The Manchester Ship Canal Company Ltd (Appellant) v United Utilities Water Ltd (Respondent) No 2

LORD REED AND LORD HODGE (with whom Lord Lloyd-Jones, Lord Burrows, Lord Stephens, Lady Rose and Lord Richards agree):

1. Introduction

1. This appeal raises the question whether the owners of watercourses (an expression we shall use to describe all channels through which water flows, whether natural or artificial) or bodies of water can bring actions in nuisance or trespass in the event that the water is polluted by discharges of foul water from the infrastructure of statutory sewerage undertakers, in the absence of negligence or deliberate misconduct. The court is not asked at this stage to decide whether such proceedings would be well-founded on the facts of the case: the question is whether such actions are barred on the ground that they would be inconsistent with the legislative scheme established by the Water Industry Act 1991 (“the 1991 Act”).

1. The appeal arises in the context of long-running litigation about the Manchester Ship Canal (“the canal”), which runs from Manchester to the Mersey Estuary. In its upper reaches it is a canalisation of the rivers Irwell and Mersey. It was constructed pursuant to the Manchester Ship Canal Act 1885. The appellant, the Manchester Ship Canal Company Ltd (“the Canal Company”), was originally incorporated under that Act, and is the owner of the beds and banks of the canal. The respondent, United Utilities Water Ltd (“United Utilities”), was appointed under the Water Act 1989 (“the 1989 Act”) as the sewerage undertaker for the North West of England. It owns a network of sewers, sewage treatment works and associated infrastructure, mostly constructed by its statutory predecessors, which it acquired on the privatisation of the water industry under that Act.

1. United Utilities’ sewerage network includes around 100 outfalls from which material emanating from sewers, sewage treatment works and pumping stations is discharged into the canal. At times when the sewerage system is operating within its hydraulic capacity, the discharges are of surface water or treated effluent. At times when the hydraulic capacity of the system is exceeded, at least some of the discharges are of foul water. That is how the system has been designed to operate. When its hydraulic capacity is exceeded, either because the inflow of sewage and surface water is greater than it can accommodate, or because it is unable to dispose of the inflow because of some mechanical failure or loss of power, the problem is resolved by discharging foul water into the canal through the outfalls. Discharges of foul water from the outfalls could be avoided if United Utilities invested in improved infrastructure and treatment processes.

1. The background to the proceedings is a dispute between the parties over whether United Utilities requires the consent of the Canal Company in order to discharge foul water into the canal, and must therefore pay the Canal Company for a licence, or can pollute the canal without the consent of the Canal Company and free of charge, because the Canal Company is barred by the 1991 Act from bringing actions in nuisance or trespass. However, the appeal has a wider importance. The implication of the judgments in the courts below is that, absent an allegation of negligence or deliberate wrongdoing, no owner of any watercourse or body of water can bring any claim based on nuisance or trespass against any sewerage undertaker in respect of polluting discharges into the water, however frequent and voluminous the discharges may be, and however damaging they may be to the owner’s commercial or other interests or to the owner’s ability to use or enjoy its property. In view of that wider importance, the court has permitted the Environmental Law Foundation to make submissions as intervener.

1. The appeal turns on the effect on the common law of the provisions of the 1991 Act. As will appear, many of the Act’s provisions have a long history, and most of the judicial decisions which we will have to examine have concerned their statutory predecessors. In order to understand those decisions, and the principles which they establish, it will be necessary to set them in their statutory context. However, we will begin by explaining some general principles which it will be necessary to have clearly in mind in the later discussion, as they are central to our analysis. We will start with some relevant principles of the tort of private nuisance, with which almost all the relevant cases have been concerned. Although the tort of trespass was also mentioned in the parties’ submissions, it was not considered in any detail, and our treatment of it will be correspondingly brief. We will then explain some basic principles governing the tortious liability of bodies exercising statutory powers.

1. General principles

1. The tort of private nuisance

1. In general terms, the tort of private nuisance is committed where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with the use and enjoyment of the claimant’s land: Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16; [2023] 2 WLR 1085 (“Jalla”), para 2. In most cases the undue interference with the use and enjoyment of the claimant’s land will be caused by an activity or a state of affairs on the defendant’s land. “The ground of responsibility is the possession and control of the land from which the nuisance proceeds”: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903 per Lord Wright (“Sedleigh-Denfield”). “Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required”: Sedleigh-Denfield, p 897 per Lord Atkin.

1. Nuisances may be, and often are, of a continuing nature. As was explained in Jalla, para 26, in general terms a continuing nuisance is one where there is repeated activity by the defendant, or an ongoing state of affairs for which the defendant is responsible, which causes continuing undue interference with the use and enjoyment of the claimant’s land. For example, noise and smells are continuing nuisances where they occur on a regular basis. So is the repeated discharge of sewage into a watercourse which runs through the claimant’s land: Hole v Chard Union [1894] 1 Ch 293. In such cases there is a continuing cause of action, which accrues afresh from day to day. It is because nuisances are often of a continuing nature that an injunction prohibiting the continuation of the relevant activity or state of affairs is a standard remedy. Damages are also an available remedy, but can be awarded at common law only in respect of causes of action that have already accrued, and not in respect of future causes of action which have not yet accrued. The result, at common law, is that the claimant must periodically bring further claims. In contrast, damages for future causes of action can be awarded in equity in lieu of an injunction, under section 50 of the Senior Courts Act 1981 (the successor to the Chancery Amendment Act 1858, commonly known as Lord Cairns’ Act).

1. It is important not to confuse the concept of a continuing nuisance with the concept of continuing a nuisance. The latter concept refers to the situation where defendants are responsible (and therefore liable) for a nuisance not because they created it but because they failed, with actual or constructive knowledge of the state of affairs which resulted in the nuisance, to take reasonable steps to prevent it.

