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 water away despite the obstacle created by the railway embankment. If it was a sewer the Board could seek to have it vested in the local authority under section 17 of the Public Health Act 1936, but this did not apply if it was not a sewer but a watercourse.
Held: Oliver LJ said: ‘Granted that in certain circumstances that which started life as a watercourse can become a sewer, that is not easily established where all that has happened is that water, whether surface water or foul water, has been made to flow through an outfall into an existing natural stream. One has to ask whether the circumstances are such that the stream has substantially lost its original character and taken on the character of a sewer and that does not occur simply because the stream is made to carry a quantity of sewage.’ and
‘What is clear is that something very much more than the mere discharge of sewage into a stream (and, a fortiori, the mere discharge of pure surface water) is required before its status is changed to that of a sewer (see, for instance, Glasgow, Yoker and Clydebank Railway Company v. MacIndoe (1896) 24 R. (Ct. of Sess.) 160). Thus, for instance, if circumstances are such that what was originally an agricultural stream comes to carry sewage in such substantial quantities that its character is completely changed (as occurred in Falconar v. Corporation of South Shields (1895) 11 T.L.R. 223) it may no doubt become a sewer within the ordinary meaning of the word.’
After citing a passage from the speech of Lord Maugham in the George Legge case and went on to say:
‘In the instant case there has been nothing approaching the situation envisaged by Lord Maugham in the passage I have read. All that has happened is that outfalls have been constructed channelling the surface drainage of the built-up area into the existing streams so as to increase to some extent the flow of surface water which they carry away; and it is, Mr Nugee submits, quite impossible to say that these streams have become, as a result of such increased flow of surface water, ‘sewers’ within the ordinary meaning of the word.
We find Mr Nugee’s argument persuasive. On the facts as found or agreed at the trial it is, in our judgment, clear that there has been no alteration in the essential character of the three watercourses and the culvert since 1840 and the mere fact that the surface drainage of the built-up area has been collected and diverted into them through a number of outfalls so as to produce a significant increase in the volume of water carried off, cannot possibly constitute them, either individually or collectively, sewers or a sewer within the ordinary meaning of that term.’
Judges:
Oliver LJ
Citations:
(1981) 79 LGR 565
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Raglan Housing Association Ltd v Southampton City Council and Southern Water Services Ltd CA 30-Jul-2007
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 . .
Lists of cited by and citing cases may be incomplete.
Utilities, Local Government
Updated: 07 May 2022; Ref: scu.260140
