British Waterways Board v Severn Trent Water Ltd

JurisdictionEngland & Wales
JudgePETER GIBSON L.J.,KEENE L.J.
Judgment Date02 March 2001
Neutral Citation[2001] EWCA Civ 276
Docket NumberCase No: CHANF/1999/1100/A3
CourtCourt of Appeal (Civil Division)
Date02 March 2001

[2001] EWCA Civ 276

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL CIVIL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

CHANCERY DIVISION

Arden J.

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Peter Gibson

Lord Justice Chadwick and

Lord Justice Keene

Case No: CHANF/1999/1100/A3

British Waterways Board
Appellant
and
Severn Trent Water Ltd.
Respondent

Mr. Charles Flint Q.C. and Mr. Michael Fordham (instructed by Messrs Eversheds of Leeds for the Appellant)

Mr. Michael Beloff Q.C. and Professor Richard Macrory (instructed by Messrs Herbert Smith of London for the Respondent)

PETER GIBSON L.J.
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 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. 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. In this test case the sewerage undertaker is Severn Trent Water Ltd. ("STW") which discharged water from its sewers into the Stourbridge Canal. The owner of that canal is the British Waterways Board ("the BWB") which appeals to this court with the leave of the judge.

2

The factual background to this case can be stated very shortly. The Stourbridge Canal was built between 1776 and 1779 pursuant to a private Act of Parliament, the Stourbridge Canal Act 1776. Rights over the canal have been transferred over time to the BWB, latterly under the Transport Act 196The BWB was created under s. 1 of that Act. It is a navigation authority.

3

In 1972 planning provision was granted for the construction of an extension to an existing housing estate known as the Poplars at Brierley Hill in the West Midlands. As part of that development, the developers sought permission from the BWB for the discharge of surface water from the estate via a 9-inch discharge pipe into the canal. On 22 April 1976 a licence was granted by BWB to STW's statutory predecessor as sewerage undertaker subject to an annual charge of £29. The licence was terminable on 6 months' notice. By clause 2 (G) the licensee covenanted with BWB that immediately on the termination of the licence it would remove the pipe and reinstate BWB's property.

4

On 26 September 1996 BWB gave notice of the termination of the licence on 31 March 1997. STW claimed that it did not need BWB's consent to discharge water into the canal. BWB claimed that STW did need that consent and wanted a higher charge from STW. The parties were unable to reach agreement.

5

On 21 January 1997 BWB commenced these proceedings. By its Originating Summons BWB sought a number of declarations of which in the event the material declaration was that upon the true construction of s. 159 Water Industry Act 1991 ("the 1991 Act") STW as a sewerage authority had no power or right thereunder to discharge the contents of any sewer or disposal main into any canal or waterway vested in BWB. Before the judge argument was confined to the single issue whether that declaration should be granted. The judge, finding in favour of STW, did not grant BWB the declaration which it sought but declared that STW as a sewerage undertaker had an implied power under s. 159 to discharge surface water from the Poplars Estate into the canal via the pipe the subject of the licence and that accordingly STW was not then and was not on 31 March 1997 when the licence was terminated obliged to remove its pipe or reinstate BWB's property.

6

The 1991 Act is a consolidation Act (with amendments, not material to this case, to give effect to recommendations of the Law Commission). As has recently been reaffirmed by the House of Lords in R. v Environment Secretary, Ex p. Spath Holme Ltd. [2001] 2 WLR 15, the court when construing a consolidation Act will normally seek to ascertain the intention of Parliament by looking only to the way that intention was expressed in the words used in that Act and will not construe that Act by reference to the repealed statutes which the enactment has consolidated. The good sense of that rule is obvious: there would be little benefit in consolidation if the ascertainment of the intention of Parliament required recourse to the antecedent legislation in the hope that that would provide a sufficiently clear indication of the meaning of the statutory language in the consolidating Act. But that rule is subject to exceptions. If there is an ambiguity in the consolidation Act or if the court finds itself unable to interpret a provision in that Act in the social and factual context which originally led to its enactment, then it will be permissible to look at the superseded legislation for such help as it may give (see p. 28 per Lord Bingham, with whom on this point Lord Nicholls and Lord Cooke agreed). The starting point is the consolidation Act itself.

