Posted: 25/09/2024
The judgment handed down by the Supreme Court in Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2024] UKSC 22 has provided some answers to the question of whether the owners of private waterways can bring claims in the tort of nuisance if their water is polluted by discharges of foul water (ie untreated sewage) from the infrastructure of statutory sewerage undertakers; even if there is no negligence or deliberate misconduct, or whether such actions are barred by the Water Industry Act 1991.
Common law nuisance is committed where a defendant is responsible for an activity or state of affairs which unduly interferes with the claimant’s use of their land. In order to qualify as ‘unduly interfering’, such nuisances typically are of a continuing or repeated nature. The defendant might be liable for causing the nuisance in the first place, such as causing noises or smells to emanate onto the claimant’s land. The defendant might also be liable for failing to take reasonable steps to avert an existing nuisance and thereby adopting it, even though it was not originally of their making; for example, by the defendant causing flooding to the claimant’s land through making use of a drain originally installed on the defendant’s land without their consent.
The lower courts held that Manchester Ship Canal’s claim in nuisance against United Utilities was barred by the Water Industry Act 1991, which is the detailed parliamentary legislation setting out the rights and obligations of statutory sewage undertakers. The legislative scheme empowers sewage undertakers to discharge treated sewage into watercourses with the consent of the relevant landowners and to acquire land by compulsory purchase, if necessary to perform their duties. Where there is a failure of the sewage undertaker's duty to provide an adequate system of public sewers, the legislation identifies that the remedy is by complaint to the statutory regulator.
The lower courts felt compelled to follow the House of Lords’ decision in Marcic v Thames Water Utilities Ltd [2003] UKHL 66, the facts of which seemed indistinguishable from the present case. Mr Marcic’s home was repeatedly flooded with water when rain caused a surface water sewer to become overloaded. Surface water also entered a foul water sewer so that it too became overloaded, causing sewage to back up through the drain connecting Mr Marcic’s home to the sewer. The sewers had become inadequate for accommodating the increased volume of sewage and surface water as additional houses were constructed, each with a statutory right to connect to the sewer.
Mr Marcic claimed in nuisance against Thames Water in respect of its failure to construct more sewers, but the House of Lords dismissed the claim. Where parliamentary legislation creates a statutory obligation, such as a sewage undertaker's duty to provide an adequate system of public sewers, and sets out the remedy for a contravention of that obligation, (namely a complaint to the statutory regulator who is empowered to take enforcement action), the House of Lords found that to be the only legal remedy available.
In the present case, however, the Supreme Court overturned the decision of the lower courts and distinguished Marcic. Their lordships identified a distinction in how the law was applied between escapes and discharges of sewage. In Marcic, there was an escape of sewage from a drain not designed for the release of sewage, which occurred due to the system becoming overloaded. Essentially, Mr Marcic’s claim had been that Thames Water had failed to build more sewers generally across the region. Thames Water’s contravention of the Water Industry Act 1991 in failing to effectually drain the region was an essential incident of Mr Marcic’s claim, meaning the only remedy available would be a complaint to the regulator.
Contrastingly, the discharges into the Manchester Ship Canal had taken place directly through outlets under the control of United Utilities, which were designed for the release of treated sewage into the canal. It was just that, by reason of the system capacity on occasion being temporarily exceeded, foul sewage was being discharged into the canal without being adequately treated. The Supreme Court observed that the Water Industry Act 1991 says nothing about discharges of untreated sewage through sewer outlets and also makes clear, consistent with the wording of earlier public health legislation dating back as far as the 1840s, that pre-existing common law rights of action are unaffected.
In other words, as long as the Manchester Ship Canal Company would have had an ordinary common law claim in nuisance in the absence of the Water Industry Act 1991, then the legislation did nothing to bar that claim. Unlike in Marcic, United Utilities’ contravention of the Water Industry Act 1991 in failing to provide adequate drainage was not an essential incident of the Manchester Ship Canal Company’s claim. Rather, the claim was able to stand in its own right at common law and there was no requirement to additionally prove that United Utilities had been negligent or complicit in the foul discharges.
The Supreme Court’s decision does not address broader issues of public policy or the state of the nation’s water, having acknowledged that the court in ordinary litigation is not equipped to make decisions on matters of public interest. However, the outcome, to the effect that private waterway owners retain a right of action in common law nuisance against their statutory sewage undertakers, may be indirectly relevant to future policy if, as speculated, it opens the proverbial floodgates to further claims.
In 2022, there were 399,864 reported discharges of untreated sewage into UK waterways. In January 2024, South East England issued a ‘do not drink’ notice following the detection of chemical pollutants in the water supply, impacting thousands of homes. The winning team in this year’s Oxford Cambridge Boat Race made a break from tradition, having been banned from throwing their cox into the water for fear of contracting E. coli, which had been detected at Hammersmith Bridge. E.coli was also detected in the water supply in Greater Manchester for months in early 2024. From May 2024, South West Water directed households in Brixham, Devon to boil their tap water after dozens of locals and holiday makers experienced diarrhoea and vomiting caused by the cryptosporidium parasite.
It remains to be seen whether a torrent of disaffected landowners might turn the tide, causing water companies to invest in improving the UK's antiquated and overwhelmed sewage systems.
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