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Marcic v. Thames Water Utilities Ltd [2001] EWHC Technology 421 (14th May, 2001)

Case No: 1998 TCC No. 224.

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14^th May 2001

B e f o r e :

HIS HONOUR JUDGE RICHARD HAVERY Q.C.

	Peter Marcic	Claimant
	- and -
	Thames Water Utilities Limited	Defendant

Mr. Peter Harrison (instructed by South & Co. for the Claimant)
Mr. Michael Daiches (instructed by Simon Byrne, in-house solicitor for the Defendant)

JUDGMENT

1. This is a claim against a statutory water and sewerage undertaker by one of its customers for an injunction and damages. The claim arises out of flooding to the claimant's home. Shortly before the hearing, the parties' joint valuation expert expressed his incompetence to give an opinion on the matter. Rather than vacate the date of the trial, I decided to hear all the other issues. Although I made no order for the trial of specific preliminary issues, counsel helpfully drew up an informal list of issues to be determined at this hearing. That list appears in the appendix to this judgment.

2. The claimant, Mr. Peter Marcic, now aged 62, 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.

3. 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.

4. 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. In view of my finding, based on unchallenged evidence, that the flooding is caused by both sewers, I treat references in the list of issues to surface water sewers as including references to foul water sewers.

5. 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.

6. 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.

7. 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.

8. 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 ž 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 flood water from entering his house. He has spent some Ł16,000 on that system.

9. 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.

10. The above account of the flooding represents my conclusions based principally on the evidence of Mr. Marcic, which was unchallenged. In his witness statement Mr. Marcic said this about the effect of flooding on his property:

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.

I understand that the history of flooding has made my property unsaleable.

None of that evidence was challenged. The references to subsidence and the unsaleability of the property are, of course, the opinions of a layman.

11. A structural engineer, Mr. Alan Myers, was jointly instructed by the parties. In his report he concluded:

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.

I accept that evidence.

12. Mr. Marcic notified his local authority, the London Borough of Harrow, of the flood that occurred on 9^th June 1992. Their representative, Mr. Bruce Regnier, who gave evidence before me, visited Mr. Marcic at the property on 10^th June. He confirmed the back flow of foul sewer water. He visited again on 22^nd September, when further heavy flooding occurred. A memorandum of Mr. Regnier refers to backflow of the foul water sewer through Mr. Marcic's interceptor. Mr. Regnier arranged jetting of Mr. Marcic's drains. The London Borough of Harrow were at that time sewerage management contractors for the defendant in relation to drainage works in their area.

13. Correspondence in the court bundle shows that in August 1992 Mr. Marcic approached his local councillor, who wrote to the head of engineering services of the council about the flooding of Mr. Marcic's property. In February 1995 Mr. Marcic again approached his local councillor, who wrote to the group environmental health officer about the pollution of Mr. Marcic's back garden. In March 1995 Mr. Marcic himself wrote to the London Borough of Harrow complaining that his property had been persistently flooded over a number of years, and asking for a grant to decontaminate and repair his back garden. The reply, which came from Mr. Regnier, was in the following terms:

Further to your letter dated 24^th March 1995 and the subsequent telephone conversation and visit to your home by my assistant Mr. V. Jenkins.

As I believe Mr. Jenkins explained, as the source of the flooding is the main sewerage system it comes within the remit of Thames Water Utilities Ltd. and therefore the Council does not bear responsibility for either the cause of the flooding or its effects. Under these circumstances I must also advise you that the Council does not have a mechanism for providing grants.

I am aware of the flooding problem which exists in your area and I sympathise with difficulties and inconvenience it must cause but any investigations and solution must be funded by TWUL. The surface water sewers within this area are considered for upgrading as part of the Old Church Lane Surface Water Sewer Scheme. However, as you may be aware the work on this project is in abeyance until the National Rivers Authority have decided on the extent of the flood protection works for the upper reaches of the Edgware Brook. These works prospectively affect sections of the brook which are the effective outfall for your local surface water sewers. It is not possible to properly resolve the hydraulic problems of these sewers until the likely conditions at the outfall are resolved.

