England and Wales Court of Appeal (Civil Division) Decisions

Marcic v Thames Water Utilities Ltd. [2002] EWCA Civ 64 (7th February, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Richard Havery QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th February 2002

Lord Phillips M.R.

This is the judgment of the Court.

Introduction

1. Mr Peter Marcic lives in Stanmore, Middlesex. His house is situated within the extensive area within which Thames Water Utilities Limited (“Thames”) provide sewers for the removal of sewage and surface water. Since June 1992 these sewers have, on occasion, discharged both surface water and foul water into Mr Marcic’s front garden and thence into his back garden. This has damaged the fabric of his house, though he has successfully taken steps to prevent it getting inside his home. In these proceedings Mr Marcic claims damages from Thames for the damage that he has sustained.
2. Mr Marcic is not alone in his plight. In Thames’ area there are many thousands of households facing the risk of internal or external flooding as a consequence of discharge from overburdened sewers. Thames has fought this case as an important test case because of the implications that it has for their liability to these households.
3. This is not the first claim that has been brought against a sewerage undertaker in respect of damage caused by discharge from overcharged sewers. The law reports disclose a series of actions where such claims have been advanced, spanning well over a century. A few have succeeded but most have failed.
4. In this action His Honour Judge Havery, QC, has resolved a number of issues of liability and measure of damage. He held that he was bound by authority to dismiss claims by Mr Marcic founded in Rylands v Fletcher L.R.3 H.L 330, nuisance and negligence. He considered whether a claim could be founded upon breach by Thames of duties owed under statute, or upon a negligent failure to exercise statutory powers and concluded that it could not.
5. Judge Havery then turned to consider a claim by Mr Marcic founded on an alleged breach by Thames of the Human Rights Act 1998. He held that Thames had, since the Act came into force, infringed Mr Marcic’s right to respect for his home under Article 8 of the Human Rights Convention and his right to the peaceful enjoyment of his possessions under Article 1 of the First Protocol to the Convention. It followed that Thames were in breach of section 6(1) of the Human Rights Act. The Judge held that damages for this breach should be assessed by reference to its effect on the value of Mr Marcic’s home on the premise that Thames would be taking no steps to prevent the flooding in the foreseeable future.
6. Both parties have appealed against Judge Havery’s decision. Thames have challenged his finding that they have contravened the Human Rights Act. Mr Marcic has contended that the Judge erred in rejecting his claims based on common law and statute, thereby depriving him of his entitlement to damages in respect of the period before 2 October 2000, when the Human Rights Act came into force.
7. Before summarising the rival contentions of law and exploring the issues that they raise, we propose to set out the material facts relating to both Mr Marcic and Thames and the relevant provisions of the Water Industry Act 1991, under which Thames derive their powers and duties. We are assisted in our task by the careful analysis of the facts made by Judge Havery. This has not been challenged by either party and we shall incorporate some of the Judge’s findings in our judgment.

The flooding experienced by Mr Marcic

8. Mr. Peter Marcic, who is now in his early sixties, lives at number 92, Old Church Lane, Stanmore, Middlesex. That property is a substantial family house with a front garden and a large rear garden. It lies within a residential area in a street of individually-built houses. It dates from the inter-war period. Mr. Marcic bought the property in the mid-1970s. He began to live in the property in 1980 and has lived there ever since. The property is frequently flooded. It lies at or near the lowest point in Old Church Lane. It was first significantly affected by flooding on 9^th June 1992. Since then it has been regularly and seriously affected by flooding and back flow of foul water from the defendant's sewer system.
9. Under the road there are a foul water sewer and a surface water sewer. Mr. Marcic's property has a dual, or combined, drainage system. That is to say, the surface water from the roof and the ground flows into the same drain as the sewage. The combined effluent flows into the foul water sewer under the road.
10. At times of heavy rain, the footpath between the road and Mr. Marcic's property becomes flooded with surface water, sometimes emerging from the overcharged surface water sewer. The foul water sewer can also become overcharged by reason of widespread local use of combined drainage systems. The parties' drainage experts agreed that it is also possible that householders, concerned about surface water flooding at times of heavy rainfall, lift the covers of the inspection chambers within their properties, thereby allowing accumulated surface water to enter the foul sewer.
11. Water on the ground in Mr. Marcic's front garden is collected from the patio through metal grilles overlying gullies which run beside the house and debouch into his foul drainage. When the foul water sewer is overcharged, the foul water backs up and can force open the manhole cover in Mr. Marcic's front garden, thereby escaping into the garden. If the flood water in his front garden is sufficiently deep, however, the manhole does not open. In that case the foul water backs up through the grilles into the overlying surface water.
12. Mr. Marcic has made some boards to put at the front of his property as a defence against flooding. They are not entirely satisfactory since water can pass both underneath and over the top. He cannot keep them in position permanently since they impede access to the premises. It takes him about 15 minutes to set them up in the evening or when he considers a flood to be imminent, and five minutes to take them down in the morning or after a flood has subsided.
13. In 1992, it took half an hour of heavy rainfall to cause flooding incidents at Mr. Marcic's property. The problem remained roughly the same until 1996. Since 1996 the position has progressively deteriorated. Only 15 minutes of heavy rainfall or some hours of steady drizzle are now sufficient to cause flooding.
14. When the front garden is flooded, the water reaches the brickwork of the walls of the house both below and above the level of the damp course. The water often rises to about ¾ inch below the level of the front door threshold. Before carrying out some works on his property, Mr Marcic had to open his side gate and garage doors to let the water run through to the back garden, bypassing the house. That caused the back garden to be immersed. Water lay there for a few days. When it subsided it left deposits of sludge and debris. Mr Marcic has had built a manhole connected to pipes so that some flood water is carried back from his front garden underneath the garage and to the bottom of his back garden. That has to some extent alleviated the damage to the back garden. He considers that it is only by having carried out those works that he has prevented floodwater from entering his house. He has spent some £16,000 on that system.
15. The principal incidents of flooding were two in number in 1992; one in each of the years 1993, 1994, 1995 and 1996; two in 1997; none in 1998; four in 1999 and four or five in 2000.
16. Mr Marcic described the effect of the flooding in a witness statement. That description has not been challenged. It was as follows:

“My house has been badly affected. Damp and a musty smell are present in my front dining room for months after each flooding. Cracks are visible all over the walls and ceiling, some quite large, showing signs of subsidence. My house is a detached property where I have spent a good part of my life trying to do it up and make it into a home. I now cannot so easily part with it, yet I find it very difficult to live with the mess. Any measures to remove the damp and its effects, such as the subsidence, are pointless until the regular flooding is prevented.

The garden is also affected. On most occasions the floodwater contains levels of organic (oily) contaminants that run off streets and tarmac which poison the plants. At one time after heavy flooding I tried to use a garden hose to wash off the oily sheen from the surface but I only managed to disperse it. Some fully-grown conifers and shrubs have died. The soil has become contaminated and consolidated through persistent flooding, resulting in poor drainage. The vegetation has become poorly as water-logging deprives the roots of oxygen and drowns them. Those plants that do thrive are moss and weeds which are in abundance.”

17. The Judge accepted the following evidence of a structural engineer, jointly instructed by the parties, of the damage caused by the flooding to Mr Marcic’s home:

“There has been no subsidence or heave of the external walls of the house.....

There has been subsidence of parts of the concrete ground floor slab resulting in cracking in the internal partition walls supported on the slab and in internal walls and ceilings in the first floor storey. This has been caused, or at least greatly contributed to, ..... by floodwater entering already formed voids beneath the ground floor slab and softening the clay subsoil still in contact with the slab. It is probable that had the floodwater not been present the slab would have continued to support the internal walls without subsidence movement leading to cracking. It is also probable that had the voids not been present the floodwater would not have caused subsidence of the slab.....

Cracking in the second floor storey walls has been caused by spread of the roof, most likely as a result of the slight dropping of internal vertical support to the roof structure because of the subsidence of the ground floor slab.....

A full remedial work scheme could be carried out using grout injection below the ground floor slab. This would probably require detailed prior investigation beneath the slab, for example using radar survey equipment to trace the voids and help to plan grout injection positions.”

