Category: Utilities

Greenock Corporation: HL 1 Aug 1921

This Order was promoted to confer further powers on the Corporation in relation to their water undertaking, to increase the burgh general assessment and the public health general assessment, and for other purposes.
The clauses relating to the water undertaking were opposed, but ultimately agreement was reached.

Lord Donington, Lord Tweeddale, Mr F. C. Thomson, M.P. (Chairman), and Major A. C. Farquharson, M.P
[1921] UKHL 664 – 1, 58 SLR 664 – 1
Bailii
Scotland

Local Government, Utilities

Updated: 12 November 2021; Ref: scu.632641

Rochdale Borough Council v Dixon: CA 20 Oct 2011

The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the terms of the tenancy to add collection of water rates, the council had failed to comply with the regulations, in that the notice failed to set out the consequences of the variation.
Held: The notice achieved substantial compliance. There was no hard edged list of effects, and a general understanding of the consequences of the alteration had been demonstrated in the tenants. The alteration was effective and not unfair, and the appeal failed.

Rix, Rimer, Elias LJJ
[2011] EWCA Civ 1173, [2011] 43 EG 105, [2012] PTSR 1336, [2012] HLR 6, [2011] 43 EG 105 (CS)
Bailii
Housing Act 1985 84 102 103, Local Authorities (Goods and Services) Act 1970 1, Water Consolidation (Consequential Provisions) Act 1991, Unfair Terms in Consumer Contracts Regulations 1999 5 6
England and Wales
Citing:
Cited – Lambeth London Borough Council v Thomas CA 31-Mar-1997
There had been an agreement between Lambeth and Thames Water when Thames Water was still a public water authority and when Lambeth collected water rates properly so called from its tenants on behalf of the water authority. No evidence of it in . .
Approved – S, Regina (on the Application of) v A Social Security Commissioner and Others Admn 3-Sep-2009
The Claimant sought judicial review of a decision of the Defendant Social Security Commissioner refusing the Claimant (and six other appellants) permission to appeal against a decision of a Social Security Appeal Tribunal relating to their housing . .
Cited – Attorney-General v Crayford Urban District Council CA 1962
The local authority had entered into an arrangement with a company for the collective insurance of its tenants’ household goods and certain personal effects and fixtures and fittings of the tenants or for which they were responsible, and invited the . .
Cited – Akumah v London Borough of Hackney HL 3-Mar-2005
The authority set up a parking scheme for an estate of house of which it was the landlord. Those not displaying parking permits were to be clamped. The appellant complained that the regulations had been imposed by council resolution, not be the . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
Cited – London Borough of Newham v Khatun, Zeb and Iqbal CA 24-Feb-2004
The council made offers of accommodation which were rejected as inappropriate by the proposed tenants.
Held: The council was given a responsibility to act reasonably. It was for them, not the court to make that assessment subject only to . .

Cited by:
Cited – Plevin v Paragon Personal Finance Ltd SC 12-Nov-2014
PPI Sale – No Recovery from Remote Parties
The claimant sought repayment of payment protection insurance premiums paid by her under a policy with Norwich Union. The immediate broker arranging the loan was now insolvent, and she sought repayment from the second and other level intermediaties. . .

Lists of cited by and citing cases may be incomplete.

Housing, Utilities

Updated: 12 November 2021; Ref: scu.445857

Mann v Northern Electric Distribution Ltd: CA 26 Feb 2010

Climb over high fence was unforeseeable

The claimant appealed against dismissal of his claim for damages after suffering very severe injury when climbing onto an electricity substation. He said that the defendant had not satisfied its statutory obligation to fence off the substation. The fencing was a total of 19 feet high, and topped in part by razor wire. The claimant had climbed it by the use of pieces of wood debris nearby. He had in effect created a three tier and precarious wooden climbing structure, which the judge had found to be unforeseeable.
Held: The appeal failed. Whether the supplier has erected a fence high enough to discharge the duty under the regulation will depend on all its surrounding features. However, ‘the height speaks for itself and precludes our interference with the recorder’s finding. As the recorder observed, no amount of security measures will keep out a sufficiently determined trespasser. Thus, for example, no wall, however high, is proof against the trespasser who has brought a ladder of equal height: entry by such means may be foreseeable but it may nevertheless, for other reasons, not be reasonably practicable for the supplier to prevent it. By contrast entry by the means adopted in the present case was, according to the unassailable finding of the recorder, not foreseeable and it was, for that reason, not reasonably practicable for the defendant to take further steps in relation to its wall, even when viewed in the context of its surrounding features, in order to prevent it.’

Wilson LJ
[2010] EWCA Civ 141
Bailii
Electricity Supply Regulations 1988, SI 1988/1057
England and Wales
Citing:
Cited – Edwards v National Coal Board CA 1949
A regulation encompassed a requirement to take specified action, so far as it is reasonably practicable, in order to prevent danger. Asquith LJ discussed the term: ”Reasonably practicable’ . . seems to me to imply that a computation must be made by . .
Cited – Austin Rover Group Ltd v Her Majesty’s Inspector of Factories HL 1990
The relevant factors in the phrase the words ‘so far as is reasonably practicable’ are the foreseeable risk of injury and the cost of the preventive measures. ‘Sections 2 and 3 impose duties in relation to safety on a single person, whether an . .
Cited – Baker v Quantum Clothing Group and Others CA 5-Jun-2009
The court considered a request that one of the three judges (Sedley LJ) recuse himself on the grounds of apparent bias. It was a case claiming damages for personal injury in the form of hearing losses incurred at work. Sedley LJ was Hon President of . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Utilities

Updated: 11 November 2021; Ref: scu.401839

Haley v London Electricity Board: HL 28 Jul 1964

Electricity undertakers owed a duty of care to blind persons as a class when they excavated a trench along a pavement in a London suburb because blind people foreseeably walk along pavements.

Reid, Morton of Henryton, Evershed, Hodson, Guest LL
[1964] 3 All ER 185, [1964] 3 WLR 479, [1965] AC 778, [1964] UKHL 3
Bailii
England and Wales
Cited by:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .

Lists of cited by and citing cases may be incomplete.

Utilities, Negligence, Personal Injury

Leading Case

Updated: 10 November 2021; Ref: scu.181272

Marcic v Thames Water Utilities Limited: HL 4 Dec 2003

The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The damages were restricted to the statutory ones. The defendant was regulated under the 1991 Act by the Director-General, who had enforcement powers. By 18(8), when a contravention occurred the means of enforcement provided was to be the sole remedy. The water company was not a normal land owner, but rather operated by virtue of the statutory scheme, and the statutory remedies excluded the common law ones. ‘Direct and serious interference of this nature with a person’s home is prima-facie a violation of a person’s right to respect for his private and family life (Article 8) and of his entitlement to peaceful enjoyment of his possessions (Article 1 of the First Protocol). The burden of justifying this interference rests with Thames Water. ‘ Even so, the claim under human rights law failed because of the existence of the statutory remedy. That scheme struck a reasonable balance. Parliament had acted well within its bounds as policy maker.

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote
[2003] UKHL 66, Times 05-Dec-2003, Gazette 29-Jan-2004, [2004] 2 AC 42, [2003] 50 EGCS 95, [2003] 3 WLR 1603, [2004] 1 All ER 135, [2003] NPC 150, 91 Con LR 1, [2004] BLR 1, [2004] UKHRR 253, [2004] Env LR 25, [2004] HRLR 10
House of Lords, Bailii
Water Industry Act 1991 18(8) 94(1), European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – Thames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
Cited – Robinson v Workington Corporation CA 1897
Mr Robinson’s houses were damaged by water overflowing from the council’s public sewers. The sewers were adequate until new houses were built. He claimed damages in respect of the council’s failure to build a new sewer of sufficient dimensions to . .
Cited – Pasmore v Oswaldtwistle Urban District Council HL 1898
Where an Act creates an obligation, and enforces the performance in a specified manner, it is a general rule that performance cannot be enforced in any other manner.
Earl of Halsbury LC said: ‘The principle that where a specific remedy is given . .
Cited – Hesketh v Birmingham Corporation 1924
The court rejected a claim for nuisance where a claim was available under the 1875 Act. . .
Cited – Smeaton v Ilford Corporation ChD 1954
Overloading caused the corporation’s foul sewer to erupt through a manhole and discharge ‘deleterious and malodorous matter’ into Mr Smeaton’s garden.
Held: The authority were not liable. e connections with the sewer and to discharge their . .
Cited – Goldman v Hargrave PC 13-Jun-1966
(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would . .
Cited – Leakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
Cited – Holbeck Hall Hotel Ltd and Another v Scarborough Borough Council CA 22-Feb-2000
Land owned by the defendant was below a cliff, at the top of which was the claimant’s hotel. The land slipped, and the hotel collapsed. Some landslip was foreseen from natural causes, but not to the extent of this occasion.
Held: The owner of . .
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Hatton and Others v The United Kingdom ECHR 8-Jul-2003
More Night Flights No Infringement of Family Life
The claimants complained that the respondent had acted to infringe their rights. They were residents living locally to Heathrow Airport. They claimed the respondent had increased the number of night flights, causing increased noise, but without . .
Cited – Baron v Portslade Urban District Council 1900
The local authority was held liable for omitting to clean a sewer. The existence of a procedure for the enforcement of statutory duties did not exclude common law remedies for common law torts, such as a nuisance arising from failure to keep a sewer . .
Cited – Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd CA 1953
The plaintiff brought an action for nuisance against the local authority for having discharged insufficiently treated effluent into the river Derwent.
Held: The plaintiffs: ‘have a perfectly good cause of action for nuisance, if they can show . .
Cited – Buckley v The United Kingdom ECHR 25-Sep-1996
The Commission had concluded, by a narrow majority, that the measures taken by the respondent in refusing planning permission and enforcing planning orders were excessive and disproportionate, even allowing a margin of appreciation enjoyed by the . .
At First Instance – Marcic v Thames Water Utilities Ltd TCC 14-May-2001
. .
At First instance – Marcic v Thames Water Utilities Ltd TCC 10-Jul-2001
. .

