Speed Read: Sewerage Undertakers Already Impacted by the Decision in Manchester Ship Canal v United Utilities
25th November, 2024
The case Manchester Ship Canal v United Utilities (No. 2) [2024] UKSC 22 considered whether Manchester Ship Canal Company Ltd could bring a claim in trespass and/or nuisance in the event that canal water is polluted by discharges of foul water from sewerage undertakers, in this case United Utilities.
The topic of discharges from sewage outlets into canals, rivers and streams has received significant publicity including in the context of ‘green litigation’ and the impact of climate change more generally.
The facts of the case were that United Utilities has over 100 outfalls from which foul water is designed to be discharged when the capacity of its system’s hydraulic capacity is exceeded. Manchester Ship Canal consequentially threatened to claim against United Utilities for nuisance and trespass for the discharges of sewage into the canal. United Utilities responded by asking the court to make a declaration that Manchester Ship Canal had no right of action, on the basis that the claim would be barred by the Water Industry Act 1991’s statutory scheme for regulating sewerage.
The Supreme Court overturned the lower courts’ rulings in allowing Manchester Ship Canal’s appeal and determining that the Water Industry Act 1991 does not prevent a claim in nuisance or trespass; the 1991 Act contains ‘no express ouster of all common law causes of action and remedies to protect the enjoyment of the property’. The 1991 Act does not give sewerage undertakes statutory authority to discharge foul water into the canal, and a canal-owner’s right to peaceful enjoyment of its property is protected in common law, meaning that the discharge of foul water into the canal is an actionable nuisance at common law if it interferes with the owner’s use or enjoyment of its property.
This judgment means that owners of watercourses may be able to take action against sewerage undertakers for the discharge of pollution into the water, even where there has been no negligence or deliberate wrongdoing on the part of the sewerage undertaker. The impact this has remains to be seen, but it may give rise to an increased number of claims for damages. A key question which also arises is in what circumstances (if any) might a Court consider awarding an injunction requiring a water company/sewerage undertaker to cease operations?
Commentators have recently reported that claims, such as that of Jo Bateman (a wild water swimmer), against South West Water for sewage discharges have already been strengthened by this decision.
Our litigation, regulatory and environment lawyers can provide advice on the impact of this decision, including advice in relation to civil claims for nuisance or trespass (whether prosecuting or defending), or criminal prosecutions arising from discharges. We can also provide practical support in relation to mitigation and permitting issues.
For more information get in touch with Robert Glassford or another of our expert litigators.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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