18. The Judge annexed to his judgment a joint statement by drainage experts dealing with the cause of the flooding experienced by Mr Marcic and possible schemes to alleviate this. That statement refers to two causes of flooding: (1) flooding caused by an accumulation of surface water at times of heavy rainfall which the sewers are unable to remove because they have become full to overflowing; (2) flooding caused by overflow from the surcharged surface and foul water sewers. The former type of flooding would occur if there were no sewerage system in place at all. The latter type of flooding is directly attributable to the existence of the sewers, which transmit surface and foul water from other areas served by the system and discharge this onto Mr Marcic’s property.
19. Different legal principles govern Thames’ liability in relation to the two types of flooding. The judgment below has not sought to differentiate between the two. Judge Havery has proceeded on the basis that the cause of the nuisance resulting from the flooding and the damage caused to Mr Marcic’s property has been surface and foul water discharged from the surface water and foul water sewers. Thus, for instance, at paragraph 38 of his judgment, he states :

“Here, the nuisance is the backing up and overflowing of foul water from the foul water sewer and the overflowing of surface water from the surface water sewer. The nuisance is caused by the overcharging of those sewers.”

As we said earlier, the Judge’s analysis of the facts has not been challenged. We shall, accordingly, proceed on the basis that the only relevant flooding was that attributable to discharge from the foul water and surface sewers.

20. Mr Marcic first complained about the flooding that he was experiencing in 1992. Initially he approached his local authority. They were unable to procure any assistance for him. In 1995 they referred him to Thames. His approaches to Thames at first elicited no more by way of response than bare acknowledgements. A letter to the managing director resulted in his being sent a cheque for £40, which he returned.
21. In October 1997 Mr Marcic's solicitors wrote to the Secretary of State for the Environment about the problem. Three months later they received a reply from the Department of the Environment referring them to the Customer Services Committee of the Office of Water Services. In the letter it was explained that sewerage undertakers' duties under section 94 of the Water Industry Act 1991 were enforceable under section 18 of the Act by the Director General of Water Services, who was the independent economic regulator for the water industry. The letter went on to explain that Customer Service Committees had been set up by the Director General to assist him in his role of protecting customers' interests and investigating complaints.
22. No approach was made to the Office of Water Services by or on behalf of Mr Marcic. Thames contend that such an approach was the appropriate remedy – indeed the only remedy – open to Mr Marcic. Whether they are correct in this contention is the fundamental issue raised on this appeal. Before exploring that issue it is necessary to draw attention to some aspects of the statutory regime under which Thames provide their services.

The statutory regime

23. The Water Industry Act 1991 is a consolidation Act which sets out the powers and duties of both water undertakers and sewerage undertakers. This appeal is solely concerned with the role of Thames as a sewerage undertaker. The relevant provisions of the Act are as follows:
24. A ‘general duty’ to provide a sewerage system is placed on a sewerage undertaking by section 94. That section reads, so far as material, as follows:

“94.—(1) It shall be the duty of every sewerage undertaker—

(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained; and

(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers.

.....

(3) The duty of a sewerage undertaker under subsection (1) above shall be enforceable under section 18 above—

(a) by the Secretary of State; or

(b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.”

25. Section 18 provides, so far as material, as follows:

“18.—(1) Subject to subsection (2) and sections 19 and 20 below, where in the case of any company holding an appointment under Chapter I of this Part the Secretary of State or the Director is satisfied—

(a) that that company is contravening—

(i) any condition of the company's appointment in relation to which he is the enforcement authority; or

(ii) any statutory or other requirement which is enforceable under this section and in relation to which he is the enforcement authority;

or

(b) that that company has contravened any such condition or requirement and is likely to do so again,

he shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

(2) Subject to section 19 below, where in the case of any company holding an appointment under Chapter I of this Part—

(a) it appears to the Secretary of State or the Director as mentioned in paragraph (a) or (b) of subsection (1) above; and

(b) it appears to him that it is requisite that a provisional enforcement order be made,

he may (instead of taking steps towards the making of a final order) by a provisional enforcement order make such provision as appears to him requisite for the purpose of securing compliance with the condition or requirement in question.

(3) In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional enforcement order be made, the Secretary of State or, as the case may be, the Director shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of any condition or of any statutory or other requirement enforceable under this section, is likely to be done, or omitted to be done, before a final enforcement order may be made.

.....

(8) Where any act or omission constitutes a contravention of a condition of an appointment under Chapter I of this Part or of a statutory or other requirement enforceable under this section, the only remedies for that contravention, apart from those available by virtue of this section, shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting such a contravention.”

26. Section 22, sub-sections (1) and (2) provide as follows:

“22.—(1) The obligation to comply with an enforcement order shall be a duty owed to any person who may be affected by a contravention of the order.

(2) Where a duty is owed by virtue of subsection (1) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit of that person.”

27. Section 106 gives a right to communicate with public sewers, in the following terms:

“(1) Subject to the provisions of this section—

(a) the owner or occupier of any premises in the area of a sewerage undertaker; or

(b) the owner of any private sewer draining premises in the area of any such undertaker,

shall be entitled to have his drains or sewer communicate with the public sewers of that undertaker and thereby to discharge foul water and surface water from those premises or that private sewer.”

28. Chapter 1 of Part VI of the Act gives a sewerage undertaker a wide variety of powers to enable it to carry out its functions, including the power of compulsory purchase of land (section 155), powers to lay pipes in streets (section 158), powers to lay pipes in other land (section 159) and power to carry out works to deal with foul water and pollution (section 161).
29. Section 179 vests all pipes laid and sewage works constructed by the sewerage undertaker in the undertaker.
30. Part V of the Act empowers a sewerage undertaker to charge for the services provided. Section 2(2)(b) of the Act requires the Secretary of State and the Director to carry out their duties in such a way as to secure that undertakers “are able (in particular, by securing reasonable returns on their capital) to finance the proper carrying out of the functions of such undertakers”.

Some facts about Thames and their policy in relation to flooding

31. Thames are one of the Thames Water PLC group of companies. Thames are a statutory water and sewerage undertaker for the purposes of the Water Act 1989 and the Water Industry Act 1991. As statutory sewerage undertaker, Thames are responsible for an area stretching from Cirencester to Brentwood and from Banbury to Crawley. Within that area, Thames are responsible for some 80,000 kilometres of public sewers ranging in size from 100mm. to over 6 metres in diameter. There are 361 sewage treatment works and over 2000 sewage pumping stations which serve some 5,400,000 connected properties and a population of some 12 million.
32. The revenue of Thames comes from water and sewerage charges. Those charges are fixed from time to time by the Director General of Water Services ("the DG"). In fixing the charges, the DG includes allowance for the cost of works necessary to remove properties from the risk of internal flooding. In more detail, the procedure is as follows. Every five years Thames submit a strategic business plan to the DG. That plan includes a statement of the capital funding needed to achieve what Thames believe to be a reasonable level of alleviation of flooding. Thames keep a database of flooding history identifying flooding incidents and the properties concerned. The DG reviews the submissions and sets the number of properties he requires to be removed from the flooding history database. He includes allowance for the cost of that in his assessment of the level of charges to be permitted. He issues directives setting out targets for performance by sewerage undertakers, one of which includes the alleviation of the risk of flooding of properties at risk. The category of property at risk of flooding for which allowance is made by the DG in the charges is properties at risk of internal flooding by foul or surface water. There is no allowance for properties at risk only of external flooding. Thus, in particular, Mr. Marcic's property, which has not suffered internal flooding, is not allowed for.
33. The flooding history database, which Thames maintain with the approval of the DG, includes all properties in Thames' area which are assessed to be at risk of flooding. There are three categories of risk. Risk A applies to properties statistically categorised as being at risk of internal flooding twice or more in ten years. Risk B applies to properties at risk of internal flooding once or more, but less than twice, in ten years. Risk X applies to all other properties with a history of flooding, including properties subject only to external flooding.
34. For the period 1990 to 1995, the DG required 3910 risk A properties to be removed from the risk of internal flooding. In fact, 3943 properties were so removed. For the period from 1995 to 2000, the target was 3700 risk A properties. The achieved figure was 4397 properties and the cost £132 million. For the period 2000 to 2005, Thames is required to remove 1500 risk A or risk B properties. The cost allowed is £ 46 million.
35. Between 1990 and 1997, Thames have carried out in the London Borough of Harrow 19 flooding projects, affecting 243 properties, at a cost of £9,433,300.
36. The way in which Thames determine priorities for spending moneys to alleviate flooding is by way of a points system. A customer impact score is attached to a given flooding incident. Points are awarded for various factors, e.g. whether the flooding is of foul water or of surface water, whether it is internal or external, whether the property is a school, hospital or nursing home, and whether the customer has been forced to vacate the property temporarily. In the case of external flooding, additional points are attached by reference to the frequency of such events, provided that the frequency is at least three events in five years. In the case of internal flooding, weightings are attached to the total by reference to the number of such incidents in a ten-year period, provided that it exceeds one, and to the time elapsed since the most recent event, provided that it is not more than ten years. The score is compared with the estimated cost of the necessary engineering project. The threshold for what Thames regard as the viability of an engineering project to alleviate the risk of flooding is 100 points per million pounds. Cases where the figure falls below 100 points per million pounds can be referred to a review group of Thames who can consider any additional factors. Examples of such factors are specific vulnerabilities of the customer, (e.g. old age, sickness or disablement), whether the matter has received press coverage and whether a Member of Parliament or a local councillor is involved in the matter.
37. Statistical evidence was given in respect of houses in Thames’ area at risk of flooding. Some 18,000 properties suffered or were at risk of internal flooding. Thames’ policy gave priority to these. Their evidence was that if they diverted funding to all who were in a similar position to Mr Marcic, this would compromise their ability to perform their statutory functions.
38. The Judge found that, applying Thames’ system of priorities, there was no prospect of any work being carried out in the foreseeable future to prevent the flooding of Mr Marcic’s property. Thames accepted that it would be possible to remedy Mr Marcic’s flooding problem without diverting resources from the 18,000 properties at risk of internal flooding and the Judge held, on the basis of this evidence, that it was reasonably practicable for Thames to prevent Mr Marcic’s flooding. He concluded, however, that it would cost Thames a sum in the order of £1,000 million to alleviate the flooding problems of all its customers who were in a similar position to Mr Marcic or whose properties were at risk of internal flooding once every ten years. In the financial year 1999-2000 profits of the Thames group after tax were £344 million. The Judge concluded that it would take several, if not many, years, to alleviate the problems of all these customers in the absence of an increase in sewerage charges.