Cited by:
Cited – Lough and others v First Secretary of State Bankside Developments Ltd CA 12-Jul-2004
The appellants challenged the grant of planning permission for neighbouring land. They sought to protect their own amenities and the Tate Modern Gallery.
Held: The only basis of the challenge was under article 8. Cases established of a breach . .
Cited – Andrews v Reading Borough Council QBD 29-Apr-2004
The claimant sought damages for increased road noise resulting from traffic control measures taken by the respondent.
Held: The defendants action to strike out the claim could not succeed. They had not shown that the claim was unarguable, . .
Cited – Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005
The company sought repayment of excess advance corporation tax payments made under a mistake of law. The question was the extent of the effect of the ruling in Klienwort Benson, in particular whether it covered sums paid as taxation, and how the law . .
Cited – Muck It Ltd v Merritt and others; traffic Commissioner v Muck It Ltd and Others, Secretary of State for Transport intervening CA 15-Sep-2005
The applicant appealed revocation of its operator’s licence.
Held: The Commissioner had erred. When revoking an existing goods vehicle licence the burden was on the commissioner to establish that there was good cause to revoke the licence, and . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Cited – Barratt Homes Ltd v Dwr Cymru Cyfyngedig (Welsh Water) SC 9-Dec-2009
The developers wanted to construct their private sewer to the public sewer at a point convenient to them. The water company said a connection at the point proposed would overload the sewer, and refused. The developer claimed that it had the right to . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .

Lists of cited by and citing cases may be incomplete.

Utilities, Environment, Nuisance, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.188435

T-Mobile Austria v Telekom-Control-Kommission: ECJ 22 Jan 2015

ECJ (Judgment) Reference for a preliminary ruling – Electronic communications networks and services – Directive 2002/20/EC – Article 5(6) – Rights of use for radio frequencies and numbers – Directive 2002/21/EC – Article 4(1) – Right of appeal against a decision of a national regulatory authority – Meaning of ‘undertaking affected by a decision of a national regulatory authority’ – Article 9b – Transfer of individual rights to use radio frequencies – Reallocation of rights to use radio frequencies following the merger of two undertakings

M Ilesic P
C-282/13, [2015] EUECJ C-282/13
Bailii
Directive 2002/20/EC 5(6), Directive 2002/21/EC 4(1)
European

Utilities

Updated: 10 November 2021; Ref: scu.541743

British Telecommunications Plc v Telefonica O2 UK Ltd: SC 9 Jul 2014

The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Held: The appeal was allowed unanimously and the decision of the CAT re-establised. BT was free to set the tarriff as they had first done.
Where the terms of the contract permit variation, Ofcom should give effect to that variation unless it would be inconsistent with its regulatory objectives, including under the welfare test.
Lord Sumption said: ‘As a general rule, the scope of a contractual discretion will depend on the nature of the discretion and the construction of the language conferring it. But it is well established that in the absence of very clear language to the contrary, a contractual discretion must be exercised in good faith and not arbitrarily or capriciously [citing Abu Dhabi, Gan, and Paragon, above]. This will normally mean that it must be exercised consistently with its contractual purpose [citing Ludgate Insurance, above and Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459 (Lord Steyn), 461 (Lord Cooke of Thorndon)].’
. . And ‘ it is not consistent with either the contract or the scheme of the Directives for Ofcom to reject charges simply because they might have adverse consequences for consumers, in the absence of any reason to think that they would. It is not consistent with the contract because it prevents BT from exercising its discretion to alter its charges in circumstances where there is no reason to suppose, and Ofcom has not found, that the limits of that discretion have been exceeded. It is inconsistent with the scheme of the Directives because it involves applying an extreme form of the precautionary principle to a dynamic and competitive market, in a manner which is at odds with the Directives’ market-oriented and essentially permissive approach. Logically, given the inherent difficulty of forecasting the extent of any direct or indirect effects, and the practical impossibility of forecasting the mobile tariff package effect, it would rule out any increases in termination charges other than those justified by reference to underlying costs. ‘

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Hodge
UKSC 2012/0204, [2014] UKSC 42, [2014] Bus LR 765
SC, SC Summary, SC Video, Bailii, Bailii Summary
Directive 2002/21/EC, Directive 2002/19/EC, Communications Act 2003 190
England and Wales
Citing:
At CAT – Telefonica O2 Uk Ltd v Office of Communications and Another CAT 7-Oct-2010
OFCOM had disallowed a new termination tarriff imposed by BT on mobile network operators.
Held: The appeal succeeded. BT had the right to vary its charges subject to compiance with the appropriate European objectives and directives. Since the . .
Cited – Commission v Poland (Industrial Policy) ECJ 13-Nov-2008
ECJ Failure of a Member State to fulfil obligations Electronic communications Networks and services Directive 2002/19/EC (Access Directive) Article 4(1) and the first subparagraph of Article 5(1) Incorrect . .
Cited – Teliasonera Finland ECJ 12-Nov-2009
ECJ Judgment – Industrial policy – Telecommunications sector Electronic communications Directive 2002/19/EC Article 4(1) Networks and services Interconnexion agreements between telecommunications undertakings . .
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Ludgate Insurance Company Limited v Citibank NA CA 26-Jan-1998
Brooke LJ said that the circumstances in which the court will interfere with the exercise by a party to a contract of a contractual discretion given to it by another party are extremely limited. The courts will not intervene where the discretion is . .
Cited – Equitable Life Assurance Society v Hyman HL 20-Jul-2000
The directors of the Society had calculated the final bonuses to be allocated to policyholders in a manner which was found to be contrary to the terms of the policy. The language of the article conferring the power to declare such bonuses contained . .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – T-Mobile (UK) Ltd v British Telecommunications Plc CAT 20-May-2008
The dispute resolution functions of Ofcom are regulatory . .
Cited – Teliasonera Finland ECJ 12-Nov-2009
ECJ Judgment – Industrial policy – Telecommunications sector Electronic communications Directive 2002/19/EC Article 4(1) Networks and services Interconnexion agreements between telecommunications undertakings . .
Appeal from – Telefonica O2 UK Ltd and Others v British Telecommunications Plc and Another CA 25-Jul-2012
BT had introduced a new tarriff for termination charges in respect of calls made from mobile phones to 08 numbers.
Held: The Court overruled the CAT and restored the decision of Ofcom. The CAT had been wrong to attach weight to their view that . .

Cited by:
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .

Lists of cited by and citing cases may be incomplete.

Utilities, Media, Contract, Commercial, European

Updated: 09 November 2021; Ref: scu.533879

Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change and Another: CA 3 Jun 2011

The company had developed a means of generating electricity from their excess sugar supplies, and challenged the support given to it by the respondent and in particular that the 2009 Order allowed the respondent to favour some types of energy generation, and had been based upon mistaken information.
Held: The appeal failed: ‘even if the appellant’s premise is correct, and the court is satisfied that the appellant’s technology would have been banded more favourably had the correct costs information been used, this did not compel the Secretary of State to carry out the review on the limited basis advanced by the appellant . . the usual situation requires a public body to reach decisions in the light of all the information then available.’
Elias LJ said: ‘I recognise that fairness is an important principle of public law but in determining what is fair in any particular context it is necessary to have regard to the wider public interest. I am not persuaded that as a consequence of this review the Appellant is being unfairly treated. They are in fact receiving the appropriate subsidy for someone incurring the costs involved in developing their particular technology. It is true that they were not obtaining the windfall resulting from the increase in electricity prices which they would have received had no error been made. Furthermore, it may be the case that other producers are receiving a windfall as a result of that price increase and will continue to do so until their technologies are reviewed (although as I have said there will be no windfall if costs have outstripped the electricity price). That is not, in my judgment, a sufficient reason to confer this benefit on the Appellant. It may be bad luck that but for the error the Appellant would have been treated more favourably than was necessary properly to subsidise their technology, particularly since some others will have received the more favourable treatment. It does not follow that it was unfair and an abuse of power to carry out a full review.’

Longmore, Aikens, Elias LJJ
[2011] EWCA Civ 664
Bailii
Directive 2001/77/EC on the promotion of electricity from renewable energy sources in the internal electricity market, Renewables Obligation Order in 2002, Renewables Obligations Order 2009
England and Wales
Citing:
Appeal from – Tate and Lyle Industries Ltd and Another, Regina (on The Application of) v Secretary of State for Energy and Climate Change and Another Admn 2-Nov-2010
The claimant sought judicial review of the 2009 Order, complaining of the reduced allocation to it of a renewables obligation certificate.
Held: The claim failed. . .
Cited – Regina v Secretary of State for the Home Department, ex parte Zeqiri HL 24-Jan-2002
The applicant sought to resist an order for his return to Germany, the first country of call after escaping Kosovo. He asserted that Germany was not complying with its international obligations. He said the Gashi case had created a legitimate . .
Cited – Regina (Kelsall and Others) v Secretary of State for Environment Food and Rural Affairs) Admn 13-Mar-2003
The claimants were mink farmers. They challenged the order arranging compensation for the closure of their businesses following the ban on fur farming.
Held: The provisions of the order were arbitrary and unfair, failing to take into account . .
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Cited – Middlebrook Mushrooms Ltd, Regina (on the Application of) v Agricultural Wages Board of England and Wales Admn 18-Jun-2004
The company complained that whereas the generality of employers in agriculture were exempt from control under the minimum wage system, mushroom growers had not been exempted.
Held: The withdrawal of the exemption was irrational and . .

