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British Waterways Board V Severn Trent Water Ltd (CA)

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British Waterways Board V Severn Trent Water Ltd (CA) 25 [2002] Ch British Waterways Board v Severn Trent Water Ltd (CA) A Court of Appeal British Waterways Board v Severn Trent Water Ltd [2001] EWCA Civ Z76 2001 Jan 22, 23; Peter Gibson, Chadwick and Keene LJJ 6 March 2 Water — Sewerage — Surface water — Discharge into canal — Sewerage undertaker having no express statutory power to discharge water in its pipes — Whether power to discharge to be implied — Whether incidental to existing pipe-laying power— Water Industry Act 1991 (c$6), s 159 Q On the true construction of section 159 of the Water Industry Act 19911 a sewerage undertaker has no implied power, incidental to its express powers to lay and maintain pipes under that section, to cause the water in its pipes to be discharged into any available watercourse without any general duty to compensate persons who, in consequence of such discharge, suffer loss or damage (post, paras 43, 71, 75,84-85)- Where, therefore, the plaintiff appealed against the grant of a declaration that the n defendant as a sewerage undertaker had a statutory power to discharge non-foul surface water from the roofs and roads of a new development via a drainage pipe which it had adopted into a canal which vested in the plaintiff as a navigation authority— Held, allowing the appeal, that the defendant did not have an implied power to cause such discharge under section 159 and was obliged to remove the drainage pipe from the plaintiff's property or to reinstate the plaintiff's property (post, paras 45, £ 77,85). Decision of Arden J [2001] Ch 32; [2000] 3 WLR 1; [2000] 1 All ER 347 reversed. The following cases are referred to in the judgments: Allen v Gulf Oil Refining Ltd [1981] AC 1001; [1981] 2 WLR 188; [1981] 1 All ER353,HL(E) F Durrant v Branksome Urban District Council [1897] 2 Ch 291, CA Hesketh v Birmingham Corpn [1924] 1 KB 260, CA Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] iWLR 58; [1953] 1 All ER 179, CA R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349; [2001] 2 WLR 15; [2001] 1 All ER 195, HL(E) The following additional cases were cited in argument: Attorney General v Great Eastern Railway Co (1880) 5 AppCas473, HL(E) Dell v Chesham Urban District Council [1921] 3 KB 427 Farrellv Alexander [1977] AC 59; [1976] 3 WLR 145; [1976] 2 All ER 721, HL(E) Jones v Llanrwst Urban District Council [1911] 1 Ch 393 APPEAL from Arden J H By a summons issued on zi January 1997 the plaintiff, British Waterways Board, sought (1) a declaration that on the true construction of the Stourbridge Canal Act 1776 (16 Geo 3, c z8) any obligation of the company formed by that Act or of any successor of that company including the 1 Water Industry Act 1991, s 159: see post, para 54. 26 British Waterways Board v Severn Trent Water Ltd (CA) [2002] Ch plaintiff, whether or not at its cost, to make or cause to be made such arches, A tunnels, drains or other passages over, under or into the Stourbridge Canal as should be sufficient at all times to convey the water from the lands adjoining or lying near to the canal pursuant to section 52 of that Act was satisfied upon completion of the construction of the canal and in any event on or prior to 25 March 1782 when the Stourbridge Canal Amendment Act 1782 (22 Geo 3, c 14) received the royal assent; (2) a declaration that the g defendant, Severn Trent Water Ltd, was not entitled under the 1776 Act to require the plaintiff to provide any drain in the Stourbridge Canal to drain surface or other water from the Poplars Estate at Brierley Hill (whether the outfall for such drain was located between locks 10 and 11 or elsewhere on the canal); (3) a declaration that the licence dated 22 April 1976 and made between the plaintiff, as licensor, and Severn Trent Water Authority relating to the drainage of surface water from the Poplars Estate would be validly ^ and effectively terminated from 31 March 1997 pursuant to the written notice dated 26 September 1996 given by the plaintiff to the defendant terminating the 1976 licence; and (4) a declaration that upon the true construction of section 159 of the Water Industry Act 1991 the defendant as sewerage authority had no power or right thereunder to discharge the contents of any sewer or disposal main into any canal or other waterway 0 vested in the plaintiff. At the hearing, argument took place only as to declaration (4). On 13 October 1999 Arden J made a declaration that the defendant had an implied power to discharge. By