Appellant’s sewers repeatedly flooding respondent’s property — Respondent failing to pursue remedy through provisions of Water Industry Act 1991 — Respondent pursuing claim in nuisance and under Human Rights legislation — Appeal dismissed
The respondent owned property that had been subject to serious and repeated flooding from overloaded sewers. From June 1992, he had repeatedly complained to his local authority, but they took no steps to remedy the underlying cause. The respondent eventually constructed a flood-defence system in his front garden, at substantial cost to himself, in order to alleviate the damage. In 1998, he commenced proceedings against the appellant, the statutory sewerage undertaker for the area. Following a long delay, the necessary remedial work was carried out.
The question before the court was whether the respondent could recover damages in his action, which comprised: (i) a common law claim in nuisance; and (ii) a claim under the Human Rights Act 1998. The Court of Appeal found in favour of the respondent on both claims, and the appellant appealed.
Held: The appeal was allowed.
1. The Court of Appeal had found that the standard of conduct required of an occupier of land towards his neighbour was that founded on the principles established in Goldman v Hargrave [1967] 1 AC 645 and Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485. It had accordingly dismissed the appeal on the basis that, at all material times, the appellant had, or should have had, knowledge of the hazard posed by the sewers on its land and should have taken reasonable steps to prevent the discharge of foul water onto the respondent’s land. The court had been wrong to do so. The appellant was no ordinary occupier of land. Its obligations regarding the sewers had to be considered in the light of an elaborate statutory scheme. The common law of nuisance could not impose obligations upon the appellant that were inconsistent with that statutory scheme and that would run counter to the intention of parliament as expressed in the Water Industry Act 1991.
The respondent had not claimed that the damage had arisen out of the appellant’s failure to maintain its system adequately. Given, inter alia, the demands upon the sewerage system, the appellant’s obligation to provide such a system to all, and its inability to control the volume of water entering it, the basic premise of the claim must therefore have been that the appellant should have built more sewers. That line of argument could not be sustained, considering the statutory limitations on the enforcement of sewerage undertakers’ drainage obligations.
Parliament could not have intended that any householder whose property was affected by such flooding could force a sewerage undertaker to build more sewers or could claim damages if it did not do so. In fact, such an action was clearly precluded by the Water Industry Act 1991. The power to enforce against inadequate drainage lay with the Secretary of State or the director-general of water services, who could make enforcement orders against the offending undertaker. That statutory regulatory role could not be supplanted by a parallel common law right, and, on that basis, the respondent had no common law cause of action in nuisance.
2. It was common ground that the flooding of the respondent’s property was a serious interference with his home, and was therefore a violation of his right to respect for his private and family life under Article 8 of the 1998 Act and his entitlement to the peaceful enjoyment of his possessions under Article 1 of the First Protocol. The respondent’s claim, therefore, was that, in failing to build more sewers, the appellant had conducted itself in a way that was incompatible with the respondent’s rights, and that the burden of justifying such interference rested with the appellant.
Again, that submission failed to take account of the statutory scheme under which the appellant was operating. It was evident that the appellant had to adopt some system of prioritising necessary building works. Whether the method of prioritising those works was fair was a matter inherently more suited for decision by the industry regulator than by a court, and the statutory scheme accordingly provided both for the assessment of such work and the necessary remedy where such a system was found to be unfair.
This prompted the issue of whether the statutory scheme as a whole was ECHR-compliant. Simply put, was the statutory scheme unreasonable in its effect upon those householders whose properties were periodically subject to sewer flooding? A balance had to be struck between the interests of the individual and those of the community as a whole. In the instant case, the balance was between the interests of those whose properties were prone to flooding and all the customers of the company who would meet the cost of increased building. In principle, the scheme struck a reasonable balance by imposing a general duty upon the sewerage undertaker and by entrusting enforcement of that duty to an independent regulator who could take account of the differing interests involved. Accordingly, it was ECHR-compliant.
Jonathan Sumption QC, David Pannick QC and Michael Daiches (instructed by Beale & Co) appeared for the appellant; Stephen Hockman QC and Peter Harrison (instructed by Balogun Kirvan South) appeared for the respondent.
Vivienne Lane, barrister
