Hot off the back of our article on climate change litigation developments in the first half of 2024 (which you can read about here), the second half of 2024 starts with a highly anticipated ruling on private waterway owners affected by sewage discharges. We assess its impact.
The case
This was an appeal to the Supreme Court, which was asked to determine whether the Manchester Ship Canal Company, as owner of the beds and banks of the relevant canal, could bring a common law claim in nuisance or trespass against United Utilities Water Ltd in relation to their discharges of foul water from the sewage network into the canal. United Utilities argued that Manchester Canal could not bring such an action as the Water Industry Act 1991 excluded common law rights of action and nuisance. The case was a question of statutory interpretation.
The Supreme Court held that the 1991 Act did not prevent Manchester Canal from bringing a claim in nuisance or trespass. As an organisation which exercises statutory powers, United Utilities could be liable for such actions unless it was acting within its statutory powers, or had been granted statutory immunity.
As to the first point, the Supreme Court held that the 1991 Act does not expressly or impliedly authorise United Utilities to cause a nuisance/trespass by discharging foul water into the canal. As to the second point, the Supreme Court found that Parliament did not intend the 1991 Act to prevent a claimant from enforcing its common law rights. The 1991 Act is a consolidating statute and so was intended principally to restate rather than amend the law and in the circumstances, it was clear that there had been a common law claim in nuisance for hundreds of years. There was also nothing in the 1991 Act that indicated that Parliament intended to remove that common law right when the law was consolidated, and there were indications that Parliament had intended that common law rights be retained.
Impact
This case is very significant for private waterway owners affected by sewage discharges. It may embolden claimants, leading to a surge in similar cases, particularly as water companies across the country have faced immense scrutiny in relation to waste discharge in recent years, and one factor the Supreme Court took into account was that United Utilities could take steps to reduce and prevent such discharges.
However, its impact will be limited to the water industry only. The case was about a specific statutory interpretation issue in relation to the 1991 Act and the judges followed the usual approach to such statute-based cases: their judgment focuses on assessing parliament's intention and they do not appear to have been influenced by wider environmental public policy concerns. Whilst undoubtedly significant, therefore, as a measure of the impact of climate and sustainability litigation more generally, it is of limited value.