As requested, I have passed your letter on to TWUL for consideration but I must stress that it is unusual for TWUL to make such payments. I will advise you of their response as soon as it is received and I would ask that you report any occurrences of flooding as these are recorded and are used in gauging the severity of the problem and are thus invaluable.

On 12^th April 1995 Mr. Regnier sent a copy of Mr. Marcic's letter to Mr. T. Harrington, a client manager of the defendant. In his covering letter Mr. Regnier himself briefly described the flooding and the contamination of Mr. Marcic's property, and mentioned that Mr. Marcic had incurred expense by installing intercepting channels and barriers. I am satisfied on the evidence of Mr. Christopher Douch, asset planning manager within the technical services department of the water and waste operations division of the defendant, that Mr. Harrington was the appropriate person to write to. There is no evidence of any reply to Mr. Regnier's letter.

14. In May 1995 Mr. Marcic himself wrote to the defendant enclosing a copy of his letter of March to the London Borough of Harrow and asking the defendant to do something about his "serious flooding problem" which was connected with sewer water. The defendant promptly acknowledged his letter and promised to write again. Mr. Marcic pressed the defendant by a further letter in July again referring to persistent sewer flooding over a period of time. That letter was acknowledged. In March 1996, having heard no more, Mr. Marcic wrote to the managing director of the defendant. He offered Ł40 to Mr. Marcic, and a cheque was sent a few days later. Mr. Marcic returned the cheque.

15. 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. No approach was made to the Office of Water Services by or on behalf of Mr. Marcic.

16. On 6^th March 1998 Mr. Marcic telephoned the defendant in Swindon asking to speak to someone who had a good knowledge of sewer systems and flooding problems. After some further telephone calls and a visit from a Mr. Ellis representing the defendant, Mr. Arumainayagam Sitaranjan, senior operations co-ordinator, waste water in the defendant's customer network services division, visited Mr. Marcic at his home. Mr. Sitaranjan gave evidence before me. Mr. Sitaranjan arranged for the jetting of the surface water sewer and of the foul water sewer over the whole length of Old Church Lane and halfway down an adjacent road. That work was done on 9^th March 1998. He visited Mr. Marcic again in the company of his area service manager on or about 19^th May 1998. He noticed that the highway gullies needed clearing. He subsequently asked the London Borough of Harrow to clear them. He also checked the records held on the defendant's database. The only record of flooding at Mr. Marcic's property related to external (i.e. out of doors only) flooding by foul sewage following a heavy rainfall event in 1992. The database showed three other properties in Old Church Lane with single flooding events on separate dates between 1987 and 1998. After these proceedings started, and the defendant became aware of all the incidents of flooding, those incidents were added to the database.

17. Mr. Regnier gave expert engineering evidence on behalf of the defendant. Mr. Richard Lawman gave expert engineering evidence on behalf of Mr. Marcic. Those gentlemen made an agreed statement as to the works necessary to alleviate the flooding. They described four schemes, which by reference to their paragraph numbers in the joint statement I shall call schemes 2.2, 2.3, 2.4 and 2.5. Those schemes related only to surface water drainage. No doubt the implementation of any of them would alleviate the surface water flooding, but it is not apparent that it would cure the backing up of the foul sewers. I have not heard any evidence about curing that. Mr. Regnier and Mr. Lawman were agreed that only major surface water drainage works would significantly alleviate the risk of flooding. Minor works, either within the vicinity of, or in the grounds of, no. 92 Old Church Lane would not be capable of removing or storing the extensive accumulation of surface water at times of heavy rainfall. The schemes they described were briefly as follows:

2.2. Major Scheme submitted to TWUL by London Borough of Harrow in August 1988.

Construction of twin 600 mm. diameter pipes laid along Abercorn Road to provide an overflow from the existing surface water sewer in Old Church Lane to discharge into the Edgware Brook.

Estimated cost at the time, Ł100,000, not including utility company diversions or other related costs. Figure revised to Ł140,000 in 1995. Likely present cost, about Ł200,000.

