England and Wales High Court (Administrative Court) Decisions

1. This is an appeal by way of case stated by the City of Bradford Metropolitan District Council ("Bradford") against a decision of Deputy District Judge Wood sitting at Bradford Magistrates' Court on 1st November 2000 when he allowed an appeal by Yorkshire Water Services Ltd ("Yorkshire") against an abatement notice issued by Bradford pursuant to section 80 of the Environmental Protection Act 1990 ("the 1990 Act").

2. Bradford is the relevant local authority for Cullingworth, and it has responsibilities under the 1990 Act for policing any statutory nuisances in its area. Yorkshire is the sewerage undertaker for the Cullingworth area. Under section 94 of the Water Industry Act 1991 ("the 1991 Act") it has a statutory responsibility to maintain all public sewers in its area. The abatement notice complained of the deposit of sewage from the public sewer in premises at 1 Turf Court, Cullingworth. It was not in dispute that this unhappy state of affairs constituted a statutory nuisance. The issue between the parties is whether the drainage system from which the sewage emanated was or was not a public sewer within the meaning of the Public Health Act 1875 ("the 1875 Act") on 1st October 1937. The significance of this date is explained in paragraph 6 below.

3. The case stated reveals that an extant plan showed the drainage lay out for Turf Lane, Cullingworth in 1885. In those days there were two properties, or groups of properties, fronting the lane. At the north end of the lane was Turf House, which still stands today. It has its own drainage system which empties into a proper outfall and public sewer at the back of the properties. Further south was a farmhouse, with associated buildings in the same curtilage, which we will describe collectively as "the farmhouse". Beyond the farmhouse there was a small row of terraced cottages.

4. Immediately to the north of the farmhouse, and (by concession) outside its curtilage, a six-inch drainage pipe ("the pipe") ran from a street gully in Turf Lane to the public sewer at the back. It did double duty by providing a drainage outlet for water in the street gully as well as for the farmhouse. This drainage system was not shown on the public sewer record. The deputy district judge found that the street gully simply drained the curtilage of the farmhouse and the surface of Turf Lane: it did not drain water from the frontage of Turf House, which had its own distinct and separate drainage system, on 1st October 1937. He went on to find that the pipe did not serve more than one building or premises within the same curtilage. It was therefore not a public sewer within the meaning of the 1875 Act.

5. In the 1970s a private builder constructed a road known as Turf Court across part of the farmhouse site. Turf Court leads off Turf Lane and serves a number of private houses erected by this builder. The house at 1 Turf Court was built over the pipe, but the houses in Turf Court did not drain into the pipe. The woes suffered by the occupier of 1 Turf Court on 1st March 1999 when she found sewage flooding at the front of her property led to a finding that the pipe was restricted or blocked at a point very close to the front of her property. Yorkshire maintain that they have no responsibility for this pipe, because it is not a public sewer.

6. Modern legislation has witnessed two transfers of responsibility for the maintenance of the old public sewers which either existed on 11th August 1875 (when the 1875 Act came into force) or were constructed between that date and 1st October 1937 (when the Public Health Act 1936 came into force). Nearly 30 years ago responsibility for all these sewers was transferred from local authorities to water authorities (see sections 68 and 254 of the Local Government Act 1972: a transfer of property order under this Act was made the following year). On 1st September 1989 the water industry was privatised and water authorities were abolished. The sewerage functions of the water authorities were then transferred to sewerage undertakers, and section 94 of the 1991 Act obliges sewerage undertakers to maintain public sewers. By that Act "public sewer" means a sewer for the time being vested in a sewerage undertaker in its capacity as such.

7. Section 4 of the 1875 Act provides, so far as is relevant, that:

"In this Act, if not inconsistent with the context, the following words and expressions have the meanings hereinafter respectively assigned to them; that is to say,
`Lands' and `Premises' include ... buildings, lands, easements and hereditaments of any tenure,
`Street' includes any highway ... and any road lane ... alley or passage whether a thoroughfare or not,
`Drain' means any drain of and used for the drainage of one building only, or premises within the same curtilage, and made merely for the purpose of communicating therefrom with a cesspool or other like receptacle for drainage, or with a sewer into which the drainage of two or more buildings or premises occupied by different persons is conveyed,
`Sewer' includes sewers and drains of every description except drains to which the word `drain' interpreted as aforesaid applies, and except drains vested in or under the control of any authority having the management of roads and not being a local authority under the Act."

