Environmental Law: Whether a claim in trespass or nuisance could be made in respect of unauthorised discharges (Manchester Ship Canal Company Ltd v United Utilities Water Ltd – 2022)

Where discharges were made into a waterway which were unauthorised by the canal operator or by statute, did a private law claim exist in trespass or nuisance?

The background

In Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2022], the proceedings in this instance followed previous litigation between the parties, being the owner of the Manchester Ship Canal (“MSC”) and the regional sewage and water undertaker (“UU”).

UU had discharged sewage outfalls into the canal. The first application considered by the courts was a determination as to whether UU had a right to discharge contained in the Water Industry Act 1991, and whether such rights had previously been terminated. Secondly, UU brought an application for determination that MSC’s objections were not actionable in private law, stating that remedies were dealt with in the 1991 Act.

The court in earlier proceedings found in favour of UU on both applications, and MSC brought this appeal.

The decision

The Court of Appeal dismissed the first appeal, finding that the court’s original decision that no claim in private law existed was correct. Referencing Marcic v Thames Water Utilities [2003], a private law claim was found to be inconsistent with the statutory regime, and the statutory regime therefore took precedence. Finding that UU was liable in respect of trespass or nuisance as a result of unauthorised discharges was at odds with the 1991 Act.

The Court of Appeal also determined on a further issue. MSC argued, in respect of 5 sewage outfalls, that the continued use of outfalls after the termination of contractual agreements constituted a trespass. In the previous hearing, the court had found that the termination of the right to use such outfalls unlawfully fettered the exercise of powers and duties by local authority parties.

The authorities chose to enter into contracts that granted them rights capable of termination, rather than the permanent rights vested in them under statute. This limited right was gained by virtue of this alternative arrangement, and so the Court of Appeal allowed this appeal in favour of MSC.

Advice and action for landlords

This decision is a helpful decision in the application of Marcic v Thames Water Utilities, finding that no private law claim could be made against the statutory undertaker in respect of trespass or nuisance where a sewage outfall was used without authorisation, either by the canal owner or by statute. The relevant scheme in this circumstance was the statutory regime contained in the WIA 1991.

Further, where a contract had been entered into on terms different to that of the statutory regime, this was the decision of the statutory undertaker. Where the contract was terminated, that was a direct consequence of acquiring more limited rights.