Cited by:
Cited – London Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .

Lists of cited by and citing cases may be incomplete.

European, Environment, Utilities, Administrative

Updated: 09 November 2021; Ref: scu.440316

Vodafone (Electronic Communications – End Users’ Rights – Judgment): ECJ 2 Sep 2021

Management of Internet User Agreements

Reference for a preliminary ruling – Electronic communications – Regulation (EU) 2015/2120 – Article 3 – Open internet access – Article 3(1) – End users’ rights – Article 3(2) – Prohibition of agreements and commercial practices limiting the exercise of end users’ rights – Article 3(3) – Obligation of equal and non-discriminatory treatment of traffic – Possibility of implementing reasonable traffic management measures – Additional ‘zero tariff’ option – ‘Zero tariff’ excluded in the case of roaming

C-854/19, [2021] EUECJ C-854/19, ECLI:EU:C:2021:675
Bailii
European

European, Utilities

Updated: 09 November 2021; Ref: scu.668128

Sustainable Shetland v The Scottish Ministers and Another (Scotland): SC 9 Feb 2015

Wind Farm Permission Took Proper Account

Sustainable Shetland challenged the grant of permission for a wind farm saying that the respondents had failed properly to take account of their obligations under the Birds Directive, in respect of the whimbrel, a protected migratory bird.
Held: The appeal failed.
It was clear that the Ministers had properly considered the effect on the whimbrel and had concluded that even without mitigation the effect would not be substantial. The reference to the benefits of the project as balancing considerations was a fall-back position which would only have come into play if the primary reasoning were not accepted: ‘the ministers did have regard to the desirability of improving the conservation status of the whimbrel on the islands in general, rather than simply avoiding significant loss due to this proposal. They were entitled to attach weight to the fact that the HMP would result in one third of the whimbrel population of the UK being taken under active management, and to regard it as an exceptional opportunity to improve understanding of the species and its habitat and of the measures necessary to conserve it. ‘

Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hodge
[2015] Env LR 23, 2015 SCLR 224, [2015] 3 CMLR 4, 2015 GWD 5-113, [2015] UKSC 4, [2015] 2 All ER 545, 2015 SLT 95, UKSC 2014/0216
Bailii, Bailii Summary, SC, SC Summary, SC Video
Electricity Act 1989 36, Birds Directive (2009/147/EC), Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000
Scotland
Citing:
At Outer House – Sustainable Shetland, Re Judicial Review SCS 24-Sep-2013
Outer House – The petitioner environmental group objected to the grant under the 1989 Act of permission for the construction for a substantial wind farm in Central Mainland, Shetland. . .
Second Division – Sustainable Shetland v The Scottish Ministers and Another SCS 3-Dec-2013
Second Division – Inner House -The petitioners challenged the grant of permission under the 1989 Act for a windfarm on Shetland. . .
Inner House – Sustainable Shetland v The Scottish Ministers and Viking Energy Partnership for Judicial Review SCS 9-Jul-2014
Inner House, First Division – Application regarding substantial wind farm on Shetland. The claimants said that the defenders had failed to take proper account of te effect of the proposed development on the whimbrel. . .
Cited – Regina v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds ECJ 11-Jul-1996
(Judgment) When designating an area of land as a wild bird special protection site, economic factors were to be excluded.
ECJ Article 4(1) or Article 4(2) of Directive 79/409 on the conservation of wild . .
Cited – Ligue Royale Belge pour la Protection des Oiseaux and Societe d’etudes Ornithologiques AVES v Region Wallonne ECJ 12-Dec-1996
ECJ 1 Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Derogations from the prohibition of killing or capturing protected species – Condition – Absence of any . .
Cited – Trump International Golf Club Scotland Ltd and Another v The Scottish Ministers and Another SCS 17-Oct-2013
Outer House – Court of Session – This petition for judicial review challenged the decisions of the Scottish Ministers (a) not to hold a public inquiry, and (b) to grant consent under section 36 of the Electricity Act 1989 for the construction and . .

Lists of cited by and citing cases may be incomplete.

Planning, Utilities, Environment

Leading Case

Updated: 09 November 2021; Ref: scu.542337

The Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc: SC 2 Jul 2014

The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their owners.’
Held: The appeals of the sewerage company succeeded. Such discharges were in their nature a trespass, and could not be supported without statutory authority. Though the 1991 Act impliedly retained the rights for sewerage undertakers to discharge surface and other non-polluting water into private courses where they had already existed, such rights were not created withoutmore over new outfalls unless the owner of the private watercourse consented.
Lord Sumption said: ‘In my opinion, when the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses, (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived.’
Lord Neuberger said: ‘sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. I agree with the reasons given by Lord Sumption and Lord Toulson although I would place greater weight on the assistance which can be gained from the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978’

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Hughes, Lord Toulson
[2014] 1 WLR 2576, [2014] UKSC 40, [2014] 4 All ER 40, [2014] WLR(D) 291, UKSC 2013/0074, UKSC 2013/0072
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC, SC Summary
Water Industry Act 1991, Public Health Act 1875, Public Health Act 1936, Water Act 1989, Interpretation Act 1978
England and Wales
Citing:
At first instance – The Manchester Ship Canal Company Ltd v United Utilities Water Plc ChD 14-Feb-2012
The claimant canal owners challenged the use of outfalls by the respondent sewerage plant operator to discharge unpolluted surface water into their canals. The defendants now sought summary dismissal of the claims saying they were bound to fail . .
Cited – Durrant v Branksome Urban District Council 1897
The right of discharge was implicit in the express terms of section 17 of the 1875 Act, which by restricting the right to discharge foul water into any watercourse impliedly recognised the existence of a right to discharge treated effluent and . .
Cited – Manchester Corporation v Farnworth HL 1930
The House was asked as to the result in law when a nuisance is the inevitable result of carrying out the functions authorised by Parliament.
Held: Viscount Dunedin said: ‘When Parliament has authorized a certain thing to be made or done in a . .
Cited – Allen v Gulf Oil Refining Ltd HL 29-Jan-1980
An express statutory authority to construct an oil refinery carried with it the authority to refine. It was impossible to construct and operate the refinery upon the site without creating a nuisance. Lord Wilberforce said: ‘It is now well settled . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Durrant v Branksome Urban District Council CA 1897
A right to discharge surface water and treated effluent into private watercourses was impliedly conferred on local authorities by the Public Health Act 1875. Section 15 of that Act imposed on local authorities a duty to cause such sewers to be made . .
Cited – British Waterways Board v Severn Trent Water Ltd CA 23-Mar-2001
The parties disputed discharges from a sewer outfall into the Stourbridge canal which had been constructed by a regional water authority in about 1976, under the previous statutory regime. The relevant outfall was therefore already in use at the . .
Cited – Bradford v Mayor of Eastbourne 1896
Lord Russell CJ said of section 13: ‘the vesting . . is not a giving of the property in the sewer and in the soil . . but giving such ownership and such rights only as are necessary for the purpose of carrying out the duties of a local authority’ . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .

Lists of cited by and citing cases may be incomplete.

Utilities, Land

Updated: 09 November 2021; Ref: scu.533881

Commission v Austria: ECJ 4 May 2016

ECJ (Judgment) Failure of a Member State to fulfil obligations – Article 4(3) TEU – Article 288 TFEU – Directive 2000/60/EC – EU water policy – Article 4(1) – Prevention of deterioration of the status of bodies of surface water – Article 4(7) – Derogation from the prohibition of deterioration – Overriding public interest – Authorisation to construct a hydropower plant on the Schwarze Sulm River (Austria) – Deterioration of the water status

C-346/14, [2016] EUECJ C-346/14
Bailii
Directive 2000/60/EC 4(1), TFEU 288

European, Utilities

Updated: 09 November 2021; Ref: scu.563111

Ground Rents (Regisport) Ltd v Dowlen and Others: UTLC 22 Apr 2014

groundrents_UTLC_0414

UTLC LANDLORD AND TENANT – service charges – lengthy delay by utility provider in delivering invoices to new landlord – invoices delivered to previous landlord – when costs ‘incurred’ – section 20B Landlord and Tenant Act 1985 – service charge certificate conclusive of the amount of the service charge – whether landlord entitled to increase service charge for years previously certified – appeal allowed

Martin Rodger QC, Deputy President
[2014] UKUT 144 (LC)
Bailii
England and Wales
Citing:
Cited – Gilje and others v Charlgrove Securities Ltd CA 4-Oct-2001
The court was asked as to the liability of five underlessees to pay the rent for a caretaker employed by the landlord. The lease envisaged a caretaker living in the building. Previously the caretaker had been paid a larger wage but had then paid a . .
Cited – OM Property Management Ltd v Burr CA 3-May-2013
The claimant managed a development where the respondent was one of the tenants. Through a mix up, the company had failed to collect sufficient sums to discharge communal fuel service charges. They now sought payment of the apportioned but . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Utilities

Updated: 09 November 2021; Ref: scu.525946

Secretary of State for Energy and Climate Change v Friends of The Earth and Others: CA 25 Jan 2012

The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against a finding that this was unlawful.
Held: Permission to appeal was granted, but the appeal failed. The effect of the proposed modifications were retrospective, and could not be supported without an express statutory power.
Moses LJ said: ‘I should record that the proposed modifications remain proposals. There was an issue before Mitting J as to whether a proposal put out for consultation was a proper subject of judicial review at all, but in the event neither side has sought in this appeal to contend that the fact that the Secretary of State has not yet reached a decision, still less laid the modifications before Parliament, should inhibit or prevent this court from reaching a decision on the substantive issues. Both sides require an urgent decision as to the lawfulness of the proposals in relation to installations becoming eligible from 12 December 2011 to 1 April 2012.’ and
‘The question, I respectfully suggest, is not whether the proposed modification may have a significant adverse impact on those proposing to install small solar systems once the proposal was announced, but rather whether Parliament conferred a power to make a modification with such a retrospective effect. It did not.’