1. The difference between the two concepts is illustrated by Sedleigh-Denfield. In that case, a local authority had laid a pipe in a ditch on the defendants’ land in order to carry away rain water. When laying it, they omitted to place a protective grating close to the mouth of the pipe, so as to prevent it from becoming choked with leaves. The pipe was laid without the defendants’ knowledge or consent, but they became aware of its presence and used it as a land drain for their fields. During a heavy rainstorm the pipe became choked with leaves, so that the water overflowed and flooded a neighbour’s land. This was not a continuing nuisance: the flooding was an isolated incident. The defendants were held responsible for the nuisance, although they had not created it: the state of affairs which brought about the flooding had been created by the local authority, trespassing on the defendants’ land. The defendants were responsible because, knowing (actually or constructively) of a state of affairs which created a risk of flooding of their neighbour’s land, they allowed that state of affairs to continue without taking reasonable steps to prevent such flooding by fitting a grating close to the pipe. This was described, following the language used in earlier authorities, as “continuing” the nuisance, although there was not any nuisance in existence until the flooding occurred.

1. The cause of action for continuance of a private nuisance depends on the claimant’s establishing not only that the nuisance has occurred, but also that the defendants knew of its possible cause, actually or constructively, and failed to take reasonable means to bring it to an end. As Viscount Maugham put it in Sedleigh-Denfield, discussing the earlier case of Job Edwards Ltd v Birmingham Navigations Proprietors [1924] 1 KB 341, if “there was no evidence that the [alleged wrongdoers] either caused or continued the nuisance or were guilty of any negligence in relation to it”, then they were properly held not liable (p 893; see also, in relation to the burden of proof on the plaintiff, p 887). In his opinion, the defendants in Sedleigh-Denfield were also responsible because they had “adopted” the nuisance by using the pipe to drain their property without taking the proper means to render it safe. He stated (p 894):

   “In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He ‘adopts’ it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences I am not attempting exclusive definitions.”

1. Lord Atkin explained that a person who made active use of the source of a nuisance was himself causing the nuisance, even if he was not responsible for the presence of the source of the nuisance on his land (p 897):

   “If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc, causing a nuisance. Continuing in this sense and causing are the same thing.”

   This situation, which seems to correspond to what Viscount Maugham described as “adopting” a nuisance, was to be contrasted with passively “continuing” a nuisance (ibid):

   “It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is, if he knows that it is operating offensively, is able to prevent it, and omits to prevent it, he is permitting the nuisance to continue; in other words he is continuing it.”

   On the facts of Sedleigh-Denfield, there was “sufficient proof of the knowledge of the defendants both of the cause and its probable effect” (p 899).

1. Lord Wright distinguished between, on the one hand, the situation where the defendant has himself created the source of a nuisance, and on the other hand, the situation where he has taken it over when he acquired the property or where it is due to the act of a trespasser or stranger. In the latter situation, there was an additional ingredient of liability (pp 904-905):

   “If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects … Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it.”

   The onus of proving these elements of liability rested on the plaintiff (p 908). Lord Romer agreed with Viscount Maugham’s formulation (p 913).

1. The principle laid down in Sedleigh-Denfield in the context of a hazard created by a trespasser was applied to a natural hazard in the Australian case of Goldman v Hargrave [1967] 1 AC 645, which concerned a fire caused by lightning. That decision was followed by the Court of Appeal in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 (“Leakey”), which concerned the movement of an unstable hillside. The judgments in those cases are consistent with the view that the relevant cause of action depends on more than proof of the existence of the nuisance. In Goldman v Hargrave it was said by Lord Wilberforce that “the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it” (p 663), and similar dicta in other cases were cited approvingly in Leakey (eg at p 522; see also Smith v Littlewoods Organisation Ltd [1987] AC 241, 274).

1. Finally, in relation to general aspects of the law of private nuisance, two further points should be made. First, it is not a defence to a claim for private nuisance that the activity carried on by the defendant is of public benefit, although this may be relevant in determining the appropriate remedy, as this court explained in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 (“Lawrence”) and Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2024] AC 1 (“Fearn”). Secondly, statutory controls over pollution have never been treated as a reason for cutting down the rights arising under the law of private nuisance. In Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] QB 455, Carnwath LJ stated (para 46(ii)):

   “The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19^th century. There is no principle that the common law should ‘march with’ a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance … there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

   That dictum was cited with approval, in connection with the relationship between the law of private nuisance and planning law, in Lawrence, para 92, and Fearn, para 110.

1. Tortious liability and statutory powers

1. Bodies 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, they are liable like any other person for trespass, nuisance, negligence and so forth: see, for example, Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414.

1. What is duly done under statutory authority is lawful action of which no-one is entitled to complain. Even if it would otherwise have been a tort, the authority conferred by Parliament renders it lawful. It is therefore necessary to distinguish between 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. In doing so, two important and related principles have to be borne in mind.

1. First, an individual's right to the peaceful enjoyment of his or her property is a fundamental right, long recognised by the common law and now also protected by the Human Rights Act 1998. The right of access to a court in the event that such enjoyment is threatened is another fundamental right, also long recognised by the common law and statute, and also protected by the Human Rights Act. It follows that the process of interpreting a statute which is said to authorise what would otherwise be an unlawful interference with rights of property, or to deprive individuals of rights of action which would otherwise be available to them to protect their property against such interference, brings into play the principle of legality, which Lord Hoffmann summarised in these terms in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131:

   “Fundamental rights cannot be overridden by general or ambiguous words ... In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

   The requirement of express language or necessary implication imposes a high hurdle.

1. 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. Where, on the other hand, private rights must inevitably suffer, no cause of action will arise. Accordingly, as Viscount Dunedin stated in Manchester Corpn v Farnworth [1930] AC 171, 183:

   “When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorised. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.”