It follows that if the pipe was a drain (as defined in the 1875 Act), it was not a sewer within the meaning of that Act. Section 13 of that Act vested in local authorities all existing and future sewers in their district, subject to three exceptions, the first of which related to "sewers made by any person for his own profit, or by any company for the profit of the shareholders."

8. The deputy district judge held that because the pipe only served the farmhouse and the street gully on 1st October 1937, it was a drain within the meaning of the 1875 Act. He was not willing to find that Turf Lane constituted "premises" within the meaning of that Act, because there was no occupation of a highway, but only the right to pass and repass over it. Yorkshire therefore had no responsibility for maintaining the pipe and its appeal against the abatement notice was allowed.

9. He asked five questions of this court, which we would re-phrase as follows:
i) Is a highway capable of constituting "premises" within the meaning of the 1875 Act?
ii) Is the pipe a public sewer because on 1st October 1937 it took water from the farmhouse and from the surface of Turf Lane?
iii) If a drain in fact drained water from two buildings or premises not within the same curtilage on 1st October 1937 is that drain necessarily a public sewer, or is it a public sewer only if the purpose of the drain on construction (sic) was to drain water from two buildings or premises not within the same curtilage?
iv) Is the pipe a public sewer because on 1st October 1937 it took water from the farmhouse and the frontage of Turf House?
v) Should Yorkshire's appeal have been dismissed on the basis that the pipe was and is a public sewer?

10. The answer to the second of these questions lies at the heart of this appeal. Mr Straker QC observed that the word "sewer" in the 1875 Act was to be taken to include sewers and drains of every description except those drains identified in the interpretation section of the Act. The pipe was not a drain "of and used for the drainage of one building only, or premises within the same curtilage", made merely for the purpose of communicating with a sewer. It served a double purpose, because it drained surface water from Turf Lane as well.

11. Mr Barrett's reply was more complex. He contended that the definition section in the 1875 Act must be approached with care. He invited us to consider Parts III and IV of that Act in turn. Part III dealt with sanitary provisions. It gave a local authority a number of different duties and responsibilities in order to ensure that sewers were kept in proper repair, that sewage was purified before it was discharged in a stream or water course, and that sewers should be properly cleansed and emptied and did not become a public nuisance (see sections 15, 17 and 19). This part of the Act responded to the need to identify where public responsibility for health issues arising from defective sewerage systems would lie.

12. Part IV of the Act, on the other hand, dealt with local government matters and particularly with highways and streets. He invited us to remember that "drains vested in or under the control of any authority having the management of roads and not being a local authority under the Act" were excepted from the statutory definition of "sewers". Section 149 vested all streets repairable by the inhabitants at large within any urban district under the control of the urban authority. If any street was not repairable by the inhabitants at large and was not sewered, the urban authority was given power pursuant to section 150 to require the frontagers to provide a sewer, and the cost of such works could be recovered from the owners.

13. Mr Barrett suggested that "highway drains" in their widest sense should not be treated as sewers, with all the concomitant duties and responsibilities attaching to the owners of sewers under Part III of the Act, because they would either be vested in or under the control of an urban authority responsible for the management of roads, or be vested in a local authority in its capacity as being responsible for highways generally, or would be the responsibility of the frontagers.

14. To deflect us from an over-literal application of the definition section, Mr Barrett said that the roof gutters of terraced houses, which drained surface water on the roofs of more than one building, would fall within the definition of "sewer" if Mr Straker's argument was correct.

