Legge (George) & Son Ltd v Wenlock Corporation
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Russell of Killowen,Lord Macmillan,Lord Maugham |
| Judgment Date | 22 December 1937 |
| Judgment citation (vLex) | [1937] UKHL J1222-2 |
| Court | House of Lords |
[1937] UKHL J1222-2
House of Lords
Lord Atkin
Lord Russell of Killowen
Lord Macmillan
Lord Maugham
Lord Roche
My Lords,
The Opinion which I am about to read is that of my noble and learned friend, Lord Macmillan, in which I concur.
My Lords,
I am in agreement with the Opinion of my noble and learned friend, Lord Macmillan, and also with the Opinion of my noble and learned friend, Lord Maugham, which I am about to read.
My Lords,
The problem for solution in this appeal is presented to your Lordships in the unusual shape of a general question of law which emerged and was formulated for separate decision in the course of the proceedings between the parties. There may have been some justification for the adoption of this exceptional course in the special circumstances about to be narrated, but it is to be hoped that it will not become a frequent practice, for it may readily lead to embarrassment, as indeed your Lordships have experienced during the discussion of the case. The question arose in this way. The Plaintiffs (now the Appellants), who are the owners of certain lands situated in the Borough of Wenlock in Shropshire, by writ dated 26th February, 1932, instituted proceedings against the Defendants, the Corporation of Wenlock, as the sanitary authority of the borough. In their claim the Plaintiffs inter alia seek a declaration that a culvert running through their lands and constructed by one of their predecessors in title "is a sewer vested in and repairable by the Defendants." They also claim repayment of a considerable sum of money expended by them in repairing the culvert, which had broken down and caused serious flooding in June, 1930.
The action came on for trial before Crossman J., in July, 1936, and after the Plaintiffs had called part of their evidence the learned Judge ordered the following question of law to be set down for argument before him:—
"Whether the change of status from a natural stream to a sewer within the meaning of the Public Health Act, 1875, claimed in paragraph 5 ( c) of the Reply and Defence to Counter-claim to have taken place is in law possible."
In paragraph 5 ( c), referred to in the question, the Plaintiffs alleged that at the time when the culvert was constructed by their predecessor, which was before 1882, the channel "was a natural stream or watercourse not vested in or repairable by the then local authority, the Madeley Local Board. The amount of sewage discharged into it at that time was not sufficient to change its status to that of a sewer. That change of status by discharge of sewage took place subsequently, at a time difficult to estimate with exactness but during the 23 years referred to in paragraph 7 of the Defence. Upon that change taking place, the liability to repair the culvert and inspection shafts, the latter being "buildings works materials and things belonging" to the culvert within section 13 of the Public Health Act, 1875, fell upon the Corporation and has at all material times been and is upon the Corporation, and the nuisance annoyance inconvenience loss and damage referred to in the Statement of Claim all arose from the failure of the Corporation to discharge the statutory duty referred to in paragraph 2 of the Statement of Claim," i.e., the duty "to repair all sewers vested in them and to prevent such sewers becoming in such a state as to be a nuisance and to manage such sewers with proper diligence." The reference to a period of 23 years is explained in the following quotation from paragraph 7 of the Defence:
"Certain storm water or surface water drains within the township of Madeley which is situated in the said borough discharge and have at all material dates discharged into the watercourse but the nearest of such drains to the entrance of the said culvert is about 315 yards above the same. Such drains have existed for at least 23 years and all or some of these were made by the local authority of which the Corporation are the successors. The Corporation admit that in the case of about 20 houses sewage therefrom has been and is discharged into such surface water drains but this has been done for upwards of 23 years and the Corporation say that there were and are prescriptive rights vested in the owners of the said houses so discharging sewage to continue so to do and the Corporation could not and cannot prevent such discharge. The Corporation also admit that 44 further houses were erected in the said township between the years 1925 and 1929 pursuant to the Housing Acts and that the sewage from these houses has since then been and is discharged into pre-existing main water surface drains and through such drains or ditches in conjunction with surface water into the watercourse at a point about 315 yards above the mouth of the said culvert."
