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
 1 WLR 2576,  UKSC 40,  4 All ER 40,  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
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.
Updated: 09 November 2021; Ref: scu.533881