7

The 1991 Act recognises two relevant types of undertakers: a water undertaker and a sewerage undertaker. Such undertakers are companies which are appointed for any specified area (s. 6 (1)). A company may be both a water undertaker and a sewerage undertaker, and STW is such a company, but its functions in relation to each capacity are spelled out in the 1991 Act in elaborate detail.

8

The general duties of water undertakers are set out in s. 37 and other provisions of Part III of the 1991 Act. The general duties of sewerage undertakers are set out in s. 94 and other provisions of Part IV of the 1991 Act. S. 94 (1) reads:

" It shall be the duty of every sewerage undertaker -

(a)

to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained; and

(b)

to make provision for the emptying of those sewers and such provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers."

9

S. 94 (2) imposes a duty on the sewerage undertaker to have regard to its existing and future obligations to allow for the discharge of trade effluent into public sewers and to the need to provide for the disposal of that effluent.

10

S. 98 imposes a duty on a sewerage undertaker to provide a public sewer to be used for the drainage for domestic purposes of premises in a particular locality in its area if so required by, amongst others, the owner or occupier of any premises in that locality.

11

S. 117 (5) and (6) is in this form:

"(5) Nothing in sections 102 to 109 above or in sections 111 to 116 above shall be construed as authorising a sewerage undertaker to construct or use any public or other sewer, or any drain or outfall -

(a) .

(b) for the purpose of conveying foul water into any

natural or artificial stream, watercourse, canal, pond or

lake, without the water having been so treated as not to

affect prejudicially the purity or quality of the water in

the stream, watercourse, canal, pond or lake.

(6) A sewerage undertaker shall so carry out its functions under sections 102 to 105, 112, 115 and 116 above as not to create a nuisance."

Ss. 102 to 109 and 111 to 116 deal with the adoption of sewers and sewage disposal works, the communication of drains and private sewers with public sewers, other connections with public sewers and restrictions on the use of public sewers.

12

Part VI relates to powers and works of undertakers. S. 155 provides that a relevant undertaker (which means a water or sewerage undertaker) may be authorised by the Secretary of State to purchase compulsorily any land which is required by the undertaker for the purposes of or in connection with the carrying out of its functions. This includes the acquisition of interests in and rights over land by the creation of new interests and rights.

13

S. 158 confers on any relevant undertaker for the purpose of carrying out its functions power to lay a relevant pipe in, under or over any street and to keep that pipe there and certain ancillary powers. References to a relevant pipe are to be construed in this way:

"(a) in relation to a water undertaker, as references to a water main (including a trunk main), resource main, discharge pipe or service pipe; and

(b) in relation to a sewerage undertaker, as references to any sewer or disposal main"(s. 158 (7).

14

S. 159 confers similar powers in relation to pipes in other land.

"(1) . every relevant undertaker shall, for the purpose of carrying out its functions, have power -

(a) to lay a relevant pipe (whether above or below the

surface) in any land which is not in, under or over a

street and to keep that pipe there;

(b) to inspect, maintain, adjust, repair or alter any

relevant pipe which is in any such land;

(c) to carry out any works requisite for, or incidental to,

the purposes of any works falling within paragraph (a)

or (b) above."

References to maintaining or altering a pipe are further elaborated on in s. 192 (2), and to laying a pipe in s. 219 (2). By s. 159 (4) reasonable notice must be given to the owner and occupier of the land where the power is to be exercised.

15

S. 165 confers powers on water undertakers (but not sewerage undertakers) to discharge water. By s. 165 (1) where any water undertaker is exercising or about to exercise any power conferred by certain specified sections including ss....

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