The claim based on common law

39. In dismissing Mr Marcic’s claim in Rylands v Fletcher, nuisance, negligence and breach of statutory duty the Judge felt himself bound by a line of authority beginning with the case of Glossop v. Heston and Isleworth Local Board (1879) 12 Ch.D. 102. He concluded at paragraph 29:

“The effect of the above authorities is that a statutory drainage undertaker is not liable to a person in its area who suffers damage by flooding where the claim is based on failure on the part of the undertaker to undertake works to fulfil its statutory duty of drainage of the area. That is so whether the cause of action is nuisance, the principle in Rylands v. Fletcher or breach of statutory duty. It is clear that those authorities also cover the case of negligent non-feasance.”

40. The Judge held that Mr Marcic’s claim was a claim for non-feasance. It was a claim for failure to perform Thames’ statutory duty. He held at paragraph 41:

“However the argument is put, it reduces to the question whether the defendant is liable for failing, negligently or otherwise, to fulfil its statutory duty by carrying out the works necessary to prevent repetition of the nuisance.”

41. The Judge went on to consider whether a claim lay for breach of statutory duty. After referring to sections 18 and 22 of the 1991 Act he concluded that their effect was that:

“…an action for breach of statutory duty to enforce the defendant's duty under section 94 effectually to drain the area does not lie at the suit of an injured person unless an enforcement order has been made. No such order has been made in this case.”

42. Finally the Judge considered whether, despite the fact that no action lay for breach of statutory duty simpliciter, a claim could be made against Thames for negligently failing to carry out their statutory duty under the principles laid down in Stovin v Wise [1996] AC 923. He concluded that the policy of the Act was clear. There was no statutory liability to pay compensation and the policy excluded the existence of a common law duty of care to perform the statutory duty.

The issues

43. On behalf of Mr Marcic, Mr Hockman Q.C. submitted that the Judge erred in holding that the Glossop line of authority gave Thames immunity for non-feasance, having particular regard to (i) the fact that Thames was an enormously profitable commercial enterprise which had chosen to operate a sewerage undertaking under the statutory scheme as a business and (ii) the need to develop the common law in accordance with the Human Rights Convention.
44. On behalf of Thames, Mr Daiches accepted that the Judge had gone too far in holding that Thames could not be liable at common law for non-feasance. He submitted, however, that on the facts of this case Thames were under no liability for non-feasance. The strict liability under Rylands v Fletcher had no application. So far as nuisance and negligence were concerned, the only action that Thames could take to prevent the flooding of Mr Marcic’s property would require the purchase of land and the exercise of statutory powers. The law of nuisance did not impose a duty to purchase someone else’s land in order to abate a nuisance, nor did it impose a duty to take action where this could only be done by exercising statutory powers. To base an action in negligence upon a failure to exercise statutory powers, it was necessary for Mr Marcic to satisfy the requirements identified in Stovin v Wise, and this he could not do.

Rylands v Fletcher

45. In Pride of Derby and Derby Angling Association Ltd v British Celanese [1953] 1 Ch. 149 at 189 Denning L.J. observed:

“I doubt whether the doctrine of Rylands v Fletcher L.R. 3 H.L. 330 applies in all its strictness to cases where a local authority, acting under statutory authority, builds sewers which afterwards overflow, or sewage disposal works which later pour out a polluting effluent, for the simple reason that the use of land for drainage purposes by the local authority is ‘such a use as is proper for the general “benefit of the community”’, and is on that found exempt from the rule in Rylands v Fletcher, see Rickards v Lothian [1913] AC 263, 280 per Lord Moulton, approved by the House of Lords in Read v J. Lyons & Co. Ltd [1947] AC 156, 169, 187 per Lord Simon and per Lord Uthwatt; and also on the ground of statutory authority, see Hammond v St. Pancras Vestry (1894) L.R. 9 C.P. 316, 322 per Brett J.”

46. We share the doubts expressed by Denning L.J. for the reasons that he gave. For reasons that will become apparent, however, it is not necessary for us to express a concluded view on whether a claim lies under Rylands v Fletcher, and we shall not do so.

Nuisance

47. Counsel for Mr Marcic submitted to Judge Havery that the line of authority that begins with Glossop cannot stand with the more recent development of the law of nuisance. The Judge was not persuaded that there had been any relevant change in the law. We propose to address the law of nuisance in three stages. First we shall consider the manner in which the common law has developed up to the present day. Then we shall consider the impact on liability in nuisance of statutory authority. Finally we shall consider the line of authority that specifically addresses the liability in nuisance of sewerage undertakings.

The common law of nuisance

48. The origin of the action for nuisance was identified by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] AC 880 at p.902 as the assize of nuisance, a real action supplementary to the assize of novel disseisin. The assize was superseded by the action on the case for nuisance which sounded in damages. In 1940 Lord Wright at p.903 approved the succinct definition of private nuisances as

‘…interferences by owners or occupiers of property with the use or enjoyment of neighbouring property…. The ground of responsibility is the possession and control of the land from which the nuisance proceeds…. A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The forms which nuisance may take are protean.

49. Prior to 1940, liability in nuisance had generally resulted from activities carried on by the occupier of land. In Sedleigh-Denfield the issue was whether the occupiers of land were liable for flooding to a neighbour’s land that was caused by an obstruction to a culvert on the occupiers’ land that had been placed there by a trespasser. The House of Lords held that liability was established because the occupiers, through their agents, had become aware of their obstruction and permitted it to continue. The following passage in Salmond’s Law of Torts, approved in a dissenting judgment of Scrutton L.J. in Job Edwards Ltd v Birmingham Navigation Proprietors [1924] 1 K.B. 341, was held to be good law:

“When a nuisance has been created by the act of a trespasser or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement.”

50. Lord Maugham put the test of liability as follows at p.894:

“The statement that an occupier of land is liable for the continuance of a nuisance created by others, e.g., by trespassers, if he continues or adopts it – which seems to be agreed – throws little light on the matter, unless the words “continues or adopts” are defined. In my opinion an occupier of land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He “adopts” it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences I am not attempting exclusive definitions.”