The foregoing quotations sufficiently indicate the nature of the questions of fact to which the Plaintiffs were addressing their evidence when the investigation was arrested to await the decision of the point of law which had emerged. The learned Judge was no doubt influenced in isolating this point of law by mercy for the parties as it was obvious that if the correct answer to the question were in the negative it would be idle for the parties to spend time and money in investigating the extent to which the culvert had been used for conveying sewage.
Crossman J., holding that the point was not covered by any of the numerous authorities cited to him, decided it in favour of the Plaintiffs and granted a declaration that the change of status claimed to have taken place from a natural stream to a sewer within the meaning of the Public Health Act, 1875, was possible in law. This judgment was reversed by the Court of Appeal, where the view was expressed that the matter was concluded in favour of the Defendants by the authority of the case of Airdrie Magistrates v. Lanark County Council in this House [1910] A.C. 286.
My Lords, the channel in question when the Public Health Act of 1875 was passed was admittedly not a sewer within the meaning of that Act and therefore did not then vest in the local authority under section 13. It was then a natural stream or watercourse within the meaning of section 17, which provided that nothing in the Act should authorise a local authority to make or use any sewer for conveying sewage into any natural stream or watercourse until such sewage had been rendered innocuous to the purity or quality of the water in such stream or watercourse. Equally, when the Rivers Pollution Prevention Act of 1876 was passed, the channel was the channel of a "stream" within the meaning of section 20 of that Act and the stream then became entitled to the protection of section 3, which constitutes it a statutory offence for any person to cause to fall or flow into any stream any solid or liquid sewage matter. The change of legal status (if such there could be) from natural stream to sewer is alleged to have been the result of the discharge of sewage into the stream since 1876. Such discharge of sewage into the stream cannot have been otherwise than in contravention of the Act of 1876 and therefore illegal. Hence arises the question of law as it was more explicitly and precisely reformulated by the parties in the joint case which they presented to this House:—
"Whether it is in law possible for the status of a natural stream to be changed to that of a sewer by the discharge of sewage into it after the coming into operation of the Rivers Pollution Prevention Act, 1876."
The question whether a natural stream can ever in law become a sewer by reason of an artificial change in the character of its flow, apart from any question of illegality, was very fully explored by counsel for the Appellants, and in this connection it has to be remembered that a channel may be a sewer though it may carry no sewage and its contents consist solely of innocuous surface drainage Section 13 of the Public Health Act, 1875, vests not only then existing but future sewers in the local authority and there are several cases where it has been stated to be a question of degree whether a natural stream has become in law a sewer, notably Falconar v. Corporation of South Shields, 1895, II T.L.R. 223, and Newcastle-upon-Tyne Corporation v. Houseman, 1899, 63 J.P. 85. But in these cases the legality of the discharge of sewage into the stream, which it was contended had brought about the change in its legal status, was not in question. They are therefore not in point and it is not necessary for your Lordships to express any opinion as to their soundness. In West Riding of Yorkshire Rivers Board v. Gaunt, 1902, 67 J.P. 183, on the other hand, Lord Alverstone L.C.J., expressly said at p. 185, col. 2:—
"Further, we think that after the passing of the Acts of 1861, 1875 and 1876 the local authority could not merely by the illegal act of discharging sewage into a watercourse make that watercourse a sewer."
It should be explained that the Act of 1861 mentioned by the Lord Chief Justice was the Local Government Act (1858) Amendment Act, 1861, section 4 of which was the precursor of section 17 of the Public Health Act, 1875.
Prima facie it would seem remarkable if it were possible to legalise the pollution of streams by contravening an Act designed to prevent their pollution. In the case of a sewer vested in the local authority adjoining property-owners are entitled to discharge their sewage into it, so that, on this argument, if a natural stream in consequence of illegal pollution becomes in fact sufficiently foul to merit the legal appellation of a sewer and so to vest in the local authority, the further pollution of it ceases to be an offence and becomes a right. When the magistrates of Airdrie and of Coatbridge had the...
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