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Discharge of sewage

There has been a series of litigation cases between The Manchester Ship Canal (MSC) and United Utilities Water Ltd (UUW) concerning discharges of sewage by the water company into the canal. The latest case has been referred to the Court of Appeal and judgement was given on 27th June, 2022 ([2022] EWCA Civ 852). To quote Lord Justice Nugee, giving judgement in the appeal court, “The issue raised by this claim was whether MSCC has any private law claim in trespass or nuisance against UU in respect of discharges from outfalls that are not authorised by statute.”

The water company agreed that if there had been discharges into the canal, it would have been in breach of its statutory duty but the only remedy available was enforcement of the regulations by OFWAT and the Environment Agency pursuant to the relevant statutory provisions and not a private legal action by the landowner. The judge at first instance had agreed with the water company. He found that if a discharge contravenes statute, the landowners (in this case MSC) could not bring an action in trespass or nuisance unless there is an allegation of negligence or deliberate wrongdoing in respect of the discharge. MSC appealed.

Following the previous House of Lords case of Marcic v Thames Water Utilities Ltd [2003] UKHL 66 in which it was found that a homeowner could not bring a claim in nuisance when sewage was discharged on to private land, the Court of Appeal upheld the judge’s decision and dismissed the appeal. LJ Nugee said that although the facts of the two cases differed, “Marcic shows that in certain cases the existence of a private law right to sue a sewerage undertaker in tort is inconstistent with the statutory scheme and such a right must be regarded as impliedly ousted.”

Finally, a second issue had arisen in the case. Local authorities, who had previously been sewage undertakers, had entered into agreements permitting that sewers could be removed on notice. Overturning the judge at first instance, the Court of Appeal held that it was legal for local authorities to enter into such agreements.

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