51. Goldman v Hargrave [1967] AC 645 was a case which came to the Privy Council from the High Court of Australia. The issue was whether the occupier of land on which a fire had started by natural causes was under a duty to take reasonable steps to prevent the fire spreading to the land of his neighbour. The Board held that he was. Early in the judgment of the Board, Lord Wilberforce addressed the question of the legal classification of the duty owed by the occupier. He said at p.656-7:

“…the case is not one where a person has brought a source of danger onto his land, nor one where an occupier has so used his property as to cause a danger to his neighbour. It is one where an occupier, faced with a hazard accidentally arising on his land, fails to act with reasonable prudence so as to remove the hazard. The issue is therefore whether in such a case the occupier is guilty of legal negligence, which involves the issue whether he is under a duty of care, and, if so, what is the scope of that duty. Their Lordships propose to deal with these issues as stated, without attempting to answer the disputable question whether if responsibility is established it should be brought under the heading of nuisance or placed in a separate category. … the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive. The present case is one where liability, if it exists, rests upon negligence and nothing else; whether it falls within or overlaps the boundaries of nuisance is a question of classification which need not here be resolved.

What then is the scope of an occupier’s duty, with regard to his neighbours, as to hazards arising on his land? With the possible exception of hazard of fire, to which their Lordships will shortly revert, it is only in comparatively recent times that the law has recognised an occupier’s duty as one of a more positive character than merely to obtain from creating, or adding to, a source of danger or annoyance. It was for long satisfied with the conception of separate or autonomous proprietors, each of which was entitled to exploit his territory in a “natural” manner and none of whom was obliged to restrain or direct the operations of nature in the interest of avoiding harm to his neighbours.”

52. Lord Wilberforce went on to reject the occupier’s contention that a distinction was to be drawn between a hazard created by the act of a trespasser, as in Sedleigh-Denfield and a hazard created by act of nature. The occupier came under a duty of care in either case. At p.663 he dealt with the scope of the duty:

“How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be “reasonable,” since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. … the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more.”

53. Goldman was a controversial decision and, in Leakey v National Trust [1980] 1 Q.B.485, where damages were claimed for a collapse of soil onto the plaintiffs’ land, counsel for the defendant occupiers contended that it did not represent the law of England. Alternatively they contended that any duty in respect of a hazard arising naturally on land lay in negligence and not in nuisance. The Court of Appeal rejected both contentions. In the leading judgment, Megaw L.J. dealt with the second point at p.514:

“It is convenient at this stage to deal with the second proposition put forward by the defendants in the present appeal. The plaintiffs’ claim is expressed in the pleadings to be founded in nuisance. There is no express reference to negligence in the statement of claim. But there is an allegation of a breach of duty, and the duty asserted is, in effect, a duty to take reasonable care to prevent part of the defendants’ land from falling on to the plaintiffs’ property. I should, for myself, regard that as being properly described as a claim in nuisance. [we believe that this should read ‘negligence’] But even if that were, technically, wrong, I do not think that the point could or should avail the defendants in this case. If it were to do so, it would be a regrettable modern instance of the forms of action successfully clanking their spectral chains; for there would be no conceivable prejudice to the defendants in this case that the word “negligence” had not been expressly set out in the statement of claim.”

54. In ruling that the duty of care identified in Goldman was one that arose under English law, Megaw L.J. considered the scope of the duty at some length in a passage which included the following statement:

“The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man – not the average man – can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some from of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.”

55. In British Road Services v Slater [1964] 1 WLR 498 at p. 504 Lord Parker CJ remarked upon the tendency of the law 'more and more to assimilate nuisance and negligence'. This is more true than ever today. Where a claim is based on damage caused by the act of an occupier of land, he is likely to be held to have used his land unreasonably if it was reasonably foreseeable that his act would harm his neighbour’s land. In such circumstances, the test of liability in nuisance and negligence overlaps to the extent that the two can become indistinguishable. Where, however, the claim is for a failure to take action, the position is not the same. It is only in exceptional circumstances that the law of negligence imposes a duty to act to prevent harm rather than a duty not to act in a way that will cause harm. If cases such as Goldman and Leakey are to be categorised as cases in negligence, then this must reflect the fact that ownership or control of realty is one of the exceptional circumstances that give rise to a duty of care to take action. At the end of the day the question of categorisation is academic. As Megaw L.J. observed, the forms of action no longer rule us. The two cases clearly establish that ownership of land carries with it a duty to do whatever is reasonable in all the circumstances to prevent hazards on the land, however they may arise, from causing damage to a neighbour.
56. The approach of the Court of Appeal in Leakey has been applied so as to impose on the owner or occupier of land a measured duty of care to prevent damage to a neighbour's land from lack of support due to natural causes - Holbeck Hall Ltd v Scarborough B.C. [2000] QB 836. It has also been applied by the House of Lords to the duty of a landowner not to permit tree roots to cause damage by encroaching on a neighbour's land - Delaware Mansions Ltd v Westminster City Council [2001] 3 WLR 1007.

Statutory Authority

57. Thames carry out their functions as sewerage authority in the performance of the duties and the exercise of the powers conferred on them by the 1991 Act. The question arises of how, if at all, this affects their common law duties in nuisance and negligence.
58. In Allen v Gulf Oil Refining Ltd. [1981] A.C.1001 Gulf Oil had built an oil refinery pursuant to powers conferred on them by statute. The plaintiff, who lived near the factory, brought an action in nuisance in respect of noise, smell and vibrations caused by the refinery. Gulf Oil contended that they had a defence in that they had statutory authority to build and operate the refinery. The case came to the House of Lords on a preliminary issue of whether this defence was sound in law. In the leading speech Lord Wilberforce ruled as follows at p.1011:

“We are here in the well charted field of statutory authority. It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is taken away: Hammersmith and City Railway Co. v. Brand (1869) L.R. 4 H.L. 171, 215 per Lord Cairns. To this there is made the qualification, or condition, that the statutory powers are exercised without “negligence” - that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons: Geddis v. Proprietors of Bann Reservoir (1878) 3 AppCas 430, 455 per Lord Blackburn. It is within the same principle that immunity from action is withheld where the terms of the statute are permissive only, in which case the powers conferred must be exercised in strict conformity with private rights: Metropolitan Asylum District v. Hill (1881) 6 App.Cas. 193.

59. At pp.1013-4 Lord Wilberforce expanded on the meaning of ‘negligence’ in this context:

“If I am right upon this point, the position as regards the action would be as follows. The respondent alleges a nuisance, by smell, noise, vibration, etc. The facts regarding these matters are for her to prove. It is then for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site, conforming with Parliament’s intention, without creating the nuisance alleged, or at least a nuisance. … the statutory authority extends beyond merely authorising a change in the environment and an alteration of standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site – not, I repeat, the existing refinery, but any refinery – however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy.”

60. In Department of Transport v North West Water Authority [1984] 1 A.C. 336 statutory authority was invoked by way of defence by a water undertaker in answer to a claim in nuisance in respect of damage caused by a burst water main. At p.336 Webster J. set out the following propositions, which were subsequently approved by the House of Lords:

“1. In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a duty imposed upon it by statute: see Hammond v. Vestry of St. Pancras L.R. 9 C.P. 316. 2. It is not liable in those circumstances even if by statute it is expressly made liable, or not exempted from liability, for nuisance: see Stretton’s Derby Brewery Co. v Mayor of Derby [1894] 1 Ch 431, and Smeaton v. Ilford Corporation [1954] Ch. 450. 3. In the absence of negligence, a body is not liable for a nuisance which is attributable to the exercise by it of a power conferred by statute if, by statue, it is not expressly either made liable, or not exempted from liability, for nuisance: see Midwood & Co. Ltd. v. Manchester Corporation [1905] 2 KB 597; Longhurst v. Metropolitan Water Board [1948] 2 All E.R. 834; and Dunne v. North Western Gas Board [1964] 2 Q.B. 806. 4. A body is liable for a nuisance by it attributable to the exercise of a power conferred by statute, even without negligence, if by statute it is expressly either made liable, or not exempted from liability, for nuisance: see Charing Cross Electricity Supply Co. v. Hydraulic Power Co. [1914] 3 KB 772.

In these rules, references to absence of negligence are references to:

“the qualification, or condition, that the statutory powers are exercised without ‘negligence’ – that word being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons: …”: see Allen v. Gulf Oil Refining Ltd. [1981] AC 1001, 1011, per Lord Wilberforce.”

61. The present case Mr Marcic’s case is pleaded in breach of statutory duty, negligence and nuisance. The statutory duty alleged is that arising under section 94(1) of the 1991 Act. The effect of section 18(8) coupled with section 22 is that Mr Marcic cannot found a claim that relies on an allegation of breach of section 94. Thus no action lies for breach of statutory duty. The Judge correctly so held.
62. Under the concluding words of section 18(8) any common law claim will lie which does not involve the averment of violation of the Act. Thames have not sought to establish that the flooding of Mr Marcic’s property was the inevitable consequence of the exercise of their statutory duties or powers so that they have not been negligent in the special meaning of that word in Allen. As that case makes plain, the burden of establishing this defence falls on Thames. In the event the Judge held that Thames had the resources and the powers necessary to remedy the nuisance. It follows that no defence of statutory authority has been made out in relation to the claims founded in negligence and nuisance. The issue is whether such claims lie at common law. It is time to look at the line of authority which led the Judge to conclude that they do not.