2.3. Silk Stream and Edgware Brook Flood Alleviation Scheme.

Major flood alleviation works within the Edgware Brook and Silk Stream catchments, including construction of large storage facility within Whitchurch playing fields and of new culvert along Abercorn Road from its junction with Old Church Lane. Total cost unknown. Cost of overflow connection from Old Church Lane to culvert in Abercorn Road, about Ł25,000.

2.4. Alternative Scheme proposed by Alexander Associates in May 2000.

Construction of 450 mm. diameter pipe from Old Church Lane along Abercorn Lane to open section of Edgware Brook within Whitchurch playing fields, with overflow on to Whitchurch playing fields acting as a flood plain. To reduce the risk of overland flooding it would be necessary to instal a number of large gullies or grids to intercept the surface water run off at strategic locations in Lansdowne Road and Old Church Lane. Cost, about Ł60,000.

2.5. Further Alternative Scheme proposed by Alexander Associates in May 2000.

Construction of 450 mm. diameter pipe from Old Church Lane along Abercorn Lane as far as north-west corner of Whitchurch playing fields, discharging into balancing pond to be constructed in that corner, from which there would be a low-flow discharge to existing surface water sewer. This scheme would also require the gullies or grids mentioned in 2.4. Cost about Ł70,000 not including acquisition of land and other related costs.

The references to Alexander Associates are references to a firm in which Mr. Lawman is senior partner.

18. Mr. Regnier gave evidence in relation to the schemes. He is an engineer and the director of his own engineering consultancy. Between 1968 and 1997, apart from a period of six months in 1970, Mr. Regnier was employed by the London Borough of Harrow in various positions, mostly within the drainage section. He had been sectional engineer and principal engineer in the section. For the last five years of his employment with the London Borough of Harrow, he was contract manager for the sewerage management contract between that borough and the defendant. The findings set out in the next few paragraphs are based largely on Mr. Regnier's evidence, but also on the joint report of Mr. Regnier and Mr. Lawman.

19. Scheme 2.2 was proposed in August 1988. It requires the consent of the Environment Agency (formerly of the National Rivers Authority) to the necessary additional discharge to the Edgware Brook. It was proposed by the London Borough of Harrow, at the instigation of Mr. Regnier, who had designed it. He believed that the works were necessary and justifiable to alleviate the flooding problem in Old Church Lane. There were no obstacles to implementing the plan at that stage, but the National Rivers Authority did not agree to the additional discharge into the Edgware brook, since they were concerned about the possibility of increasing the risk of flooding downstream. That authority commissioned a study of the problem. The Thames Water Authority, predecessor of the defendant, considered the cost effectiveness of the scheme to be marginal and deferred the scheme. There was an alternative solution, not requiring any increase in the rate of discharge into Edgware brook, involving larger diameter sewer pipes to increase storage capacity. That, according to Mr. Regnier, would have been technically difficult owing to lack of available cover, and would have considerably escalated the cost of the scheme. That was unacceptable to the Thames Water Authority. But because of the uncertainty as to what further works might be proposed by the National Rivers Authority, scheme 2.2 was retained in the capital program of the Thames Water Authority, to be reviewed later. It was transferred to the defendant's capital program after the transfer of sewerage responsibilities to the defendant in 1989, with an assigned provisional start date in 1994/95.

20. Mr. Regnier referred to measures taken by the owner of number 90, Old Church Lane after flooding which occurred on 8^th May 1988. That property, situated next door to Mr. Marcic's property, had been flooded inside the building on at least two previously-recorded occasions. It was that internal flooding that was the principal reason for including scheme 2.2 in the Thames Water capital program. Number 90 was removed from the defendant's "At risk" register. Mr. Regnier considered that the reason was that number 90 was no longer a high-risk property since the works had been carried out there. Thus the works carried out at number 90 may have had the effect of reducing the priority of scheme 2.2.