1. The leading modern authority on this point is Allen v Gulf Oil Refining Ltd [1981] AC 1001, which concerned a claim in private nuisance arising from the operation of an oil refinery. The statutory authority to construct and operate a refinery was held to confer immunity from proceedings for any nuisance which might be the inevitable result of constructing a refinery on the land. Lord Wilberforce stated (pp 1013-1014):

   “It is … for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site, conforming with Parliament’s intention, without creating the nuisance alleged, or at least a nuisance … [T]he statutory authority … confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site – not, I repeat, the existing refinery, but any refinery – however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated.”

1. This test of inevitability reflects the wider principle that legislation is not construed as depriving individuals of their rights unless it does so expressly or by necessary implication. As Lord Blackburn said in Metropolitan Asylum District v Hill (1881) 6 App Cas 193, p 208, “the burthen lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to shew that by express words, or by necessary implication, such an intention appears”. As Lord Blackburn made clear at p 203, the absence of provision for compensation is an important (but not conclusive) indication that the legislation in question was not intended to authorise interference with private rights: see also Allen v Gulf Oil Refining Ltd at p 1016.

1. Many of the cases in which these principles were developed and applied concerned the operation of sewerage systems under statutory powers. At common law, the 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, depending on the circumstances. If so, then the owner has legal remedies available at common law and in equity, in the form of an action for damages and an application for an injunction or for damages in lieu. Applying the general principles which we have explained, the question has therefore arisen in such cases whether there was any provision of the relevant legislation which expressly or impliedly authorised such a trespass or private nuisance, or which expressly or impliedly deprived the owner of the remedies otherwise available. Those are also the questions which arise in the present case. As we have explained, they arise in the context of provisions in the 1991 Act whose roots, in many instances, stretch far into the past, and which cannot be understood without reference to the earlier law. We therefore turn next to consider how the law stood prior to the privatisation of the water and sewerage industry under the 1989 Act.

1. The law prior to privatisation

1. Legislation

1. Sewage disposal and drainage have been the subject of statutory regulation since at least the reign of Henry VIII. But the systematic construction of extensive networks of public sewers dates largely from the middle of the nineteenth century. From the institution of public health legislation in the 1840s until the privatisation of the water and sewerage industry in 1989, sewerage services in England and Wales were generally provided by local authorities of various kinds in the exercise of statutory powers. The relevant statutes followed a similar pattern, which has been reiterated in more recent legislation. In broad terms, they established the relevant authorities, vested in them the existing public sewers and sewage works in their area and those made in future, conferred on them the power to construct sewers and sewage works (subject, under some provisions, to the approval of a third party, such as the Local Government Board or the Minister of Health), placed them under a duty to ensure that their area was effectually drained, required them to maintain their sewers, permitted premises in the area to connect their drains to the public sewers, and enabled the authority to recover their costs from their customers. Parliament also sought to strike a balance between, on the one hand, the imperative of providing drainage and sewerage facilities for the developing industries and fast-expanding towns and cities of the United Kingdom and, on the other hand, the protection of the private law rights of those affected by such provision.

1. It did so in the first place by restricting the acts which it authorised so as to exclude the creation of a nuisance. For example, the Towns Improvement Clauses Act 1847 (“the 1847 Act”), which set out standard clauses for use in the local Acts of Parliament under which sewerage was at one time provided, conferred on the commissioners established under those Acts the power to cause the public sewers in their area to be emptied into the sea or any public river, “but so that the same shall in no case become a nuisance” (section 24). Section 107 also provided that “[n]othing in this Act contained shall be construed to render lawful any act or omission on the part of any person which is, or but for this Act would be, deemed to be a nuisance at common law”. The Public Health Act 1848 (“the 1848 Act”), which made general provision for areas of England and Wales outside London, authorised local boards of health to cause the sewers vested in them to be emptied, “but so as not to create a Nuisance” (section 46). Similar provision was made by section 30 of the Local Government Act 1858 (“the 1858 Act”). The Metropolis Management Act 1855 (“the 1855 Act”), which addressed the provision of sewerage in London, similarly provided for the sewers and works to be constructed and kept, and the sewage disposed of, “so as not to create a Nuisance” (section 135).

1. Specific provision was also made for the protection of private interests in watercourses. Section 145 of the 1848 Act provided:

   “That nothing in this Act shall be construed to authorize the Local Board of Health … to use, injure, or interfere with any Watercourse, Stream, River, Dock, Basin, Wharf, Quay, or Towing Path in which the Owner or Occupier of any Lands, Mills, Mines, or Machinery, or the Proprietors or Undertakers of any Canal or Navigation, shall or may be interested, without Consent in Writing first had and obtained”.

   The 1858 Act repealed section 145 of the 1848 Act but replaced it, in section 73, with a more elaborate provision to similar effect:

   “Nothing in this Act or any Act incorporated therewith shall be construed to authorise any Local Board to injuriously affect any Reservoir, River, or Stream, or the Feeders of any Reservoir, River, or Stream, or the Supply, Quality, or Fall of Water contained in any Reservoir, River, Stream, or Feeders of any Reservoir, River, or Stream, in Cases where any Company or Individuals would, if this Act had not passed, have been entitled by law to prevent or be relieved against the injuriously affecting such Reservoir, River, Stream, Feeders, Supply, Quality, or Fall of Water, unless such Board shall have first obtained the Consent in Writing of such Company or Individuals so entitled as aforesaid.”

   Section 74 gave the complainant the option to refer to arbitration the question whether such injurious affection had occurred. The fact that arbitration was “at the Option of the Party complaining” reflected the availability of legal and equitable remedies as an alternative.

1. Parliament further protected private rights by making provision for the payment of compensation to persons who suffered harm as a result of the exercise of the powers conferred on the relevant authorities. For example, section 21 of the 1847 Act provided for the payment of compensation to persons who suffered loss as a result of the exercise of the commissioners’ powers. Section 144 of the 1848 Act provided for the payment of compensation to persons sustaining damage by reason of the exercise of the powers conferred by the Act, the amount to be settled by arbitration. Similar provision was made by sections 135 and 225 of the 1855 Act.

