Sefton Metropolitan Borough Council v United Utilities Water Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT WALKER,LORD JUSTICE RIX,LORD JUSTICE HENRY |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1284 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2001 |
| Docket Number | Case No: A3/2000/2800 |
[2001] EWCA Civ 1284
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (HIS HONOUR JUDGE HOWARTH)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henry
Lord Justice Robert Walker and
Lord Justice Rix
Case No: A3/2000/2800
Mr G Laurence QC and Mr F Nance (instructed by Legal Director, Sefton MBC for the appellant)
Mr G Wingate-Saul QC and Mr R Bradley (instructed by Mr D P Hosker for the respondent)
Introduction
Until after the second world war Maghull and Lydiate were small settlements to the north of Liverpool, surrounded by agricultural and horticultural land. The industrial revolution had reached these settlements in the second half of the 18 th century with the construction (under an Act of Parliament enacted in 1770) of the Leeds and Liverpool Canal, which runs roughly north and south through Maghull. But large-scale residential building in Maghull did not come until the 1950's.
The proprietors of the canal were under a statutory duty "to make … arches, tunnels, drains or other passages over, under or into the said cut or canal … to convey the water from the lands adjoining or lying near to the said cut or canal … ". One such arch or tunnel was constructed in order to carry the canal over a watercourse called Maghull Brook, in a position between what is now the Southport Road on the east side of the canal and Greenbank Avenue on the west side.
Maghull Brook was, and for part of its length undoubtedly still is, a natural watercourse which flows roughly from east to west, joining the river Alt a short distance to the west of Maghull and then flowing into the sea between Formby and Crosby. It was the parish boundary between Maghull and Lydiate. However the part of the watercourse (or what was the watercourse) which passes under the now densely populated centre of Maghull is now enclosed in a culvert, constructed between 1958 and 1959, which receives surface water drainage (and some unintended contamination from foul water) from many houses and other buildings in the area. It also receives flows from permeable, undeveloped land in its catchment area, from land drains and highway drains. For most of its length the culvert is a 45 inch (or 1100mm) concrete pipe. The catchment area is about 166 hectares of which only 46 remain undeveloped.
The issue on this appeal is whether these events have had the legal effect of causing the culverted watercourse to become a sewer at some time before 1 April 1974, when extensive changes took place in the organisation of local government. Before that date the local authority with responsibility for the area was the West Lancashire Rural District Council ("West Lancashire") which was also the sewerage authority for the area under Part II of the Public Health Act 1936. The effect of the Local Government Act 1972 and the Water Act 1973 was that Sefton Metropolitan Borough Council ("Sefton") became West Lancashire's successor as local authority, but the North West Water Authority ("NWWA") took over responsibility for sewerage, and West Lancashire's assets, rights and liabilities as sewerage authority vested in NWWA. United Utilities Water Ltd ("Water") is in turn the successor of NWWA.
Which body took over responsibility for the culvert (as I will call it, to avoid having to repeat "watercourse or sewer") is of particular importance because of a deed dated 24 November 1961 ("the 1961 deed") made between the British Transport Commission (as successor of the Leeds and Liverpool Canal Company) and West Lancashire. Although the canal proprietors had originally been responsible for constructing and maintaining canal crossings (and in particular, the arch and channel which carried Maghull Brook under the canal) the 1961 deed embodied a bargain under which West Lancashire accepted responsibility for half the cost of "repairing maintaining and renewing" the existing arch and channel under the canal (which is referred to in the 1961 deed as "the said culvert", but I will call it "the tunnel" in order to distinguish it from the culverting works carried out between 1958 and 1959).
On 1 October 1994, after heavy rainfall, there was a serious collapse in the tunnel. The real economic issue is whether it is Sefton or Water which must share the cost of repair (which is substantial) with the British Waterways Board, the successor of the British Transport Commission. An arbitration between the British Waterways Board and Water has been stayed pending these proceedings.
