Water in UK Law

A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.

I conclude that every abstraction of water by the plaintiff from Mill Pond after 30th June 1965 was illegal. It follows, in my judgment, that the plaintiff cannot rely on any abstraction of water carried out after 30th June 1965 in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity. The 1963 Act, however, does not contain any provision which destroys an easement already acquired.

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.

Part I of the Act makes provision for the office of Director General of Water Services. Commercial companies cannot be expected to take up appointments as sewerage undertakers unless there is a prospect of obtaining a reasonable rate of return on their invested capital. The Director is also required to protect the interests of customers of sewerage undertakers in respect of sewerage undertakers' drainage charges and in other respects.

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.

Indeed, I would include the simple preposition "for" as one of the possible meanings. Thus, even if perchance the ultimately correct analysis of the agreement were to be found not in agency, but, for instance, in the concept of assignment (if, indeed, the statutory claims of water undertakers on their customers can be assigned), it would seem to me that the arrangements still amounted to a collection and recovery of water charges "on behalf of" the water undertaker.

In circumstances where it can be shown that TW are charging by reference to a service which they have not, in fact, provided TW are in my judgment acting beyond their power. Section 142(1)(b) limits an undertaker's right to demand and recover charges from those to whom the undertaker has provided services. The Act does not permit an undertaker to charge a person to whom he provides no service or a lesser service than that for which it charges.