1. The Public Health Act 1875 (“the 1875 Act”) consolidated the previous legislation with amendments. It has to be considered in greater detail, as it was the subject of several of the cases which we will discuss. Local authorities were placed under a duty to keep sewers in repair, and to cause to be made such sewers as might be necessary for effectually draining their district (section 15). Section 17 made it clear that the Act did not authorise the discharge of untreated sewage into watercourses. It provided:

   “Nothing in this Act shall authorise any local authority to make or use any sewer drain or outfall for the purpose of conveying sewage or filthy water into any natural stream or watercourse, or into any canal pond or lake until such sewage or filthy water is freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or watercourse or in such canal pond or lake”.

   Section 19 required local authorities to cause the sewers belonging to them to be constructed, covered, ventilated and kept so as not to be a nuisance or injurious to health, and to be properly cleansed and emptied. Section 27 authorised local authorities to construct sewage works and to acquire land for the purpose of disinfecting and disposing of sewage, “provided that no nuisance be created”. Section 299 enabled the Local Government Board to investigate complaints that a local authority had failed to provide their district with sufficient sewers or to maintain their sewers, as required by section 15. If the complaint was upheld, the Board was required to order the authority to perform their duty. If the authority failed to comply with the order, it could be enforced by mandamus, or the Board could appoint a third party to perform the duty. Section 308 required local authorities to pay compensation for damage sustained “by reason of the exercise of any of the powers of this Act”, the amount to be settled by arbitration. Section 332 re-enacted section 73 of the 1858 Act with amendments. Section 333 re-enacted the provision as to optional arbitration previously contained in section 74 of the 1858 Act.

1. The provisions of the 1875 Act were re-enacted with some amendments in the Public Health Act 1936 (“the 1936 Act”), the provisions of which largely remained in force until the 1991 Act came into operation. Section 14 required every local authority to provide such public sewers as might be necessary for effectually draining their district, and to make such provision, by means of sewage disposal works or otherwise, as might be necessary for effectually dealing with the contents of their sewers. Section 30 provided that local authorities were not authorised to convey foul water into watercourses. Section 31 required local authorities to discharge their functions in relation to sewerage so as not to create a nuisance. Section 278 required compensation to be paid for damage sustained “by reason of the exercise by the authority of any of their powers under this Act”. Section 322 corresponded to section 299 of the 1875 Act, and provided for complaints to be made to the Minister of Health that a local authority had failed to discharge its functions under the Act. The Minister could hold a local inquiry and, if the complaint was upheld, direct the authority to discharge its functions. Section 331 corresponded to section 332 of the 1875 Act, and provided:

   “Nothing in this Act shall authorise a local authority injuriously to affect any reservoir, canal, watercourse, river or stream, or any feeder thereof, or the supply, quality or fall of water contained in, or in any feeder of, any reservoir, canal, watercourse, river or stream without the consent of any person who would, if this Act had not been passed, have been entitled by law to prevent, or be relieved against, the injurious affection of, or of the supply, quality or fall of water contained in, that reservoir, canal, watercourse, river, stream or feeder.”

   Section 332 provided for arbitration of the question whether injurious affection had occurred, at the option of the party complaining.

1. The sewerage and water supply functions of local authorities, together with the ownership of public sewers and sewage disposal works and any associated liabilities, were transferred to regional water authorities by the Water Act 1973. Section 14(1) of that Act placed regional water authorities under the same duty as had previously been imposed on local authorities by section 14 of the 1936 Act. Section 14(2) applied to them the material provisions of the 1936 Act.

1. Case law

1. The establishment of statutory sewerage authorities was soon followed by litigation concerned with the discharge of sewage into watercourses. An early example is Oldaker v Hunt (1854) 19 Beav 485; 52 ER 439, which concerned a proposal by a board of health established under the 1848 Act to construct a sewer which would discharge sewage through an outfall into the river Avon, above a location where the plaintiffs owned the adjoining fields and watered their cattle. The board relied on the width of the powers conferred on them by the 1848 Act, but the plaintiffs obtained an injunction. Romilly MR held that the effect of section 145, cited at para 24 above, was that the board had no authority to discharge the sewage into the river without the plaintiffs’ consent. In the absence of statutory authority, the consequent nuisance was an interference with the plaintiffs’ rights. That decision was upheld on appeal: (1855) 6 De G M & G 376; 43 ER 1279.

1. Similar decisions were reached in numerous later cases. For example, in Attorney General v Birmingham Borough Council (1858) 4 Kay & J 528; 70 ER 220 the council, acting under a local Act which incorporated clauses from the 1847 Act, constructed sewers which discharged into the river Tame, causing a nuisance to the plaintiff and other riparian proprietors. The defendants sought without success to distinguish earlier cases on the basis that the local Act for Birmingham contained no provision equivalent to section 145 of the 1848 Act. Page Wood V-C also rejected a plea that individuals must accept the inconvenience caused by the increase of population, holding that the plaintiff’s rights “must be measured precisely as they have been left by the Legislature” (p 539; ER p 225). Section 107 of the 1847 Act, cited at para 23 above, made it clear that the council had no authority to produce the nuisance which was the subject of the complaint. Recognising that the council would require time to remedy the nuisance, the Vice-Chancellor granted an interim injunction restraining the council from opening any additional sewers into the main sewer and giving the plaintiff liberty to extend the injunction if the council did not proceed forthwith to take steps to prevent the continuance of the nuisance.

