Claims against Water Companies – an actionable private nuisance?
The background to this case concerns foul water discharges, by United Utilities, into the Manchester Ship Canal.
A landmark decision has now been passed down by the Supreme Court which potentially allows actions in private nuisance (against water companies) to be brought for events of foul water discharge.
This is a topic with immediate and obvious relevance. Foul water discharge and water quality are subject to intense media attention and high public emotion.
The decision may stimulate further and broader actions to be brought against water companies and sewerage undertakers for discharging untreated sewage into rivers and canals. It is an encouraging decision for environmental protection and public health/amenity.
The Court decided that a “riparian owner” [being the owner of land alongside, or adjacent to, a watercourse, or the banks and beds of the watercourse] has a right of ownership in that watercourse – and thus a right to preserve the quality of the water.
Riparian owners will have the right to bring a claim of a private nuisance against a water company that discharges foul water into the watercourse in circumstances where the “pollution” interferes with, or affects, the use or enjoyment of that watercourse.
Importantly – there will be no longer be a need for the riparian owner to show that the water company was negligent or that there was any deliberate misconduct, in a similar nature to strict and absolute liability offences in criminal law.
The Respondent, United Utilities, had (previously) successfully defended appeals of the decision in the High Court and Court of Appeal after it was originally held that the Water Industry Act of 1991 provided protection for the water companies in situations where it was not strictly caused by the water company, and they could not have prevented it.
This primary shield provided by the 1991 Act has now been lost. Water companies are exposed.
The previous frustrations
The decision, which now supersedes the Judgments made in the lesser Courts, provides a renewed direction on the previous, leading, authority of Marcic v Thames Water Utilities Ltd [2003] UKHL 66.
The Court of Appeal in Manchester Ship Canal [2022] EWCA Civ 852 summarised the existing position (from Marcic) as:
“no action in nuisance lay because of Thames’ special position as a sewerage undertaker, and because it would undermine the statutory scheme applicable to the enforcement of sewerage undertakers’ duties in relation to sewage if such an action could be brought.”
Clearly, on this interpretation, water companies previously had the benefit of statutory protection, and the riparian owners were left with little recourse against the water companies.
Despite Marcic being upheld at the High Court and Court of Appeal – Manchester Ship Canal Company Ltd launched a further appeal to the Supreme Court to challenge the decision.
It is important to note that the Supreme Court has not directly overturned the decision in Marcic, but rather highlighted the differences in fact between the two cases in order to reach a different conclusion.
In Marcic, it was a failure to construct a new sewer that was the cause of action, whereas in Manchester Ship Canal, the matter was principally concerned with foul water discharges and whether United Utilities required the consent of the owner of the waterway to make such discharges, and as such, the right of an action of private nuisance was permitted.
Indeed, in Manchester Ship Canal, Lord Reed and Lord Hodge cite Carnwath LJ in Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] QB 455 (at [14]), who stated that statutory controls on matter of pollution have never been used as a reason to erode the rights a landowner may assert in private nuisance.
This is of particular importance – the right to bring a private nuisance claim as a landowner must be protected.
A renewed responsibility
The result from this case will have far-reaching implications.
Riparian owners of watercourses across the UK will now have a crucial decision to make – will they take action against the water companies for such foul water discharges?
What does this mean for the water companies?
It is likely that, to protect themselves from a landslide of further litigation, they will need to comprehensively invest in and upgrade their existing systems.
In a time where water companies are repeatedly in the spotlight for their shortcomings, this decision will be welcome news for the riparian owners, for environmental groups and broader public health and leisure.
Could this decision spark an advent of renewed water quality in the UK? Possibly a new regime of responsibility (rather than profit) from the water companies?
This is a case of extreme significance – and the implications will be watched with close interest.
Contact Alex Sandland or Patrik Jones-Wright for further advice, or to discuss any potential claims or liability.
See the Supreme Court Judgment here.