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 Clarifying the right to discharge from sewers

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Ed Randall

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PostSubject: Clarifying the right to discharge from sewers   Sat Aug 02, 2014 9:27 pm

Clarifying the right to discharge from sewers
By Richard Macrory
ENDS Report 474, August 2014, pp. 24-25
http://www.endsreport.com/index.cfm?go=44798
29 July 2014 14:25 BST


Richard Macrory, professor of environmental law, University College London

The Supreme Court has recently clarified the extent to which sewerage undertakers have the statutory right to discharge surface water and treated effluent into rivers and canals.

The result in Manchester Ship Canal Company Ltd v United Utilities Water Plc (Supreme Court [2014] UKSC 40, 2 July 2014) has important financial implications, especially for canal owners and the new Canal and River Trust (the charitable successor to the British Waterways Board). Neither will now be able to charge fees for discharge from pipes built before 1991.

The issue about rights to discharge goes back to Victorian case law on public health when sewerage and water functions were vested in local councils. In 1897 the Court of Appeal held that provisions under the Public Health Act 1875 meant there was an implied statutory right given to councils to discharge surface water and treated effluent into watercourses. No compensation had to be given for this right unless damage was caused.

These provisions were repeated in the Public Health Act 1936 but it was the legislation following the privatisation of the water industry in 1989 that began to raise questions as to whether these rights survived. The Water Industry Act 1989 was replaced in 1991 by new legislation designed principally to consolidate water law and to give effect to some recommendations of the Law Commission. The complexities of the Water Industry Act 1991 and its accompanying legislation the Water Consolidation (Consequential Provisions) Act 1991, and the extent to which they had changed existing law, were at the heart of the case.

The issue had last been considered by the Court of Appeal in 2002 in a case brought by the British Waterways Board. It challenged the right of Severn Trent to discharge surface water into its canal. The High Court held that the implied statutory rights had survived privatisation, but the Court of Appeal held the 1991 legislation had removed them. The House of Lords refused leave to appeal.

Essentially, the Manchester canal case raised the same problem but this time the Supreme Court was prepared to consider the issue. It agreed that the various provisions on which the implied right to discharge had been held to rest since 1897 had been repeated in the Water Act 1989. Lord Sumption said: “The draftsman must therefore have intended in 1989 that the right should subsist.”

But the court noted that the 1991 consolidation legislation repeated some of the provisions but not in precisely the same way. For example, the general right to compensation from the exercise of statutory powers under previous legislation, which went someway to protect the owner of a watercourse from abuse of these powers, was now restricted to pipe-laying powers.

The Supreme Court agreed with the Court of Appeal in the British Waterways case that the changes contained in the 1991 legislation meant it was no longer possible to imply a right to discharge. As Lord Sumption noted: “A sewerage undertaker bringing an outfall into use for the first time after 1 December 1991 can reasonably be expected to have obtained any necessary consents to discharge onto private property in the course of laying the pipes either by negotiation or by compulsory purchase in the course of the planning or the works.”

But the court then went on to consider whether this analysis should apply to existing pipes in use before 1991, an issue not explored in the British Waterways case. Lord Sumption felt that it would be completely impracticable for undertakers to have to assume discharges from existing pipes were no longer legal.

The owners of waterways could threaten a trespass action and although the Manchester Ship Canal Company argued that in practice any injunction would be suspended until the parties had negotiated an agreement, when pressed as to what an undertaker should do if an injunction were granted, they argued that the undertaker would have to block the outfalls and allow surface water and treated effluent to backwash through the system into the streets. Lord Sumption was unimpressed: “Without the clearest possible indication that parliament intended such a preposterous result, I decline to accept that is the effect of the current legislative scheme.”

The court, however, was able to locate another provision of the Water Industry Act which prohibited a sewerage undertaker from depriving someone of the right to connect to public sewers unless an alternative means was provided. According to Lord Toulson, this section “impliedly (if not expressly) empowers the undertaker to continue to use such sewers” subject to the qualification in the next section that they must not cause pollution or a nuisance.

Underlying concerns

The analysis in the canal case is a clever and practical approach to a difficult issue of statutory construction. But some underlying concerns remain.

It would be quite possible to argue that as a matter of privatisation policy, the 1989 Water Act had removed the right to discharge without payment, a cost that would in future be borne by the private sector and no doubt be passed on to the customer.

But their lordships agreed that the 1989 legislation had preserved the rights and the position only changed under the 1991 act. This was a consolidation rather than a privatisation act and though it was also to give effect to some proposals of the Law Commission, the commission had made no proposals as to discharge rights. The provisions in question were so technical that none of their implications were discussed or debated in parliament.

The court made clear that their interpretation should not affect any agreements that undertakers had made with owners of watercourses over and above their statutory rights, although it is likely that any agreements negotiated following the British Waterways decision relating to existing sewers will be revisited.

There may also be arguments in the future as to precisely when the post 1991 restrictions come into play when it comes to repairing an existing sewer. A minor repair is unlikely to affect existing rights, but the laying, say, of a replacement section of pipe, even on the existing route, might well be argued to be a post 1991 sewer or drain and containing no implied discharge rights.

Richard Macrory is professor of Environmental Law, University College London

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patrick barker

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PostSubject: Re: Clarifying the right to discharge from sewers   Sat Aug 02, 2014 11:20 pm

'unless damage is caused' i think is the thing the edict hinges on.- hard to measure until fish or invertebrates go belly up. then firms are obliged to pay recompense. but its the slow trickle of crap that goes in, and prevents the water meeting its potential as a place for people to visit for their enjoyment that needs to be addressed. there could be trout where there is not trout.
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