by prerogative writ of mandamus;… assuming that an actionable nuisance existed, as the Defendants had themselves done no act to create or increase it, the Plaintiff had no cause of action.
In Hesketh, at p271, Scrutton LJ said:
if the system of drainage, originally sufficient, became insufficient by reason of the growth of houses, the neglect of the defendants to improve that system so as to meet the altered requirements cannot be made the subject of an action. The general rule is that a local authority is liable for misfeasance but not for non-feasance.
In my judgment, the same applies to a statutory undertaker that is not a local authority.
27. In Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] 1 Ch 149, Denning LJ said that when Scrutton LJ said the last sentence that I have quoted above, for once Homer nodded. But we are here concerned with nonfeasance as neglect to perform a statutory duty to make an effectual system of drainage. I do not think that Denning LJ differed, at any rate in his conclusion, from Scrutton LJ in that context. He said at pp189 and 190:
But although the plaintiffs may not be able to rely on the doctrine of Rylands v Fletcher as such, they have a perfectly good cause of action for nuisance, if they can show that the defendants created or continued the cause of the trouble;|page:115| and it must be remembered that a person may “continue” a nuisance by adopting it, or in some circumstances by omitting to remedy it: see Sedleigh-Denfield v O’Callaghan.
This liability for nuisance has been applied in the past to sewage and drainage cases in this way: when a local authority take over or construct a sewage and drainage system which is adequate at the time to dispose of the sewage and surface water for their district, but which subsequently becomes inadequate owing to increased building which they cannot control, and for which they have no responsibility, they are not guilty of the ensuing nuisance. They obviously do not create it, not do they continue it merely by doing nothing to enlarge or improve the system. The only remedy of the injured party is to complain to the Minister…
It is very different, however, when the local authority themselves do the increased building, or permit it to be done, because they are then themselves guilty of the nuisance.
(Emphasis added.)
28. Another case in point to which I was referred is Smeaton v Ilford Corporation [1954] 1 Ch 450. In that case, Upjohn J found, as a fact, that eruption or flooding from a manhole in time of heavy rain caused the plaintiff and his family grave inconvenience, and it constituted a serious deprivation of the ordinary and reasonable enjoyment of his property and its amenities that he was entitled to expect. The claim was made first under the principle of Rylands v Fletcher*, and, second, that the defendant had wrongfully caused, or wrongfully failed to prevent, a nuisance to the plaintiff as occupier of his premises by causing or permitting the sewage matter to erupt from the manhole from his premises. Negligence was not alleged. Distinguishing, for the purposes of his judgment, liability in nuisance from liability under the principle of Rylands v Fletcher, Upjohn J said at p463, in relation to the question of liability in nuisance:
Paragraph 6 alleges that the said soil sewer was constructed by the defendant corporation. That is admitted, but it is no longer alleged that it was constructed in a defective manner or that it was originally inadequate for the needs of the neighbourhood. No doubt the defendant corporation’s whole sewage system has now become totally inadequate to deal with the increased volume of sewage which it now has to carry, but that cannot give rise to a claim for nuisance. The only remedy of the injured party is to complain to the Minister…
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* Editor’s note: Reported at (1868) LR 3 HL 330
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That is another instance of a statutory undertaker not being liable in nuisance for nonfeasance of its statutory duty.
29. The effect of the above authorities is that a statutory drainage undertaker is not liable to a person in its area who suffers damage by flooding where the claim is based upon failure on the part of the undertaker to undertake works to fulfil its statutory duty of drainage of the area. That is so whether the cause of action is nuisance, the principle in Rylands v Fletcher, or breach of statutory duty. It is clear that those authorities also cover the case of negligent nonfeasance. In Hesketh, at pp271 and 272, Scrutton LJ said:
The plaintiff here eventually rested his case on two alternative claims, (1) for negligence, and (2) for nuisance. I cannot see any evidence of negligence when the sewer and outlets were constructed, and I am bound by the authority which I have cited to hold that the failure to bring the system up to date is non-feasance and gives no cause of action.
The authority to which Scrutton LJ referred was Robinson.
30. Mr Harrison submitted that it had been made clear by a recent decision of the Court of Appeal that it was not a defence to show that a system might have been adequate when first installed. That decision was Bybrook Barn Garden Centre Ltd v Kent County Council 1 December 2000*. In that case, Waller LJ, with whom Peter Gibson and Jonathan Parker LJJ agreed, specifically distinguished the case of an inadequate sewage system where a ratepayer was seeking to get the local authority to do their public duty: para 46. It is clear that Robinson, Hesketh and the other cases remain binding upon me.
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* Editor’s note: Reported at [2001] BLR 55
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31. The question of liability under the principle in Rylands v Fletcher was considered by Upjohn J in Smeaton. Referring to the cases of Glossop, Robinson and Hesketh, among others, he observed (at p472) that in not one of them was it suggested that the principle had any application. In Dunne v North Western Gas Board [1964] 2 QB 806 at p835, Sellers LJ, delivering the judgment of the Court of Appeal, said:
Where there is a mandatory obligation… there would be, in our opinion, no liability if what had been done was that which was expressly required by statute to be done or was reasonably incidental to that requirement and was done without negligence.
Here, there was a mandatory obligation on the defendant, imposed by section 106 of the Water Industry Act, to accept discharge of foul and surface water into its sewers. Sellers LJ went on to say at p837:
The corporation did not intentionally discharge the water… it was an escape. It is clear that water may escape without negligence and as an incident of its provision in pipes… In our opinion the cases establish that in such circumstances a water authority is not liable under the strict rule in Rylands v Fletcher or in nuisance.
32. Mr Harrison submitted that those authorities were affected by recent developments in the law of nuisance.
33. Mr Harrison submitted that under what he called the principle in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, the defendant was liable as occupier of the sewers for the escapes of water arising from them. The principle was that an occupier owed a general duty to neighbouring occupiers in relation to a hazard arising on the land to take steps that were reasonable in all the circumstances to deal with the hazard. Leakey was a unanimous decision of the Court of Appeal (albeit with Shaw LJ assenting reluctantly) in which Megaw LJ exhaustively analysed the authorities, especially the decision of the Privy Council in Goldman v Hargrave [1967] 1 AC 645. The headnote in Leakey fairly summarises the decision:
that an occupier of land owed a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such a hazard was natural or man-made; that the duty was to take such steps as were reasonable in all the circumstances to prevent or minimize the risk of injury or damage to the neighbour or his property of which the occupier knew or ought to have known; that the circumstances included his knowledge of the hazard, the extent of the risk, the practicability of preventing or minimizing the foreseeable injury or damage, the time available for doing so, the probable costs of the work involved and the relative financial and other resources, taken on a broad basis, of the parties…
Mr Michael Daiches, counsel for the defendant, submitted that, for greater accuracy, the words “and not created by the occupier or his agents” ought to be inserted between the words “land” and “whether”. No doubt, such an amendment would avoid any risk that the reader would conclude that where the hazard was created by the occupier or his agents, the duty was limited to a duty of care.
34. Mr Daiches submitted that the duty of an occupier of land under the Leakey principle was a measured duty to take reasonable steps to remove physical hazards from his own land provided that he was able to do so, and that the duty did not extend to executing works on adjacent land or to moving or eliminating the occupier’s own land if that were the only way of removing the hazard. As to moving or eliminating the occupier’s own land, to wit the sewers, that is not a question in issue. But it is clear that the only way the nuisance can be stopped is by the execution of works on neighbouring land. Mr Daiches relied upon the view expressed by Scrutton LJ in Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341 at p360:
surely a landowner cannot be required to execute permanent works on another person’s land, if he could not then stop the fire on his own land.
Mr Daiches also relied upon the following passage from the judgment of Megaw LJ in Leakey at p526F:
to avert an immediate danger… where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the|page:116| way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.
Mr Daiches submitted that that passage suggested that if it were not reasonably practicable for the occupier to remove the hazard from his own land, the options (by implication, the only options) were: (a) to permit a neighbour to execute works on the occupier’s own land; and (b) to invite neighbours to erect barriers on their land. There was no suggestion that the occupier was under a duty to do works on the neighbour’s land. While I accept that there was no such suggestion, I am not persuaded that the duty of care is incapable of extending to the execution or works on neighbouring land. In Bybrook Barn Garden Centre, the Court of Appeal (Peter Gibson, Waller and Jonathan Parker LJJ) appears to have granted an injunction (possibly, however, in agreed terms) requiring the defendant highway authority to enlarge a culvert. Mr Daiches told me that he understood from counsel for the highway authority in that case that the enlargement works would have had to be constructed on adjacent land owned by the claimant, but the claimant had indicated that it had no objection to allowing the works to be executed on its land.
35. Whether the Leakey principle is termed negligence or nuisance, the gist of the principle is negligence. The only negligence alleged in this connection is negligent failure to fulfil the statutory duty of drainage. If the defendant is liable under the Leakey principle, that can only be on the basis that that principle has overturned the pre-existing law on nonfeasance.
