British Waterways Board v Severn Trent Water Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Arden |
| Judgment Date | 13 October 1999 |
| Judgment citation (vLex) | [1999] EWHC J1013-7 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CH 1997 B 510 |
| Date | 13 October 1999 |
[1999] EWHC J1013-7
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Honourable Mrs Justice Arden
CH 1997 B 510
Mr Charles Flint QC and Mr Michael Fordham, instructed by Eversheds, appeared for the Claimant.
Mr Michael Beloff QC and Professor Richard Macrory, instructed by Herbert Smith, appeared for the Defendant.
Hearing dates: 7, 8 & 30 July 1999
I certify that the attached text records my Judgment in this matter handed down on Wednesday, 13 October 1999 and direct that no further record or transcript of this Judgment need be made.
The Hon Mrs Justice Arden DBE
13 October 1999
(Date)
INDEX
| Introduction | 1 |
| The Water Industry | 3 |
| Critical provisions of the Water Industry Act 1991 | 5 |
| An implied power? | 9 |
| BWB's main argument | 10 |
| The Durrant case | 100 |
| Statutory history: | 14 |
| (a) General duty to provide drainage | 144 |
| (b) Pipe-laying power | 15 |
| (c) Foul water proviso | 154 |
| (d) The discharge power | 16 |
| (e) Compensation in respect of sewerage works | 16 |
| Conclusions from the statutory history | 187 |
| Further issues: | 19 |
| Further issue 1: The environmental controls issue | 19 |
| Further Issue 2: The implied rights issue | 221 |
| Further Issue 3: The limitations issue | 243 |
| Conclusions on the issue whether section 159 confers an implied power on a sewerage undertaker to discharge surface water from drainage pipes into BWB's canal | 265 |
| Order | 287 |
| Consequential directions | 27 |
Introduction
This is a test case which raises the question whether on the true construction of the Water Industry Act 1991 ("the WI Act") Severn Trent Water Limited ("STW") has a general right to discharge surface water from its sewers into canals belonging to British Waterways Board ("BWB") without its consent. The particular case chosen concerns the Stourbridge Canal, now vested in BWB, which was constructed between 1776 and 1779 under the Stourbridge Canal Act 1776. In 1973 a private developer approached BWB to seek consent to lay a drainage pipe carrying surface water from the roofs and roads of a new development known as the Poplars Estate at Brierley Hill, and discharging into the canal. BWB gave consent on the terms of its standard licence at an annual rent of £29. In 1976, STW adopted the pipe. STW and BWB failed to reach agreement as to the basis on which STW could be permitted to discharge water into the canal. In consequence, BWB gave six months' notice to determine the licence on 26 September 1996. It is agreed that the pipe is a "relevant pipe" for the purposes of section 159 of the WI Act.
STW has no express statutory power in its capacity as a sewerage undertaker to discharge surface water into any canal and the central question in this case is whether STW has an implied power to discharge water into the canal by virtue of section 159 of the WI Act. STW contends that it is entitled to discharge water whenever it wishes and in whatever volume it wishes into BWB's canals, providing that the water is not foul, damaging or injurious and that BWB cannot impose any condition or charge, including a charge to offset its costs. BWB contends that, if STW is right on this, it may follow that STW can lay a pipe across private land to drain water into a private pond. This would of course be subject to its duty to pay compensation to the owner of the land where it lays pipes, but it would have no duty to pay compensation to the owner of the pond. Had the same action been taken by a water undertaker, the owner of the pond would be entitled to compensation. And what applies to STW is likely to apply to other sewerage undertakers. If BWB is right and no such implied power exists, sewerage undertakers have no power of any kind to discharge surface water into its canals, and sewerage undertakers will have to acquire rights by prescription or compulsory purchase or negotiate with the appropriate person to obtain a licence to discharge water into their watercourse or (as might be done in this case, albeit with added expense) discharge the water into a river. Accordingly, the point raised by this case is one of potentially wide interest and significance not only to the parties in this case, but also to the industry as a whole and indeed to anyone whose property may be affected by the activities of a sewerage undertaker.
