Radstock Co-operative and Industrial Society Ltd v Norton-Radstock Urban District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE RUSSELL,LORD JUSTICE SACHS |
| Judgment Date | 05 February 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0205-4 |
| Date | 05 February 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0205-4
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Ungoed-Thomas)
Lord Justice Harman
Lord Justice Russell and
Lord Justice Sachs
Mr. DOUGLAS FRANK, Q.C. and Mr. HAROLD PARRISH (instructed by Messrs. Taylor Willcocks & Co., Agents for Messrs. Kent, Rathmell & Young, Radstock) appeared on behalf of the Appellants (Plaintiffs).
Mr. RAYMOND WALTON, Q.C. and Mr. WILLIAM GOODHART (instructed by Messrs Knapp-Fishers, Agents for Messrs. Faulkner, Creswick & Gould, Bath) appeared on behalf of the Respondents (Defendants).
In the years of 1904 to 1907 the defendants or their predecessors the Urban District Council of the district of Radstock in the county of Somerset were engaged, as their obligation was under the Public Health Act, 1875, section 15, in providing their district, and particularly the town of Radstock, with a system of sewerage. The local landowner was the then Earl Waldegrave and the Council appears to have entered into some agreement with him on the 26th August, 1904, in connection with a sewer laid or proposed to be laid under his land. This document is not before us, but we do have a lease made on the 15th March, 1907, between the Earl and the Council under which the Earl in exercise of his settled Land Act powers demised to the Council a piece of land extending to some four acres for the purpose of a sewage works. Secondly there was demised an approach road then recently made by the Council. Thirdly a right to use a bridge over the River Somer, and fourthly "full and free power and liberty to convey the sewage and waste water from the town and district of Radstock aforesaid under the hereditaments shown on the plan annexed to the lease and coloured blue by means of sewer pipes (of a specified size) along lines coloured red on the plan", and so forth.… and for the purpose aforesaid to lay down and make under the said hereditaments pipes of the description hereinbefore mentioned…. as may from time to time be necessary or expedient and shall be approved by the Lessor". There was also demised power to repair, replace and maintain the sewer pipes and for that purpose to enter on certain pieces of land coloured blue on the plan. The mines and minerals and power to work them by underground working were reserved. The habendum was in these terms: "To Hold the said pieces of land powers liberties and praises unto the Council and their successors except and reserving as aforesaid for the term of 99 years from the 24th June 1904 for the purposes of the disposal of the sewerages of the Town and District subject to the existing tenancies" at rents there set out. The term and the rent were to begin at Michaelmas, 1904,when presumably the sewer was laid.
By this lease the Council for themselves their successors and assigns covenanted with the lessor among other things:
(5) To complete the sewage tanks and other works shown on the plan in accordance with specifications to be approved on behalf of the lessor and at all times during the term to keep and maintain the pipes and other works in a proper condition and state of repair.
(14): "The Council in the exercise of the powers aforesaid will do as little damage as may be to the hereditaments coloured blue on the said plan or the timber or other trees underwood crops or vegetation gardens roads buildings gates and fences thereon and will as soon as may be make good any damage which may be done and the Council will not interfere with the flow of or pollute the water in the River Somer".
Clause 18 provided for compensation to the landlord for any loss or damage sustained by reason of any work or operation of the Council, including compensation such as would have been payable under the public Health Act on compulsory acquisition.
The term "lessor" is expressed to include "his heirs assigns and successors in title or other the person or persons for the time being entitled to receive the rent hereby reserved".
A large plan is annexed to the lease showing a number of sewers, some not comprised in the lease, and shows also the sewer passing across the bed of the River Somer between points marked "M" and "N" on the plan, the nearest manholes being numbers 35 and 36 shown upon the plan. According to the Statement of Claim the sewer was at this point laid in the bed of the river and though it is stated in the Defence that it was not in fact sunk in the bed but laid on it, we must accept for the present purposes the allegation in he Statement of Claim. The sewer pipe was a twelve-inch pipe and it must be; taken that, as the lease provides, it was laid with the approval of the lessor who owned the bed and soil of the river as riparian owner of the land on each side.