36. The Leakey principle is based upon the Privy Council decision in Goldman v Hargrave. The pre-existing law on nonfeasance has House of Lords authority. In Cowley v Newmarket Local Board [1892] AC 345, Lord Herschell cited Glossop with approval. In Robinson, both Lord Esher MR and Lopes LJ relied upon Cowley. Mr Daiches submitted that the Leakey principle went back at least to the end of the 19th century. He relied upon a decision of 1911, Barker v Herbert [1911] 2 KB 633. In that case, Vaughan Williams LJ, referring to the liability of a landowner whose property was adjacent to the highway, said at pp636 and 637:
In my judgment there can be no liability upon the part of the possessor of land in such a case, unless it is shewn either that he himself, or some person for whose action he is responsible, created that danger which constitutes a nuisance to the highway, or that he has neglected for an undue time after he became, or, if he had used reasonable care, ought to have become, aware of it, to abate or prevent the danger or nuisance.
He said at p638 that the law that defined the liability of the possessor of land in cases of that kind has been settled for many years. Farwell LJ said at p645:
In my opinion a landowner is not liable for a nuisance caused, not by his own action, but by something done by another person against his will, subject to the qualification that he may become liable if he permits it to continue and fails to abate it within a reasonable time after it has come, or ought to have come, to his knowledge.
37. Thus, I accept Mr Daiches’s submission that the Leakey principle was not a new principle. It merely provided further elaboration of the scope of an occupier’s duty in relation to hazards arising on his land that he did not himself create. I conclude that Leakey does not affect the existing law relating to the liability of drainage undertakers in cases of nonfeasance of their statutory duties of drainage.
38. Mr Harrison submitted that the continued use of the sewers by the defendant to carry out its functions constituted adoption of the nuisance. Lord Maugham in Sedleigh-Denfield v O’Callaghan [1940] AC 880 at p894 explained that someone adopted a nuisance if he made any use of the erection, building, bank or artificial contrivance that constituted the nuisance. Here, the nuisance is the backing up and overflowing of foul water from the foul-water sewer and the overflowing of surface water from the surface-water sewer. The nuisance is caused by the overcharging of those sewers. I shall assume that it can be said that the sewers cause (or constitute) the nuisance. Mr Daiches submitted that the concept of adopting a nuisance does not apply to the present situation, where the occupier does not actively use the actual or potential nuisance, but merely permits it to continue. The way I would put it is to say that the defendant passively uses the sewers in order to carry out its statutory duty of draining its area. It passively permits the nuisance to continue. On the assumption that I have made above, the defendant has adopted the nuisance.
39. Mr Daiches relied upon the defence of statutory authority. He submitted that the general principle of law is that when the legislature imposes a statutory duty on a body, that carries with it an implied immunity from action in nuisance, provided that the body has not been “negligent” in the sense used by Lord Wilberforce in Allen v Gulf Oil Refining Ltd [1981] AC 1001. That sense was such as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons. The statutory authority upon which Mr Daiches relied was section 106(1) of the Water Industry Act 1991. That subsection reads as follows:
106 Right to communicate with public sewers
(1) Subject to the provisions of this section
(a) the owner or occupier of any premises, or
(b) the owner of any private sewer draining premises
shall be entitled to have his drains or sewer communicate with the public sewer of any sewage undertaker and thereby to discharge foul water and surface water from those premises or that private sewer.
A statutory sewerage undertaker, he submitted, has no power to refuse such a connection with the public sewers on the ground that the existing public sewer system is inadequate to cope with any new connections. Mr Daiches submitted that it was a necessary implication from section 106 and its statutory predecessors that parliament intended that the defendant should be absolved from any liability for nuisance attributable to having “adopted” a public sewer that had become inadequate as a consequence of the performance by the defendant and its predecessors in title of the statutory duty imposed by section 106 and its statutory predecessors. He submitted that there was no suggestion that the defendant had been “negligent”, in the sense used by Lord Wilberforce, in the conduct of its operations in relation to the existing public sewer system.
40. I reject that argument. Lord Wilberforce said at p1014B:
[The statutory authority] confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the [defendant]) to be the inevitable result of erecting a refinery upon the site not, I repeat, the existing refinery, but any refinery however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated.
In the instant case, the nuisance is by no means inevitable. On this evidence, I am satisfied that the defendant has the resources and the powers necessary to remedy the nuisance. But although the defendant may have adopted the nuisance, it has not caused or “created” it by any action on its part. The facts of this case are not significantly distinguishable from those of Robinson or of Smeaton. Thus, the defendant has nonfeasance immunity.
41. However the argument is put, it reduces to the question of whether the defendant is liable for failing, negligently or otherwise, to fulfil its statutory duty by carrying out the works necessary to prevent repetition of the nuisance. In Stovin v Wise [1996] AC 923 at p952E, Lord Hoffmann, with whom Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed (Lord Slynn of Hadley and Lord Nicholls of Birkenhead dissenting), said:
Whether a statutory duty gives rise to a private cause of action is a question of construction: see Reg Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. Whether it can be relied upon to support the existence of a common law duty of care is not exactly a question of construction, because the cause of action does not arise|page:117| out of the statute itself. But the policy of the statute is nevertheless a crucial factor in the decision. As Lord Browne-Wilkinson said in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739c in relation to the duty of care owed by a public authority performing statutory functions:
“the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the Acts complained of were done.”
The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.
In my judgment, the same applies to a statutory undertaker such as the defendant, whether or not it is a public authority, as that expression was used by Lord Hoffmann.
42. The relevant statutory duty appears in section 94 of the Water Industry Act 1991. That section reads, so far as material, as follows:
(1) It shall be the duty of every sewerage undertaker
(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained; and
(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers.
…
(3) The duty of a sewerage undertaker under subsection (1) above shall be enforceable under section 18 above
(a) by the Secretary of State; or
(b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.
43. Section 18 provides, so far as material, as follows:
(1) Subject to subsection (2) and sections 19 and 20 below, where in the case of any company holding an appointment under Chapter 1 of this Part the Secretary of State or the Director is satisfied
(a) that the company is contravening
(i) any condition of the company’s appointment in relation to which he is the enforcement authority; or
(ii) any statutory or other requirement which is enforceable under this section and in relation to which he is the enforcement authority;
(b) that that company has contravened any such condition or requirement and is likely to do so again,
he shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.
(2) Subject to section 19 below, where in the case of any company holding an appointment under Chapter 1 of this Part
(a) it appears to the Secretary of State or the Director as mentioned in paragraph (a) or (b) of subsection (1) above; and
(b) it appears to him that it is requisite that a provisional enforcement order be made,
he may (instead of taking steps towards the making of a final order) by a provisional enforcement order make such provision as appears to him requisite for the purpose of securing compliance with the condition or requirement in question.
(3) In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional enforcement order be made, the Secretary of State or, as the case may be, the Director shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of any condition or of any statutory or other requirement enforceable under this section, is likely to be done, or omitted to be done, before a final enforcement order may be made.
…
(8) Where any act or omission constitutes a contravention of a condition of an appointment under Chapter 1 of this Part or of a statutory or other requirement enforceable under this section, the only remedies for that contravention, apart from those available by virtue of this section, shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting such a contravention.
44. Section 22, subsections (1) and (2), provides as follows:
(1) The obligation to comply with an enforcement order shall be a duty owed to any person who may be affected by a contravention of the order.
(2) Where a duty is owed by virtue of subsection (1) above to any person, any breach of duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.
45. Thus, an action for breach of statutory duty, to enforce the defendant’s duty under section 94 effectually to drain the area, does not lie at the suit of an injured person unless an enforcement order has been made. No such order has been made in this case.
46. I heard argument on the effect of section 18(8). Mr Daiches conveniently described the omission to carry out the works necessary to prevent the nuisance as a “contravention omission”. That is an apt expression, since the omission is an omission on the part of the defendant to do its duty under section 94 to ensure that the area is effectually drained. So far as the Leakey principle is concerned, the cause of action is negligence, or nuisance by negligence. The argument on adoption of the nuisance bases the cause of action in nuisance simpliciter. There is also the Rylands v Fletcher argument, which may be said to be a variety of nuisance. In all those cases, the omission relied upon is the failure on the part of the defendant to exercise its statutory powers. But it is, indeed, a contravention omission. It appears that the expression “the only remedies for that contravention” must mean “the only remedies for that act or omission”, given the last few words of the subsection: “available in respect of that act or omission otherwise than by virtue of its constituting such a contravention”. The remedies for negligence and nuisance are claimed in respect of the omission “otherwise than by virtue of its constituting such a contravention”. But are they “available”? They are, of course, generally available, but the statutory undertaker has an immunity. In my judgment, such remedies do fall within the expression “those that are available in respect of that… omission otherwise than by virtue of its constituting such a contravention”. Thus, I conclude that section 18(8) does not in itself preclude an action for nuisance or negligence.
47. Nevertheless, the policy of the Act is clear: there is no statutory liability to pay compensation. I conclude that that policy excludes the existence of a common law duty of care to fulfil the duty.
48. A further particular of negligence that Mr Harrison relied upon was this:
The defendants instructed their agents the London Borough of Harrow to ensure that all further built developments included measures to ensure that rainfall run-off was minimized or held back so as to prevent flooding. The defendants never monitored whether or not this was occurring or took any other measures to ensure that the remedial system that they had implemented was carried out. The defendants did not institute any further measures when it became apparent that development was being permitted without the imposition of conditions designed to minimize or hold back water run-off.