Lloyd, Moses, Richards LJJ
[2012] EWCA Civ 28
Bailii
Energy Act 2008
England and Wales
Citing:
Cited – Abbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .
Cited – Newcastle Breweries Ltd v The King 1921
The court was asked to consider the validity of regulation 2B of the Realm Regulations made under section 1 of the 1914 Act.
Held: The presumption against a statute authorising the expropriation of a subject’s property without payment is even . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .

Lists of cited by and citing cases may be incomplete.

Utilities, Administrative, Constitutional, Judicial Review, Environment

Updated: 02 November 2021; Ref: scu.450477

Harrison v National Coal Board: HL 1951

The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
Held: There was no vicarious liability duty in law on the managers to ensure compliance by their workers to the regulations.
Lord MacDermott (obiter) said: ‘The fireman in doing his work as a shot-firer was acting in the course of his employment by the defenders. In the performance of his work he was required by the regulations to adopt certain precautions which Parliament had prescribed for the safety of those employed in coal mines. But it is not correct to say that he was not acting for his master. The firing of the shots was the work which he was employed by the defenders to do. His failure to take the precautions which Parliament has required of him did not take him outwith the scope of his employment. Accordingly, his acts were still within the area in which the vicarious responsibility of a master operates.’
Vicarious liability was not confined to common law negligence: ‘It arises from the servant’s tortious act in the scope of his employment and there can be no doubt that [the servant] in breaking the shot-firing regulations committed a tort.’
Lord MacDermott: ‘Vicarious liability is not confined to common law negligence. It arises from the servant’s tortious act in the scope of his employment and there can now be no doubt that [the employee] breaking the shot-firing regulations committed a tort.’
Lord Porter said that the Factories Act is ‘a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits’.

Lord MacDermott, Lord Porter
[1951] AC 639, [1951] 1 TLR 1079, [1951] 95 Sol Jo 413, [1951] 1 All ER 1102
England and Wales
Cited by:
Cited – Nicol v National Coal Board SCS 1952
The court considered a claim against his employer after the plaintiff suffered injury after a breach of safety regulations by a co-worker.
Held: Referring to Harrison v NCB: ‘It appears to me that that principle disposes of the argument . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – McDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .

Lists of cited by and citing cases may be incomplete.

Utilities, Vicarious Liability, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.241425

Milner, Regina (on The Application of) v South Central Strategic Health Authority: Admn 11 Feb 2011

The claimant sought to challenge the way the defendant had reached its decision to add flouride to the water supply, in having failed to comply with the requirements for consultation.
Held: The claim failed. The Regulations as enacted differed from the draft, and did not require the Authroitys to act only on approval by a majority of those replying to a consultation exercise. Whatever the governments policy had been in the earlier stages of its development, that element did not remain present at its conclusion. There could be no argument that an Authority had a duty to go behind the guidance and regulations to investigate the parliamentary history. No challenge had been made to the procedures adopted durimg the consultations.
‘ A regulation which expressly requires a SHA to have ‘regard to the extent of support’ is simply not consistent with a policy that a scheme should not be introduced unless it can be shown that the local population is in favour. That is simply to replace the requirement in the regulation to have regard, with a test of the balance (however ascertained) of the opinion of the local population, which is inconsistent with the regulation and which the ministers themselves eschewed (they expressly rejected a head count alone or referendum).’ and
‘ it is not the law that fluoridation can only occur when a majority of the local population agree. Parliament has firmly entrusted area-specific decision making to the relevant SHA.’

Holman J
[2011] EWHC 218 (Admin)
Bailii
Water Act 2003, Water Industry Act 1991 87, The Water Fluoridation (Consultation) (England) Regulations 2005
England and Wales
Citing:
Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .
Cited – Unison, Regina (on The Application of) v Monitor and Others Admn 9-Dec-2009
Cranston J referred to ‘the danger of resorting to [Hansard] except when it is absolutely required under Pepper v Hart’ and gave examples of the reasons why. . .
Cited – Regina v North Derbyshire Health Authority ex parte Kenneth Graeme Fisher Admn 11-Jul-1997
The court considered the duty of the authority to take account of guidance issued by the Secretary of State: ‘If the circular provided no more than guidance, albeit in strong terms, then the only duty placed upon health authorities was to take it . .
Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .

Lists of cited by and citing cases may be incomplete.

Health, Administrative, Utilities

Updated: 02 November 2021; Ref: scu.428672

Commission v Italy (Traitement Des Eaux Urbaines Residuaires) (Judgment): ECJ 6 Oct 2021

Failure by a State to fulfill obligations – Article 258 TFEU – Directive 91/271 / EEC – Collection and treatment of urban waste water – Articles 3 to 5 and 10 – Lack of urban water collection systems in certain agglomerations – Lack of secondary treatment or equivalent treatment of urban waste water in certain agglomerations – Construction and operation of treatment plants – Control of discharges from such plants – Sensitive areas – More rigorous treatment of waste water

C-668/19, [2021] EUECJ C-668/19, ECLI:EU:C:2021:815
Bailii
European

Utilities

Updated: 02 November 2021; Ref: scu.668539

Alands Vindkraft v Energimyndigheten: ECJ 1 Jul 2014

ECJ Judgment – Grand Chamber – Reference for a preliminary ruling – National support scheme providing for the award of tradable green certificates for installations producing electricity from renewable energy sources – Obligation for electricity suppliers and certain users to surrender annually to the competent authority a certain number of green certificates – Refusal to award green certificates for electricity production installations located outside the Member State in question – Directive 2009/28/EC – Article 2, second paragraph, point (k), and Article 3(3) – Free movement of goods – Article 34 TFEU

V Skouris, P
C-573/12, [2014] EUECJ C-573/12, ECLI:EU:C:2014:2037
Bailii
Directive 2009/28/EC 2
European

Utilities

Updated: 01 November 2021; Ref: scu.533728

Ayuntamiento de Benferri v Iberdrola Distribucion Electrica: ECJ 27 Mar 2014

ECJ Preliminary ruling – Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – Construction of some airlines power transmission – Expansion of electricity sub-station – Non-submission of the draft environmental assessment

J. L. da Cruz Vilaca, P
C-300/13, [2014] EUECJ C-300/13
Bailii
Directive 85/337/EEC

European, Utilities, Environment

Updated: 01 November 2021; Ref: scu.523331

DHL International (UK) Ltd, Regina (on the application of) v The Office of Communications: Admn 4 May 2016

The claimant, an international door to door courier, challenged service on it of an information request under the 2011 Act, saying that it was not a postal operator subject to the Act.
Held: The challenge failed. OFCOM’s policy was properly reached and applied, and since the policy itself had not been challenged the principle of regularity applied to validate the notice.

Soole J
[2016] EWHC 938 (Admin), [2016] WLR(D) 232
Bailii, Jiudiciary, WLRD
Postal Services Act 2011
England and Wales

Utilities, Licensing

Updated: 01 November 2021; Ref: scu.563178

French Republic v European Commission: ECJ 6 Sep 2012

france_commissionECJ2012

ECJ Action for annulment – Regulation (EU, Euratom) No 617/2010 – Notification to the Commission of investment projects in energy infrastructure within the European Union – Choice of legal basis – Articles 337 TFEU and 187 TEAEC – Article 194 TFEU