I should add that when the application was issued a number of other claims for declarations were included. These turned on the provisions of the relevant local legislation and the terms of the standard licence to which I have already referred. These claims have not been argued at this hearing.
STW is a water undertaker and a sewerage undertaker for the purposes of the WI Act. BWB is a navigation authority as defined in that Act, that is it is a person who has a statutory duty or power to maintain a canal or other inland waterway. Sewerage undertakers, and water undertakers, have of course different statutory functions. Water undertakers are required to maintain and develop a system of water supply (section 37(1)). Sewerage undertakers must provide a sewerage system and make provision for emptying sewers (section 94(1)). As regards powers, both types of undertakers have an express pipe-laying power, that is power to lay and maintain pipes in streets (section 158) and in land other than streets (section 159). This duty includes an express duty to pay compensation primarily for the diminution in the value of land caused by the exercise of this power. But in other relevant respects the statutory scheme diverges. Water undertakers, but not sewerage undertakers, are given an express "discharge power", that is, a power, when exercising other powers, including the power under section 159, to cause the water in any relevant pipe to be discharged into any available watercourse (section 165(1)). This power is subject (for larger pipes) to the consent of the relevant navigation authority, whether to a particular discharge or those of a particular description (section 166(5)). Consent cannot be unreasonably withheld and can be made subject to (reasonable) conditions (section 166(5)). Moreover, a water undertaker must pay compensation in relation to loss and damage arising from the exercise of this power (loss and damage) differs from the primary basis of compensation for the pipe-laying power (depreciation in the value of land) (schedule 12, paragraph 2).
The water industry
In preparation for the in-depth study of the legislative history which Counsels' submissions involved, it will assist if I give a very short introduction to the relevant history of the water industry in England and Wales.
In the nineteenth century the function of providing sewers and sewerage disposal was often carried out by local authorities and the function of water supply was carried out by statutory water companies. The right to build canals had been given to companies in the private sector. Railways and canals were nationalised and vested in the British Transport Commission in 1947 (Transport Act 1947, section 12 and third schedule). As from 1 April 1964, the Stourbridge Canal vested in BWB in succession to the British Transport Commission pursuant to the Transport Act 1962, section 31(5)(a). By virtue of sections 105 and 107 of, and schedule 12 to, the Transport Act 1968, BWB has a statutory duty to maintain inland waterways. It has a statutory duty to act commercially in specified cases (Transport Act 1968, section 134(2)).
In 1973 the functions of providing sewers and a water supply were removed from local authorities and vested in regional water authorities (Water Act 1973). In 1989 the water industry was restructured in preparation for privatisation (Water Act 1989). As part of this process new environmental controls and public health requirements were introduced. At that same time the statutory function of providing water was separated from that of providing sewerage services and the new National Rivers Authority (NRA) was established to control pollution and other purposes including water resource management. Accordingly some of the functions which had previously been exercised by the water authorities were transferred to the NRA. Sewerage functions were set out in schedule 8 to the 1989 Act. In STW's case, both the sewerage function and the water function in the locality were vested in it. In addition the 1989 Act created the office of Director General of Water Services (section 5). His principal functions are in connection with the enforcement of the statutory duties of water and sewerage undertakers. The functions of the NRA are now vested in the Environment Agency pursuant to the Environment Act 1995.
The notes in Current Law Statutes Annotated to the Water Act 1989 (helpfully annotated by junior Counsel for STW in these proceedings) calls the 1989 Act "in terms of sheer bulk, one of the lengthiest pieces of legislation passed in recent years" (page 15–8). One of the effects of the 1989 Act was to establish in schedule 19 a single code of statutory powers "with respect to the laying and maintenance of pipes etc" applying to the NRA, water undertakers and sewerage undertakers. (Annotations page 15–224).
The Water Act 1989 did not make it unnecessary to continue to refer to other legislation and the complexity of the statute book in this field must have made it a prime candidates for consolidation. Indeed the relevant legislation was consolidated in a number of Acts in 1991, including the WI Act, and the Water Resources Act 1991 (the WR Act).
The WI Act consolidates legislation from a number of earlier Acts, including parts of the Water Act 1989 and enactments relating to public health. The water industry is inevitably...
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