Sewage in UK Law

This liability for nuisance has been applied in the past to sewage and drainage cases in this way: When a local authority take over or construct a sewage and drainage system which is adequate at the time to dispose of the sewage and surface water for their district, but which subsequently becomes inadequate owing to increased building which they cannot control, and for which they have no responsibility, they are not guilty of the ensuing nuisance.They obviously do not create it, nor do they continue it merely by doing nothing to enlarge or improve the system.

In my view the cause of action in nuisance asserted by Mr Marcic is inconsistent with the statutory scheme. Mr Marcic's claim is expressed in various ways but in practical terms it always comes down to this: Thames Water ought to build more sewers. This is the only way Thames Water can prevent sewer flooding of Mr Marcic's property. This is the only way because it is not suggested that Thames Water failed to operate its existing sewage system properly by not cleaning or maintaining it.

The existence of a parallel common law right, whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. It would effectively supplant the regulatory role the Director was intended to discharge when questions of sewer flooding arise.

"Upon trade premises one would expect there to be a source of effluent that is not related to the trading or industrial processes carried on there. The establishment will have its domestic side as well as its truly business side. The words 'wholly or in part produced in the course of any trade' are almost wide enough to include anything which comes from the premises used by people working there. 'In the course of is a phrase often considered by lawyers and has been shown to have a wide embrace.

However, to my mind there is an important distinction between the present case and Lingke. For the moment, I set to one side the claims based on the blocking of the pipe and I limit my consideration to the claim based on the refusal to permit connection. In Lingke the alternative cause of action referred to was a free-standing cause of action in nuisance which was in no sense dependent on any provision of the statute.

Whether or not that premise could have been supported in the context of a public authority charged with functions imposed in the interests of public health, it cannot be supported, as it seems to me, in the context of legislation enacted following a decision to privatise the water industry.

Under the concluding words of section 18(8) any common law claim will lie which does not involve the averment of violation of the Act. Thames have not sought to establish that the flooding of Mr Marcic's property was the inevitable consequence of the exercise of their statutory duties or powers so that they have not been negligent in the special meaning of that word in Allen. As that case makes plain, the burden of establishing this defence falls on Thames.