Cunha Rodrigues, P
C-490/10, [2012] EUECJ C-490/10
Bailii

European, Utilities

Updated: 01 November 2021; Ref: scu.464438

Lambeth London Borough Council v Thomas: CA 31 Mar 1997

There had been an agreement between Lambeth and Thames Water when Thames Water was still a public water authority and when Lambeth collected water rates properly so called from its tenants on behalf of the water authority. No evidence of it in writing remained. but it was found by the county court judge on the basis of the evidence in the case, and its essential outlines were found as facts. The tenant there, Mrs Thomas, was also a secure tenant who had failed to pay her water charges, which under her tenancy agreement were payable weekly together with her rent. A possession order was sought for some pounds 600 of water charges (and some pounds 100 of general rates). Her housing benefit had otherwise discharged all rent due from her. The judge regarded the water charges as rent, but refused to order possession on the basis that, although they were due, it would not be reasonable, at least normally, to use a possession order as a sanction to enforce payment of water charges for water supplied by a privatised third party.
Held: Water rates paid on by council ‘touched and concerned’ land and were recoverable as rent.
Mance J said: ‘The position is thus that the Council had at all material times the power to enter into an agreement for the collection and recovery by the Council on behalf of the water authority or company of any water charges payable or fixed for the supply of water by the water authority or company, at least in the Council’s area. The Judge, after hearing evidence, was satisfied that the Council had entered into such an agreement, currently with Thames Water Utilities Limited, whereby the Council ‘undertook to collect money from each tenant’. He described the origins of the agreement as ‘lost in the mists of time’, but set out certain of its characteristics which are worth mention. The Council, consistently with the statutory language, claims and seeks to collect from its tenants the amounts fixed by the water company in respect of their particular properties. The discounted lump sum is arrived at by negotiation and is based on the total water charges for all relevant Council properties, less a discount to take account of unoccupied premises and the costs of collection. Presumably, although this is not stated, the discount also takes account of the risks of non-recovery, since it appears that the Council undertakes to pay the water company the discounted lump sum, irrespective of what it recovers from its tenants. We were told that the discounting means in practice, and is designed to mean, that the Council achieves for the benefit of its housing revenue account a surplus through collecting on behalf of Thames Water Utilities Limited more by way of water charges than the amount for which the Council actually has to account to that company. It is always open to an agent to contract on such a basis, and I see no objection in the present statutory context to the arrangement made between the Council and the water company. Any surplus accruing to the Council’s housing account (which has been ‘ring-fenced’ under the relevant legislation throughout the 1990s) ensures [sc ensures] to the benefit of all its tenants, since it enables the Council to keep rents down . . The effect of the agreement between the Council as landlord and Mrs Thomas as tenant has been at all times such as to entitle the Council to claim from her the water rate or charges which the Council has arranged with the water authority or company to collect’ and
‘In the present case, the water charges are due from the tenant as occupier of the demised premises and a user of water there. Although the water supplies are made by the water company to Mrs Thomas and the statutory framework envisages the collection of the water charges by the Council on behalf of the water authority or company, the practical effect of the agreements made (a) between the Council and the water company and (b) the Council and Mrs Thomas is that Mrs Thomas answers for the water charges to the Council while the Council takes care of them vis-s-vis the water company. It was explained to us that this system not only provides a potential surplus in the Council’s housing account, to the benefit of all tenants including Mrs Thomas, it also corresponds with the Council’s policy that tenants who are less well off and, in some cases perhaps, less capable of looking after their own affairs should be protected from the risk of having their basic utilities cut off, due to failure to meet relevant charges. Some housing associations have, we were told, made similar arrangements, and the Council itself has some similar arrangements in relation to the supply of electricity and gas. There may be council tenants who do not approve or appreciate the policy or the making of such arrangements for their benefit, but the legislation clearly empowers it and the Council is clearly entitled to adopt such a policy. Where it has done so and has implemented it in the way described for the benefit of itself and its tenants, the resulting obligation on a tenant to pay to the Council the water charges must in my view be regarded as touching and concerning the demised house, and as an ‘obligation of the tenancy’, even if it is not anyway rent.’

Kennedy LJ, Mance J
Times 31-Mar-1997, (1997) 30 HLR 89
England and Wales
Cited by:
Cited – Rochdale Borough Council v Dixon CA 20-Oct-2011
The defendant tenant had disputed payment of water service charges and stopped paying them. The Council obtained a possession order which was suspended on payment or arrears by the defendant at andpound;5.00. The tenant said that when varying the . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Local Government, Utilities

Leading Case

Updated: 01 November 2021; Ref: scu.82907

SCM (United Kingdom) Ltd v W J Whittall and Son Ltd: CA 1970

The defendants’ workmen damaged an electric cable belonging to the electricity board, cutting off several factories, including the plaintiff’s. The defendant sought to have the claim struck out.
Held: The part of the claim arising from physical damage was not struck out, but that for economic loss was. Economic loss ought not to be put on one pair of shoulders, but spread among all the sufferers.
Lord Denning said: ‘I must not be taken, however, as saying that economic loss is always too remote. There are some exceptional cases when it is the immediate consequence of the negligence and is recoverable accordingly. Such is the case when a banker negligently gives a good reference on which a man extends credit, and loses the money. The plaintiff suffers economic loss only, but it is the immediate – almost, I might say, the intended – consequence of the negligent reference and is recoverable accordingly: see Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd. [1964] A.C. 465. Another is when the defendant by his negligence damages a lorry which is carrying the plaintiff’s goods. The goods themselves are not damaged, but the lorry is so badly damaged that the goods have to be unloaded and carried forward in some other vehicle. The goods owner suffers economic loss only, namely, the cost of unloading and carriage, but he can recover it from the defendant because it is immediate and not too remote. It is analogous to physical damage: because the goods themselves had to be unloaded. Such was the illustration given by Lord Roche in Morrison Steamship Co. Ltd. v. Greystoke Castle (Cargo Owners) [1947] A.C. 265. Likewise, when the cargo owners have to pay a general average contribution. It is not too remote and is recoverable.
Seeing these exceptional cases you may well ask: How are we to say when economic loss is too remote or not? Where is the line to be drawn? Lawyers are continually asking that question. But the judges are never defeated by it. We may not be able to draw the line with precision, but we can always say on which side of it any particular case falls.’

Lord Denning
[1971] 1 QB 337, [1970] 3 All ER 245, [1970] 3 WLR 694
England and Wales
Cited by:
Cited – Dutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .

Lists of cited by and citing cases may be incomplete.

Damages, Utilities

Leading Case

Updated: 01 November 2021; Ref: scu.186894

Globula AS v European Commission: ECFI 6 Sep 2013

ECJ Internal market in natural gas – Directive 2003/55/EC – Obligation on natural gas undertakings to organise a system of negotiated third party access to gas storage facilities – Decision of the Czech authorities granting the applicant a temporary exemption for its future underground gas storage facilities in Damborice – Commission decision ordering the Czech Republic to withdraw the exemption decision – Time at which Directive 2003/55 takes effect

T-465/11, [2013] EUECJ T-465/11
Bailii
Directive 2003/55/EC
European

Utilities

Updated: 01 November 2021; Ref: scu.515164

European Commission v Republic of Bulgaria: ECJ 14 Nov 2013

ec_bulgECJ1113

ECJ Opinion – Failure of a Member State to fulfill obligations – Internal market in energy – Gas transportation – Transmission System Operator (TSO) – Obligation to guarantee maximum capacity – Virtual reverse flow of gas (backhaul) – Articles 14(1) and 16(1) and (2)(b) of Regulation No 715/2009 – Admissibility

Jaaskinen AG
C-198/12, [2013] EUECJ C-198/12, [2014] EUECJ C-198/12
Bailii, Bailii

European, Utilities

Updated: 01 November 2021; Ref: scu.517793

RWE Vertrieb Ag v Verbraucherzentrale Nordrhein-Westfalen EV: ECJ 21 Mar 2013

ree_nwECJ2013

ECJ Directive 2003/55/EC – Internal market in natural gas – Directive 93/13/EEC – Articles 1(2) and 3 to 5 – Contracts between suppliers and consumers – General conditions – Unfair terms – Unilateral alteration by the supplier of the price of the service – Reference to mandatory legislation designed for another category of consumers – Applicability of Directive 93/13 – Obligation of use of plain and intelligible language and transparency

A. Tizzano, P
C-92/11, [2013] EUECJ C-92/11
Bailii
Directive 2003/55/EC, Directive 93/13/EEC

European, Consumer, Utilities

Updated: 01 November 2021; Ref: scu.471948

Vent De Colere And Others v Ministre de l’Ecologie, du Developpement durable, des Transports et du Logement and others: ECJ 19 Dec 2013

ECJ Request for a preliminary ruling – State aid – Concept of ‘intervention by the State or through State resources’ – Wind-generated electricity – Obligation to purchase at a price higher than the market price – Offsetting in full – Charges payable by final consumers of electricity

C-262/12, [2013] EUECJ C-262/12
Bailii
European

Utilities

Updated: 01 November 2021; Ref: scu.519495

Morrison Sports Ltd and Others v Scottish Power: SC 28 Jul 2010

A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced and the new regime had a different wording which the court had found created civil liability. The court was asked whether the Regulations remained in force. Scottish Power appealed against a finding that a new civil liability had been created.
Held: The appeal succeeded. The regulations remained in effect. The intention was that any criminal liability created was not to take away any civil liability, but that fell short of creating a civil liability. Contraventions of regulations 17, 24 and 25 of the 1988 Regulations did not give rise to a private right of action: ‘the scheme of the legislation, with its carefully worked-out provisions for various forms of enforcement on behalf of the public, points against individuals having a private right of action for damages for contraventions of regulations made under it.’

Lord Rodger, Lord Walker, Lady Hale, Lord Collins, Lord Clarke
[2010] UKSC 37, [2010] WLR (D) 202, [2010] 1 WLR 1934, 2010 SLT 1027
Bailii, WLRD, Bailii Summary, SC, SC Summary
Electricity Supply Regulations 1988 (SI 1988 no 1057) 17 24 25, Energy Act 1983 16, Electricity Act 1989 29
Scotland
Citing:
At Outer House – Morrison Sports Ltd and others v Scottish Power Plc and others OHCS 18-Jul-2007
. .
At Inner House – Morrison Sports Ltd and Others v Scottish Power SCS 8-Dec-2009
(Inner House) . .
Cited – Stevens v General Steam Navigation Co Ltd CA 1903
A re-enacting provision modified the original provision so as to include the words ‘all machinery or plant used in the process of loading or unloading of any ship in any dock, harbour or canal.’ The provision introduced the word ‘harbour’. This was . .
Cited – Stevens v Aldershot Gas, Water and District Lighting Co 1932
The plaintiff claimed for damage to electrical apparatus and loss of profits because the defendants had failed to supply electric current at the voltage at which they had said that they would.
Held: The question was ‘whether, if they have . .
Cited – Heard v Brymbo Steel Company Ltd CA 1947
The plaintiff was injured in an explosion at work arising from a short-circuit occurring because of breaches by the second defendants, the North Wales Power Co Ltd, of the 1937 regulations, 24 and 25. The 1899 Act applied, and it provided that . .
Cited – X (Minors) v Bedfordshire County Council; M (A Minor) and Another v Newham London Borough Council; Etc HL 29-Jun-1995
Liability in Damages on Statute Breach to be Clear
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give rise . .
Cited – A E Beckett and Sons (Lyndons) Ltd and Others v Midlands Electricity Plc QBD 2000
The claimants alleged that they had suffered loss as a result of the defendants’ breach of regulation 25(1) of the 1988 Regulations. . .
Cited – A E Beckett and Sons (Lyndons) Ltd and Others v Midlands Electricity Plc CA 10-Jan-2001
The claimants alleged that they had suffered loss as a result of the defendants’ breach of regulation 25(1) of the 1988 Regulations.
Held: The statutory power of an electricity supplier, to exclude by contract his own liability for . .
Cited – Phillips v Britannia Hygienic Laundry Co Ltd CA 1923
A breach of the regulation does not give rise to an action for damages. The distinction between misfeasance and non-feasance should no longer have significance. Atkin LJ said: ‘one who cannot be otherwise specified than as a person using the . .
Cited – Todd v Adams and Chope (Trading as Trelawney Fishing Co) (The ‘Margaretha Maria’) CA 2002
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission . .
Cited – Roe v Sheffield City Council and others CA 17-Jan-2003
The claimant sought damages after his car was involved in an accident when a wheel struck a part of a tramway standing proud of the road surface. The defendant argued that they were excused liability by the 1988 Act, incorporating the effects of the . .
Cited – Weir and Another v East of Scotland Water Authority SCS 23-Nov-2000
The claimants sought damages for personal injury saying that the defendant had supplied unwholesome water.
Held: Although the water authority was under a statutory duty to supply wholesome water, it was not a duty that was owed to a defined . .

