The claimant sought damages in nuisance from the defendants saying that a channel for which they were responsible flooded causing damage. The defendant appealed a finding that the culvert had become a sewer. It had been a natural stream, but had been covered over and was now entirely surrounded by concrete. The second defendant appealed a preliminary finding that the culvert was a surface water sewer.
Held: The appeal was allowed. Where work has been done to the structure of a channel through or along which a watercourse flows, the statutory authority for the work could be such that it changes the character of the flow from that of a watercourse to that of a sewer. Whether it does will depend on the facts of the given case and the terms of the statute. However, the stream started as a watercourse, carrying natural ground water, as well as, inevitably, some surface water. It still starts in the same place and is still partly open there. The natural assumption should be that it still carries natural ground water. Therefore: ‘the status of the stream as it flows through the culvert as a watercourse has not changed, however much its appearance may have changed in that part, and whatever changes there may have been to its character and even its status elsewhere in the channel, both upstream and downstream.’
Judges:
LLoyd LJ, Toulson LJ
Citations:
[2007] EWCA Civ 785, [2008] 2 All ER 44
Links:
Statutes:
Water Industry Act 1991 219(1)
Jurisdiction:
England and Wales
Citing:
Cited – Shepherd v Croft 1911
Parker J said that ‘the mere fact that a natural watercourse is culverted or piped by the several owners of the lands which are intersected by it does not make it a drain or sewer so as to vest it in the local authority’ under the 1875 Act. . .
Cited – George Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
Cited – Attorney General v Lewes Corporation 1911
The local authority was accused of discharging crude sewage into an intermittent partially tidal stream.
Held: Swinfen Eady J said: ‘The question then arises, is the culvert a sewer? The plaintiffs contend it is. The defendants dispute it. The . .
Cited – Sefton Metropolitan Borough Council v United Utilities Water Ltd CA 31-Jul-2001
Maghull Brook passed under a densely populated part of Merseyside, in an enclosed culvert constructed in about 1958. The question was whether this part had become a sewer before 1 April 1974, because of the culverting work. The parties discussed . .
Cited – British Railways Board v Tonbridge and Malling District Council CA 1981
The court was asked whether a culvert under a railway carried a sewer or a watercourse. It appeared that the construction of the railway had interrupted natural watercourses which drained a large catchment area, and the culvert was to carry the . .
Lists of cited by and citing cases may be incomplete.
Land, Torts – Other, Utilities
Updated: 19 November 2022; Ref: scu.260133