49. On Mr Regnier’s evidence, I find that Harrow London Borough Council did impose relevant conditions in relation to large developments, but that it was not worthwhile to do so in relation to small developments. There may have been some increase in run-off by reason of new developments, but it was not significant. This allegation fails on the facts.
50. I conclude that Mr Marcic has no remedy under the law as it existed before the passing of the Human Rights Act.
51. In reaching the above conclusion, I have not overlooked the following arguments of Mr Harrison.
52. Mr Harrison submitted that the older cases, concerned as they were with local authorities that were prevented from making any profit on their activities, did not apply to the defendant, a private company. The defendant chose to become a sewerage undertaker and to make a profit out of it. The necessary change of approach had been recognised in British Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ 276; [2001] 3 WLR 613. Mr Harrison relied, in particular, upon the following passage in para 74 of the judgment of Chadwick LJ: |page:118|
one of the important changes made in the Water Act 1989 (and perpetuated in the Water Industry Act 1991) is that sewerage functions were transferred from public authorities (which derived their corporate powers from the statute by which they were established) to limited companies (which derive their corporate powers from their memoranda of association). … I would not expect an implied power… [to discharge without payment of compensation on to the land (or into the watercourse) of another] to follow from the fact that a company limited by shares… has been appointed as a sewerage undertaker to carry out the duties imposed by section 94 of the 1991 Act. What I would expect to find (and do find) in the legislation is a power to acquire by compulsory purchase, with the authority of the Secretary of State and upon payment of compensation, the rights which the undertaker needs to carry out its functions.
Mr Harrison submitted that that passage showed that the defendant was not a public authority in the sense in which that expression was used by Lord Hoffmann in Stovin v Wise, and was not to be treated as one. While, in that passage, Chadwick LJ recognised a distinction between the sources of the powers of local authorities and of private companies, the case does not, in my judgment, support those submissions of Mr Harrison.
53. Further, Mr Douch (the most senior policy witness of the defendant) accepted that there was no prospect of relief for Mr Marcic for decades in the absence of exceptional circumstances: the situation would continue until the defendant chose to pay for any works. Mr Harrison submitted that the defendant was thereby asserting a right to discharge water from the surface-water sewer onto Mr Marcic’s property. If the defendant had put an overflow pipe from the sewer on to the edge of Mr Marcic’s property, there was no dispute that it would be liable for the consequences of the flooding. On the facts of this case, submitted Mr Harrison, there was no valid distinction between overflow and deliberate discharge. In support of that submission, Mr Harrison cited various passages from the judgments in British Waterways , of which I quote two from the judgment of Peter Gibson LJ:
[para 36] It was common ground between the parties… that STW [the defendant] needed the implied statutory authority for which it contended, because to discharge water onto another’s land would be an interference with private rights… there is a presumption that a statute does not give the right so to interfere. However this presumption will yield to a sufficiently clear intention in a statute, as the House of Lords held in Allen v Gulf Oil Refining Ltd [1981] AC 1001. In that case statutory authority for the construction and operation of a refinery was held to confer immunity against actions in nuisance because the refinery could not be operated without causing a nuisance. Mr Beloff accepted that the 1991 Act did not authorise a sewerage undertaker to commit a nuisance. That is plainly right: it is not inevitable that nuisance will be caused by a sewerage undertaker performing its statutory functions.
[para. 41]… It is entirely consistent with the presumption against Parliament interfering with private rights that no right to commit a trespass should be implied.
I reject Mr Harrison’s submission that the evidence supports the proposition that the flooding should be treated as deliberate discharges by the defendant. In my judgment, there is nothing in British Waterways inconsistent with the conclusion that I have reached.
54. Mr Marcic claims that the failure of the defendant to provide a proper drainage system infringes his human rights, as provided in the European Convention on Human Rights, and constitutes a breach of the duty owed to him by the defendant under the Human Rights Act 1998. Section 6 of the Human Rights Act provides, so far as material, as follows:
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently;
…
(3) In this section “public authority” includes
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
…
(6) “An act” includes a failure to act…
55. The Convention rights upon which Mr Marcic relies are those contained in Article 8 (right to respect for private and family life) and in Article 1 of the First Protocol (protection of property). Those articles read as follows:
ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
THE FIRST PROTOCOL:
ARTICLE 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
56. In the absence of authority, I would have thought that those articles had nothing to do with the case. But I would have been wrong. There is clear authority that matters of this kind do fall within those articles. In Baggs v United Kingdom (1987) 9 EHRR 235, a case of nuisance by noise from Heathrow airport affecting the applicant’s enjoyment of his home, the European Commission of Human Rights (the Commission) deemed his complaints under both articles admissible. In S v France (1990) 65 D&R 250 at p258, the applicant complained under both articles of the effect of a nuclear power station near her home. It was said to cause noise, light during the hours of darkness, and, by reason of repeated release of steam, humidity and a reduction in direct sunlight. The applicant had received compensation in the sum of FFr250,000. As to the claim under Article 1 of the First Protocol, the Commission decided that noise nuisance could seriously affect the value of real property and thus amount to a partial expropriation. But, having regard to the compensation, there was no appearance of a violation of that article. In relation to the complaint under Article 8, the Commission stated:
Article 8, para 1 of the Convention, which guarantees [the right to respect for the applicant’s private life and the inviolability of her home] cannot be interpreted so as to apply only with regard to direct measures taken by the authorities against the privacy and/or home of an individual. It may also cover indirect intrusions which are unavoidable consequences of measures not at all directed against private individuals… Considerable noise and other types of nuisance can undoubtedly affect the physical well-being of a person and thus interfere with his private life. They may also deprive a person of the possibility of enjoying the amenities of his home… In the circumstances of the present case the noise and other types of nuisance complained of by the applicant amount to an interference with the above-mentioned rights guaranteed by Article 8 para 1 of the Convention.
As to the effect of para 2 of Article 8, the Commission decided that, bearing in mind the compensation, the interference did not go beyond what was necessary in a democratic society.
57. In Guerra v Italy (1998) 26 EHRR 357 at p382, para 58, and p383, the European Court of Human Rights held that the effect of toxic emissions from a factory polluting the atmosphere in the applicant’s homes fell within Article 8, observing:
Italy cannot be said to have “interfered” with the applicants’ private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the|page:119| individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life.
In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants’ right or respect for their private and family life as guaranteed by Article 8.
58. In Lopez Ostra v Spain (1995) 20 EHRR 277, the European Court of Human Rights found a violation of Article 8 by reason of interference with the applicant’s home by fumes and smells emanating from a waste-treatment plant.
59. It is not in issue that the flooding of Mr Marcic’s house falls within the first paragraph of Article 8 of the Convention and Article 1 of the First Protocol. However, Mr Daiches submitted that the interference with those rights was not such as to impair “the very essence” of those rights. It is common ground that Mr Marcic falls within the definition of a victim and is therefore a proper claimant. It is common ground that the defendant is a public authority within the meaning of the Human Rights Act.
60. Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. Section 6(6) provides that “an act” includes a failure to act. That is clearly a wide expression, and is not expressed to be confined to omissions to carry out a duty, let alone a duty that can be enforced by a claimant otherwise than under the Act. Indeed, if it were confined in the latter way, there would be little point in the Act. On the other hand, someone who suffers an infringement of his human rights by reason of inactivity manifestly cannot pick a defendant at random. Failure to act, in my judgment, must involve the concept that the defendant could reasonably have acted so as to prevent or put an end to the infringement of the claimant’s human rights. Otherwise the failure would not be “incompatible with a Convention right”.
61. Mr Daiches submitted that the defendant was the wrong defendant. In the case of omissions, it would always be necessary to identify the relevant public authority that is alleged to be under the duty to take the relevant positive steps. I accept that submission, save for the implication that there is necessarily only one relevant public authority. The relevant omission, which he labelled a “contravention omission”, constituted a contravention of a statutory requirement contained in section 94(1) of the Water Industry Act, which was enforceable under section 18 of that Act. He submitted that, on the true construction of the Water Industry Act, and in particular of section 18(8), the legislature had decided that the relevant public authorities answerable to the courts in respect of contravention omissions were the Secretary of State and the director general of water services. He referred to those two officers generically as “the director”. The legislature had charged the director with the duty of enforcement in relation to contravention omissions, and had enacted a detailed scheme of enforcement, contained in sections 18 to 22 of the Act, to enable positive steps to be taken to remedy any contravention omissions. Under the statutory scheme of enforcement, the duty was initially on the director to take positive steps to consider whether an enforcement order should be made, and, if so, to make an order. It was only if and when an enforcement order was made by the director that the undertaker came under a duty, pursuant to section 22, to take the positive steps required under the enforcement order.