1. In these cases the court was unmoved by arguments that the defendants were bound to provide drainage, since it was clear from the legislation that they were required to do so without creating a nuisance. The court was equally unmoved by submissions that it was impossible to provide drainage without creating a nuisance. In Attorney General v Leeds Corpn (1870) LR 5 Ch App 583, Lord Hatherley LC’s response to that argument was that the court was required by the legislation to assume that it was possible to provide drainage without creating a nuisance, and that it would be inconsistent with the legislation to hold that the defendants were not to be restrained from creating a nuisance (p 593).

1. The case of R v Darlington Local Board of Health (1864) 5 B & S 515; 122 ER 924 established another point which is relevant to the present proceedings. The problem in that case was not the pollution of a stream by sewage but the diversion of water from the stream into sewers, which interfered with a miller’s operation of his water-powered mill; but the principles applied were the same. The board had used powers under the 1848 and 1858 Acts to make the sewers and had diverted the water from the stream without the plaintiff’s consent. The plaintiff sought statutory compensation for his loss. The claim was rejected because compensation was payable for loss suffered as a result of acts which Parliament had authorised. Where the acts were unauthorised, as in that case, the plaintiff retained a right of action at common law.

1. Blackburn J stated (p 526; ER p 928):

   “The rule is well established, that for any act done which is injurious to property, but which an Act of Parliament has authorised to be done, though the consequence of the act is damnum to the owner, it ceases to be injuria; and the loss would fall upon him, as no damages could be recovered in an action. To prevent that injustice the Legislature have said that instead of the action the party affected shall have compensation in the manner provided by the Act. Where, however, the Act of Parliament does not authorise the wrong, and consequently the action is not taken away, the case is not one for compensation, but the remedy is by action.”

   Blackburn J then referred to section 73 of the 1858 Act (para 24 above), stating that the consent in writing of the persons specified was a condition precedent and that “[i]f not obtained the Board have no authority at law to do the act, and therefore an action would lie for injury sustained in consequence of it” (p 527; ER p 929). Since the board had injuriously affected the stream without obtaining the required consent, they were not authorised to do so, and the plaintiff’s remedy was a common law action. That judgment was affirmed on appeal: (1865) 6 B & S 562; 122 ER 1303.

1. Other cases established that the discharge of sewage into watercourses was actionable even if the nuisance had only arisen after an interval of time, as a result of an increase in the volume of sewage as new houses were connected to the sewer. Examples include Goldsmid v Tunbridge Wells Improvement Comrs(1866) LR 1 Ch App 349 and Attorney General v Hackney Local Board (1875) LR 20 Eq 626. As in earlier cases such as Attorney General v Leeds Corpn, the court granted an injunction but suspended its operation to allow time for remedial works to be undertaken.

1. Following the enactment of the 1875 Act, a question arose as to the effect of section 299 of that Act, discussed in para 26 above. The issue was considered in Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102 (“Glossop”), where the plaintiff complained about untreated sewage which had for many years polluted a river which flowed through his land. The remedy which the plaintiff sought, when the case came to be heard by the Court of Appeal, was a mandatory injunction to compel the defendant board to perform their statutory duty to cause to be made such sewers as might be necessary for effectually draining their district, under section 15 of the 1875 Act (para 26 above). The question therefore arose whether the duty under section 15 was enforceable by the grant of an injunction. The court held that it was not. The earlier cases were distinguished as being cases in which what was done was a private wrong: a nuisance, which was not authorised by the relevant legislation. The duty imposed by section 15, on the other hand, was one created by statute and owed in respect of the entire district. As James LJ explained (p 113), it could not be performed without entering on and acquiring private property, if necessary by exercising powers of compulsory acquisition. As the statutory duty was not owed to individuals, the only legal remedy for its non-performance would be the prerogative writ of mandamus, rather than the grant of an injunction; but it was noted that section 299 would be highly material in deciding whether mandamus should be granted. The view was also expressed that section 299 did not oust the court’s jurisdiction to grant an injunction or damages if the plaintiff suffered a legal wrong (pp 116 and 129). James LJ gave as an example the situation where the defendant was using a sewer to convey sewage or filthy water into a watercourse (p 116).

1. The decision in Glossop was followed by the Court of Appeal in a number of later cases, including Attorney General v Dorking Union Guardians (1882) 20 Ch D 595 (“Dorking”) and Robinson v Workington Corpn [1897] 1 QB 619 (“Robinson”). The former case concerned the discharge of increasing quantities of untreated sewage into a stream. The plaintiff relied on the defendants’ statutory duties under the 1875 Act and other legislation. The court held that Glossop could not be distinguished.

1. In Robinson, the plaintiff complained about damage to houses which occurred when sewage backed up in the sewer to which they were connected. The sewer had been of adequate capacity until new houses were built. The claim for damages was based on the defendants’ breach of their duty under section 15 of the 1875 Act to provide an effectual sewerage system for the district. The Court of Appeal held that section 299 provided the only remedy for non-performance of that duty. Lord Esher MR said at p 621 that “[i]f it were not for the statute, there would be no duty on the defendants to do anything in the matter”, and that “if a duty is imposed by statute which but for the statute would not exist, and a remedy for default or breach of that duty is provided by the statute that creates the duty, that is the only remedy”. Lopes LJ similarly reasoned that “[t]here would be no duty on the part of the defendants unless it had been created by the statute, and the duty so created is to the public ... and not to an individual” (p 622). The judgments also placed some emphasis on the fact that there was no evidence of a failure to keep the sewer in repair (pp 621 and 623). That was presumably because a nuisance resulting from failure to maintain a sewer would be actionable at common law (Humphries v Cousins (1877) 2 CPD 239).

1. The judgments in Robinson did not spell out why the obligation to construct a public sewer could only arise under statute, but the reasons had been indicated by James LJ in Glossop. A public sewer forms part of a sewerage system provided for the relevant district. Its construction and maintenance require the exercise of a variety of statutory powers, including powers to enter on private land and lay and maintain pipes there, and powers to purchase private property where necessary consents are withheld or are not available on reasonable terms.