Liability in nuisance of sewerage undertakers

63. In Glossop a landowner brought an action in nuisance against the Local Board for failing to prevent sewers, which had recently been transferred by statute to the Board, from polluting the River Crane which flowed through his land. The Court of Appeal held that the Board was not liable. The precise reasoning of the Court has not been found easy to analyse. It is generally agreed that James L.J. approached the claim as if it was for an injunction requiring the Board to perform its statutory duty of installing a sewerage system. Thus he held at p.110:

“If the sewer, being in the state in which it was transferred to them, would, independently of the Act of Parliament, give to any landowner or any riparian proprietor a right to an injunction to restrain the use of that sewer, or the abuse of that sewer, it appears to me they would be in the same position as any other owner of a sewer would be. But the case here is not based upon any common law nuisance, or any nuisance existing, or any damage existing irrespective of the neglect of the Act, but upon the alleged neglect to comply with the provisions of the Act of Parliament.”

64. James L.J. went on to hold that the alleged breach of statutory duty did not give rise to a private law entitlement to relief, but that the appropriate remedy would be to seek a mandamus.
65. Brett L.J’s judgment was to similar effect. He said at p.119:

“Under those circumstances what is their position with regard to the law? They have done no act. It is suggested it might have been proved they had done some act, and it was said the Plaintiff was taken by surprise. I cannot accede to that argument. It seems to me that the statement of claim is founded upon an allegation that the Defendants have merely neglected to carry out the purposes of the Act, and the very statement of claim, which must have been made before any act of the Defendants that could mislead the course of the litigation had occurred, assumes that the Plaintiff could not state any act done by the Defendants which was a wrongful act, but that the claim of the Plaintiff was founded solely upon a neglect by the Defendants to perform their duty under the Act;”

66. Cotton L.J. first said that an injunction should not be granted unless the court was satisfied that there was a particular mode by which they could implement a scheme of drainage, which it was not. He went on to draw a distinction between the case before the court and cases in which plaintiffs had successfully brought proceedings in relation to nuisances caused by sewage undertakings. Thus he said at p.128:

“Here it is not that the Defendants have done a wrongful act, and that they are seeking to protect that wrongful act by saying that unless they do it they cannot do something else, but the Plaintiff asks that they may be called upon to exercise the powers of this Act, because that will relieve him from nuisance and injury – an injury not done by the act of the Defendants, but which existed before the Defendants came into existence. Those cases are not at all authorities for the suggestion that we should make a mandatory decree without seeing that there is a practical mode of carrying into effect the powers given by this Act of Parliament.”

67. Glossop was followed by the Court of Appeal in Attorney-General v Guardians of the Poor of Dorking (1881) 20 Ch. D. 595. So far as a claim in common law for nuisance was concerned, Jessel M.R. held that no claim lay because there was no way that the defendants could prevent third parties from discharging into the sewers vested in them. Turning to the question of breach of statutory duty he held that the defendants were doing the best that they could to introduce a scheme of drainage. An injunction should not be granted when there was no way that it could be complied with.
68. Cotton L.J. said at p.609:

“…the Act does not give authority to use or do anything so as to commit a nuisance; and, as was pointed out by Lord Justice James, and I think also by myself in our judgment in the Glossop Case 12 ChD 102, it means simply this, if you want, for the purpose of doing anything, to rely upon authority given by the Act, you must do that thing so as not to commit a nuisance. Here they are doing nothing, they are not constructing a new system of sewers. It was said that they are in fact using this sewer by allowing it to be used as part of the existing system of drainage which is vested in them. That is, they are not substituting a new system of sewerage, and in my opinion the mere fact that they have not substituted a new system of sewerage cannot make this the using of the sewer by them when it is used without any leave granted by them under the rights which are granted by the Act to householders. That being so, in my opinion they are doing no act, and the injunction ought not to be granted.”

69. Robinson v Workington Corporation [1897] 1 QB 619 was a case that more closely resembled that before us. The Plaintiff suffered damage as a result of sewage baying back and overflowing into his houses. The sewers, when built, had been adequate, but they had become overcharged as a result of additional buildings which had exercised their statutory right to connect to the sewer. The claim does not appear to have been founded in nuisance, but simply in breach of statutory duty in failing to provide an effectual sewerage system. The Court of Appeal dismissed the claim, following Glossop. In the course of his judgment, Lopes L.J. remarked at p.622

“It was admitted at the trial that the plaintiff’s case was one of non-feasance. There would be no duty on the part of the defendants unless it had been created by statute, and the duty so created is to the public…”

70. In Jones v Llanrwst Urban District Council [1911] 1 Ch 393 Parker J. distinguished Glossop in holding a local authority responsible for discharging sewage into a stream. He held that the plaintiff was complaining of a private wrong and that the Defendants had inherited the common law obligations of their predecessors, who had constructed the sewerage system. He added that the Defendants had not confined themselves to leaving things as they found them, but had laid new sewers connected with the system and enlarged a very considerable part of the system that they had inherited. This alone took the case outside Glossop.
71. In Hesketh v Birmingham Corporation [1924] 1 K.B. 260 the Court of Appeal held that the defendants were not liable for discharging a sewer into a stream, for they had statutory authority to do so and had exercised their right without negligence. In the course of his judgment, Scrutton L.J. remarked at p.271 that ‘the general rule is that a local authority is liable for misfeasance but not for non-feasance’.
72. In Pride of Derby the plaintiffs sued Derby Corporation, the sewerage undertaker, in nuisance for discharging sewage into the river Derwent. The Corporation argued that the sewerage works were adequate when constructed, but had become inadequate because of the growth of the population of Derby. The case was one of non-feasance. Glossop demonstrated that there was no liability in such circumstances.
73. Evershed M.R. gave the leading judgment. He started by analysing the reasoning in Glossop and Dorking Union, which he did not find easy. At p.174 he said this of them:

“But, whatever may be the true ratio decidendi of the judgments in the Glossop case 12 ChD 102, 109 and the Dorking Union case 20 ChD 595 which followed, they must, I think, clearly be taken as deciding that where a local authority has inherited drains or sewers under the Public Health Act, and those drains or sewers constitute a nuisance by reason only that they have ceased to deal adequately with the sewage of the authority’s district, then the local authority, not having themselves been at fault save that they have not used the powers vested in them to enlarge the sewerage system, are not liable to be sued in the courts, for such an action would be, in effect, an action to compel the exercise of the statutory powers, or performance of the statutory duty, by the local authority. ….

But the Glossop 12 ChD 102 and Dorking 20 ChD 595 decisions are themselves limited to cases where the local authority has, to use the word I have already used, “inherited” the drains and sewers from some predecessor. They do not in terms cover the case where the local authority has itself constructed the sewerage system. Indeed, some of the language of Brett and Cotton L.JJ. seems to indicate a distinction in that respect vital to the question of liability.”

74. The Master of the Rolls distinguished Glossop, holding the Corporation liable:

“The result, therefore, seems to me to be that the question whether the principle of the Glossop 12 ChD 102 and later cases is applicable only where the authority sued has not itself constructed the sewers complained of as creating a nuisance by pollution has not yet been actually decided. For my part, I see great force in Sir Andrew’s argument that there is no logical or valid distinction between the case where a local authority has inherited, say, half a century ago, sewers and drains made (and, at the time of their construction, adequately made) by some predecessor, and a case in which a local authority itself made half a century ago some sewers and drains which, when they were made, were similarly adequate properly to drain the city or town without causing pollution. But, as I have said, the cases do not seem to me actually to have decided that precise point, and I think that in this case it is unnecessary that I should express a concluded view upon it, because on the facts I think that the present case is clearly distinguishable from the type of case considered in the earlier authorities.

We are here concerned, not with a drain or a sewer down which there is sent by local inhabitants (having the right so to do) sewage matter which passes accordingly into a river; we are here concerned with sewage disposal works built on the corporation’s own land. … what the local authority are doing, as I follow it, is on their own land pumping or otherwise diverting into the river, by such mechanical or other means as may be there, the effluent after treatment in the beds and tanks of the disposal works.”

