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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Utilities - From: 1980 To: 1984

This page lists 3 cases, and was prepared on 02 April 2018.

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


 
Cargill v Gotts [1981] 1 WLR 441; [1981] CLY 742
1981
CA
Templeman LJ, Lawton LJ, Brandon LJ
Land, Utilities
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: "The Court will not recognise an easement established by illegal activity". The court considered the effect of the change in extent of usage. The dominant owner had obtained by prescription a right to extract water from a pond on the servient land for the purpose of watering his animals on the dominant land. While remaining agricultural in nature, the use of the dominant land subsequently changed to arable, and there was a resultant substantial increase in the water taken from the servient pond, because the water was now used for crop-spraying. This was held to be a permissible enjoyment of the easement. "Water used for crop spraying is just as much used for agricultural purposes as water used for bullocks and the fact that more water may be required for crop spraying than for watering bullocks is not sufficient to destroy or alter the nature of the right asserted or the easement acquired." and "In my judgment, it is a mistake to concentrate on gallonage and detailed user."
Water Resources Act 1963
1 Citers



 
 Regina v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board; CA 1982 - [1982] QB 458; [1981] 3 WLR 967; [1981] 3 All ER 826
 
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