1. The approach taken in these caseswas upheld in Pasmore v Oswaldtwistle Urban District Council [1898] AC 387 (“Pasmore”), where a manufacturer sought a writ of mandamus to compel the local authority to construct adequate sewers to drain the liquids emanating from his factory. The House of Lords rejected the claim, holding that the statutory duty of the local authority to make sewers effectually to drain its district could not be enforced by an application for mandamus. The only remedy was a complaint to the Local Government Board under section 299 of the 1875 Act. The Earl of Halsbury LC explained at p 394 that “[t]he obligation which is created by this statute is an obligation which is created by the statute and by the statute alone”. He cited with approval Lord Tenterden CJ’s dictum in Doe d Murray v Bridges (1831) 1 B & Ad 847, 859; 109 ER 1001, 1006, that “where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner”. Lord Macnaghten, in a concurring speech, stated that “the obligation was never more than a statutory obligation; it did not exist at common law” (p 398).

1. It is also relevant to mention the case of Durrant v Branksome Urban District Council [1897] 2 Ch 291 (“Durrant”), where the Court of Appeal held that a local authority operating under the 1875 Act was impliedly authorised to discharge water into a watercourse provided that it was clean or adequately treated, since section 17 expressly prohibited the discharge only of “sewage or filthy water”.

1. Claims in nuisance continued to be upheld in cases where the complaint was not of a failure to construct a sewer. For example, in Baron v Portslade Urban District Council [1900] 2 QB 588 the Court of Appeal held that the defendants were liable for nuisance resulting from their failure to cleanse a sewer. The defendants argued that, because section 19 of the 1875 Act imposed a duty on them to cause the sewers to be properly cleansed, and section 299 applied where they had made “default … in the maintenance of existing sewers”, section 299 provided an exclusive remedy. The Earl of Halsbury LC rejected this argument, observing that there was a wide difference between the duty to construct a new system of drainage and the obligation of the local authority to use sewers that were vested in them in a proper and reasonable manner. The common law duty to use proper diligence in the management of existing sewers was independent of the statutory duty imposed by section 19. Another example is Attorney General v Lewes Corpn [1911] 2 Ch 495, where the defendants were held liable in damages for a public nuisance caused by the flooding of the plaintiff’s land with sewage as a result of their allowing a sewer to fall into disrepair. The cause of action under the common law was sustained notwithstanding that there was a statutory duty to maintain sewers which was enforceable under section 299. The court also granted an injunction but postponed its operation to allow the local authority to carry out remedial works.

1. A helpful summary of some of the principles established by these cases was provided in Price’s Patent Candle Co Ltd v London County Council [1908] 2 Ch 526. The case concerned a nuisance which occurred at times of heavy rainfall, when a pumping station discharged storm water contaminated with sewage into a watercourse owned by the plaintiffs, in order to relieve the pressure in an overloaded sewer. The Court of Appeal upheld the grant of an injunction, and rejected the council’s argument that they could be liable only if they had acted negligently. Cozens-Hardy MR referred to three general principles (pp 543-544):

   “In the first place, there is a presumption that a public body, whether a trading body or not, is not authorised to create a nuisance or otherwise to affect private rights unless compensation is provided. In the second place, this presumption must yield where the language of the statute is sufficiently clear to authorise the nuisance without compensation. In the third place, if the statute expressly confers a power but adds a proviso that no nuisance must be created, it is no defence to say that the work, in truth, cannot be done without creating a nuisance … Considerations of public welfare may justify the suspension of an injunction upon terms, but they do not justify the denial of relief to the private person whose rights have been affected.”

1. We should also note the judgment of Parker J, as he then was, in Jones v Llanrwst Urban District Council [1911] 1 Ch 393, where a local authority acting under the 1875 Act was held liable in the tort of private nuisance for discharging sewage into the river Conway, notwithstanding their reliance on section 299 and on the statutory right of the inhabitants of the district to send their sewage into the authority’s sewers. Parker J observed that the statutory right to connect new houses to sewers was only a right to turn sewage from private drains into the sewers of the authority, and did not imply a right on the part of the authority to dispose of the sewage by letting it out on their neighbour’s land (p 410):

   “If A, the owner of a cesspit, grant to B, or B acquires by prescription, a right to turn B’s sewage into A’s pit, I cannot myself see how A can escape liability for letting the sewage out on his neighbour’s land merely because of the rights of B.”

   An injunction was accordingly granted to restrain the council from causing or permitting sewage to pass into the river unless it was sufficiently treated so as not to pollute the river opposite the plaintiff’s land. Recognising that it would take time for the council to carry out remedial works, Parker J suspended the operation of the injunction for 18 months.

1. It is necessary to consider in detail the case of Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 (“Pride of Derby”). The plaintiffs were an angling club with fishing rights in the river Derwent, which was polluted with untreated sewage. They based their action on private nuisance. The defendant corporation operated sewerage works which did not cause pollution when they were constructed but had later become inadequate to deal with the current level of sewage. The defendants did not dispute that the pollution of the river constituted a nuisance, but argued that the plaintiffs were not entitled to any relief, since the nuisance resulted from circumstances beyond their control. They also argued that they could only have resolved the problem by enlarging their sewerage works, and that the only remedy for their failure to do so was a complaint to the Minister of Health under section 322 of the 1936 Act. In addition, they argued that an injunction would be inappropriate in any event, since they could not carry out any works of improvement without the grant of a licence under wartime regulations which remained in force. Furthermore, the money required to carry out the works could not be borrowed without the Minister’s approval in accordance with the 1936 Act. In any event, since they provided a vital public service, they should not be prevented from doing so by the grant of an injunction, but should only be held liable (if at all) in damages. The sewage disposal arrangements were an urgent necessity for public health.