a notice of appeal dated 1 November 1999 and with leave of the judge the plaintiff appealed seeking an order that upon the true construction of section 159 of the Water Industries Act 1991 the defendant had no such implied power and therefore the obligations had arisen. The grounds of appeal were that the judge was wrong in law to construe the 1991 Act as she did in that she failed to take proper account of: (i) the compensation provisions in Schedule 12 to the 1991 Act which indicated that section 159 did not extend to discharges; (ii) section 165 of the 1991 Act, and the difficulty in reconciling with the express discharge power an implied power in section 159; (iii) of the express discharge powers in the Water Resources F Act 1991 and the Highways Act 1980. The judge erred in finding a parallel with Durrant v Branksome Urban District Council [1897] z Ch 291 despite the absence of the "foul water proviso" (originally section 17 of the Public Health Act 1875 (38 & 39 Vict c 59)) and the compensation provision in section 308 of the 1875 Act. In particular she erred in treating the environmental controls in the Water Resources Act 1991 as taking he place Q of the "foul water provisos" and as assuming the existence of the alleged implied power; and in treating section 162 of the Water Act 1989 (and section 181 of the Water Industry Act 1991) as taking the place of the compensation provision, viz section 308 of the 1875 Act. The judge erred as to the effect of consolidation in her analysis of the position under the Water Act 1989 and the Water Industry Act 1991. The judge erred in treating the statutory language as sufficiently clear to give rise to an implied power allowing interference with rights without compensation. Further or alternatively, she erred in concluding that no rights of the plaintiff were being interfered with. The facts are stated in the judgment of Peter Gibson LJ. 27 [2002] Ch British Waterways Board v Severn Trent Water Ltd (CA) Peter Gibson LJ A Charles Flint QC and Michael Fordham for the plaintiff. The defendant does not have a legal right, by virtue of section 159 of the Water Industry Act 1991, to discharge water at whatever frequency and volume it likes into the plaintiff's canals without the plaintiff's consent. [Reference was made to Dell v Chesham Urban District Council [1921] 3 KB 427]. The words of section 159 cannot be interpreted to give a compulsory right to discharge from a pipe, still less an implied power to do so, overriding rights of ownership. Reliance on Durrant v Branksome Urban District Council [1897] 2 Ch 291 to support the right of discharge is misplaced. [Reference was also made to section 94 of the 1991 Act and Attorney General v Great Eastern Railway Co (1880) App Cas 473.] The 1991 Act should be construed without recourse to its antecedents: see Farrell v Alexander [1977] AC 59- C The foul water proviso emphasised in Durrant v Branksome Urban District Council [1897] 2 Ch 291; Jones v Llanrwst Urban District Council [1911] 1 Ch 393; Hesketh v Birmingham Corpn [1924] 1 KB 260 and Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd lI953] Ch 149 was not replaced in 1989 by a new statutory scheme of environmental controls. Rather it was retained but no longer applied to the pipe laying power. Similarly, full compensation rights were retained and not replaced by a complaints mechanism, but could not apply to any implied discharge power. Michael BeloffQC and Richard Macrory for the defendant. The analysis and conclusion of the judge were correct. The power to lay pipes under section 159 of the 1991 Act implies a right to discharge therefrom as necessary. Other authorities require and are given express statutory power E to discharge only because they have no overriding duties concerning drainage. The legislative scheme has ample provision to prevent its abuse. Flint QC replied. Cur adv vult f 2 March. The following judgments were handed down. PETER GIBSON LJ 1 The issue raised by this appeal is of some importance both to the sewage industry and also to owners of canals and other watercourses and, if the sewerage undertaker is right, the owners of other land in which a sewer has been laid. It is whether a sewerage undertaker has the right to discharge C water from its sewers into such canals and watercourses and onto such land or whether it needs the consent of the owners to do so. Arden J [2001] Ch 3 2 held that the sewerage undertaker has the right to discharge such water into canals and watercourses as being implicit in the undertaker's express statutory power to lay and maintain pipes.
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