The Manchester Ship Canal Company Ltd v United Utilities Water Ltd

JurisdictionEngland & Wales
JudgeLord Reed,Lord Hodge,Lord Lloyd-Jones,Lord Burrows,Lord Stephens,Lady Rose,Lord Richards
Judgment Date02 July 2024
Neutral Citation[2024] UKSC 22
CourtSupreme Court
The Manchester Ship Canal Company Ltd
(Appellant)
and
United Utilities Water Ltd
(Respondent) No 2

[2024] UKSC 22

before

Lord Reed, President

Lord Hodge, Deputy President

Lord Lloyd-Jones

Lord Burrows

Lord Stephens

Lady Rose

Lord Richards

Supreme Court

Trinity Term

On appeal from: [2022] EWCA Civ 852

Appellant

Thomas de la Mare KC

Charles Morgan

Nicholas Ostrowski

George Molyneaux

(Instructed by BDB Pitmans LLP (London))

Respondent

Jonathan Karas KC

James Maurici KC

Richard Moules KC

James McCreath

(Instructed by Pinsent Masons LLP (Manchester))

Environmental Law Foundation (Intervening)

Stephen Hockman KC

Tom Cleaver

(Instructed by Hausfeld & Co LLP)

Heard on 6 and 7 March 2023

Lord Reed AND Lord Hodge ( with whom Lord Lloyd-Jones, Lord Burrows, Lord Stephens, Lady Rose and Lord Richards agree):

1. Introduction
1

This appeal raises the question whether the owners of watercourses (an expression we shall use to describe all channels through which water flows, whether natural or artificial) or bodies of water can bring actions in nuisance or trespass in the event that the water is polluted by discharges of foul water from the infrastructure of statutory sewerage undertakers, in the absence of negligence or deliberate misconduct. The court is not asked at this stage to decide whether such proceedings would be well-founded on the facts of the case: the question is whether such actions are barred on the ground that they would be inconsistent with the legislative scheme established by the Water Industry Act 1991 (“the 1991 Act”).

2

The appeal arises in the context of long-running litigation about the Manchester Ship Canal (“the canal”), which runs from Manchester to the Mersey Estuary. In its upper reaches it is a canalisation of the rivers Irwell and Mersey. It was constructed pursuant to the Manchester Ship Canal Act 1885. The appellant, the Manchester Ship Canal Company Ltd (“the Canal Company”), was originally incorporated under that Act, and is the owner of the beds and banks of the canal. The respondent, United Utilities Water Ltd (“United Utilities”), was appointed under the Water Act 1989 (“the 1989 Act”) as the sewerage undertaker for the North West of England. It owns a network of sewers, sewage treatment works and associated infrastructure, mostly constructed by its statutory predecessors, which it acquired on the privatisation of the water industry under that Act.

3

United Utilities' sewerage network includes around 100 outfalls from which material emanating from sewers, sewage treatment works and pumping stations is discharged into the canal. At times when the sewerage system is operating within its hydraulic capacity, the discharges are of surface water or treated effluent. At times when the hydraulic capacity of the system is exceeded, at least some of the discharges are of foul water. That is how the system has been designed to operate. When its hydraulic capacity is exceeded, either because the inflow of sewage and surface water is greater than it can accommodate, or because it is unable to dispose of the inflow because of some mechanical failure or loss of power, the problem is resolved by discharging foul water into the canal through the outfalls. Discharges of foul water from the outfalls could be avoided if United Utilities invested in improved infrastructure and treatment processes.

4

The background to the proceedings is a dispute between the parties over whether United Utilities requires the consent of the Canal Company in order to discharge foul water into the canal, and must therefore pay the Canal Company for a licence, or can pollute the canal without the consent of the Canal Company and free of charge, because the Canal Company is barred by the 1991 Act from bringing actions in nuisance or trespass. However, the appeal has a wider importance. The implication of the judgments in the courts below is that, absent an allegation of negligence or deliberate wrongdoing, no owner of any watercourse or body of water can bring any claim based on nuisance or trespass against any sewerage undertaker in respect of polluting discharges into the water, however frequent and voluminous the discharges may be, and however damaging they may be to the owner's commercial or other interests or to the owner's ability to use or enjoy its property. In view of that wider importance, the court has permitted the Environmental Law Foundation to make submissions as intervener.