62. Mr Daiches accepted that his argument depended on the true construction of section 18(8) of the Water Industry Act. He submitted that the words “those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting such a contravention” did not include remedies under the Human Rights Act for contravention omissions. Mr Harrison submitted that they did, and that the starting point of the argument was the Human Rights Act, not the Water Industry Act. Mr Daiches said that Mr Harrison’s argument begged the question of whether there was a remedy under the Human Rights Act. In fact, the argument is circular, and it seems to me that the starting point is immaterial.
63. The foundation of the argument is that the undertaker is under no duty until the enforcement order has been made. I do not think that that foundation bears the weight of the argument. It is true that there is no private law duty under the Water Industry Act until section 22 comes into play, but the enforcement order is a means of enforcing an existing statutory duty. The Water Industry Act was passed before the Human Rights Act. In my judgment, section 18(8) of the former Act is not to be interpreted as showing any intention whether a statutory undertaker is a proper defendant in any given case under the Human Rights Act.
64. Mr Daiches rightly put forward no argument on the basis that Mr Marcic, by not following up the suggestion of the Department of the Environment that he complain to the director general of water services, had failed to exhaust his remedies.
65. The defendant has statutory powers, and indeed is under a statutory duty, effectually to drain its area. In the case of Mr Marcic, it has failed to do so. In my judgment, the defendant is a proper defendant. Section 18(8) of the Water Industry Act does not, in my judgment, purport to prohibit the bringing of Mr Marcic’s claim. It is not incompatible with the Human Rights Act.
66. Mr Daiches submitted that the defendant and its predecessors in title were compelled by section 106 of the Water Industry Act to permit householders to connect their drains to the public sewer system, so that the defendant could not have acted any differently. He relied upon section 6(2)(a) of the Human Rights Act as disapplying section 6(1) in those circumstances. I note in passing, although I have heard no argument on the point, that section 106 does not require an undertaker to accept surface water into a sewer provided for foul water: see section 106(2)(b)(ii), which provides:
nothing in subsection (1) above shall entitle any person-
…
(b) where separate public sewers are provided for foul water and for surface water, to discharge directly or indirectly
…
(ii) except with the approval of the undertaker, surface water into a sewer provided for foul water;…
Since, on the evidence, I am satisfied that the foul-water sewer would have ample capacity but for the fact that it accepts surface water in addition to sewage, Mr Daiches’s argument may not apply to the foul-water element of the flooding to which Mr Marcic’s property is subjected. But in any case, in my judgment, section 6(2)(a) of the Human Rights Act does not apply, since the defendant’s inactivity is not the necessary consequence of any legislation.
67. The rights embodied in Article 8 of the Convention and in Article 1 of the First Protocol are qualified rights. The right expressed in para 1 of Article 8 is qualified by the provision of para 2. The right expressed in the first sentence of Article 1 of the First Protocol is qualified by what follows in the remainder of the first paragraph of that article. The second paragraph is irrelevant for present purposes.
68. I find that the defendant’s failure to carry out works to bring to an end the repeated flooding of Mr Marcic’s property constitutes an interference with the exercise of Mr Marcic’s right under para 1 of Article 8 of the Convention. That is so notwithstanding that it is inactivity that is complained of. I reach that conclusion on the authority of Guerra. The right is a qualified right, in that interference with it by a public authority may be justified in accordance with the provisions of para 2 of that article. If it is justified, then Mr Marcic’s qualified right has not been infringed and the defendant has not acted in a way that is incompatible with Mr Marcic’s Convention right under Article 8.
69. As to Article 1 of the First Protocol, I find that Mr Marcic has been deprived, at any rate in part, of the peaceful enjoyment of his possessions. Although I have not heard expert evidence of any diminution in value of his property, there is expert evidence of damage to the property and the evidence of Mr Marcic, who considers it to be unsaleable. The value of Mr Marcic’s property must have been seriously and adversely affected by the nuisance. That effect has constituted a partial expropriation: in S v France at p261, the Commission observed that where the value of real property was|page:120| seriously affected by noise nuisance, that nuisance would amount to a partial expropriation.
70. Mr Marcic cannot complain before this court of any infringement or damage occurring before 2 October 2000, when the Human Rights Act came into force. I shall consider the question of damage at a later hearing. As to infringement, the interference with the exercise of Mr Marcic’s qualified right under Article 8 continues, and the deprivation of his possessions continues. I thus have to consider whether the exceptions contained in the two articles apply.
71. Mr Daiches submitted that there was a principle of proportionality in the interpretation of the Human Rights Act. There was a general principal inherent in the whole of the Convention that it is seeking to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights: see Lester and Pannick, Human Rights Law and Practice at p68. I accept that in applying the qualifications to the rights in question, the court must strike a fair balance between the competing considerations. As to Article 8, the only qualifications to the right that it has been suggested or, I think, could have been suggested are relevant in this case are encapsulated in the words “necessary in a democratic society in the interests of the economic well-being of the country or for the protection of the rights and freedoms of others”. In Article 1 of the First Protocol, the public interest is the competing consideration. It is common ground that the burden lies on the defendant to show that there is a justification for the prima facie breach of Mr Marcic’s human rights.
72. Mr Daiches submitted that in considering the question of proportionality, I should apply the principle of judicial deference. An expression of that principle is to be found in the speech of Lord Hope of Craighead in R v Director of Public Prosecutions, ex parte Kebilene [1999] 3 WLR 972 at p994A:
the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.
In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.
Mr Daiches’s submission was that I should defer to the views and specialist expertise of the defendant. In summary, his reasons were these. Prior to the introduction of the Human Rights Act, it was clear that the legislature intended that the director, and not statutory sewerage undertakers, should be the public authority responsible for deciding whether to enforce the remedying of contravention omissions. The clear inference was that the legislature intended that decisions whether to enforce such a remedy should involve a discretion, to be exercised having regard to many factors, including the amount of funds available to the relevant undertaker and the priority of the complainant as compared with other owners and occupiers who were suffering from the harmful effects of an old and inadequate public sewerage system. The underlying political question was whether statutory sewerage undertakers should be under a strict duty to provide a perfect public sewerage system for everyone in the country, regardless of cost, or whether they should be under some lesser, and if so what, duty. Social and economic factors involved the degree of control by the director, the amount by which the director permitted sewerage undertakers to raise their charges to enable capital and infrastructure works to be carried out, and the amounts that consumers could reasonably be expected to pay to improve the public sewerage system. Social and economic factors also involved consideration of a proper system of priorities to deal with the thousands of owners and occupiers who currently suffered from inadequate public sewerage systems. The court patently lacked the expertise necessary to make a primary finding as to whether the omission to take the relevant steps was proportionate as between the claimant and the community as a whole. The court had not heard any evidence from the other owners or occupiers who might be regarded by the undertaker as having priority over Mr Marcic. It was clearly impractical for the defendant to subpoena all the thousands of owners and occupiers on the defendant’s flooding history database. In such circumstances, the court could not properly assess whether Mr Marcic should be entitled to the benefit of new public sewerage works in priority to all the other owners and occupiers who were suffering from old and inadequate public sewers. It was the director who was the person best fitted to decide whether an enforcement order should be made. However, on the premise that the relevant duty was on the defendant, Mr Daiches submitted that the defendant still had more specialist expertise than the court in relation to the issues raised in this case.
73. That is a powerful argument. But since I have to decide whether Mr Marcic’s human rights have been infringed, it is implicit that I am being asked to conclude that the statutory framework itself, and not simply its operation in this case, provides the appropriate balance of the competing interests. There is precedent for such a conclusion. Mr Daiches cited the case of Powell v United Kingdom A/172 (1990) 12 EHRR 355. The high point of that case from Mr Daiches’s point of view is this sentence in the judgment of the European Court of Human Rights at para 43 of p369:
It is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere.
That fact remains that the court did consider the merits of the case. The discussion appears in paras 40 to 45 of its judgment on pp368 and 369 of the report. The claims related to noise nuisance emanating from Heathrow airport. The facts are fully set out in the report. The court stated in its judgment that in each case, albeit to greatly differing degrees, the quality of the applicant’s private life and the scope for enjoying the amenities of his home had been adversely affected by the noise. The existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft, had, without question, become necessary in the interests of a country’s economic well-being. A number of measures had been introduced by the responsible authorities to control, abate and compensate for the noise. Nine such measures were specified in the judgment. Those measures had taken due account of international standards and the varying levels of disturbance suffered by those living around the airport. On the other hand, section 76(1) of the Civil Aviation Act 1982 limited the possibility of legal redress open to the aggrieved person. The court concluded that the assessment of the best policy in that difficult social and technical sphere was an area where the contracting states were to be recognised as having a wide margin of appreciation.
74. Mr Daiches also relied upon R v Cambridge Department of Health Authority, ex parte B [1995] 1 WLR 898 at p906E-F. In that case, the claimant, the father of a sick child, sought judicial review of a decision of a health authority not to allocate £75,000 for the treatment of the child. Without the treatment the child was thought to have some six to eight weeks to live. The proposed treatment was experimental. Its chance of success was between 10% and 20%. Some of the doctors had thought that it was not in the child’s interest to undertake it. The passage upon which Mr Daiches relied was from the judgment of Sir Thomas Bingham MR in the Court of Appeal, where he said:
Difficult and agonizing judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticized for not advancing before the court.