Cited by:
Cited – Campbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
Cited – Campbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .

Lists of cited by and citing cases may be incomplete.

Utilities

Updated: 01 November 2021; Ref: scu.421095

Stynes v Western Power (East Midlands) Plc: UTLC 19 Jul 2013

UTLC COMPENSATION – electricity – grant of necessary wayleave under Schedule 4 of Electricity Act 1989 – overhead line – injurious affection – whether section 44 of the Land Compensation Act 1973 applies – application of the principle of equivalence

Sir Keith Lindblom, P, AJ Trott FRICS
[2013] UKUT 214 (LC)
Bailii
Land Compensation Act 1973 44, Electricity Act 1989 Sch 4
England and Wales

Land, Utilities

Updated: 01 November 2021; Ref: scu.517586

VIP Communications Ltd, Regina (on The Application of) v Secretary of State for The Home Department: Admn 17 Apr 2019

Order outwith Home Secretary’s powers

The claimant sought judicial review of an order requiring OFWAT to limit certain licenses to exclude technology which the SSHD said would pose a threat to National Security. It said that no power to do this existed.
Held: Review allowed. The Direction was ultra vires the Secretary of State’s powers under s.5(2) Communications Act 2003 and is therefore unlawful.

Morris J
[2019] EWHC 994 (Admin)
Bailii
Communications Act 2003 5(2)
England and Wales
Cited by:
At Admn – VIP Communications Ltd (In Liquidation), Regina (on The Application of) v The Secretary of State for The Home Department CA 20-Nov-2020
Exemption Direction was Ultra Vires
The Direction sought to prevent Ofcom from introducing regulations which would have the effect of making it lawful to operate a species of GSM gateway known as a commercial multi-user gateway without a licence. GSM gateways are telecommunications . .

Lists of cited by and citing cases may be incomplete.

Media, Administrative, Utilities

Updated: 31 October 2021; Ref: scu.636104

VIP Communications Ltd (In Liquidation), Regina (on The Application of) v The Secretary of State for The Home Department: CA 20 Nov 2020

Exemption Direction was Ultra Vires

The Direction sought to prevent Ofcom from introducing regulations which would have the effect of making it lawful to operate a species of GSM gateway known as a commercial multi-user gateway without a licence. GSM gateways are telecommunications equipment which contain one or more SIM cards such as are placed in mobile phones. They enable phone calls and text messages from landlines to be routed directly on to mobile networks with the intention of saving money on call charges. Commercial deployment of a GSM gateway may be as a commercial single user gateway or as a COMUG. COSUGs are gateways serving a single end-user, such as a large commercial entity. In contrast, COMUGs involve the use of a GSM gateway to provide an electronic communications service to multiple end users.
The Direction was given because of national security and public safety concerns about the use of COMUGs.
Held: The Secretary of State’s appeal failed. The Act did not contain a power for the appellant to do that which was sought, and it would be wrong to seek to construct one through a strained reading of the 2006 Act. The appellant did have power under the 2003 Act 5(2) to include directions with regard to national Security as part of any exemption it allowed.
The direction actually given however went beyond these powers, and was ultra vires.

Underhill, Macur, Flaux LJJ
[2020] EWCA Civ 1564, [2020] WLR(D) 626
Bailii, WLRD, Judiciary
Communications Act 2003 5, Wireless Telegraphy Act 2006 8
England and Wales
Citing:
At Admn – VIP Communications Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 17-Apr-2019
Order outwith Home Secretary’s powers
The claimant sought judicial review of an order requiring OFWAT to limit certain licenses to exclude technology which the SSHD said would pose a threat to National Security. It said that no power to do this existed.
Held: Review allowed. The . .

Lists of cited by and citing cases may be incomplete.

Utilities, Administrative

Updated: 31 October 2021; Ref: scu.656229

Infinis Energy Holdings Ltd v HM Treasury and Another: CA 21 Oct 2016

No breach of EU Legitimate Expectation

The appellant challenged rejection of its request for judicial review of a decision to remove financial support for its creation pf renewable energy.
Held: The appal failed. Althought eth claimant would indeed be severely affected, it had taken no particular decision based upon any representation from te respondent which might have created a proper expectation. There had been no breach of European law principle of law as to forseeability, certainty of legitimate expectation.

Sir Terence Etherton MR, Lloyd Jones, Sales LJJ
[2016] EWCA Civ 1030, [2016] WLR(D) 549, [2017] QB 1221, [2016] STI 2777, [2017] STC 414, [2017] 2 CMLR 12, [2017] 2 WLR 194
Bailii, WLRD
England and Wales
Citing:
Appeal from – Drax Power Ltd and Another, Regina (on The Application of) v Hm Treasury and Others Admn 10-Feb-2016
The claimant sought to challenge the removal of the exemption for renewable source electricity from the Climate Change Levy.
Held: Review was refused. The court rejected the Respondents’ submission that EU law has no application to the RSE . .

Lists of cited by and citing cases may be incomplete.

Utilities, Customs and Excise

Updated: 31 October 2021; Ref: scu.570364

Dobson and others v Thames Water Utilities Ltd and Another: CA 29 Jan 2009

The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance and related causes.
Held: Damages in nuisance are for injury to the property and not to the sensibilities of the occupiers. That is so as much for the case of the transitory nuisance interfering with comfort and enjoyment of the land as it is for the case of the nuisance which occasions permanent injury to the land and to its capital value, or other pecuniary loss. However ‘the actual impact upon the occupiers of the land, although not formally the measure of common law damages for loss of amenity, will in practice be relevant to the assessment of such damages in many cases, including such as the present where a family home is in question and no physical injury to the property, loss of capital value, loss of rent or other pecuniary damage, arises.’ The court could not say whether the child of the family might be entitled to an award. That would have to be established at trial.
Waller LJ said: ‘If the house in question was available to be let during the period of the nuisance, it may be that there would be direct market evidence of loss of rental value. Otherwise, it is perhaps inevitable that the assessment of damages for loss of amenity will involve a considerable degree of imprecision. But if estate agents are to assist in placing a value on the relevant intangibles, whether by calculating the reduction in letting value of the property for the period of the nuisance or in some other way, we would expect them in practice to take into account, for the purposes of their assessment, the actual experience of the persons in occupation of the property during the relevant period. As Lord Hoffmann observed, the measure of damages for loss of amenity will be affected by the size and commodiousness of the property. If the nature of the property is that of a family home and the property is occupied in practice by a family of the size for which it is suited, the experience of the members of that family is likely to be the best evidence available of how amenity has been affected in practical terms, upon which the financial assessment of diminution of amenity value must depend.’

Waller LJ, Richards LJ, Hughes LJ
[2009] EWCA Civ 28, [2007] HRLR 45, 116 Con LR 135, [2007] CILL 2518, [2007] BLR 465, [2007] TCLR 7, [2008] Env LR 21, [2007] NPC 102, [2008] 2 All ER 362
Bailii, Times
Water Industry Act 1991 18
England and Wales
Citing:
Leave – Dobson and others v Thames Utilities CA 18-Mar-2008
Claim for orders re management of sewerage works – smell and mosquitoes. Leave to appeal granted. . .
Appeal from – Dobson and others v Thames Water Utilities Ltd and Another TCC 24-Aug-2007
The several claimants sought damages from the defendants for nuisance from mosquitoes which collected at the defendant’s sewage works. . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Fadeyeva v Russia ECHR 9-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and . .
Cited – Bone v Seale CA 1975
The plaintiffs were the owners and occupiers of two adjoining properties. They claimed damages for nuisance by smell. The judge awarded over 6,000 pounds to each of the plaintiffs. The Court of Appeal reduced the sum to 1,000 pounds.
Held: the . .
Cited – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – St Helen’s Smelting Co v Tipping HL 1865
The defendant built a factory, from which the escaping chemical fumes damaged local trees.
Held: The defendant was liable even though the smelting was an ordinary business carried on properly, and even though the district surrounding was . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Anufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Dennis and Dennis v Ministry of Defence QBD 16-Apr-2003
The applicants owned a substantial property near an airbase. They complained that changes in the patterns of flying by the respondents were a nuisance and sought damages. Walcot Hall was subjected to very high noise levels from military aircraft. . .
Cited – Lopez Ostra v Spain ECHR 9-Dec-1994
A waste treatment plant was built close to the applicant’s home in an urban location and the plant released fumes and smells which caused health problems to local residents.
Held: A duty exists to take reasonable and appropriate measures to . .

