British Waterways Board v Severn Trent Water Ltd

A statutory power to lay and maintain sewer pipes on another’s land does not, without sufficiently clear language, carry an implied right to discharge their contents onto that land or into a watercourse. Such a discharge directly interferes with the owner’s property rights and constitutes trespass even if it causes no damage.

The detailed scheme of the Water Industry Act 1991, including its express discharge power for water undertakers and its machinery for acquiring rights with compensation, precludes an implied discharge power for sewerage undertakers under section 159. Their statutory duty to empty sewers does not authorise them to override private rights without consent or compulsory acquisition.

Severn Trent Water Ltd discharged surface water from a housing estate through a pipe into the Stourbridge Canal under a terminable licence granted by the British Waterways Board. After the Board terminated the licence, Severn Trent claimed an implied statutory right to continue the discharge.

Arden J held, in a decision reported at [2001] Ch 32, that section 159 of the Water Industry Act 1991 impliedly empowered a sewerage undertaker to discharge surface water through a pipe laid or maintained under that section. She therefore declined the Board’s requested declaration and held that Severn Trent need not remove the pipe.

The Board appealed. The central issue was whether the statutory pipe-laying power, read with the sewerage undertaker’s duty to empty and deal with the contents of its sewers, authorised discharge onto another’s property without the owner’s consent.

1. Appeal allowed unanimously. Peter Gibson LJ and Chadwick LJ delivered concurring judgments. Keene LJ agreed, although with some hesitation. The court set aside Arden J’s order and declared that Severn Trent had no implied power under section 159 of the Water Industry Act 1991 to discharge the surface water into the canal.

2. Section 159 confers detailed powers to lay, keep, inspect and maintain pipes and to undertake works incidental to those activities. It necessarily permits an undertaker to use a pipe by causing water to flow through it. It does not confer a further right to discharge the contents onto land or into a watercourse belonging to another. Such a right would override private property rights and therefore required sufficiently clear statutory authority.

3. The wider statutory scheme was inconsistent with the proposed implication. Section 165 expressly confers a limited discharge power on water undertakers, subject to safeguards in sections 165 and 166, but confers no corresponding power on sewerage undertakers. Sections 117(5) and 186(3) protect persons affected by certain discharges; they do not dispense with the consent of the owner of the land or watercourse.

4. The duty under section 94 to make provision for emptying sewers did not require a power to discharge without consent. A sewerage undertaker could discharge on its own land, obtain the owner’s agreement, reroute the discharge or seek compulsory acquisition of the necessary right under section 155. The Act permitted the associated acquisition costs to be recovered through charges and provided for compensation.

5. Durrant v Branksome Urban District Council [1897] 2 Ch 291 did not govern the 1991 Act. That decision depended on materially different statutory provisions, including an express restriction indicating the extent of the permitted discharge and a right to full compensation. The clear provisions of the consolidating Act had to be construed first, without using earlier legislation to manufacture an ambiguity.

6. Discharging water onto another’s land is a direct entry and constitutes trespass without proof of damage. No different rule applies merely because water is discharged directly into flowing water above land owned by another.

7. Severn Trent was consequently required by clause 2(G) of the terminated licence to remove the nine-inch surface-water pipe and reinstate the Board’s property. Costs were awarded to the Board below and on appeal. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: By [2001] EWCA Civ 276, unanimously allowed the British Waterways Board’s appeal, set aside Arden J’s order and granted declarations that no implied discharge power existed and that the pipe had to be removed.

2. High Court, Chancery Division: Arden J, reported at [2001] Ch 32, held that section 159 of the Water Industry Act 1991 impliedly authorised the discharge and that Severn Trent was not obliged to remove the pipe.