1. The Court of Appeal unanimously rejected these arguments. It held that the discharge of the sewage into the river was a nuisance, and that an injunction should be granted. Evershed MR observed (p 180) that, unlike the previous authorities relied on by the defendants, such as Glossop,this was not a case where the complaint was of insufficient drainage, but a case where the complaint was about the consequences of the defendants’ drainage. In other words, unlike in cases such as Glossop, Robinson and Pasmore, the cause of action was not based on the defendants’ failure to perform their statutory duty: it was based on the occurrence of a nuisance for which the defendants were responsible. The defendants were causing a nuisance by discharging effluent from their sewage disposal works into the river (pp 179-180). They were therefore liable in nuisance unless they had a statutory defence. No such defence existed. The relevant local legislation permitted them to discharge the effluent from the sewage disposal works into the Derwent, but incorporated section 17 of the 1875 Act (quoted at para 26 above), and provided for the payment of compensation for damage caused by the exercise of their powers. The incorporation of section 17 made it clear that they had no power to carry untreated sewage into the Derwent, and the fact that statutory compensation was payable where they caused damage when acting within their powers reinforced that view.

1. Like the Master of the Rolls, Denning LJ focused on the nature of the cause of action. He distinguished earlier cases such as Glossop, Dorking and Robinson as “cases where all that could be said against the local authority was that they had failed to carry out their statutory duty to drain their district” (p 189). The plaintiffs had “a perfectly good cause of action for nuisance, if they can show that the defendants created or continued the cause of the trouble; and it must be remembered that a person may ‘continue’ a nuisance by adopting it, or in some circumstances by omitting to remedy it: see Sedleigh-Denfield v O’Callaghan” (p 190). In the circumstances of the case, the defendants were responsible for causing the nuisance (p 191):

   “When the increased sewage came into their sewage disposal works … they took it under their charge, treated it in their works, and poured the effluent into the river Derwent; but their treatment of it was not successful in rendering it harmless; it was still noxious. Their act in pouring a polluting effluent into the river makes them guilty of nuisance. Even if they did not create the nuisance, they clearly adopted it within the principles laid down in Sedleigh-Denfield v O’Callaghan, and they are liable for it at common law unless they can defend themselves by some statutory authority.”

1. Romer LJ agreed (p 193). Once it was established that the deplorable condition of the Derwent was due in a substantial degree to the discharge of noxious material from the defendants’ sewage works, they could escape liability only by showing that the nuisance was the inevitable result of the performance of that which they were authorised by statute to do. That they could not do. First, it was not inevitable that the works which they were authorised to construct and maintain would cause a nuisance. Secondly, Parliament had not authorised them to create a nuisance.

1. In relation to the arguments against the grant of an injunction, the Master of the Rolls concluded at pp 181-182 that, following the long-established practice, it was appropriate to grant an injunction whose operation was suspended so as to allow the defendants a reasonable time to make better arrangements. The fact that ministerial approval was required in order to carry out further work was not a sufficient reason for withholding an injunction. Romer LJ agreed: the proper course to adopt was to grant an injunction but to suspend its operation for a reasonable time, with liberty to the defendants to apply for a further suspension if necessary. Denning LJ also rejected the arguments advanced against the grant of an injunction, stating (p 192):

   “The power of the courts to issue an injunction for nuisance has proved itself to be the best method so far devised of securing the cleanliness of our rivers … The issue of an injunction does not interfere with the power of the Minister to determine the proper order of priority of public works, but it does mean that, if these works are to be deferred, the court will want to know the reason why. Only an overriding public interest will suffice.”

1. Pride of Derby might be contrasted with Smeaton v Ilford Corpn [1954] Ch 450. The case concerned an “escape” of sewage: a helpful term used by Upjohn J to distinguish between, on the one hand, involuntary escapes of sewage from outlets which were not planned or designed to emit sewage, for example through the bursting of a sewer or, as in that case, from manholes; and, on the other hand, “discharges” of sewage from outlets or channels which were built for the purpose of carrying it away. The escape in question was the result of pressure from an overloaded sewer blowing off a manhole cover. Sewage then erupted from the manhole and flooded the plaintiff’s garden. Upjohn J rejected the claim in nuisance, holding that the defendants were not causing or continuing the nuisance. He observed that the position would have been different if the case had concerned a discharge: “a person is liable in nuisance to an adjoining or neighbouring occupier if he himself causes a nuisance; for example, if he discharges sewage over the land of the occupant to his damage, or if he knows of an existing nuisance emanating from his own land but ‘continues’ it by failing to take reasonable steps to prevent it” (p 462). In relation to the latter situation, Upjohn J added (ibid) that “in order to establish liability for continuing a nuisance by failing to prevent it, one must necessarily prove that the person so failing must be in a position to take effective steps to that end”.

1. The law prior to privatisation in summary

1. On the basis of this review, the state of the relevant law in relation to the pollution of watercourses by sewage before the privatisation of the water and sewerage industries can be summarised as follows:

   1. At common law the pollution of a watercourse is an actionable nuisance, and may also constitute a trespass. As Lord Macnaghten said in John Young & Co v Bankier Distillery Co [1893] AC 691, 698, in relation to the rights of riparian proprietors:

      “Every riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality. Any invasion of this right causing actual damage or calculated to found a claim which may ripen into an adverse right entitles the party injured to the intervention of the Court.”

   1. When considering the pollution of watercourses as a result of the activities of sewerage authorities acting under statutory powers, the common law rights of those affected “must be measured precisely as they have been left by the Legislature”: Attorney General v Birmingham Borough Council, p 539; ER p 225. As was said in Price’s Patent Candle Co Ltd v London County Council, p 544, considerations of public welfare do not justify the denial of relief to the private person whose rights have been affected.

