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Derek Ching

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The Supreme Court has decided (2nd July 2024) that the owner of a watercourse (rivers lakes and streams) is entitled to bring proceedings in nuisance and/or trespass against a statutory water company arising from them discharging polluted substances from their sewerage system. United Utilities had tried to argue that the water legislation of 1991 effectively provided a statutory regime which permitted them to do so, as it regulated the sewer system and effectively controlled what sewer infrastructure is to be built.

 

The judgement

“The polluting discharges similarly cannot be regarded as having been impliedly authorised by Parliament, since they are not an inevitable consequence of a sewerage undertaker’s performance of its statutory powers and duties. In the present case, the discharges could be avoided if United Utilities invested in improved infrastructure and treatment processes."

So the water companies do not have immunity for allowing pollution to enter rivers or other watercourses from their sewers and can be sued by the private landowners affected, who can also try to secure an injunction to prevent the continuation of the polluting discharges. The only practical way to stop the discharge of polluted substances may, in most cases, be to build more and better sewerage treatment facilities.

Given the reported propensity of the water companies to allow untreated or partially treated sewage to pass through their systems into the river network, not just when there are storm events causing overflows of holding tanks, the water companies will be under huge pressure from campaign groups and landowners to increase their investment in infrastructure. Given that some are almost insolvent already, this could tip some of them into formal administration. This is likely to place even greater pressure on water companies, who are already being accused of historic under-investment and a seemingly cavalier attitude to water pollution. This decision will therefore cause grave concern for those companies as it opens up a new level of legal exposure for their polluting activities on top of the existing legal pressure from the water regulator and the EA.

 

What does this mean for developers?

  • Routine objections by both the sewerage undertakers and owners of downstream rivers and streams to development proposals based on inadequacy of sewage systems to accommodate current demand, let alone any additional demand.
  • Planning authorities requiring major investment in sewerage infrastructure as a pre-condition of granting planning permission or being allowed to implement a planning permission.
  • Increased exposure, due to the publicity, to claims arising from accidental pollution of watercourses during development projects.

 

What does this mean for landowners?

  • Increased reasons to object via the planning system to development upstream where the sewage infrastructure is inadequate.
  • Higher risk of themselves being the subject of claims for their own discharges, e.g. from agricultural run-off or slurry discharges, due to the higher profile given by this case.
  • Reduced land sale prices for development on their land as a result of the developers’ need to spend more money on construction of improved sewerage systems.
  • The ability to seek injunctions against water companies to stop them allowing pollution to be discharged into rivers or streams they own, and/or to pursue those companies for damages and other remedies.

 

It remains to be seen whether the new Government will provide additional funds for investment, ahead of taking control of defaulting water companies who run out of money and whether local councils managing planning applications will be willing to insist upon the significant investment that will often be needed to deal with current levels of inadequate sewerage treatment infrastructure.

Unless the cost is borne by the taxpayer, bill payers (through their water bills) or the landowners selling land to developers by way of reduced prices, some proposed developments may be rendered uneconomic if that development attracts additional costs to address defective drainage, threatening the construction of new homes and calling into question the legitimacy of policymakers’ declared ambitions to increase the building of new houses.


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If you have any questions relating to this article or have any house building matters you would like to discuss, please contact the development and house building team.

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