Why this transaction was carried out by lease is not apparent and would seem to be an 'odd way of putting the Council into possession, for, so far as I can see, directly the sewers were laid they vested in the Council for a freehold estate which overrode the term created by the demise. See per Lord Justice Cozens-Hardy in Ystradyfodwg & Pontypridd Main Sewerage Board v. Bensted (1907 1 King's Bench 490), where, at page 499, his Lordship said this: "I think it has now been settled by a long series of authorities binding upon all courts that a sewer vests in the authority, not merely in the sense of their having an easement, but in the sense that they are owners of the space embraced by the sewer, and that they have a right to that space as owners, as long as it is required for the purposes of the sewer. Perhaps the last authority on that point is the case of Westminster Corporation v. Johnson, in which the present Master of the Rolls said 'The persons acquiring the interest are a corporation, and acquire it in fee'. They acquire it in fee, subject to a defeasance analogous to that in the case of and estate durante viduitate. We are not really concerned here as to when or under what circumstances it may come to an end. I think there is no doubt the authority are the owners of this sewer, and they have the property vested in them".
See also the last part of the headnote to ( Taylor v. Oldham Corporation 4 Chancery Division 396), where I find this; "The usual clause in local Acts vesting sewers in the sewer authority confers an absolute property in that part of the subsoil occupied by any sewer, and not merely an easement or right of sewerage". That statement is justified by the judgments there delivered. This would leave the lessee's covenants operative as covenants as between lessor and lessee and possibly their successors in title but they would no longer be lessee's covenants attached to the demise.
The sewage works were apparently built to the satisfaction of the landlord and nothing more is heard of this piece of land until the year 1915, when Karl Waldegrave let to the plaintiffs twopieces of it, contiguous to the sewer and one on each side of the river and shown pink on the plan, together with so much of the bed of the stream as lay between them. There was reserved among other things the free passage of water running in the stream, and the plan on this lease shows the sewer passing across the stream from the pink land on one side to the pink land on the other. Oddly enough, the existence of the sewer is not mentioned in this lease, but of course the lessee must have taken with knowledge of its existence and subject to the rights of the Council in respect to it. At some time, about 1915, the plaintiffs presumably with the consent of their lessor, built a private bridge over the stream to connect the two pieces of land or the buildings on them. This bridge in fact is immediately above the line of the sewer but was built so as to be independent of it.
In the year 1953 the successors in title of Earl Waldegrave, the Waldegrave Estates Company, sold the reversion on this last-mentioned lease to the plaintiffs, so that there has been I suppose a merger of the term and the freehold, mines and minerals being always excepted.
At some date unknown to the Court but presumably in recent years something has occurred, for which neither the plaintiffs nor the defendants are responsible, to deepen the bed of the river, scouring out the bed to such an extent that the sewer, formerly lying on or in the bed, is now in times of normal water above the water level but in times of flood the water rises and covers the sewer and its presence in the water creates turbulence, so it is said, and eddies, which have eroded the banks of the river forming part of the plaintiffs' property and has undermined the piers on which the bridge rests. This is stated in the Amended Statement of Claim in the following terms: I read paragraph 10. "The said sewer is now above the level of the bed of the said river and by reason thereof the water flowing along the course of the said river is obstructed and eddies and forces of water in the said river created by or resulting from theobstruction have eroded the "banks of the said river and undermined and damaged the said bridge of the plaintiffs referred to in paragraphs 1 and 8 hereof".
By agreement during the hearing below the plaintiffs' case was set out in an Amended Statement of Claim in the following terms; I read paragraph 9. "The plaintiffs contend that the defendants are liable to the plaintiffs as follows: (i) In nuisance at common law. (ii) In negligence for failure to exercise their statutory powers to avoid the creation of a nuisance or an injury to the plaintiff, (iii) For breach of the aforementioned covenant. (iv) For breach of the provisions of section 331 of the Public Health Act, 1936".
The defendants demur to this claim, and an order was made on the 15th July, 1966, stated to have been pursuant to...
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