Sir Thomas Bingham MR had observed that it was common knowledge that health authorities of all kinds were constantly pressed to make ends meet. And he went on to say that it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B, then there would|page:121| be a patient C who would have to go without treatment. No major authority could run its financial affairs in a way that would permit such a demonstration. It is clear from the report that the Court of Appeal did very carefully consider the reasonableness of the decision of the health authority.
75. I conclude that I must consider the merits of this case, albeit giving the defendant a wide margin of discretion.
76. The defendant is one of the Thames Water plc group of companies. The defendant is a statutory water and sewerage undertaker for the purposes of the Water Act 1989 and the Water Industry Act 1991. As statutory sewerage undertaker, the defendant is responsible for an area stretching from Cirencester to Brentwood, and from Banbury to Crawley. Within that area, the defendant is responsible for some 80,000km of public sewers ranging in size from 100mm to over 6m in diameter. There are 361 sewage treatment works and over 2,000 sewage pumping stations that serve some 5.4 million connected properties and a population of some 12 million.
77. The revenue of the defendant comes from water and sewerage charges. Those charges are fixed from time to time by the director general of water services (the DG). In fixing the charges, the DG includes allowance for the cost of works necessary to remove properties from the risk of internal flooding. In more detail, the procedure is as follows. Every five years, the defendant submits a strategic business plan to the DG. That plan includes a statement of the capital funding needed to achieve what the defendant believes to be a reasonable level of alleviation of flooding. The defendant keeps a database of flooding history identifying flooding incidents and the properties concerned. The DG reviews the submissions and sets the number of properties he requires to be removed from the flooding history database. He includes allowance for the cost of that in his assessment of the level of charges to be permitted. He issues directives setting out targets for performance by sewerage undertakers, one of which includes the alleviation of the risk of flooding of properties at risk. The category of property at risk of flooding for which allowance is made by the DG in the charges is properties at risk of internal flooding by foul or surface water. There is no allowance for properties at risk only of external flooding. Thus, in particular, Mr Marcic’s property, which has not suffered internal flooding, is not allowed for.
78. The flooding history database, which the defendant maintains with the approval of the DG, includes all properties in the defendant’s area that are assessed to be at risk of flooding. There are three categories of risk. Risk A applies to properties statistically categorised as being at risk of internal flooding twice or more in 10 years. Risk B applies to properties at risk of internal flooding once or more, but less than twice, in 10 years. Risk X applies to all other properties with a history of flooding, including properties subject only to external flooding.
79. For the period 1990 to 1995, the DG required 3,910 risk A properties to be removed from the risk of internal flooding. In fact, 3,943 properties were so removed. For the period from 1995 to 2000, the target was 3,700 risk A properties. The achieved figure was 4,397 properties, and the cost £132m. For the period 2000 to 2005, the defendant is required to remove 1,500 risk A or risk B properties. The cost allowed is £46m.
80. Between 1990 and 1997, the defendant has carried out in Harrow London Borough Council 19 flooding projects, affecting 243 properties, at a cost of £9.4m.
81. The way in which the defendant determines priorities for spending moneys to alleviate flooding is by way of a points system. A customer impact score is attached to a given flooding incident. Points are awarded for various factors, eg whether the flooding is of foul water or of surface water, whether it is internal or external, whether the property is a school, hospital or nursing home, and whether the customer has been forced to vacate the property temporarily. In the case of external flooding, additional points are attached by reference to the frequency of such events, provided that the frequency is at least three events in five years. In the case of internal flooding, weightings are attached to the total by reference to the number of such incidents in a 10-year period, provided that it exceeds one, and to the time elapsed since the most recent event, provided that it is not more than 10 years. The score is compared with the estimated costs of the necessary engineering project. The threshold for what the defendant regards as the viability of an engineering project to alleviate the risk of flooding is 100 points per £1m. Cases where the figure falls below 100 points per £1m can be referred to a review group of the defendant, which can consider any additional factors. Examples of such factors are specific vulnerabilities of the customer (eg old age, sickness or disablement), whether the matter has received press coverage and whether a member of parliament or a local councillor is involved in the matter.
82. The cost of scheme 2.2 mentioned in the experts’ joint statement is £200,000. The points value, allowing for the benefit to properties adjacent to that of Mr Marcic as well as the benefit to Mr Marcic’s own property, is six, equivalent to 30 per £1m.
83. On the evidence of the defendant’s witnesses, I am satisfied that there is no prospect of any work being carried out in the foreseeable future to prevent flooding of Mr Marcic’s property.
84. There have been put before me some statistics of properties in the defendant’s area affected by flooding and at risk of flooding. In the year 1999 to 2000, the position was this. The number of properties affected by internal flooding incidents caused by overloaded sewers was 851. The number of properties affected by internal flooding incidents from other causes was 911. The number of properties at the end of the year said to be at risk of internal flooding twice or more in 10 years was 3,611. The number of properties at the end of the year said to be at risk of internal flooding once or more, but less than twice, in 10 years was 14,655. Those latter figures, totalling 18,266, included the former, totalling 1,762. With reference to those figures, Mr Douch said in his witness statement that if the defendant were to allocate the level of funding needed to provide the solutions to Mr Marcic’s flooding problem discussed in the experts’ joint report, funds would be diverted away from projects to alleviate the risk of flooding of the 18,000 properties that suffer from, or are at risk of, internal flooding. For both public health and customer interest reasons, those must be given priority, he said. He went on to say that the defendant’s commitments to fund its regulated public water supply and sewerage functions were such that it was not able to fund all of the many similar cases to Mr Marcic’s without compromising its abilities to meet the regulatory requirements for the range of functions it was required to carry out.
85. In his oral evidence, Mr Douch said that Mr Marcic’s level of external flooding was quite severe, but not exceptional. He had not carried out an analysis, but would suggest that there were, in the defendant’s area, several thousand properties experiencing a similar level of flooding. Mr Sitaranjan estimated that there were several hundred properties within Harrow London Borough Council that suffered from foul-water flooding and more severe surface-water flooding than that experienced by Mr Marcic.
86. In cross-examination, Mr Douch accepted that there was nothing other than a managerial decision on the part of the defendant to stop it from spending the money necessary to remedy Mr Marcic’s flooding problem without diverting resources from the 18,000 properties at risk of internal flooding. He also said that the defendant has spent more on alleviation of flooding than the DG had allowed for.
87. I have seen extracts from the reports and accounts of Thames Water Group. Separate accounts for the defendant are not in evidence. The group’s financial review for the year 1999 to 2000 states:
Our objective is to create shareholder value by developing and investing in businesses which deliver strong cash flows and are able to provide returns in excess of our costs of capital. We continued to make good progress towards this objective in 1999/00, again raising returns through margin improvements, rigorous financial control and the substantial growth of businesses outside the UK Utility…
Despite the substantial regulatory reductions in prices from 2000/01, the UK Utility remains strong with a growing high quality customer base, and provides a solid platform for the vigorous development of our other businesses.
The group profits after tax were £344m. |page:122|
88. Mr Douch said that the current cost rate of alleviating flooding problems was of the order of £30,000 per property. That figure reflected concentration upon schemes where the properties that benefit are grouped together geographically so that several can benefit from a single scheme of alleviation. If all flooding problems were to be alleviated, the unit cost would be substantially in excess of £30,000.
89. While the evidence on the subject is imprecise to the point of vagueness, I conclude that it would cost the defendant a sum of the order of £1m to alleviate the flooding problems of all customers in its area who are in a similar position to that of Mr Marcic, or whose properties are at risk of internal flooding at least once every 10 years. That takes no account of future housebuilding. It seems, on the limited evidence available, that that alleviation, if it were to be undertaken, would take several, if not many, years in the absence of an increase in sewerage charges.
90. Mr Harrison submitted that to carry out the works necessary to remedy Mr Marcic’s situation manifestly would not affect the economic well-being of the country, and that there was simply no evidence that the economic well-being of the country would be threatened by a judgment in his favour. I accept that argument so far as it goes, that is to say by taking Mr Marcic’s case in isolation. But, on the evidence, there may be thousands of customers in a position similar to that of Mr Marcic. For reasons that follow, I consider that Mr Marcic’s case must not be taken in isolation.
91. Mr Harrison further submitted that the “interference” by the defendant with the exercise of Mr Marcic’s right under Article 8 could not be justified as being for the protection of the rights and freedoms of others, since they had no greater rights or freedoms than Mr Marcic.
92. The question is, what is the meaning of the expression contained in the second paragraph of Article 8 “necessary… in the interests of… the economic well-being of the country” in the context of the facts of this case? The answer, I think, appears in Powell v United Kingdom at p368. The European Court said in para 41 of its judgment:
Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph (1) of Article 8 or in terms of an “interference by a public authority” to be justified in accordance with paragraph (2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention.
The European Court made similar remarks in Lopez Ostra at p295, para 51. While the margin of appreciation enjoyed by a state is not in issue here, I have already indicated that, in my judgment, the defendant, and, I may add, the director, enjoy a margin of discretion. I have to decide whether a fair balance has been struck between the competing interests of Mr Marcic and of the other customers of the defendant, allowing the defendant that margin. The economic well-being of the country as a whole is not, I think, in issue, since sewerage costs are financed from sewerage charges. No doubt, sewerage charges have an effect on the economy of the country, but it has not been suggested that that is a significant consideration. The striking of the fair balance also protects the rights and freedoms of others.
