Raglan Housing Association Ltd v Southampton City Council & Anor

Whether a former natural watercourse has become a sewer is a question of fact and degree, assessed by reference to the particular stretch in issue. The court must consider the nature of the flow and any relevant works, including who carried them out, the statutory capacity in which they were undertaken and the governing statutory powers. Mere lining, piping or covering, or a substantial increase in surface-water flow, does not suffice. Occasional foul sewage cannot be relied upon without evidence of the consent and statutory basis for the discharge. Where a channel began as a natural watercourse, the party asserting a change bears the burden of proving it. On the evidence, the culvert remained a watercourse.

Raglan Housing Association brought a flooding-related nuisance claim and sought declarations concerning the status and maintenance responsibility for a culvert adjoining its property. On a preliminary issue, HH Judge Iain Hughes QC held that the culvert was a surface-water sewer but not a public sewer. His judgment was given on 14 March 2006 and the relevant order was made on 25 May 2006.

Southern Water Services Limited, the second defendant and sewerage undertaker, appealed. The issue before the Court of Appeal was whether the relevant stretch of the former Bitterne Stream had become a sewer, rather than remaining a natural watercourse.

By a majority, Lloyd LJ and the Chancellor allowed Southern Water’s appeal. Toulson LJ dissented and would have dismissed it.

1. Relevant subject matter. The issue concerned the particular culvert adjoining Raglan’s property, not the channel as a whole. Evidence concerning other sections could provide context, but changes downstream could have little or no bearing on the status of the culvert itself.
2. Applicable test. The change from a natural watercourse to a sewer is a question of fact and degree. The guidance in British Railways Board v Tonbridge and Malling District Council (1981) 79 LGR 565 required something much more than the mere discharge of sewage, and a fortiori pure surface water, before the original character was lost. Concrete lining, piping or covering was not sufficient by itself. The increased surface-water flow was also insufficient on the facts.
3. Statutory works and discharges. Works to a channel may affect its status where the statutory authority for the works and the capacity in which they were undertaken are relevant. That depended on the facts and statutory terms. No evidence connected the construction of the culvert with a relevant authority. The occasional foul sewage discharged through combined sewage overflows could not be relied on without evidence of the consents and statutory provisions governing the discharges.
4. Burden and application. Because the channel began as a natural watercourse, Raglan bore the burden of proving a change. In the absence of evidence about the source of the continuous clear dry-weather flow, the court proceeded on the basis that some natural ground water remained. The only sufficient change proved was the increased surface-water flow, which did not transform the culvert into a sewer.
5. Dissent. Toulson LJ considered the primary submission too narrow. In his view, the effect of upstream works and the enlarged urban surface-water flow could be taken into account, and the judge was entitled to find that the culvert had become part of a public sewerage network. He would have dismissed the appeal.
6. The court also criticised the preliminary issue as ill-suited to a dispute in which sewer could bear different statutory meanings and in which the statutory basis of works and consents had not been established. Further argument on the form of order and future directions was reserved.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 785, the majority allowed Southern Water’s appeal and held that the culvert remained a watercourse. Toulson LJ dissented.
• Southampton County Court: HH Judge Iain Hughes QC determined the preliminary issue and declared the culvert to be a surface-water sewer but not a public sewer. Judgment was given on 14 March 2006 and the order was made on 25 May 2006.