Raglan Housing Association v Southhampton City Council & Anor

On an application for permission to appeal, a real prospect of success may arise where there is a serious question whether the lower court applied the correct legal test. The classification of a former natural watercourse as a sewer requires consideration of the authorities concerning both the channel and the character of what it carries. The substantive classification should not be finally determined on a permission application. Where further litigation would involve public expenditure, permission may be granted on the footing that the parties first attempt mediation.

Raglan Housing Association owned residential flats beside a partly open and partly closed culvert forming part of the Bitterne Stream. The culvert had flooded and the parties disputed responsibility for its maintenance.

The county court held that the culvert was a surface water sewer but was not a public sewer within the statutory meaning of Water Resources Act 1991. Southern Water Services sought permission to appeal, contending that the judge had applied the wrong test by focusing on physical changes to the channel rather than changes in the character of the flow. Permission had previously been refused on the papers. The issue before the Court of Appeal was whether the proposed appeal had a real prospect of success.

1. Permission granted. The proposed appeal had a real prospect of success because there was a serious question whether the county court had adopted and applied the correct test for determining whether a former natural watercourse had become a sewer.
2. The county court had directed itself that the question was whether substantial changes in the character of the channel had transformed it into a sewer, treating the issue as one of fact and degree. Its subsequent reasoning concentrated on the channel’s physical construction, route and capacity. Its treatment of the contents focused on matters including surface water and the nature of the flow.
3. The applicant relied on George Legge & Son Ltd v Wenlock Corporation [1938] AC 204 and British Railways Board v Tonbridge and Malling District Council [1981] 79 LGR 565. Those authorities gave rise to a serious question whether the relevant inquiry concerned the character of the flow carried by the channel, including whether sewage had changed it substantially, rather than only the physical attributes of the channel.
4. The Court of Appeal did not decide the substantive classification of the culvert. Permission was granted on the footing that Southern Water would refer the dispute to the Court of Appeal Mediation Scheme and actively seek the consent of the other parties before further litigation.

• Court of Appeal (Civil Division): permission to appeal granted on 24 October 2006: [2006] EWCA Civ 1567.
• Winchester County Court: His Honour Judge Hughes QC held that the culvert was a surface water sewer but was not a public sewer within the statutory meaning of Water Resources Act 1991.
• Court of Appeal permission stage: Lord Justice Jonathan Parker refused permission on the papers on 17 August 2006. The Chancellor granted the subsequent formal hearing.