21. In 1995 the relevant responsibilities of the National Rivers Authority were taken over by the Environment Agency. Mr. Regnier thought that there had been no discussions between the defendant and the Environment Agency relating to scheme 2.2 since 1995. There would have been no point, he said, until the study mentioned above undertaken by the National Rivers Authority had been completed. That study was adopted by the Environment Agency following the demise of the National Rivers Authority. The study was enlarged by the Environment Agency to include the Silk Stream catchment following severe storms which occurred in 1992. The study is nearing completion and a draft report has been produced. That report contains provisional proposals for the construction of major flood alleviation works within the Edgware Brook and Silk Stream catchments. Those works would be in the hands of the Environment Agency. They include a proposal for the construction of the storage facility in Whitchurch playing fields mentioned under scheme 2.3 above. If the major works were carried out by the Environment Agency, the defendant would then be able to construct the overflow proposed in scheme 2.2 and connect it into the new culvert which would be laid along Abercorn Road from its junction with Old Church Lane. Restrictions on the rate of discharge into the Edgware brook would not then prevent scheme 2.3 with modifications being implemented if the requisite finance were available.

22. Scheme 2.4 would probably not be permitted by the Environment Agency, since it would involve the diversion of flood water into the Edgware Brook, which is already overloaded. Scheme 2.5 was proposed as an alternative. Mr. Regnier said in relation to scheme 2.5 that the relevant land was owned by the London Borough of Harrow. Unless that borough had other proposals for the land, he considered that there would be no difficulty in implementing the scheme apart from the provision of the necessary finance.

23. Mr. Regnier said that a major flood alleviation scheme known as the Marsh Lane foul sewer was designed and constructed by the London Borough of Harrow on behalf of Thames Water. It was completed during the early 1980s. It was designed to relieve persistent and severe foul flooding to properties in Marsh Lane and Green Verges. The scheme comprised the construction of a low-level 1200 mm. diameter tunnel connected into the Thames Water trunk sewer. The existing 381 mm. diameter foul sewer in Marsh Lane and the foul sewer in Old Church Lane were diverted into the relief sewer through a new 525 mm. diameter connection. The cost appears to have been Ł260,000.

24. I conclude that it would be practicable for the defendant to carry out works to remove the risk of flooding from Mr. Marcic's property if the necessary finance were available. Indeed, no point has been taken to the contrary.

25. Mr. Peter Harrison, counsel for the claimant, submitted that the flooding of Mr. Mr. Marcic's property constituted a nuisance for which the defendant was liable. The sewers are the property of the defendant, which is the statutory undertaker responsible for their operation and maintenance. It is not suggested that the sewers were not built in accordance with the standards that prevailed at the time they were built, or have not been properly maintained. Mr. Harrison submitted that the defendant was liable both at common law and under the Human Rights Act 1998. I shall consider first the position at common law, ignoring the effect of the Human Rights Act.

26. As to the common law, I was referred to Glossop v. Heston and Isleworth Local Board [1879] 12 Ch. D. 102, Robinson v. Workington Corporation [1897] 1 QB 619 and Hesketh v. Birmingham Corporation [1924] 1 K.B. 260. Those were all cases of non-feasance, where the defendant statutory undertakers were held not liable for nuisances caused by the escape or discharge of sewage by reason of increases in the flow of sewage in drainage systems. The non-feasance in question consisted of neglect to perform a statutory duty to make an effectual system of drainage. James L.J. said in Glossop at p.116

I think myself the Court ought to hesitate a great deal before it interferes with respect to a wrong done to a whole district, when the remedy provided by the Legislature would be quite sufficient for the purpose. These provisions of course do not oust the jurisdiction of any Court.....in the case of any legal wrong done; I use that word as distinct from neglect to perform the new duties imposed by this Act.

At p.115, with reference to an injunction having the effect of a mandatory injunction, he said

That would be a proper injunction to restrain them from doing that which would be wrong if the thing itself were legally wrong, independently of the neglect to make an effectual system of drainage.

The headnote in the report of Glossop accurately summarizes the decision as follows:

.....if a local board do no act themselves to cause a nuisance, but neglect to perform their duty of providing a satisfactory and healthy system of drainage, it is no ground of action by an individual for damages or an injunction, but the remedy is by prerogative writ of mandamus;.....assuming that an actionable nuisance existed, as the defendants had themselves done no act to create or increase it, the plaintiff had no cause of action.