On 26 July 2000 His Honour Judge Howarth, sitting as a judge of the High Court of Justice, Chancery Division, held (in proceedings commenced in 1997 by NWWA) that Sefton was liable for the obligation which West Lancashire had undertaken by the 1961 deed. Sefton appeals to this court with the permission of the judge, limited to questions of law and inferences of fact derived from the judge's findings of primary fact.
The judge gave a lengthy ex tempore judgment in which he considered the facts in detail, largely by reference to minutes of West Lancashire's Health Committee, before coming on to the issues of law. For the purposes of this appeal I think it may be more helpful to take matters the other way round, in order to see what it is that one is looking for in the factual findings.
Statutory provisions
The statutory powers and duties of local authorities and other statutory bodies in relation to drains and sewers, and in relation to watercourses, go back far into the 19 th century. But for present purposes it is sufficient to start with the Public Health Act 1936 ("the 1936 Act") now largely but not wholly repealed. Mr George Laurence QC (appearing in this court with Mr Francis Nance for Sefton) has pointed out that the 1936 Act was a consolidating Act, with amendments, which drew material from many sources (including the Public Health Acts of 1875 and 1925), and that it does not achieve complete consistency in its drafting.
Part II of the 1936 Act (headed 'sanitation and buildings') has – as regards sewerage and sewerage disposal – been repealed and replaced, first by provisions of the Water Act 1973 and the Water Act 1989, and then by comprehensive legislation enacted in 1991. But when the culvert was constructed it was in force and it applied to West Lancashire as a sewerage authority. In Part II section 14 imposed on a local authority a general duty to provide public sewers for the drainage of their district. Section 15 gave a local authority power to construct public sewers (which meant sewers vested in a local authority under s.20). Sections 17 and 18 provided for the adoption by a local authority of sewers owned or constructed by others.
Part XI of the 1936 Act (headed ' miscellaneous') covered a variety of matters including watercourses, ditches and ponds. A local authority could (under s.262) require the culverting of a watercourse where building operations were in prospect and could (under s.265) pay or contribute to the cost of such works. I must set out the precise terms of s.262(1) and s.265. Section 262(1) provides :
"If a local authority consider that any watercourse or ditch, situate upon land laid out for building, or on which any land laid out for building abuts, should be wholly or partially filled up or covered over, they may by notice require the owner of the land laid out for building, before any building operations are begun or while any such operations are in progress, wholly or partially to fill up the watercourse or ditch, or to substitute therefor a pipe, drain or culvert with all necessary gullies and other means of conveying surface water into and through it."
Section 265 provides:
"A local authority may, if they think fit, contribute the whole or a part of the expenses of the execution of works for any of the purposes mentioned in the foregoing provisions of this Part of this Act, or may by agreement with any owner or occupier themselves execute any such works which he may be required, or is entitled, to execute."
It is also necessary to refer to the definitions in s.343(1) of the 1936 Act. A layman (or indeed a lawyer with no specialised knowledge of public health legislation) might suppose that a drain is for the drainage of surface water, and that a sewer is for the drainage of foul sewage. But that is not the correct distinction. A drain is defined as being for the drainage of a single building, or of buildings and yards in the same curtilage; and a sewer is defined as not including a drain within the above definition,
"but save as aforesaid includes all sewers and drains used for the drainage of buildings and yards appurtenant to buildings."
So a sewer may be a foul sewer or a surface water sewer, or a combined sewer. But it is doubtful whether a system built primarily for the drainage of surface water from roads, or for the drainage of permeable land in its natural state, could be a sewer in the statutory sense. Mr Laurence contended that it could, emphasising that the definition in s.343 uses the expression 'includes'. But drainage of highways is recognised as a separate statutory function and sewerage and highway authorities may co-operate in the discharge of their functions (see s.21 of the 1936 Act and now s.115 of the Water Industry Act 1991).
I would add (at the risk of stating the obvious) that the effect of extensive residential development is different in relation to the need to dispose of surface water (on the one hand) and of effluent which goes...
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