Facts
The Manchester Ship Canal runs from Manchester to the Mersey Estuary (“the Canal”).
The Appellant owns beds and banks of the Canal. Under the Water Act 1989 (“the 1989 Act”), it was appointed as the sewerage undertaker for the North West of England. The Appellant owns sewer infrastructure primarily built by its statutory predecessors, which it acquired on privatisation of the water industry under the 1989 Act.
The Respondent’s sewerage network includes about 100 outfalls from which material is discharged from sewers, sewage treatments works and pumping stations, into the Canal.
At times, discharges are of surface water or treated effluent. At other times, discharges are of foul water. This is how the infrastructure was designed, however, if it was improved by the Respondent, foul water discharge could be avoided.
Overarching dispute
The overarching dispute was whether the Respondent required the Appellant’s consent to discharge foul water into the Canal, and therefore pay a licence fee to the Canal, or pollute with the consent of the Canal free of charge, on the basis that the Canal is barred by the Water Industry Act 1991 (“the 1991 Act”) from bringing actions for nuisance and trespass.
The lower courts held that, absent negligence or deliberate wrongdoing, no owner of a watercourse or body of water can bring an action for nuisance or trespass against any sewerage undertaker for polluting discharges.
General principles
Guidance was given on private nuisance, tortious liability and statutory powers.
Private nuisance
Private nuisance is committed where a party’s activity, or a state of affairs for which that party is responsible, unduly interferes with the use and enjoyment of another party’s land.
Nuisances may be, and often are, of a continuing nature.
Generally, a “continuing nuisance” is where there is repeated activity by one party, or an ongoing state of affairs for which that party is responsible, which causes continuing undue interference with the use and enjoyment of another party’s land.
“Continuing a nuisance” is a separate concept, whereby a party is liable for a nuisance, not because it created it, but because it failed, with actual or constructive knowledge of the state of affairs which resulted in the nuisance, to take reasonable steps to prevent it.
Continuance of a private nuisance depends on a party establishing, not only that the nuisance has occurred, but also that the other party knew of its possible cause, actually or constructively, and failed to take reasonable means to bring it to an end.
The burden of proving the elements of the cause of action is on the claimant.
Further, it is not a defence to a claim for private nuisance that the activity has a public benefit. This may be relevant, however, in determining the appropriate remedy.
Finally, statutory controls over pollution have never been treated as a reason for cutting down the rights arising under the law of private nuisance.
Tortious liability & statutory powers
Parties exercising statutory powers enjoy no dispensation from the ordinary law of tort, except in so far as statute gives it to them.
Unless acting within their statutory powers, or granted some statutory immunity from suit, parties exercising statutory powers will be liable like any other person.
What is duly done with statutory authority is lawful, and something about which no one is entitled to complain. Even if it would otherwise have been a tort, the authority conferred by Parliament through legislation renders it lawful.
Accordingly, interferences with private rights which Parliament can be taken to have authorised, which are lawful, and interferences which Parliament is not to be taken to have authorised, which are unlawful, must be distinguished.
First, in the absence of express language, or necessary implication to the contrary, courts presume that even the most general words were intended to be subject to the basic, fundamental rights of the individual to peaceful enjoyment of her property.
Secondly, Parliament will not be taken to have intended that powers should be exercised, or duties performed, in a way which causes an interference with private rights where such an interference could have been avoided.
At common law, discharge of foul water on to private land, or into a private watercourse or body of water, may be a trespass or a private nuisance, for which the available remedies include damages and an injunction, or damages in lieu.
The issue
In light of these two general principles, the issue was whether there was any statutory provision which expressly, or impliedly, authorised such a trespass or private nuisance, or which expressly or impliedly deprived the owner of the remedies that would otherwise be available?
Applying the general principles to the facts
The owner of a watercourse, or body of water, has a property right to preserve the quality of the water.
Discharge of polluting effluent into a privately-owned watercourse is an actionable nuisance at common law if it interferes with the use or enjoyment of the property (“the Nuisance”).
The 1991 Act cannot be understood without reference to the law as it was when it was enacted. It does not authorise sewerage undertakers to cause the Nuisance, or to trespass by discharging untreated effluent into watercourses. Parliament has not conferred authority on sewerage undertakers to cause the Nuisance by discharging untreated sewage into watercourses.
It is therefore expected that victims of the Nuisance retain a common law remedy. Indeed, there is no basis for excluding a common law claim, or an award of damages at common law.
Ratio
The Respondent was “responsible for discharges of noxious effluent into watercourses from its sewers, sewage treatment works and associated works which occur as a result of its sewerage system operating as it is designed to do when its hydraulic capacity is exceeded.”
Further: “If the discharges constitute a trespass (a matter on which we express no view), [the Respondent] is the body responsible for the commission of that tort. If the discharges constitute a nuisance, that is something which [the Respondent] has caused or adopted, since its sewerage system is designed in a way that deliberately involves the discharge of effluent into the [Canal] when the hydraulic capacity of the system is exceeded.”
Liability does not depend on whether the Respondent failed to take reasonable steps to prevent a hazard on its land from causing a nuisance. Unless the 1991 Act authorised the commission of the tort, or it excluded the common law rights of action, the Appellant had a cause of action.
The 1991 Act did not so authorise or exclude.
Disposal
An enlarged constitution heard the appeal.
It was unanimously allowed.
Written by Dominic Bright.