5

The appeal turns on the effect on the common law of the provisions of the 1991 Act. As will appear, many of the Act's provisions have a long history, and most of the judicial decisions which we will have to examine have concerned their statutory predecessors. In order to understand those decisions, and the principles which they establish, it will be necessary to set them in their statutory context. However, we will begin by explaining some general principles which it will be necessary to have clearly in mind in the later discussion, as they are central to our analysis. We will start with some relevant principles of the tort of private nuisance, with which almost all the relevant cases have been concerned. Although the tort of trespass was also mentioned in the parties' submissions, it was not considered in any detail, and our treatment of it will be correspondingly brief. We will then explain some basic principles governing the tortious liability of bodies exercising statutory powers.

2. General principles
(1) The tort of private nuisance
6

In general terms, the tort of private nuisance is committed where the defendant's activity, or a state of affairs for which the defendant is responsible, unduly interferes with the use and enjoyment of the claimant's land: Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16; [2023] 2 WLR 1085 (“ Jalla”), para 2. In most cases the undue interference with the use and enjoyment of the claimant's land will be caused by an activity or a state of affairs on the defendant's land. “The ground of responsibility is the possession and control of the land from which the nuisance proceeds”: Sedleigh-Denfield v O'Callaghan [1940] AC 880, 903 per Lord Wright (“ Sedleigh-Denfield”). “Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required”: Sedleigh-Denfield, p 897 per Lord Atkin.

7

Nuisances may be, and often are, of a continuing nature. As was explained in Jalla, para 26, in general terms a continuing nuisance is one where there is repeated activity by the defendant, or an ongoing state of affairs for which the defendant is responsible, which causes continuing undue interference with the use and enjoyment of the claimant's land. For example, noise and smells are continuing nuisances where they occur on a regular basis. So is the repeated discharge of sewage into a watercourse which runs through the claimant's land: Hole v Chard Union [1894] 1 Ch 293. In such cases there is a continuing cause of action, which accrues afresh from day to day. It is because nuisances are often of a continuing nature that an injunction prohibiting the continuation of the relevant activity or state of affairs is a standard remedy. Damages are also an available remedy, but can be awarded at common law only in respect of causes of action that have already accrued, and not in respect of future causes of action which have not yet accrued. The result, at common law, is that the claimant must periodically bring further claims. In contrast, damages for future causes of action can be awarded in equity in lieu of an injunction, under section 50 of the Senior Courts Act 1981 (the successor to the Chancery Amendment Act 1858, commonly known as Lord Cairns' Act).

8

It is important not to confuse the concept of a continuing nuisance with the concept of continuing a nuisance. The latter concept refers to the situation where defendants are responsible (and therefore liable) for a nuisance not because they created it but because they failed, with actual or constructive knowledge of the state of affairs which resulted in the nuisance, to take reasonable steps to prevent it.

9

The difference between the two concepts is illustrated by Sedleigh-Denfield. In that case, a local authority had laid a pipe in a ditch on the defendants' land in order to carry away rain water. When laying it, they omitted to place a protective grating close to the mouth of the pipe, so as to prevent it from becoming choked with leaves. The pipe was laid without the defendants' knowledge or consent, but they became aware of its presence and used it as a land drain for their fields. During a heavy rainstorm the pipe became choked with leaves, so that the water overflowed and flooded a neighbour's land. This was not a continuing nuisance: the flooding was an isolated incident. The defendants were held responsible for the nuisance, although they had not created it: the state of affairs which brought about the flooding had been created by the local authority, trespassing on the defendants' land. The defendants were responsible because, knowing (actually or constructively) of a state of affairs which created a risk of flooding of their neighbour's land, they allowed that state of affairs to continue without taking reasonable steps to prevent such flooding by fitting a grating close to the pipe. This was described, following the language used in earlier authorities, as “continuing” the nuisance, although there was not any nuisance in existence until the flooding occurred.

10

The cause of action for continuance of a private nuisance depends on the claimant's establishing not only that the nuisance has occurred, but also that the defendants knew of its possible cause, actually or constructively, and failed to take reasonable means to bring it to an end. As Viscount Maugham put it in Sedleigh-Denfie...

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    • United Kingdom
    • Supreme Court
    • 23 October 2024
    ...which classical methods of construction cannot resolve.” 48 As this court recently observed, however, in United Utilities Water Ltd v Manchester Ship Canal Co Ltd [2024] UKSC 22; [2024] 3 WLR 356 at para 110: “there are circumstances, in the absence of overt ambiguity, in which the court mu......

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