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PropertyMonday 27 June 2022

Court of Appeal confirms that polluting sewage discharges are a matter for regulators, not tort claims in Court

The Court of Appeal has handed down judgment in the latest round of the litigation between the Manchester Ship Canal Company and United Utilities Water Ltd about discharges from sewers into the canal.  James McCreath, led by Jonathan Karas QC of Falcon Chambers and Richard Moules of Landmark, acted for United Utilities.

The first issue considered by the Court of Appeal was whether polluting discharges, including from combined sewer overflows, could be the subject of a private law right of action.  These discharges have been the subject of considerable public attention, including in the recent debate leading to the Environment Act 2021, and a consortium led by the Good Law Project intervened in the appeal.  The Court accepted United Utilities’ submission that, save in the case of deliberate or negligent discharges, such discharges were for the industry regulators, OFWAT and the EA to enforce, and it would be inconsistent with the statutory scheme to permit concurrent private law causes of action.  The essential reasoning, following the decision of the House of Lords in Thames Water Utilities Ltd v Marcic [2003] UKHL 66, was that preventing such discharges would require the provision of new infrastructure, and Parliament had left questions about the provision of new infrastructure to the regulators, taking into account the wider public interests involved.

The second issue concerned the power of local authorities who were previously sewerage undertakers to enter into agreements permitting the use of sewers on terms that the sewers could be removed on notice.  The Court of Appeal, overturning the Judge, held that local authorities could enter into such agreements.

To read the full judgment, please click here.

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