75. He went on to observe at p.180 that the plaintiffs’ case was not obliquely directed to commanding a local authority to perform a public duty:

“The point is one which the judge noted (and I think that it was a legitimate consideration on his part) in his judgment, where he said: “The plaintiffs’ claim here is not that the corporation have neglected to provide further sewers, although it may be that the remedy for that of which they complain will be the construction of further sewers. They are not ratepayers of Derby who complain of the insufficiency of the drainage of the city; their complaint is the converse, namely, that the city is so drained that their property outside it is damaged.” It follows that many of the observations which James L.J. directed to the plaintiff in the Glossop case 12 ChD 102 would, on any view, be quite inapplicable to the present case.”

76. Denning L.J. started his judgment by observing that ‘Homer had nodded when, in Hesketh Scrutton L.J. stated that the general rule was that local authorities were liable for misfeasance, but not for non-feasance. He went on to analyse the Glossop line of authorities in the following manner:

“…it must be remembered that a person may “continue” a nuisance by adopting it, or in some circumstances by omitting to remedy it: see Sedleigh-Denfield v. O’Callaghan [1940] AC 880; 56 T.L.R. 887;

….when a local authority take over or construct a sewage and drainage system which is adequate at the time to dispose of the sewage and surface water for their district, but which subsequently becomes inadequate owing to increased building which they cannot control, and for which they have no responsibility, they are not guilty of the ensuing nuisance. They obviously do not create it, nor do they continue it merely by doing nothing to enlarge or improve the system. The only remedy of the injured party is to complain to the Minister.”

77. Denning L.J. distinguished these cases, holding that the Corporation was liable to the plaintiffs on the following basis at p.191:

“When the increased sewage came into their sewage disposal works at Spondon, they took it under their charge, treated it in their works, and poured the effluent into the river Derwent; but their treatment of it was not successful in rendering it harmless; it was still noxious. Their act in pouring a polluting effluent into the river makes them guilty of nuisance. Even if they did not create the nuisance, they clearly adopted it within the principles laid down in Sedleigh-Denfield v. O’Callaghan [1940] AC 880, and they are liable for it at common law unless they can defend themselves by some statutory authority.”

78. Romer L.J. concurred, holding, at p.193, that once it was conceded that the Corporation had created a nuisance by discharging noxious material from their sewage treatment works they could only escape liability by showing that this was the inevitable result of doing that which the statute had authorised them to do. This they could not do.
79. In Smeaton v Ilford Corporation [1954] 1 Ch. 450 overflow from the defendants' sewer had damaged the plaintiff's property. The defendants had constructed the sewer, but it had originally been adequate for its purpose and no negligence was alleged. It had become inadequate because of the growth of housing that discharged into it. Upjohn J. held that there was no action that the defendants could take to prevent the overflow. In these circumstances he dismissed the plaintiff's claim in nuisance, Rylands v Fletcher and trespass. One reason that he gave for his decision (p.463) was that no claim in nuisance could be based on the fact that the sewer had become inadequate for its purpose, citing the passage in the judgment of Denning LJ in Pride of Derby, which we have quoted above.
80. In Dear v Thames Water (1992) 33 Con L.R. the plaintiff sued Thames Water in respect of flooding from storm water which was caused by backing up from a culvert over which Thames Water had no control. H.H. Judge Bowsher held that in these circumstances Thames Water was under no liability in nuisance. He relied on Glossop in so holding. The plaintiff sought to rely on Leakey but the Judge held at p.69 that this had not affected the Glossop line of authority. He added:

“Leakey’s case was a case which dealt with the common law duty of a private landowner. It has no application to the situation of a public authority, whose responsibilities must be considered in the light of the specific statutes governing the situation, even where, as here, breach of statutory duty is not alleged. Glossop’s case is still binding on me, and it can be reconciled with Leakey’s case, if it is necessary to reconcile the two, within the application of the reasonableness test, which still has to be worked out in detail.”

Are Thames liable in nuisance?

81. We now turn to apply the authorities that we have considered above to the facts of this case. We propose first to consider Thames' position under the general principles of the common law, before turning to see whether the Glossop line of authority affects the position. We proceed upon the basis, that appears to be common ground, that: (1) The flooding is caused by the inadequacy of a section of the sewerage system which Thames inherited. (2) That section, when constructed, was adequate to meet the foreseeable needs of removing surface water and foul water from the area that it served. (3) The section has become inadequate because of the increase of water and sewage discharged into it which has been effected by third parties as of right under section 106 of the 1991 Act, or predecessors of that section to like effect.

The general principles of the law of nuisance

82. Thames are the owners of and in control of the sewers from which the foul and surface water has escaped, and of the system to which those sewers are connected. The judge held at paragraph 38 of his judgment that, on the premise that the sewers constituted the nuisance, Thames, by passively using the sewers in order to carry out its statutory duty of draining its area, passively permitted the nuisance to continue and thereby adopted the nuisance.
83. We agree with this part of the judge’s analysis. Indeed we think that the matter can be put higher against Thames. The sewers form part of a system which Thames are operating as a commercial venture in order to make profits for their shareholders. Thames are in no more favourable position than a landowner on whose property a hazard accumulates by the act of a trespasser or of nature. At all material times Thames have had, or should have had, knowledge of the hazard . If the principles identified in Goldman and Leakey are applied, these facts placed Thames under a duty to Mr Marcic to take such steps as, in all the circumstances, were reasonable to prevent the discharge of surface and foul water onto Mr Marcic’ property.
84. This raises a question of burden of proof. Does Mr Marcic have to prove that Thames have not done all that was reasonable, or does Thames have to prove that they have done all that was reasonable? In Southport Corporation v Esso Petroleum [1954] 2 QB 182 at p. 197 Lord Denning MR said:

“One of the principal differences between an action for public nuisance and an action for negligence is the burden of proof. In an action for a public nuisance, once the nuisance is proved and the defendant is shown to have caused it, then the legal burden is shifted on to the defendant to justify or excuse himself. If he fails to do so, he is held liable, whereas in an action for negligence the legal burden in most cases remains throughout on the plaintiff. In negligence, the plaintiff may gain much help from provisional presumptions like the doctrine of res ipsa loquitur, but, nevertheless, at the end of the case the judge must ask himself whether the legal burden is discharged. If the matter is left evenly in the balance, the plaintiff fails. But in public nuisance, as in trespass, the legal burden shifts to the defendant, and it is not sufficient for him to leave the matter in doubt. He must plead and prove a sufficient justification or excuse.”

85. The editors of Clerk & Lindsell on Torts, 17^th ed., after quoting from this passage, remark at p.904:

‘in relation to private nuisance there seems no reason why the maxim res ipsa loquitur should not apply in appropriate cases to require the defendant to show that he was not at fault and was not negligent’.

86. We agree with this comment. In Allen at pp.1013, 1014 and 1015 the House of Lords held that it was for the plaintiff to prove the nuisance, but then for the defendant to prove absence of negligence, giving that word the special meaning accorded to it. Once a claimant has proved that a nuisance has emanated from land in the possession or control of the defendant, the onus shifts to the defendant to show that he has a defence to the claim, whether this be absence of ‘negligence’ in a statutory authority case or that he took all reasonable steps to prevent the nuisance, if it is a Leakey situation.
87. In the present case Thames did not set out to prove that they had taken all reasonable steps to prevent causing a nuisance to Mr Marcic. They did, however, seek to show that their system of priorities was a fair way of devoting limited resources to the widespread problem of nuisances emanating from their sewers. Arguably, had they established this, they might have established also that they had done everything that was reasonable within the Leakey test. We say ‘arguably’ because we cannot readily accept that a body with the actual and potential resources of Thames is in a position to rely on lack of resources to justify not merely taking no immediate steps, but taking no steps at all to abate a nuisance such as that suffered by Mr Marcic. In the event, however, Thames failed to persuade the Judge that their system of priorities was a fair one. We agree with the Judge’s conclusion, and thus a Leakey defence cannot be made out on this basis.
88. Mr Daiches submitted nonetheless that Thames could not be held liable under the Leakey principle. He did so on two grounds: (i) In order to abate the nuisance Thames would have to acquire land in order to construct the necessary works. The Leakey duty of care could not extend that far. (ii) In order to abate the nuisance Thames would have to make use of their statutory powers. The Leakey duty could not be invoked so as to require this.
89. In support of his first ground, Mr Daiches referred us to an observation of Scrutton L.J. in his seminal judgment in Job Edwards at p.360:

‘surely a landowner cannot be required to execute permanent works on another person’s land, if he could not then stop the fire on his own land’.

