The discharge of polluted water into our water streams is a hot topic – and one which causes major concern.
The recent ruling (2 July 2024) in the Supreme Court case of Manchester Ship Canal Co Ltd (“MSCC”) -v- United Utilities (“UU”) will therefore be of particular interest. Following this judgment water companies could face new legal challenges over the discharge of sewage into our water courses.
The Supreme Court has ruled that the owners of the Manchester Ship Canal waterway can sue UU for discharging polluted water into the canal.
The case was a long-running legal dispute concerning the 36 mile ship canal into which UU released treated waste along 100 outfalls from its sewerage network. During times when the network is operating over capacity, raw sewage would also get dumped into the canal. The Supreme Court said that this could be avoided if UU invested in an improved infrastructure and treatment.
UU sought the court’s declaration that MSCC had no right of action to bring a claim for nuisance or trespass for the discharge of foul water from UU’s outfalls into the canal. Such discharges were the unfortunate consequences of UU’s inadequate infrastructure, operating in accordance with its statutory scheme. They could not be prevented unless a new infrastructure was constructed. This was a matter for the regulator, and not a decision for the courts, it argued (with reference to the principles laid down in Marcic).
Up to now, no owner of any water course or body of water could bring any claim for nuisance/trespass against statutory undertakers (e.g. water or sewerage undertakers) for polluting discharges into water, regardless of the seriousness of the damage caused. Negligence or deliberate wrongdoing in the operation of the network had to be proven – an onerous burden.
However, the Supreme Court stated that the discharge of effluent into the canal is not an action which the Water Industry Act 1991 authorises and there is no statutory defence. The ruling now means that owners of watercourses or bodies of water CAN now bring actions in nuisance or trespass for water pollution caused by the designed discharges into watercourses (i.e. combined sewer overflows). The claimant does not have to prove that the statutory undertaker was wilfully unlawful or has been negligent.
The claimant must of course prove that the statutory undertaker is the cause of the polluting discharge. In future cases we may see various heated disputes over this.
What this means as a remedy for the person bringing such an action from now on is unclear. A claim in nuisance is the undue interference with the use and enjoyment of a claimant’s land, caused by the defendant’s activity or state of affairs on their land. The suffering claimant landowner may, as their remedy, seek damages and/or apply for an injunction to prevent the nuisance continuing. So the court has discretion to award an injunction or damages as an alternative. It is difficult to envisage the court ordering a water company, for example, to immediately cease certain parts of its operations – but could, for example, suspend the operation of an injunction to a future date. Positive actions such as creating new infrastructure depends on funding through a regulatory regime which can include raising customers’ bills for projects to be undertaken. The courts will need to have regard to this.
Two of the leading case authorities in the subject of private nuisance were brought by Hugh James’s specialist team which has more than 20 years’ experience of bringing nuisance claims against operators, including statutory undertakers.
For more information on your possible rights arising out of this judgment please contact [email protected]