Cited by:
Applied – Lawrence and Another v Fen Tigers Ltd and Others QBD 4-Mar-2011
The claimants had complained that motor-cycle and other racing activities on neighbouring lands were a noise nuisance, but the court also considered that agents of the defendants had sought to intimidate the claimants into not pursuing their action. . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Utilities, Human Rights

Updated: 31 October 2021; Ref: scu.280240

Electricite De France Sa (EDF) v European Commission: ECJ 7 Mar 2013

edf_ecECJ2013

ECJ Appeal – Application for interim measures – Concentrations – European electricity market – Acquisition of control of Segebel SA by EDF – Decision declaring the concentration compatible with the common market, subject to compliance with the commitments given by EDF – Refusal by the Commission to grant EDF postponement of the deadline for compliance with some of those commitments – Concepts of urgency and of serious and irreparable harm

C-551/12, [2013] EUECJ C-551/12
Bailii

European, Utilities

Updated: 31 October 2021; Ref: scu.471902

Schulz v Technische Werke Schussental GmbH und Co KG: ECJ 8 May 2014

ECJ Opinion – Directive 2003/54/EC – Internal market in electricity – Directive 2003/55/EC – Internal market in natural gas – Contracts between suppliers and customers based on national legislation – Universal service obligation – General conditions – Unilateral adjustment by the supplier of the price of the service – Appropriate level of consumer protection – Final customers – Transparency requirement in relation to contractual terms and conditions – Interrelationship with Directive 93/13/EEC – Unfair terms in consumer contracts – Limitation of the temporal effects of a judgment

Wahl AG
C-359/11, [2014] EUECJ C-359/11
Bailii
Directive 2003/54/EC, Directive 2003/55/EC, Directive 93/13/EEC
European

Utilities, Consumer

Updated: 31 October 2021; Ref: scu.525449

Jones and Others v Commission: ECFI 23 Nov 2011

jones_commissionECFI2011

ECFI (Competition) ECSC Treaty – Supply of coal intended for the United Kingdom electricity generation industry – Rejection of a complaint alleging discriminatory pricing – Commission’s competence to apply Article 4(b) CS following expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Assessment of Community interest – Obligations in relation to the investigation of a complaint – Manifest error of assessment.

Pelikanova
T-320/07, [2011] EUECJ T-320/07
Bailii

European, Utilities

Updated: 31 October 2021; Ref: scu.448717

Commission v Italy (Droits D’Accise – Carburant Des Bateaux De Plaisance) (Judgment): ECJ 16 Sep 2021

Failure by a State to fulfill obligations – Article 258 TFEU – Directive 2003/96 / EC – Taxation of energy products and electricity – Article 14, paragraph 1, point c) – Exemption of energy products used as fuel or fuel for navigation in of European Union waters – Exemption granted only to private pleasure craft subject to a charter contract

C-341/20, [2021] EUECJ C-341/20, ECLI:EU:C:2021:744
Bailii
European

Utilities

Updated: 31 October 2021; Ref: scu.668267

Arnold White Estates Ltd v National Grid Electricity Transmission Plc: UTLC 16 Apr 2013

UTLC COMPENSATION – electricity – wayleave – overhead line across housing development site – contract for sale of corridor of land containing line entered into in advance of grant of wayleave – contract conditional on removal of line – whether contract price could be taken as basis for assessment of loss – held that it could – whether land with line retained had any market value for development – held it did not – compensation pounds 5,829,476 – Electricity Act 1989 Sch 4 para 7
[2013] UKUT 5 (LC)
Bailii
Electricity Act 1989
England and Wales

Updated: 30 October 2021; Ref: scu.509223

East Suffolk Rivers Catchment Board v Kent: HL 1941

An exceptionally high spring tide caused many breaches of the banks of the River Deben, and extensive flooding, including the respondent’s farm. By section 6 of the 1930 Act, the appellants had a statutory power to maintain the flood defences, but no duty to do so. They had however entered onto land to begin works.
Held: A statutory power could not in itself generate a common law duty of care. The respondents had argued that they had a duty to do and were in breach.
Lord Atkin (dissenting) said: ‘By going onto the land and commencing the work, the Catchment Board had done an act which created a common law duty to complete the work with reasonable despatch.’
and ‘I treat it therefore as established that a public authority whether doing an act which it is its duty to do, or doing an act which it is merely empowered to do, must in doing the act do it without negligence, or as it is put in some of the cases must not do it carelessly or improperly. Now quite apart from a duty owed to a particular individual which is the question in this case I suggest that it would be difficult to lay down that a duty upon a public authority to act without negligence or not carelessly or improperly does not include a duty to act with reasonable diligence by which I mean reasonable dispatch. I cannot imagine this House affording its support to a proposition so opposed to public interests where there are so many public bodies exercising statutory powers and employing public money upon them.’
Lord Romer, Lord Atkin
[1941] AC 74, [1940] UKHL 3
Bailii
Land Drainage Act 1930 6
England and Wales
Citing:
Cited – Smith v Cawdle Fen, Ely (Cambridge) Commissioners 1938
The plaintiff’s land had been damaged by flooding. The defendants had power to execute works which might have prevented the floods.
Held: The defendants were under no duty, having only a power. The statute did not direct or require the . .
Cited – Gillett v Kent Rivers Catchment Board 1938
. .

Cited by:
Distinguished – Stovin v Wise (Norfolk City Council, 3rd party) CA 16-Feb-1994
A road user was injured on a corner which was known to the highway authority to be dangerous. The authority had sought to make arrangements with the owner of land adjoining the highway to remove a bank which obstructed the view.
Held: The . .
Doubted – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Connor v Surrey County Council CA 18-Mar-2010
The claimant teacher said that she suffered personal injury from stress after the board of governors improperly failed to protect her from from false complaints. The Council now appealed against an award of substantial damages.
Held: The . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – Capital and Counties Plc and Another v Hampshire County Council; Etc CA 20-Mar-1997
Three cases were brought against fire services after what were said to be negligent responses to call outs. On one, the fire brigade was called to a fire at office premises in Hampshire. The fire triggered the operation of a heat-activated sprinkler . .
Cited – Robinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.179787

Telekom Deutschland (Electronic Communications – Open Internet Access – End Users’ Rights – Judgment): ECJ 2 Sep 2021

Reference for a preliminary ruling – Electronic communications – Regulation (EU) 2015/2120 – Article 3 – Open internet access – Article 3(1) – End users’ rights – Article 3(2) – Prohibition of agreements and commercial practices limiting the exercise of end users’ rights – Article 3(3) – Obligation of equal and non-discriminatory treatment of traffic – Possibility of implementing reasonable traffic management measures – Additional ‘zero tariff’ option – Limitation on bandwidth
C-34/20, [2021] EUECJ C-34/20, ECLI:EU:C:2021:677
Bailii
European

Updated: 16 October 2021; Ref: scu.668125

Mobistar SA v Institut belge des services postaux et des telecommunications (IBPT) (Approximation Of Laws): ECJ 13 Jul 2006

ECJ Telecommunications – Mobile telephony – Number portability – Per-line or per-number set-up costs for the provision of number portability – Article 30 of Directive 2002/22/EC (Universal Service Directive) – Concept of ‘pricing for interconnection related to the provision of number portability’ – Cost orientation – Regulatory power of the national regulatory authority – Article 4 of Directive 2002/21/EC (Framework Directive) – Effective legal protection – Protection of confidential information
C-438/04, [2006] EUECJ C-438/04, [2006] ECR I-6675
Bailii
Directive 2002/21/EC (Framework Directive)
European
Cited by:
Cited – T-Mobile (Uk) Ltd. and Another v Office of Communications CA 12-Dec-2008
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.243112

Vodafone (Electronic Communications – Open Internet Access – End Users’ Rights – Judgment) : ECJ 2 Sep 2021

Reference for a preliminary ruling – Electronic communications – Regulation (EU) 2015/2120 – Article 3 – Open internet access – Article 3(1) – End users’ rights – Article 3(2) – Prohibition of agreements and commercial practices limiting the exercise of end users’ rights – Article 3(3) – Obligation of equal and non-discriminatory treatment of traffic – Possibility of implementing reasonable traffic management measures – Additional ‘zero tariff’ option – Limitation on tethering
C-5/20, [2021] EUECJ C-5/20
Bailii
European

Updated: 12 October 2021; Ref: scu.668129

DEI v Commission (State Aid – Judgment): ECFI 22 Sep 2021

State aid – Electricity supply tariff – Fixing of the tariff invoiced to Alouminion by decision of an arbitral tribunal – Decision to close the complaint – Decision noting the absence of aid – Act open to challenge – Status of interested party – Interest in bringing proceedings – Quality of action – Admissibility – Accountability to the State – Advantage – Principle of the private operator – Serious difficulties
T-639/14, [2021] EUECJ T-639/14RENV, ECLI:EU:T:2021:604
Bailii
European

Updated: 10 October 2021; Ref: scu.668268

Bourke v Davis: 1899

A public right of navigation over a river is ‘similar to a right of highway on land not covered by water.’ Before 1885, public rights of navigation did not exist over tributaries of the Thames where there was no prescriptive user.
Kay J
(1899) 44 Ch D 110
England and Wales
Cited by:
Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.187538

E-Control v Acer (Energy – Determination of The Capacity Calculation Regions – Judgment): ECFI 24 Oct 2019

Energy – Decision of the Board of Appeal of ACER – Determination of the capacity calculation regions – Action for annulment – Interest in bringing proceedings – Inadmissible in part – Regulation (EU) 2015/1222 – ACER’s competence
T-332/17, [2019] EUECJ T-332/17, ECLI:EU:T:2019:761
Bailii
European