90. We do not read this statement as one of principle that a defendant can never be obliged to purchase land in order to abate a nuisance emanating from land that he already owns. It may be that the Leakey test will seldom involve such a duty, but where a massive corporation, such as Thames, is carrying on business as a sewerage undertaker, we consider that the common law duty to take reasonable steps not to permit a nuisance to continue will often involve the requirement to add to the substantial land areas that it already owns.
91. In advancing his submission, Mr Daiches very properly drew our attention to the facts of the case of Bybrook Barn Centre v. Kent County Council [2001] BLR 55. In that case the Court of Appeal held that the owners of land downstream of the claimants’ land were liable in nuisance for failure to enlarge a culvert, which was causing a stream to back up and flood the claimants’ land. Mr Daiches informed us that, although this is not apparent from the report, the only way of enlarging the culvert was by the purchase of land adjacent to the defendants’ own property. As the point now taken by Mr Daiches was not taken in Bybrook, we do not consider that Bybrook is fatal to his case. We do, however, consider that it exemplifies the fact that the Leakey duty is not subject to the limitation for which he contends.
92. We turn to Mr Daiches’ contention that, when considering what Thames can reasonably be required to do under the Leakey principle to abate the nuisance, no regard can be had to their statutory powers. His reasoning appears from the following passage in his skeleton argument:

“In the absence of express statutory authority, a public body (or it is submitted a private body exercising public functions) is in principle liable for torts in the same way as a private person - see Stovin v Wise [1996] AC 923 per Lord Hoffmann at page 946G. It is submitted that, by the same token, a public body cannot be under a greater liability at common law than a private person would be, merely because of the existence of its statutory powers.

The question whether a public body comes under a duty to exercise its statutory duties and statutory powers depends on entirely different principles, namely the principles laid down by Lord Hoffmann in Stovin v Wise [1996] AC 923 at pages 947C to 958E.”

93. We do not consider that Mr Daiches’ reasoning is correct. The foundation of a claim in nuisance is the fact that the defendant has caused or permitted the nuisance to occur. It is the emanation of the nuisance from land within the control of the defendant that is the foundation of the claim to relief. The existence of the statutory power may become relevant when considering what the defendant could reasonably have done to prevent the nuisance. The duty to take reasonable steps to abate the nuisance is not, however, founded on the fact that the statutory power exists. This position is in contrast to a case such as Stovin v Wise where the defendant would have been under no duty at all but for the statute, whose provisions were the foundation of the claim.
94. We are in no doubt that, when applying the Leakey test of duty to a sewerage undertaking such as Thames, the reasonableness of Thames’ conduct must be judged having regard to all the steps that it is open to Thames to take to abate the nuisance, whether under statutory powers or otherwise. In this context we would draw attention to an observation of Chadwick LJ in British Waterways Board v Severn Trent Water Ltd [2001] EWCA CIV 276 at paragraph 74. In that case it had been argued that the defendant sewerage undertaker had an implied power to discharge sewage into canals and watercourses implicit in its statutory power to lay and maintain pipes under the 1991 Act. Chadwick LJ said:

“…for my part, I would not expect an implied power of that nature to follow from the fact that a company limited by shares (which, it may be assumed, are to pass out of public ownership in due course, if the objective of privatisation is to be achieved) has been appointed as a sewerage undertaker to carry out the duties imposed by section 94 of the 1991 Act. What I would expect to find (and do find) in the legislation is a power to acquire by compulsory purchase, with the authority of the Secretary of State and upon payment of compensation, the rights which the undertaker needs to carry out its functions.”

95. It would be an unrealistic, indeed an absurd, exercise to consider whether Thames had taken reasonable steps, having regard to their individual circumstances, to abate the nuisance, without including their statutory powers in those circumstances.
96. For these reasons, unless the Glossop line of authority alters the position, we have concluded that Thames are liable to Mr Marcic for the nuisance that he has suffered for the entire period covered by his claim.

The Glossop line of authority

97. If Glossop and the cases that followed it are to be treated as cases dealing with claims in nuisance, we consider that they cannot survive the development of that law in Goldman and Leakey. Glossop was decided at a time when the law of nuisance drew a clear distinction between misfeasance and non-feasance. Having regard to the finding in Glossop that the defendants had not been guilty of any wrongful act, it is not surprising that there was no finding of liability in nuisance. Judge Havery held at paragraph 37 that Leakey introduced no new principle into the law of nuisance, accepting a submission that it applied a principle going back to the end of the 19th century. We do not agree. Goldman and Leakey saw a significant extension of the law of nuisance, which had already been radically extended by the decision in Sedleigh-Denfield.
98. The Court of Appeal in Glossop dismissed the suggestion that an action would lie in nuisance almost out of hand. They treated the defendants on the same basis as a landowner through whose land a stream flowed into which others, over whom he had no control, discharged sewage. They held that the gist of the action was a claim for failure to perform a statutory duty. Such a claim could only be brought in public law. This reasoning was thrown into question once the law of negligence recognised that a person who owns or controls land cannot remain passive in the face of a hazard arising on his land, even if he is in no way responsible for the creation of that hazard. The Court of Appeal could not have approached the facts in Glossop in the way that they did, had they been considering those facts today. The same is true of Guardians of the Poor of Dorking and Robinson. There are, however, other bases for distinguishing Glossop and the cases which followed it.
99. The Court of Appeal in Glossop treated the claim as if it were a claim for failure to perform a statutory duty. Thus, at the start of his judgment, James LJ observed at p.109:

“If this action could be maintained, I do not see why it could not in a similar manner be maintained by every owner of land in that district who could allege that if there had been a proper system of sewage his property would be very much improved.”

100. In Pride of Derby the Master of the Rolls commented, by way of contrast with Glossop, that the plaintiffs’ case was not obliquely directed to commanding a local authority to perform a public duty. The complaint was not of failure to drain the city, but of draining the city in such a way that the plaintiffs’ property was damaged. The same is true of Mr Marcic’s case. He is not complaining of failure on the part of Thames to drain his property. He is complaining of the fact that their drainage of the property of others is resulting in discharge from Thames’ system which is damaging his property.
101. In Bybrook at p.61 Waller L.J. put forward the following analysis of the sewerage cases:

“…the main distinction between the situations in Glossop, Smeaton, and Dear as compared to Pride of Derby would appear to me to be as follows. First, in cases such as Glossop, Smeaton and Dear, the plaintiffs were members of the public for whose benefit the sewers or sewerage system had been installed, and what the plaintiffs were in effect doing was seeking an order to compel the local authority to carry out their statutory duty to provide an adequate system. That was found to be seeking a public law remedy and provided one reason why the Plaintiffs’ actions in private nuisance could not succeed. (see Lord Evershed MR at 174-175 and Denning LJ at 190 in Pride of Derby; Upjohn J in Smeaton at 463 and Judge Bowsher in Dear at 58-59). Second, the statutory provisions imposing duties, providing powers, and granting exemptions, were important in those cases. In Pride of Derby the statutory provision on which the council was relying as protecting them from liability, was found by the court in fact to confirm that there was liability. In Smeaton the statutory provision was ‘generously’ construed to relieve the statutory authority from liability under the rule in Rylands v Fletcher albeit I accept that was not the basis for relief from the liability in nuisance. In Dear the case really turned on whether there was liability in relation to the exercise of statutory powers. Third, as Upjohn J’s judgment in Smeaton showed, it will be a relevant consideration as to whether a defendant should be liable for ‘continuing’ a nuisance created by forces for which that defendant is not responsible, whether it is reasonably practicable for that person to prevent the nuisance continuing. In Smeaton the finding was that it was not reasonably practicable to do so. In Pride of Derby it is difficult to discern this point being considered in any detail, but, since an injunction was granted, albeit suspended for a reasonable period, the implication is that it must have been contemplated that prevention was reasonably practicable. In Dear the finding of the judge was that the defendants did not have immediate physical control of the thing causing the nuisance. On that basis for example he distinguished Goldman and Leakey (see page 70.”

