Mr Sydney Bell and Another v Northumbrian Water Ltd

JurisdictionEngland & Wales
JudgeHH Judge Saffman
Judgment Date05 April 2016
Neutral Citation[2016] EWHC 133 (TCC)
CourtQueen's Bench Division (Technology and Construction Court)
Date05 April 2016
Docket NumberCase No: B50LS695

2016 EWHC 133 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION DIVISION

LEEDS DISTRICT REGISTRY

TECHNOLOGY AND CONSTRUCTION COURT

The Court House

Oxford Row

Leeds LS1 3BG

Before:

His Honour Judge Saffman sitting as a Judge of the High Court

Case No: B50LS695

Between:
Mr Sydney Bell
Mrs Angela Bell
Claimants
and
(1) Northumbrian Water Limited
Defendant

Mr John Collins pro bono for the Claimant

Mr James Medd (instructed by DAC Beachcroft Claims)) for the Defendant

Hearing dates: 19, 20, 21 and 22 January 2016

Date draft circulated to the Parties: 15 February 2016

Date handed down: 5 April 2016

Introduction

1

The Claimants, Sydney and Angela Bell own and reside at Dene Lodge, Elmfield Terrace, Hampeth, Northumberland. To the east of their home and outside the boundary of their land there runs a small stream or burn called Ogle Letch. It lies at the bottom of a fairly steep slope. The material of which the slope, and indeed the whole area, is comprised is Glacial Till. A layman would recognise it as clay. It is common ground that the slope is unstable and there is slippage of material from it into the burn.

2

This is a major concern to the Claimants. They contend the slippage has already removed support from their garden with the result that it has started to slope towards the burn and they fear that eventually, as more landslip occurs, not only their garden but their home itself will be deprived of the support it now enjoys from the land upon which it is sits and it will itself subside into the burn.

3

In about 1926 a combined sewerage pipe was constructed from a sewage treatment works adjacent to a colliery downstream of Dene Lodge (and broadly to the south of it) to a row of miners' houses on Beacon Road, upstream of Dene Lodge and broadly to its north. A combined sewer is one that conveys both foul water and rainwater.

4

Before significant lengths of this sewer were abandoned as a result of diversion works undertaken by the Defendant in 2010 it (or plastic pipes replacing or bypassing part of it) served the Beacon Road houses and, the Claimants contend, a further row of miners' houses called Elmfield Terrace. This latter row of houses lies just to the south of Dene Lodge and is separated from it only by a small access road.

5

In fact the Defendant does not accept that sewage from the houses on Elmfield Terrace discharged directly into the sewer serving Beacon Road. It contends that there was a separate public sewer that served the Elmfield Terrace properties and transported their sewerage to the treatment works. In his opening note, Mr James Medd, counsel for the Defendant, referred to the sewerage pipe that served the Beacon Road properties as "The Pipe" and that serving Elmfield Terrace as the "Elmfield Terrace Sewer". There is thus a fundamental difference of view between the parties. The Claimant asserts that there is only one sewer running from the Beacon Road houses to the treatment works and into which the sewerage from Elmfield Terrace discharges, the Defendant asserts that there are 2 separate sewers.

6

Dene Lodge was constructed as a detached bungalow in the early 1980s, well over half a century after the construction of the terraced houses on Elmfield Terrace and Beacon Road. At the time of the construction of Dene Lodge a sewerage connection was made from the home into the pipe from Beacon Road rather than the Elmfield Terrace Sewer 1.

7

An extension was built to Dene Lodge in the mid 1990s. Both the original house and the extension sit on the firm clay or Glacial Till characteristic of this area of the country. There are also a couple of other structures used by Mr Bell close to a point where the slope drops down to the burn. One is called Syd's Wood Garage which has specifically featured in the evidence.

8

It is not in dispute that, by virtue of s179(1) Water Industries Act 1991, such sewerage pipes as there were, whether it be 1 or 2 now vest in the Defendant and that pursuant to s94(1) of the Act the Defendant is under a statutory duty to maintain the pipe(s) to ensure that the area over which it has responsibility as statutory undertaker is effectively drained and sewerage is effectually dealt with.