   1. Parliament has consistently provided specific protection against the pollution of watercourses by sewage, over and above the protection afforded generally to interests in land: see section 145 of the 1848 Act, section 73 of the 1858 Act, section 17 of the 1875 Act and section 30 of the 1936 Act. The rationale may be that a discharge of sewage into a watercourse will affect the downstream environment, and thus have effects on a different scale from a discharge or escape on to land, which will generally affect only the specific area where the escape occurs.

   1. Parliament has consistently required, before a watercourse is injuriously affected by the construction or operation of sewerage works, that the sewerage authority obtain the consent of persons who would at common law be entitled to prevent such injurious affection or to claim damages, failing which such injurious affection is unauthorised: see section 145 of the 1848 Act, section 73 of the 1858 Act, section 332 of the 1875 Act and section 331 of the 1936 Act. This is a leitmotif in the statutory authorisation of the construction and operation of sewerage infrastructure.

   1. Parliament has consistently provided for arbitration of the question of injurious affection at the option of the party complaining: see section 74 of the 1858 Act, section 333 of the 1875 Act and section 332 of the 1936 Act. The fact that arbitration is at the option of the party complaining reflects the availability of common law remedies as an alternative.

   1. Parliament has consistently made it clear that it is not authorising the pollution of watercourses by sewage. It did so, in the first place, by provisions to the effect that sewage was not to be emptied into watercourses, or disposed of, so as to cause a nuisance: see section 24 of the 1847 Act, section 46 of the 1848 Act, section 135 of the 1855 Act, section 30 of the 1858 Act, section 27 of the 1875 Act and section 31 of the 1936 Act. In addition, it enacted provisions to the effect that there was no authority to convey untreated sewage into watercourses: see section 17 of the 1875 Act and section 30 of the 1936 Act.

   1. Parliament has consistently provided for the payment of compensation to those injuriously affected by the exercise of the powers conferred on sewerage authorities: see section 21 of the 1847 Act, section 144 of the 1848 Act, sections 135 and 225 of the 1855 Act, section 308 of the 1875 Act and section 278 of the 1936 Act. The fact that statutory compensation is restricted to those affected by operations carried out intra vires reflects the fact that tortious conduct which is not authorised by the legislation is actionable at common law: R v Darlington Local Board of Health.

   1. Where compensation is not available, there is a presumption that a nuisance or other infringement of private rights is unauthorised, although the presumption will be rebutted where the language of the statute is sufficiently clear to authorise the nuisance notwithstanding the absence of compensation: Price’s Patent Candle Co Ltd v London County Council.

   1. Sewerage authorities will be liable in nuisance if they carry out operations which result in a nuisance which is not authorised by statute and in respect of which no immunity has been conferred, as in cases such as Attorney General v Birmingham Borough Council, Price’s Patent Candle Co Ltd v London County Council and Pride of Derby, where they discharged polluting effluent into a watercourse. Sewerage authorities can also be liable where a nuisance results from their inaction, such as their failure to cleanse or maintain their sewers, as in Baron v Portslade Urban District Council and Attorney General v Lewes Corpn.Their liability in nuisance is not conditional on negligence or deliberate wrongdoing.

   1. A claim cannot be brought against a sewerage authority at common law where it is an essential ingredient of the cause of action that the authority has failed to drain its district effectually. It is under no common law duty to do so: such an obligation can only be imposed by statute: Glossop, Robinson and Pasmore. Since the duty is one arising only by statute, and the statute provides a means of enforcement, that is the only remedy for non-performance: Pasmore.

   1. No action therefore lies at common law in respect of an involuntary escape of sewage from an outlet which was not planned or designed to emit sewage, resulting from the inadequate capacity of a public sewer to accommodate the volume of sewage flowing into it, where that inadequacy is the result of factors over which the authority has no control: Robinson and Smeaton v Ilford Corpn. Such cases are to be distinguished from cases where sewage is discharged from outlets or channels which were built for the purpose of carrying it away, as in Pride of Derby.

   1. The existence of a statutory remedy will not bar an action where the relevant act or omission is not only a contravention of a statutory duty but also constitutes a tort: see Glossop, Baron v Portslade Urban District Council and Attorney General v Lewes Corpn.

   1. An action may lie against a sewerage authority in respect of a nuisance for which the authority is responsible, where the cause of action does not include as an essential ingredient that the authority has failed to drain its district effectually. That is so, notwithstanding that the nuisance has been caused by such a failure: see, among other examples, Price’s Patent Candle Co Ltd v London County Council and Pride of Derby. As will appear, the distinction between cases of this kind, and cases of the kind described in para 50(10) above (and “escape” cases of the kind described in para 50(11)), is of fundamental importance to the resolution of the issues arising in the present case.

   1. The courts have consistently affirmed the importance of injunctions as a remedy for nuisance caused by the pollution of watercourses: see, in particular, Pride of Derby. They have not treated the fact that sewerage authorities recover their costs by imposing charges on consumers as a reason for withholding a remedy. Nor have they been deterred from granting an injunction by the fact that the nuisance could only be remedied by carrying out works to improve the sewerage system. Nor have they been deterred by the fact that such works could only be carried out with ministerial approval: Pride of Derby.

   1. At the same time, the courts have taken account of the public interest in preserving the effective removal of sewage from commercial and domestic properties, and the difficulties which may be faced by the authorities responsible for sewerage services if they cannot readily remove the nuisance. They have generally done so by granting injunctions whose effect was suspended so as to allow the authorities a reasonable time to alter the sewerage network to prevent further pollution: see, for example, Attorney General v Birmingham Borough Council, Attorney General v Leeds Corpn, Attorney General v Hackney Local Board, Jones v Llanrwst Urban District Council and Pride of Derby. They have also on occasion awarded damages to the affected proprietor or occupier, as for example in Attorney General v Lewes Corpn.

1. Conclusion

1. We would allow the Canal Company’s appeal.