102. Mr Daiches submitted that the crucial element in this analysis was the question of whether or not it was reasonably practicable to prevent the continuance of the nuisance. He submitted that in the present case it was not, but this was on the basis that the purchase of land and the exercise of statutory powers had to be disregarded when considering what was practicable. We have ruled against him on this point.
103. In summary, our conclusion is that Mr Marcic has a valid claim in nuisance under the common law. That claim is not a concealed attempt to make Thames perform a statutory duty. The Glossop line of authority is no bar to it. Thames have failed to demonstrate by way of defence that it was not reasonably practicable for them to prevent the nuisance. Mr Marcic’s cross-appeal succeeds.
104. What are the consequences of this? We have been dealing with matters that Judge Havery dealt with as preliminary points, and no argument has been addressed to us as to the measure of damages to be applied to his claim in nuisance. It is reasonable to assume, however, that the damages to which Mr Marcic is entitled will afford him ‘just satisfaction’ for the wrong that he has suffered. On that premise, and having regard to the provisions of section 8(3) of the Human Rights Act 1988, Mr Marcic’s right to damages at common law displaces any right that he would otherwise have had to damages under the Act. Thames’ appeal against the Judge’s finding that they were in breach of Section 6 of that Act and Article 8 of the Convention thus becomes academic. Accordingly, we propose to deal with it very shortly.
105. The claim under the Human Rights Act
106. Judge Havery found that Thames’ failure to carry out works to bring to an end the repeated flooding of Mr Marcic’s property constituted an interference with his right to respect for his home under Article 8 of the Convention and of his entitlement to peaceful enjoyment of his possessions under Article 1 of the First Protocol. He held that the interference resulted not from active interference but from a failure to act, for which Thames could nonetheless be liable - see – Guerra v. Italy (1998) 26 EHRR 357 at 382-3.
107. The Judge went on to hold that the rights interfered with were not unqualified. Under Article 8.2 interference could be justified where ‘necessary in a democratic society in the interests of…the economic well-being of the country …or for the protection of the rights and freedoms of others’. He held that in deciding what was justified it was appropriate to apply the following passage of the judgment of the Strasbourg Court in Powell v Rayner (1990) 12 EHRR 355 at 368:

“Whether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph (1) of Article 8 or in terms of an ‘interference by a public authority’ to be justified in accordance with paragraph (2), the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. ”

108. The Judge held that on the facts of the present case, it was necessary to decide whether Thames’ scheme of priorities had struck a fair balance between the competing interests of Mr Marcic and of their other customers. It was common ground that the onus was on Thames to establish this. Thames had failed to do so. It followed that Mr Marcic’s claim under the Human Rights Act succeeded.
109. Mr Marcic has not challenged the Judge’s approach, but it has been attacked by Thames. Mr Pannick’s starting point was that the Judge had correctly identified that a fair balance had to be struck between protection of Mr Marcic’s fundamental rights and the general interest of the community. He argued that Parliament enjoyed a wide area of discretion of judgment when deciding how to secure a fair balance. The statutory scheme, currently embodied in the 1991 Act but with a lengthy pedigree, incorporated an internal mechanism to achieve that balance. A complaint had to be made to the delegated authority that the undertaker had not properly performed its statutory duty. If the authority concluded that the case was made out, an enforcement order would be made. Anyone affected by breach of the enforcement order could claim compensation. The decision of the authority was subject to judicial review. This scheme satisfied the requirements of the Convention.
110. We did not find these submissions in point. Had Mr Marcic’s claim been solely for breach of Thames’ statutory duty, Mr Pannick’s submissions would have been pertinent in addressing any suggestion that the provisions of section 18(8) were in conflict with Article 6 of the Convention. But Mr Marcic’s claim is not just for breach of statutory duty – it is for interference with his human rights as an incident of the performance by Thames of their statutory duty. The statutory scheme does not purport to cater for such an eventuality – indeed the statute confers no right to compensation for acts or omissions which predate an enforcement notice, even if these constitute a breach of statutory duty. Mr Pannick suggested that this might be a respect in which the statute was incompatible with the Convention. The reality is that the provisions of section 18 provide a procedure for striking the necessary balance in the case of those who claim that they are being denied the benefits that Thames is required to provide to them under the statute. They provide no answer to a claim such as Mr Marcic’s.
111. For these reasons Mr Pannick has failed to persuade us that the Judge was wrong to hold that Thames had infringed Mr Marcic’s Convention rights.

Unanswered questions

112. Mr Marcic’s case in nuisance has been advanced on the basis that Thames were in breach of the duty to take reasonable steps to abate the nuisance, adopting the test in Leakey. Mr Marcic has succeeded on that basis. That principle applies where the cause of a nuisance has arisen on the defendant’s land without any involvement on his part. In those circumstances the duty on the defendant is no more than to do what is in all the circumstances reasonable to abate the nuisance. In considering what is reasonable, the resources of the defendant are a material factor. If more is required to abate the nuisance than can reasonably be expected from him, he will not be responsible for the consequences of the nuisance.
113. Where a sewerage undertaker in performance of its statutory duty and in the exercise of its statutory powers constructs a new system it will be liable if this results in a foreseeable nuisance unless this was inevitable – see Allen. It will be no answer to show that disproportionate expenditure would have been needed to avoid the nuisance. That may, however, be a reason for the court to award damages in respect of the nuisance rather than a mandatory injunction to abate it.
114. Where a nuisance results because an existing system becomes surcharged as a consequence of increased user, it does not seem to us just that the liability of the undertaker should depend upon whether in all the circumstances there are steps which the undertaker should reasonably have taken to abate the nuisance. If a single house is at risk of flooding by sewerage discharge once every five years, this may not justify the investment that would be needed to remove that risk. It does not follow, however, that it is just that the householder should receive no compensation for the damage done. The flooding is a consequence of the benefit that is provided to those making use of the system. It seems to us at least arguable that to strike a fair balance between the individual and the general community, those who pay to make use of a sewerage system should be charged sufficient to cover the cost of paying compensation to the minority who suffer damage as a consequence of the operation of the system.
115. This result would be achieved if the principle in Rylands v Fletcher were to be applied to sewage, although, as we have indicated above, it is questionable whether this could be achieved without a degree of modification of legal principle. Such modification may, however, be necessary if our common law is to march in step with the requirements of the Human Rights Convention.
116. When considering Mr Marcic’s claim under the Human Rights Act, the Judge proceeded on the premise that this required a fair balance to be struck between the competing interests of Mr Marcic and Thames’ other customers. In this context he was prepared to contemplate that the system of priorities used by Thames might be ‘entirely fair’, notwithstanding that this would result in nothing being done to remedy Mr Marcic’s flooding in the foreseeable future. We doubt whether such a situation would be compatible with Mr Marcic’s rights under Article 8. The decision of the Strasbourg Commission in S. v France (1990) 65 D & R 250 suggests to the contrary.
117. In that case the claimant complained that her rights under Article 8 and Section 1 of the First Protocol were interfered with as a result of the nuisance caused to her home by a nearby power station. The Commission held that, although noise and other types of nuisance might be the unavoidable consequence of measures not directed against the claimant, they nonetheless interfered with her human rights, but that payment to her of compensation had had the result that the interference did not go beyond what was necessary in a democratic society. The Commission observed at p.263:

“It is not in dispute that the nuclear power station was lawfully built and brought into service by Electricité de France. Nor can there be any doubt that the construction of a nuclear power station serves the interest of the economic well-being of the country. In order to determine whether the interference in this case can be regarded as ‘necessary in a democratic society’, it must first be decided whether it was proportionate in relation to the legitimate interest the works were intended to serve. When a State is authorised to restrict rights or freedoms guaranteed by the Convention, the proportionality rule may well require it to ensure that these restrictions do not oblige the person concerned to bear an unreasonable burden.”

118. This suggests that where an authority carries on an undertaking in the interest of the community as a whole it may have to pay compensation to individuals whose rights are infringed by that undertaking in order to achieve a fair balance between the interests of the individual and the community.
119. We have referred to these matters, which have not been explored in the present action, lest sewerage undertakers assume from our judgment that their liability to pay compensation for damage done by discharge from an overcharged sewer is dependent upon whether or not there are measures which they should reasonably have taken to prevent the discharge. That does not necessarily follow from our judgment.
120. For the reasons that we have given Thames’ appeal is dismissed and Mr Marcic’s cross-appeal is allowed. We shall hear counsel on the appropriate order.
Order:
1. Thames appeal dismissed
2. Marcic’s cross-appeal allowed
3. Matter to be remitted to Judge Harvey for the determination of damages.
4. Thames to pay Marcic’s costs of appeal and cross-appeal to be subject to detailed assessment if not agreed.
5. Leave to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)