15. We had some difficulty in understanding the layout of the land in the plans we were shown, and the parties agreed that we should look at the 1885 plan which was referred to, but not annexed to, the case. In fact, there were two plans. The first of these was a block plan, showing the land in question running alongside and to the east of the Great Northern Railway, close to Cullingworth station. The owner of the farm was developing the northern part of the row of buildings to make a modern house, with modern farm buildings (such as a stable, a piggery and a fowl house). Before this development started, there had been a number of terraced buildings of similar depth built in a line along the front of Turf Lane, and about six of these ("the cottages") remained in place after the new farmhouse was built. Turf House lies about 60 yards to the north, and there are indications that it was being developed at about the same time.

16. The plan shows a new six inch pipe drain at the back of the properties, running south from Turf House for about 120 yards, parallel with the railway line. The pipe from the farmhouse joins this drain just north of a sump. At its southern end the pipe drain is joined by what are described as six-inch pipes running from sumps very close to the southern end of the small row of cottages beyond the farmhouse. In front of Turf House the plan shows a pipe running along Turf Lane for 20 yards which appears to be draining water not only from Turf Lane but also from two pipes running eastwards from the Turf House buildings. There are then are no pipes running along Turf Lane for about 90 yards until the beginning of a line of six-inch pipes in front of the row of cottages beyond the farmhouse. These pipes then turn right to the sumps we have mentioned earlier.

17. The only pipe shown in Turf Lane in the vicinity of the farmhouse is the end of the pipe at the centre of this dispute. This is shown on the other plan as terminating in a grate very close to the farmhouse front building line (although it was agreed in the court below that it should be taken to have been placed slightly further into the lane, where a gully can be seen today). This shows all the signs of being placed there not as part of a road drainage scheme, but as a means of protecting the new farmhouse development from surface water flowing down the lane.

18. We were shown two early cases concerned with the interpretation of section 4 of the 1875 Act. In Acton Local Board v Batten (1884) 27 Ch D 283 Kay J had to determine a dispute which arose during the development of Bedford Park, Chiswick, in west London. A Mr Carr had sold some of his land to the defendant, who became the owner of four houses built on the land and the soil of the street which ran between them. Mr Carr still owned two houses in the same street, which was not yet adopted as a highway. Problems arose over the drainage of the street, and Mr Carr agreed with the plaintiff board that he would build a sewer along the street to one of its pumping stations. The defendant allowed Mr Carr to build part of this new sewer through his land, provided that he then connected the defendant's houses with the sewer. Mr Carr subsequently defaulted on this agreement, and the defendant retaliated by blocking the sewer where it passed through his land. The plaintiff board, as the local authority in whom all the sewers within the district were vested, then sued the defendant for blocking the sewer.

19. Mr Carr supported the plaintiffs in these proceedings, in which the defendant contended that the sewer was not vested in the local authority because it had been constructed by Mr Carr for the improvement and advantage of his property, and therefore for his own profit, thus falling within one of the exceptions in section 13 of the Act (see para 7 above). He also contended that the drain was not a sewer within the meaning of section 4 of the Act.

20. Kay J dismissed the first part of the defence because he pointed out that almost every sewer in every street of every suburb of every town in England might be considered a sewer made for the profit of the person who constructed it. He was satisfied that he should examine the purpose for which this sewer was built, and he found that it was made for the purpose of draining all the houses in the street, and this did not fall within the first exception in section 13(1).

21. On the second part of the defence, Kay J found that the sewer had been connected to three of the houses in the street before the defendant blocked it. Since the word "drain" meant any drain of and used for the drainage of one building only, and the word "sewer" had the meaning we have set out in paragraph 7 above, he was satisfied that this drain was a sewer. He said (at para 286):

"I therefore cannot have any doubt as to the meaning of the Act. It was to give the largest possible interpretation to the word `sewer' and most clearly to include a drain like this, actually laid down and intended to be connected with all the houses in an intended street which required to be connected with it. That must be within the meaning of the word `sewer', at any rate, after more than one house had been connected with it."

22. Mr Straker relied on this decision as authority for his contentions that we should be prepared to give the word "sewer" a wide meaning, and that when we examined the purposes for which the pipe was built, we would find it fulfilled two purposes. The first was to drain the farmhouse and the other was to drain Turf Lane. Since it was not being used for the drainage of one building only, it was a sewer within the meaning of the Act.