93. As to Article 1 of the First Protocol, in S v France at pp262-261, the Commission referred to a statement of the European Court of Human Rights in James v United Kingdom A/98 21 February 1986, Series A no 98 at para 4 of p36*, that the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference that could not be considered justifiable under Article 1 of Protocol 1. The public interest exception specified in Article 1 of the First Protocol raises, in my judgment, the same considerations in this case as those raised in the second paragraph of Article 8.
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* Editor’s note: Reported at (1980) 8 EHRR 123
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94. Mr Daiches submitted that where a private individual complains that a statutory body has omitted to exercise a public law discretion so as to confer a benefit upon him, the fair balance must always be struck by precluding that individual from bringing a private law action to compel the statutory body to confer that benefit upon him. I reject that argument, at any rate where, as here, the benefit is abatement of a nuisance or other harm emanating from a defendant or its property. Mr Daiches submitted that the courts are not fitted to assess the considerations that dictate a public law decision by a statutory body involving the weighing of competing public interests. That argument purports to prove too much. It implies that the courts must wash their hands of their power under section 8(1) of the Human Rights Act to grant such relief or remedy, or make such order within their powers as they consider just and appropriate. The proposition is vividly put in the words of Sir Thomas Bingham MR in R v Ministry of Defence, ex parte Smith [1996] QB 517 at p554, which are quoted in a case that Mr Daiches cited to me, R v Secretary of State for the Home Department, ex parte Turgut [2001] 1 All ER 719 at p724F:
While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to “do right to all manner of people”.
That remark was made in the context of proceedings for judicial review, but it applies here also.
95. Mr Daiches submitted that the striking of the fair balance in relation to a public law decision requires the existence of a system of law that: (a) permits a statutory body to exercise its public law discretion freely and without improper or distorting interference from the executive or the courts; (b) precludes a person who feels aggrieved by the exercise of such discretion from bringing a private law action in relation to the decision; but (c) protects that person’s Convention rights by enabling him to bring a public law action to have the discretion judicially reviewed for irrationality, unfairness or illegality. I reject that argument. If correct, it would have the effect that this court should refuse relief and leave it to another court to grant, if it thought right, the relief that it is within the general powers of this court to grant. Illegality includes acting in a way that is incompatible with a Convention right, and a court undertaking judicial review would, as regards illegality, take into account precisely the considerations that are before me.
96. In its system of working out priorities, one of the items that the defendant takes into account, in relation to a customer suffering internal flooding, but not in relation to a customer suffering only external flooding, is the time elapsed since the most recent flooding event. Periods from zero to two years are bracketed together and attract the maximum weighting for this item. It is a matter for consideration whether weightings should be attached for external flooding. The most recent event experienced by Mr Marcic occurred on 6 November 2000, four months before the hearing. It is a matter for consideration whether higher weighting should be given where there has been such a recent event. A related point is the frequency of events. The maximum weighting for this item is given (again only for internal flooding) where the frequency of events is more than 10 in 10 years. Mr Marcic has suffered three incidents of flooding at his property since 15 May 2000, plus an occasion at the end of October 2000 when flooding took place on two successive days. That may be counted as four or five incidents in a period of less than a year. It is a matter for consideration whether such a high frequency of incidents should attract higher weighting than it does.
97. Mr Marcic has been waiting nine years for something to be done about his flooding problem. No account is taken of the length of time that a customer has been waiting for his problem to be remedied. It is for consideration whether some account should be taken of that.
98. Although a small number of points is given where a customer is unable to obtain insurance, no account is taken of the value of the property flooded, or of the amount of any diminution in value, or the cost of repair of any damage to the property caused by the flooding. Again, it is for consideration whether those matters ought to be taken into account in assessing priorities. |page:123|
99. Another matter for consideration is whether it is fair that a customer such as Mr Marcic, who has spent £16,000 to prevent the flood waters coming into his house, should have no prospect of relief, when customers who have not done so, but might have been able to, have priority.
100. Some of the matters taken into account in assessing priorities are irrelevant, eg whether a complaint has received press coverage.
101. The defendant’s case depends upon there being a large number of properties (they rely upon the figure of 18,000) that properly have priority over cases like that of Mr Marcic. There is no evidence before me of how many of those properties suffer flooding from foul water. It is by no means obvious that suffering internal flooding from surface water once in eight years, say, is worse than suffering external flooding from foul water more than once a year. Yet the figure of 14,655 properties at risk of internal flooding more than once, but less than twice, in 10 years is not broken down. Nor is the figure of 3,611 properties at risk of flooding twice or more in 10 years. How many properties suffer flooding twice a year, how many once in eight years, say? And no breakdown seems to have been made of Risk X customers, ie those whose flooding is entirely external.
102. The system of priorities used by the defendant may be entirely fair, and I have no reason to doubt that it is intended to be. But its fairness in balancing the competing interests of the defendant’s various customers must depend in part upon the numbers in each class, the total costs involved in relation to each class, and the resources of the defendant. The answers to the questions raised above as matters for consideration might depend upon the figures. If the exercise of assessing the fairness of the system were carried out, it might lead to the conclusion that for all its apparent faults, the system fell within the wide margin of discretion open to the defendant and the director. But on the limited evidence available to me, it is not possible to carry out such an exercise.
103. My conclusions are these. Mr Marcic has suffered from increasingly frequent flooding at his property for nine years. The defendant has known about the original flooding incident since it occurred in 1992, and it has had the means of knowledge of the later incidents. Almost nothing has been done about the flooding, other than the works that Mr Marcic has himself carried out. Under the present system of priorities, there is no prospect of anything being done about it. That, on the face of it, constitutes an infringement of his human rights, which requires justification. It would be justified if a system leading to that result and protecting the rights of others were necessary in order to strike a fair balance between the competing interests of Mr Marcic and of the other customers of the defendant, allowing the defendant a margin of discretion. It is common ground that the burden lies on the defendant to provide that justification. It has failed to do so. The fact that the current system does not obviously fail to strike the fair balance is insufficient.
104. Mr Marcic seeks a mandatory injunction requiring one of the proposed schemes to be carried out. In my judgment, there can be no question of a mandatory injunction. Any scheme would require the purchase of land, and the preferred scheme would require the co-operation of the Environment Agency.
105. As to damages, the effect of section 8(3) of the Human Rights Act is that I am to make no award of damages unless I am satisfied that the award is necessary to afford just satisfaction to Mr Marcic. Section 8(4) requires me to take account of the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. That again requires just satisfaction. In Lopez Ostra, at p299, the European Court of Human Rights made an assessment on an equitable basis of non-pecuniary damage (nuisance cased by gas fumes, noise and smells, and distress and anxiety).
106. The effect of section 22(4) of the Human Rights Act is that Mr Marcic has no remedy under that Act in respect of any act taking place before 2 October 2000. Mr Daiches submitted that it would have been impossible for the defendant to start works on or after 2 October 2000 so as to have completed them by the time of the hearing. That is clearly true. He submitted that there was no fresh act or omission on or after 2 October 2000 such as to give rise to liability on the part of the defendant. It is clear from the evidence that the defendant intends to continue to operate its existing system of priorities. It intends not to carry out the works necessary to remedy the nuisance. For the purpose of a claim under section 7(1) of the Human Rights Act, it is sufficient that the defendant proposes to act in a way made unlawful by section 6(1). But the question remains of whether any unlawful failure to act has occurred or, if it has, whether it has caused any damage.
107. The nuisance giving rise to the cause of action for infringement of Mr Marcic’s right under Article 8 of the Convention is a continuing nuisance. The “act” rendered unlawful by section 6(1) of the Human Rights Act is failure to prevent or put an end to the infringement of the claimant’s human rights. The concept of failure to prevent or put an end to the infringement implies the proposition that the defendant can reasonably act so as to prevent or put an end to the infringement. The defendant can reasonably act in that way, albeit that, given the situation existing on 2 October 2000, the defendant could not have put an end to the prima facie breach of Mr Marcic’s rights by the date of trial. In my judgment, the inactivity of the defendant became unlawful, and hence the cause of action under section 8(1) of the Human Rights Act arose, when the Human Rights Act came into force on 2 October 2000. That cause of action is a continuing cause of action.
108. The position in relation to Article 1 of the First Protocol, in my judgment, is this. Assuming (and I have yet to hear evidence on the point) that no further diminution in value of Mr Marcic’s property has been occasioned by the nuisance since 2 October 2000, there has been no act of expropriation on that account since that date. However, the state of deprivation of his possessions has continued. In my judgment, for the reasons given in the previous paragraph, Mr Marcic has had a cause of action for infringement of his right under Article 1 of the First Protocol since 2 October 2000.
109. In my judgment, it is no defence that the defendant cannot immediately remedy the situation. That fact can, of course affect the relief granted.