9

Mr John Collins of counsel represents the Claimants. He asserts on their behalf that the cause of the collapse of the slope is the escape into the slope immediately to the east of Dene Lodge of sewage/water from the Pipe (or what remains of the Pipe following its abandonment in 2010 as a result of the diversion works I have referred to above) and from subsurface fluid that has been conveyed along the trench in which the Pipe was originally constructed. The trench itself, it is contended forms a channel 2 by which subsurface fluid is directed into the slope abutting the Claimants' property. The result is that the slope abutting the Claimants' property has become saturated. This has in turn reduced the shear strength of the clay and thus the stability of the slope. It is contended that the reduced shear strength caused by saturation due to the presence of the Pipe and the trench has caused a series of rotational shears and that, unless something is done, more will follow further threatening the Claimants' garden and ultimately their bungalow.

10

The contention therefore is that the instability of the slope is the fault of the Defendant in not maintaining its pipes and in failing to have an adequate system in place to recognise failure of the pipe and failing to rectify problems when they occur. The Claimant contends that the Defendant is accordingly liable for the cost of stabilising the slope and compensating them for the losses they have suffered as a result of the landslips that have occurred so far as a result of that instability.

11

As Mr Collins points out in his closing submissions, although in the Particulars of Claim the action is founded upon nuisance and/or negligence, it is in reality a claim in nuisance. It is premised on the basis that the Defendant has caused subsidence to land adjoining that of the Claimant and that subsidence has in turn caused the subsidence of the Claimants' land and is likely to cause yet further subsidence to their land. The subsidence has resulted in the withdrawal of the support of the Claimants' land to which the Claimants are entitled. It is contended that the subsidence is the result of the negligent failure of the Defendant to take reasonable precautions to prevent it.

12

Mr Collins recognises that he is faced with the additional complication that the claim of the Claimant is one step removed from the usual nuisance scenario.

Usually, in an action based on nuisance caused by the undermining of support for the claimant's land, the defendant will be accused of causing subsidence directly to the claimant's land. Here the subsidence alleged is actually to land not in the ownership of the Claimants. The claim is based on the knock on effect of the subsidence allegedly caused by the Defendant to the slope which is in the ownership of a third party
13

In its defence and indeed in Mr Medd's skeleton argument, it is clear that the Defendant takes a limitation point arguing that at least a major part of the slope failure occurred prior to 22 August 2007. Proceedings were instituted in December 2013 but there was a standstill agreement which protected the Claimant from a limitation defence for the period from 22 August 2007.

14

Furthermore, it is argued by the Defendant first, that the Claimants have no private law right of action against it for a breach of its statutory duty but that secondly, even if they do then there has been no negligent failure on the part of the Defendant in its management of the pipe either in terms of its maintenance or in terms of remedial works. Mr Medd argues that, albeit this is a claim in nuisance, the usual strict liability for nuisance does not apply. He cites Marcic v Thames Water Utilities Ltd (2003) UKHL 66, as authority for his propositions. He argues that that case established first, that a statutory sewerage undertaker is not liable at common law for nuisance where liability would be inconsistent with a statutory scheme for enforcement and secondly, that even if a statutory undertaker is liable in nuisance for its activities undertaken pursuant to statute (as here pursuant to s94 of the Water Industry Act 1991) then liability would not arise on a strict liability basis but only if fault is established. Furthermore he argues that remedial works were undertaken by reputable and competent subcontractors for whom the Defendant is not vicariously liable and he argues still further, that in any event nothing emanating from the pipe or the trench in which it sits (or once sat) has caused the slope at the bottom of the Claimants' garden to fail. This latter point is Mr Medd's causation defence and it is on this issue that the case and the expert evidence has been predominantly focussed.

15

This is not to say that the Defendant does not accept that the sewerage pipe was in poor condition and that from 2001 there was from time to time leakage from it. It accepts that running repairs have been carried out on the pipe from 2001 on a fairly regular basis. In 2008 a fairly large scale (and not wholly successful) temporary repair was undertaken pending a permanent solution. That solution, undertaken in 2010, was the abandonment of part of the pipe and the rerouting of sewage under the roadway to the west of Dene Lodge and Elmfield Terrace. The point made by the Defendant is that it was movement in the slope that caused the pipe to fail and leakage to occur, not the other way around. Further, that in any event the minimal leakage into the ground that was caused by pipe failure was not a cause of the underlying instability of the slope. That has been caused by other factors in particular, the presence in the slope of rainwater...

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