Nuisance — Human rights — Liability of statutory undertaker — Appellant statutory undertaker failing to provide adequate drainage — Consequent flooding causing damage to respondent’s property — Judge finding appellant liable for breach of human rights but not for nuisance — Whether claim lying in nuisance — Whether breach of human rights — Water Industry Act 1991 — Article 8 of European Convention on Human Rights — Article 1 of First Protocol — Appeal dismissed and cross-appeal allowed
The respondent owned and lived in a house in Stanmore, Middlesex. The sewers serving the house were the property of the appellant (Thames), which was the statutory undertaker responsible for their operation and maintenance. In June 1992, the property was significantly affected by flooding. Thereafter, the property became increasingly susceptible to flooding and backflow of foul water, to the extent that only 15 minutes of heavy rainfall or some hours of steady drizzle were sufficient to cause flooding. Damage resulted to the fabric of the house. Although it was practicable for Thames to carry out works to remove the risks of flooding from the respondent’s property, those works were not carried out.
In proceedings brought by the respondent against Thames, the judge held that statutory undertakers were not liable to individuals for failure to carry out their statutory duty of drainage under section 94 of the Water Industry Act 1991, since that Act did not create a statutory liability to pay compensation. He further held that no liability arose in negligence or nuisance. However, he ruled that Thames was liable to the respondent under the Human Rights Act 1998 for a breach of his right to respect for his home and to peaceful enjoyment of his possessions under Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol to that Convention. He found that Thames had not shown that the breach flowed from the operation of a system that struck a fair balance between the competing interests of the respondent and its other customers.
Thames appealed against the finding that it was liable under the 1998 Act. The respondent cross-appealed against the finding that Thames would not have been liable but for that Act, since that decision had the effect of depriving him of any entitlement to damages for the period before the Act came into force.
Held: The appeal was dismissed and the cross-appeal allowed.
1. The combined effect of sections 18(8) and 22 of the Water Industry Act 1991 was that an individual could not found a claim that relied upon an allegation of breach of section 94, with the result that no action could lie for breach of statutory duty. Therefore the judge had been right to find that the respondent could not claim on that basis.
2. The statutory scheme of the 1991 Act did not sufficiently cater for the eventuality that interference with an individual’s human rights occurred as an incident of the performance of the appellant’s statutory duty. Accordingly, the respondent had been entitled to claim under the Human Rights Act 1998, and the judge had been right to find that Thames had infringed his Convention rights.
3. A claim also lay in nuisance at common law. The cases of Goldman v Hargrave [1967] 1 AC 645 and Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 clearly established that ownership of land carried with it a duty to do whatever was reasonable in all the circumstances to prevent hazards on the land, however they might arise, from causing damage to a neighbour. Thames, as owner of the sewers, was in no more favourable a position than any landowner upon whose property a hazard accumulated by the act of a trespasser or of nature. At all material times, Thames had had, or should have had, knowledge of that hazard, and it was accordingly placed under a duty to the respondent to take such steps as were reasonable in all the circumstances to prevent the discharge of surface and foul water onto his property. It made no difference that the nuisance alleged was a result of non-feasance, rather than misfeasance, as the respondent’s claim did not amount to a concealed attempt to make Thames perform a statutory duty: Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102 and Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 distinguished; Bybrook Barn Garden Centre Ltd v Kent County Council [2001] BLR 55 considered. It followed that the respondent had succeeded in proving the nuisance alleged.
4. Once the respondent had proved nuisance, it was for Thames to show that it had a defence to the claim, and it had failed to do so: Allen v Gulf Oil Refining Ltd [1981] AC 1001 applied. It had not shown that it had taken all reasonable steps to prevent the nuisance. Nor was there any defence of statutory authority, since Thames had not discharged the burden of establishing that the flooding of the respondent’s property was the inevitable consequence of the exercise of its statutory duties: Allen and Department of Transport v North West Water Authority [1984] AC 336 applied. The fact that Thames might have to acquire land or exercise its statutory powers in order to construct the necessary works did not absolve it from liability. Where a massive corporation such as Thames was carrying on business as a sewerage undertaker as a commercial venture, the duty to take reasonable steps might often involve a requirement to add to the substantial land areas that it already owned. Although the duty to take reasonable steps was not founded on the existence of statutory powers, those powers were relevant when considering what Thames could reasonably have done to prevent the nuisance, and its conduct was to be judged having regard to all the steps that it was open to it to take, whether under statutory powers or otherwise: British Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ 276; [2001] 3 WLR 613 considered.
David Pannick QC and Michael Daiches (instructed by the solicitor to Thames Water Utilities Ltd) appeared for the appellant; Stephen Hockman QC and Peter Harrison (instructed by South & Co) appeared for the respondent.
Sally Dobson, barrister