110. My answers to the preliminary issues set out in the appendix to this judgment are:
1. No.
2. No.
3. No.
4. No.
5. No.
6. Yes.
Appendix
List of preliminary issues
1. Whether, by reason of its omission to execute the works specified in paras 2.2, 2.3, 2.4 or 2.5 of the “Joint statement by drainage experts” dated June 2000, the defendant is liable in negligence under the principle in Leakey in respect of such damage to the claimant’s property after August 1992, or after some other, and if so, what, date, as was caused by escapes from surface-water sewers vested in the defendant.
2. Whether by reason of is utilisation of public sewers vested in it that were known by the defendant to be of inadequate capacity, the defendant is liable in nuisance in respect of such damage to the claimant’s property after August 1992 as was caused by escapes from surface-water sewers vested in the defendant.
3. Whether the defendant is liable under the rule in Rylands v Fletcher in respect of such damage to the claimant’s property after August 1992 as was caused by escapes from surface-water sewers vested in the defendant.
4. Whether, by reason of its omission to exercise its statutory powers after August 1992 to execute the works specified in paras 2.2, 2.3, 2.4 and 2.5 of the “Joint statement by drainage experts” dated June 2000, and/or its omission to monitor restrictions imposed by the local planning authority in relation to the drainage of new buildings, the defendant is liable in negligence in respect of such damage to the claimant’s property after August 1992 as was caused by escapes from surface-water sewers vested in the defendant.
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5. Whether, by reason of any omission to provide [such] a system of public sewers as to ensure that the area within which the claimant’s property is situated is effectually drained, and/or any omission to make provision for effectually dealing with the contents of its sewers, the claimant has a private law remedy against the defendant for breach of statutory duty in respect of such damage to the claimant’s property after August 1992, or after some other, and if so, what, date, as was caused by escapes from surface-water sewers vested in the defendant; and, if so, whether the defendant is in breach of such duty.
6. Whether the defendant’s failure to execute the works specified in paras 2.2, 2.3, 2.4 or 2.5 of the “Joint statement by drainage experts” dated June 2000 was a failure to act that was incompatible with a Convention right within the meaning of section 6(1) of the Human Rights Act 1998.
Giving his further judgment on 10 July 2001, JUDGE RICHARD HAVERY QC said:
1. In the light of my judgment on liability dated 14 May 2001, I ordered a further preliminary issue to be heard, namely the proper measure of damages. At the hearing of that issue, Mr Daiches, at the outset, applied to me to reconsider my judgment on liability. It was open to me to change my decision, since no order of the court had been drawn up. Since the judgment on liability involved new law, I acceded to that application. This judgment relates principally to the measure of damages, but I shall start by considering the submissions of Mr Daiches that I should change my judgment on liability.
2. The starting point for Mr Daiches’s submissions was that a failure to act, such as to give rise to liability under section 6(1) of the Human Rights Act, must involve the concept that the defendant could reasonably have acted so as to prevent or put an end to the infringement of the claimant’s human rights: see paras 60 and 107 of my judgment on liability. Thus, in substance, the court had held that the duty on a public authority under the Human Rights Act was a duty to do what was reasonably practicable to abate the nuisance that gave rise to the infringement. Mr Daiches submitted that it was not reasonably practicable for the defendant to carry out the necessary works.
3. Mr Daiches submitted that my judgment on liability was erroneous. He based his argument upon para 104 of the judgment, in which I said:
Mr Marcic seeks a mandatory injunction requiring one of the proposed schemes to be carried out. In my judgment, there can be no question of a mandatory injunction. Any scheme would require the purchase of land, and the preferred scheme would require the co-operation of the Environment Agency.
Mr Daiches submitted that para 104 showed that I had decided that I had no power to grant an injunction. It followed that I had found that it was not reasonably practicable for the defendant to carry out the necessary works. Both those propositions are wrong. My decision to refuse a mandatory injunction was made in the exercise of my discretion. My reasons were expressed briefly, since it seemed obvious that, in the exercise of my discretion, I should refuse a mandatory injunction. And I did consider it reasonably practicable for the works to be carried out: see paras 24 and 86 of the judgment. After all, the works are no different in principle from the kind of works that the defendant is regularly carrying out.
4. Mr Daiches submitted that even if he were wrong in his submission that I had found that it was not reasonably practicable to carry out the works, nevertheless it was not reasonably practicable to carry out the works. He submitted that I was wrong to “hold” the contrary. It was, he said, a question of mixed fact and law, since he was tying his submission to an argument that the whole line of cases at common law on nuisance in relation to sewage were explicable on the basis that an injunction would be granted where it was reasonably practicable to carry out the work (Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149, Baron v Portslade Urban District Council [1900] 2 QB 588 and Hole v Chard Union [1894] 1 Ch 293), but not otherwise (Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102, Robinson v Workington Corporation [1897] 1 QB 619 and Smeaton v Ilford Corporation [1954] Ch 450). The old distinctions between feasance and nonfeasance, and between discharge of effluent and escape of effluent, were not conclusive, but were generally related to reasonable practicability. Doing what was reasonably practicable to abate a nuisance involved the concept that the public authority had an immediate ability to abate the nuisance, rather than an ultimate ability. Another way of putting it was that the public authority must have immediate control, rather than ultimate control, over the events that were necessary to abate the nuisance. Mr Daiches submitted that the dichotomy between immediate control and ultimate control was broadly coincidental with that between ownership of the land upon which the works are required and the absence of such ownership, although there could be exceptions not relevant to the instant case. Since the defendant did not own the relevant land, its control was ultimate, not immediate. It seemed remarkable that in none of the many authorities in this area of the law was there any express reference to the dichotomy between immediate control and ultimate control. In support of his submission, Mr Daiches relied upon the observations of Waller LJ in Bybrook Barn Garden Centre Ltd v Kent County Council Court of Appeal transcript, 1 December 2000 para 24:
it will be a relevant consideration as to whether a defendant should be liable for “continuing” a nuisance created by forces for which that defendant is not responsible, whether it is reasonably practicable for that person to prevent the nuisance continuing.
Thus, the immunity at common law that I had found to exist was, in truth, based upon the fact that it was not reasonably practicable to carry out the works. And since it was not reasonably practicable to carry out the works, there was no “act” falling within section 6(1) of the Human Rights Act.
5. I reject those submissions of Mr Daiches. He seeks to work back from my holding that the defendant has immunity at common law, through a theory that, as a justification of old decisions, is absent from their reasoning and is based upon a decision of the Court of Appeal (Bybrook Barn) in which the sewage cases are expressly distinguished (see para 46 of the transcript), to a conclusion that, in my judgment, is clearly one of fact and is contrary to my finding.
6. Notwithstanding those submissions, Mr Daiches said that the defendant would be content to submit to an injunction to do specific works. But it was for the claimant to provide the necessary specification of the works, since it was for the claimant to tell the court what order he wanted. No such specification is before the court.
7. Of my own motion, I shall amend para 104 of my judgment on liability in order to clarify the position. Otherwise, that judgment stands. Para 104 will read:
Mr Marcic seeks a mandatory injunction requiring one of the proposed schemes to be carried out. In the exercise of my discretion, I refuse that injunction on the grounds that: (1) the injunction would have to specify the required works precisely; (2) the specification would be a matter of engineering expertise that is not before the court; and (3) performance of the injunction would require the co-operation of third parties, albeit that the defendant has powers of compulsory purchase of land.
8. Mr Harrison submitted that Mr Marcic was entitled, under the provisions of section 50 of the Supreme Court Act 1981, to damages for future infringements of his rights in substitution for an injunction. Mr Harrison was content not to argue that I should alter my earlier judgment by ordering a mandatory injunction. Mr Marcic would prefer damages. He had had the problem of flooding for long enough. I dare say that Mr Marcic would like to have an award of damages in order to buy another house and move away from the flooding. However that may be, Mr Marcic’s own preference is for an award of damages. Mr Harrison submitted that the damages should include the difference between the value of the property as it would be if and when works necessary to prevent the flooding were completed, and its actual value. The damages would thus represent not a diminution in value, but a failure to achieve an increase in value. Mr Daiches rightly made no submission that that was not a proper measure of damages in principle. For convenience, I shall nevertheless call it a diminution in value. |page:125|
9. Mr Daiches submitted on several grounds that this was not an appropriate case for damages in lieu of an injunction. First, he submitted that the measure of damages would produce a result that fell foul of the rules in Shelfer v City of London Electric Lighting Co Ltd [1895] 1 Ch 287. He relied upon passages in the judgments in the Court of Appeal in Jaggard v Sawyer [1995] 1 WLR 269*. At p277 Sir Thomas Bingham MR said that Shelfer was chiefly notable for the guidance given by AL Smith LJ on the circumstances in which damages may properly be awarded in lieu of an injunction. That guidance included the following:
a person by committing a wrongful act… is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction… In my opinion, it may be stated as a good working rule that (1) If the injury to the plaintiff’s legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: then damages in substitution for an injunction may be given.
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* Editor’s note: Also reported at [1995] 1 EGLR 146; [1995] 13 EG 132
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Mr Daiches submitted that if the damages were to reflect compensation to Mr Marcic for all flooding that was ever likely to occur to the property in perpetuity, the injury to Mr Marcic’s legal rights could not be described as “small”. Nor would it be capable of being estimated in money. Nor would the injury be one that could be adequately compensated “by a small money payment”.