Updated: 20 September 2021; Ref: scu.665344

Austrian Power Grid and Vorarlberger Ubertragungsnetz v Acer (Energy – Determination of The Capacity Calculation Regions – Judgment): ECFI 24 Oct 2019

Energy – Decision of the Board of Appeal of ACER – Determination of the capacity calculation regions – Action for annulment – Interest in bringing proceedings – Inadmissible in part – Regulation (EU) 2015/1222 – ACER’s competence
T-333/17, [2019] EUECJ T-333/17, ECLI:EU:T:2019:760
Bailii
European

Updated: 09 September 2021; Ref: scu.665316

PreussenElektra v Schleswag AG, in the presence of Windpark Reussenkoge III GmbH and Land Schleswig-Holstein: ECJ 13 Mar 2001

Europa Electricity – Renewable sources of energy – National legislation requiring electricity supply undertakings to purchase electricity at minimum prices and apportioning the resulting costs between those undertakings and upstream network operators – State aid – Compatibility with the free movement of goods.
[2001] EUECJ C-379/98, [2001] ECR I-2099, C-379/98
Bailii
European
Cited by:
Cited – Apis-Hristovich v Lakorda AD (Approximation Of Laws) ECJ 5-Mar-2009
apishristovichECJ2009
Europa Directive 96/9/EC Legal protection of databases – Sui generis right – Obtaining, verification or presentation of the contents of a database – Extraction – Substantial part of the contents of a database – . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 September 2021; Ref: scu.162515

HJ Banks and Co Ltd v The Coal Authority and Secretary of State for Trade and Industry: ECJ 20 Sep 2001

Europa Reference for a preliminary ruling: Court of Appeal (England and Wales) (Civil Division) – United Kingdom. ECSC Treaty – Licences to extract raw coal – Discrimination between producers – Special charges – State aid – Article 4(b) and (c) of the Treaty – Decision No 3632/93/ECSC – Code on aid to the coal industry – Direct effect – Respective powers of the Commission and the national courts.
C-390/98, [2001] EUECJ C-390/98
Bailii
European
Citing:
Cited – Coal Authority v H J Banks and Company Ltd; H J Banks and Company Ltd v The Coal Authority and Anoher ComC 20-Dec-1996
ComC Summary judgment under RSC Order 14 – claim for royalties – previous decision of the European Commission – claim for damages for breach of article 4 European Coal and Steel Treaty. The defence to the Coal . .
First Reference – H J Banks and Co Ltd v British Coal Corporation ECJ 13-Apr-1994
The European Commission has exclusive jurisdiction over ECSC treaty disputes. The duty of sincere cooperation imposed the obligation on the national court to mitigate as far as possible in the interests of the Community the risk of a conflicting . .

Cited by:
At ECJ – H J Banks and Co Ltd v Coal Authority and Another CA 13-Jun-2002
. .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.166200

Sutradhar v Natural Environment Research Council: HL 5 Jul 2006

Preliminary Report of Risk – No Duty of Care

The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a claim in negligence. The claimant appealed summary judgment against him.
Held: The appeal failed. ‘the existence of a relevant duty of care aside, one of the other formidable difficulties in the claimant’s path would be to show that it was negligent of BGS, in the context of a report which did not purport to be a certificate of the potability of drinking water, not to have questioned the current orthodoxy that it was unnecessary to test for arsenic.’ and ‘if ever there were a case which is bound to fall at the proximity hurdle this surely is it. Whatever is required to constitute a sufficient proximity to support a duty of care – and I acknowledge the imprecision of the concept and the many criticisms it has attracted down the years-it is not to be found on any possible view of the facts here.’
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance
[2006] UKHL 33, Times 07-Jul-2006, [2006] 4 All ER 490
Bailii
England and Wales
Citing:
Appeal from – Binod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Cited – Le Lievre v Gould CA 6-Feb-1893
Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Perrett v Collins, Underwood PFA (Ulair) Limited (T/a Popular Flying Association) CA 22-May-1998
The plaintiff was a passenger in an aircraft which crashed, and there was a preliminary issue as to the liability to him of those who certified that the aircraft was fit to fly. The propeller was mismatched to the gearbox.
Held: A certifying . .
Cited – Candler v Crane Christmas and Co CA 15-Dec-1950
Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – Brooks v Commissioner of Police for the Metropolis and others CA 26-Mar-2002
The claimant was with Stephen Lawrence when he was murdered by a gang of white youths. He said that the police treatment of him exacerbated the post traumatic stress he suffered.
Held: His claim failed. The allegations against the police might . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Clay v AJ Crump and Sons Ltd CA 1964
An architect, a demolition contractor and a building contractor were each held liable to an employee of building contractors for the collapse of a wall which, with the architect’s approval, demolition contractors had left standing.
Held: As . .
Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Michael Alexander Watson v British Boxing Board of Control Ltd, World Boxing Organisation Incorporated CA 19-Dec-2000
The claimant was seriously injured in a professional boxing match governed by rules established by the defendant’s rules. Ringside medical facilities were available, but did not provide immediate resuscitation. By the time he received resuscitation . .

Cited by:
Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.242980

The Manchester Ship Canal Company Ltd v United Utilities Water Plc: ChD 14 Feb 2012

The claimant canal owners challenged the use of outfalls by the respondent sewerage plant operator to discharge unpolluted surface water into their canals. The defendants now sought summary dismissal of the claims saying they were bound to fail under the 1989 Act.
Newey J
[2012] EWHC 232 (Ch)
Bailii
Water Act 1989
England and Wales
Cited by:
At first instance – The Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc SC 2-Jul-2014
The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.451215

Weir and Another v East of Scotland Water Authority: SCS 23 Nov 2000

The claimants sought damages for personal injury saying that the defendant had supplied unwholesome water.
Held: Although the water authority was under a statutory duty to supply wholesome water, it was not a duty that was owed to a defined limited class of the public. The duty was accordingly enforceable in various ways, but not by a private right of action.
Lord McCluskey
[2000] ScotCS 292, 2001 SLT 1205
Bailii
Scotland
Cited by:
Cited – Morrison Sports Ltd and Others v Scottish Power SC 28-Jul-2010
A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2021; Ref: scu.164032

EE Ltd and Hutchison 3G UK Ltd v Stephenson and AP Wireless II (UK) Ltd: UTLC 14 Jul 2021

Electronic Communications Code – Jurisdiction

Jurisdiction – termination and new agreement or modification of subsisting agreement – whether operator must plead site specific reason for new agreement – whether applicant can claim alternative relief not preceded by notice proposing change
[2021] UKUT 167 (LC)
Bailii
England and Wales

Updated: 05 August 2021; Ref: scu.666467

Slovenske Elektrarne (Common Rules for The Internal Market In Electricity – Judgment) : ECJ 12 Dec 2019

Reference for a preliminary ruling – Admissibility – Common rules for the internal market in electricity – Directive 2009/72/EC – Scope – Article 3 – Objectives – Principle of non-discrimination – Special levy on the revenue of entities that are holders of an authorisation to carry on activity in regulated sectors – Electricity sector)
ECLI:EU:C:2019:1068, [2019] EUECJ C-376/18
Bailii
European

Updated: 18 July 2021; Ref: scu.665520

Sanresa (Judgment): ECJ 8 Jul 2021

Reference for a preliminary ruling – Public contracts – Award of a public contract for waste treatment services – Directive 2014/24 / EU – Articles 58 and 70 – Qualification of the obligation for the operator to hold written consent prerequisite for cross-border waste shipments – Contract performance condition
C-295/20, [2021] EUECJ C-295/20, ECLI: EU: C: 2021: 556
Bailii
European

Updated: 18 July 2021; Ref: scu.664381

PGNIG Supply and Trading v Commission (Judgment): ECJ 4 Dec 2019

Appeal – Internal market in natural gas – Directive 2009/73 / EC – Article 32 – Access by third parties – Article 41, paragraphs 6, 8 and 10 – Tariff rules – Article 36 – Request for exemption – Terms of operation of the OPAL gas pipeline – National regulatory authority – Derogation decision – Request for modification – Decision of the European Commission – Action for annulment – Article 263, fourth paragraph, TFEU – Admissibility – Decision not directly concerning the applicant
ECLI:EU:C:2019:1042, [2019] EUECJ C-117/18P
Bailii
European

Updated: 16 July 2021; Ref: scu.665510

TV Play Baltic (Electronic Communications Networks and Services – Judgment): ECJ 11 Dec 2019

Reference for a preliminary ruling – Electronic communications networks and services – Directive 2002/21/EC (Framework Directive) – Article 2(m) – Provision of an electronic communications network – Concept – Directive 2002/22/EC (Universal Service Directive) – Article 31(1) – ‘Must carry’ obligation to broadcast specified radio and television channels – Operator offering a package of channels via satellite – Reasonable ‘must carry’ obligations – Conditions – Article 56 TFEU – Proportionality
[2019] WLR(D) 672, [2020] 4 WLR 12, ECLI:EU:C:2019:1063, [2020] 2 CMLR 14, [2019] EUECJ C-87/19
WLRD, Bailii
European

Updated: 13 July 2021; Ref: scu.665528

Welford and Others v Edf Energy Networks (Lpn) Plc: LT 25 Nov 2008

LT COMPENSATION – electricity – underground cables – land with planning permission for waste transfer station – statutory wayleaves for retention – disturbance claim for loss of profits -how lost profits to be assessed – interest on compensation – basis for this – delay – simple or compound interest
[2008] EWLands LCA – 30 – 2004
Bailii
England and Wales

Updated: 26 March 2021; Ref: scu.278640