10. I reject Mr Daiches’s submission that the damages would not be capable of being estimated in money. The “difference in value” measure contended for by Mr Harrison would reflect the view of the market on the prospects of flooding. A valuation would indeed be hypothetical, but not incapable of being carried out. I accept, however, that the injury would not be small, nor could it be adequately compensated by a small money payment. It does not fall within the rules in Shelfer. But, in my judgment, the rules in Shelfer do not apply here. Those rules apply where it is the defendant who is seeking to avoid being enjoined. That is apparent from what AL Smith LJ himself said. In the passage cited above, he referred to the defendant’s asking the court to sanction his committing a wrongful act. And, later on, he said:
There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct… has disentitled himself from asking that damages may be assessed in substitution for an injunction.
And in Jaggard v Sawyer at p287 Millett LJ said that AL Smith LJ’s “working rule” applied to the exercise of discretion to withhold injunctive relief when the plaintiff claimed an injunction and the defendant asked the court to award damages instead. AL Smith LJ’s checklist was only a working rule and did not purport to be an exhaustive statement of the circumstances in which damages might be awarded instead of an injunction. Here, the defendant is not asking the court to award damages instead of an injunction. It is the claimant who is doing that. Mr Daiches told me that the defendant would prefer an injunction to an award of damages against it. In my judgment, the wording of section 50 of the Supreme Court Act 1981 does not trammel the power of the court to award damages in lieu of an injunction.
11. Mr Daiches next submitted that I could not award damages in lieu of an injunction, since an injunction did not lie. My decision to refuse an injunction on the basis that the court would not supervise the works was a holding that I had no jurisdiction to grant an injunction. I reject that submission. My decision was based upon an exercise of discretion. I am satisfied that I have jurisdiction to award damages in lieu of an injunction. As Millett LJ said in Jaggard v Sawyer at p285:
The question is whether, at the date of the writ, the court could have granted an injunction, not whether it would have done.
Mr Daiches submitted that in the above passage, “could” meant “could in the exercise of the normal discretion”, and that “it would have done” meant “having decided it could, it would do so on Shelfer principles”. I reject that submission. It defies analysis, but I shall do my best. The question to which Millett LJ was referring was the question of whether, as at the date of the writ, the court had jurisdiction to grant an injunction. If so, it had to decide, by reference to the circumstances existing at the date of the hearing, whether to grant an injunction or award damages instead. The interpretation for which Mr Daiches contended implies that Millett LJ was saying something very odd. It is this: that in deciding, by reference to circumstances existing at the date of the hearing, whether or not to grant an injunction, the court does not decide whether it has jurisdiction to do so by reference to whether at the date of the writ it would have exercised that jurisdiction. That statement is no doubt true, but it is devoid of useful content and is manifestly not the true interpretation. Moreover, Mr Daiches’s interpretation of the word “could” is problematical. At most it can mean “might in the exercise of the normal discretion”, otherwise the reference to discretion is irrelevant. Yet in the next sentence of his judgment, Millett LJ approved a remark of Russell LJ that the question was “whether… the judge could have (however unwisely) made a mandatory order”. Mr Daiches’s submission implies that in considering whether he has jurisdiction to award damages in lieu of an injunction, the question the judge has to decide is whether another judge, or perhaps himself, might, however unwisely, have exercised his discretion in a particular way at the date of the writ. If “might” should read “would”, the implication is even more absurd.
12. Mr Daiches submitted that it would be wholly oppressive and unjust to the defendant not to grant an injunction, since, in the event of an award of damages to the claimant, the defendant would be under a continuing liability to pay damages to every successive occupier of the claimant’s property until the crack of doom. Such damages would be in respect of the same loss and damage as that suffered by the claimant. I reject that submission. So far as successors in title are concerned, the matter would be res judicata: see per Millett LJ at p286B. And, as regards all occupiers, if a person chooses to go into occupation of a property known to be subject to flooding, I do not think that failure to alleviate the flooding could be regarded as an infringement of his human rights. Moreover, as Mr Harrison submitted, section 8(3) of the Human Rights Act 1998 covers the situation. That subsection provides:
No award of damages is to be made unless, taking account of all the circumstances of the case, including
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
13. Mr Daiches submitted that damages for future wrongs ought not to be awarded. His first ground was as follows. Even if the defendant had embarked upon the processes necessary to lead to the construction of the necessary drainage works immediately upon the coming into force of the Human Rights Act on 2 October 2000, those works would not yet be completed. Mr Marcic’s property would still be liable to flooding. No actionable damage could accrue until those works could reasonably have been completed. It was premature to award damages now. Mr Marcic’s human rights had been vindicated by the court, and he was entitled to his costs. That entitlement was just satisfaction at this stage. If he suffered damage in the future, he should bring further proceedings then. It was not certain that infringement of Mr Marcic’s human rights would continue. The defendant might change its system of priorities so as to avoid such infringement. Or further proceedings might give the defendant an opportunity to adduce further evidence in support of its existing system. The present claim involved new law, and it was only fair to give the defendant an opportunity to defend its system in the light of the existing judgment. |page:126|
14. There is force in that last point, but it is outweighed, in my judgment, by the heavy burden that would be imposed upon Mr Marcic by his having to bring proceedings all over again. As to the argument generally, I have made a finding not only that the defendant intends not to carry out the works necessary to remedy the nuisance but also that it intends to continue to operate its existing system of priorities: see para 106 of my judgment on liability. An argument of counsel that the defendant might change its mind does not affect that finding. I have held that the claimant’s rights have been infringed, and that the defendant intends to continue the state of affairs that leads to that holding. If that intention is fulfilled, Mr Marcic’s human rights will continue to be infringed. Given that I have exercised my discretion against granting an injunction, justice requires that Mr Marcic should have an award of damages now. Such an award is necessary to afford him just satisfaction.
15. Mr Daiches’s second argument in support of the proposition that damages for future wrongs ought not to be awarded was that such an award would be contrary to the Strasbourg jurisprudence. So far as he was aware, there was no case in the Strasbourg jurisprudence where an applicant had been awarded damages in respect of future wrongs. In S v France (1990) 65 D&R 250, the complaint had been declared inadmissible on the basis, inter alia, that the applicant had been reasonably compensated by the domestic courts in respect of past wrongs. Mr Harrison submitted that in S v France compensation in respect of future infringement was recognised by the European Commission of Human Rights. The Conseil d’Etat had awarded the claimant compensation for diminution in the value of her property arising out of nuisance by noise. That must have been compensation for future noise, as I accept. The Commission, in reaching its conclusion that the interference complained of did not go beyond what was necessary in a democratic society, bore that compensation in mind.
16. Section 8(4) of the Human Rights Act 1998 provides that in determining the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. Article 41 provides that if the internal law of the high contracting party concerned allows only partial reparation to be made, that court shall, if necessary, afford just satisfaction to the injured party. I conclude that an award of damages for future wrongs is not contrary to the Strasbourg jurisprudence.
17. Mr Daiches further submitted that I should follow the common law in not awarding damages for future wrongs. In my judgment, I should not do so. The common law would not afford the claimant just satisfaction. He would have to bring onerous proceedings from time to time to enforce his rights. Nor would he be able to recover any diminution in the value of his property caused by the prospect of future wrongs.
18. My conclusions as to the measure of damages are these:
(1) If the defendant had, on 2 October 2000, put in hand the processes necessary to bring the nuisance to an end, and diligently pursued them, it would have avoided infringing section 6(1) of the Human Rights Act 1998. It would have completed those processes on some date that I shall call the completion date. On the completion date, Mr Marcic’s property would have had some value X. That value would doubtless reflect any unrepaired damage caused by flooding occurring before the completion date. Mr Marcic would, in those circumstances, have no cause of action against the defendant.
(2) In fact, on the completion date, Mr Marcic’s property will have some value Y. That value will probably be less than X, since, unlike X, it will reflect the prospect of future flooding.
(3) The measure of damage must reflect the difference between the hypothetical situation of Mr Marcic in the absence of infringement of his rights, and his actual situation given those infringements.
(4) Thus, as of the completion date, Mr Marcic will have suffered damage by reason of diminution in the value of his property in the sum of X minus Y.
(5) If the completion date is in the past when the damages are awarded, the damages should reflect additionally an element of interest. By the same token, if the completion date is in the future when the damages are awarded, an appropriate discount should be made.
(6) The only other head of damage claimed is damage for inconvenience, distress and vexation arising out of the flooding. That again can be claimed only in respect of the future from the completion date, and will not include any element arising from damage to the property caused by events occurring before then. But, in my judgment, it will be reflected in the value of the house, and, accordingly, no additional sum will be awarded in respect of it.
19. If necessary, I shall decide an appropriate completion date after hearing evidence on the point.
20. In arriving at the above conclusions, I have borne in mind the voluminous report of the Law Commission and the Scottish Law Commission entitled Damages under the Human Rights Act, put before me by Mr Daiches.
Claim allowed.