In Hesketh, ib. p. 271, Scrutton L.J. said

.....if the system of drainage, originally sufficient, became insufficient by reason of the growth of houses, the neglect of the defendants to improve that system so as to meet the altered requirements cannot be made the subject of an action. The general rule is that a local authority is liable for misfeasance but not for non-feasance.

In my judgment, the same applies to a statutory undertaker that is not a local authority.

27. In Pride of Derby v. British Celanese [1953] 1 Ch. 149 Denning L.J. said that when Scrutton L.J. said the last sentence that I have quoted above, for once Homer nodded. But we are here concerned with non-feasance as neglect to perform a statutory duty to make an effectual system of drainage. I do not think that Denning L.J. differed, at any rate in his conclusion, from Scrutton L.J. in that context. He said this at pages 189, 190:

But although the plaintiffs may not be able to rely on the doctrine of Rylands v. Fletcher as such, they have a perfectly good cause of action for nuisance, if they can show that the defendants created or continued the cause of the trouble; and 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.

This liability for nuisance has been applied in the past to sewage and drainage cases in this way: 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.....

It is very different, however, when the local authority themselves do the increased building, or permit it to be done, because they are then themselves guilty of the nuisance.

(Emphasis added).

28. Another case in point to which I was referred is Smeaton v. Ilford Corporation [1954] 1 Ch. 450. In that case, Upjohn J. found as a fact that eruption or flooding from a manhole in time of heavy rain caused the plaintiff and his family grave inconvenience, and it constituted a serious deprivation of the ordinary and reasonable enjoyment of his property and its amenities which he was entitled to expect. The claim was made first under the principle of Rylands v. Fletcher and, secondly, that the defendant had wrongfully caused or wrongfully failed to prevent a nuisance to the plaintiff as occupier of his premises by causing or permitting the sewage matter to erupt from the manhole from his premises. Negligence was not alleged. Distinguishing, for the purposes of his judgment, liability in nuisance from liability under the principle of Rylands v. Fletcher, Upjohn J. said, in relation to the question of liability in nuisance:

Paragraph 6 alleges that the said soil sewer was constructed by the defendant corporation. That is admitted, but it is no longer alleged that it was constructed in a defective manner or that it was originally inadequate for the needs of the neighbourhood. No doubt the defendant corporation's whole sewage system has now become totally inadequate to deal with the increased volume of sewage which it now has to carry, but that cannot give rise to a claim for nuisance; the only remedy of the injured party is to complain to the Minister.....

That is another instance of a statutory undertaker not being liable in nuisance for non-feasance of its statutory duty.

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. In Hesketh (ib., pp. 271, 272) Scrutton L.J. said this:

The plaintiff here eventually rested his case on two alternative claims, (1.) for negligence, and (2.) for nuisance. I cannot see any evidence of negligence when the sewer and outlets were constructed, and I am bound by the authority which I have cited to hold that the failure to bring the system up to date is non-feasance and gives no cause of action.

The authority to which Scrutton L.J. referred was Robinson.

30. Mr. Harrison submitted that it had been made clear by a recent decision of the Court of Appeal that it was not a defence to show that a system might have been adequate when first installed. That decision was Bybrook Barn Centre Ltd. v. Kent County Council C.A. transcript 1^st December 2000. In that case, Waller L.J., with whom Peter Gibson and Jonathan Parker L.JJ. agreed, specifically distinguished the case of an inadequate sewage system where a ratepayer was seeking to get the local authority to do its public duty (paragraph 46). It is clear that Robinson, Hesketh and the other cases remain binding upon me.

31. The question of liability under the principle in Rylands v. Fletcher was considered by Upjohn J. in Smeaton. Referring to the cases of Glossop, Robinson and Hesketh among others, he observed (at page 472) that in not one of them was it suggested that the principle had any application. In Dunne v. North Western Gas Board [1964] 2 Q.B. 806, 835, Sellers L.J., delivering the judgment of the Court of Appeal, said:

Where there is a mandatory obligation.....there would be, in our opinion, no liability if what had been done was that which was expressly required by statute to be done or was reasonably incidental to that requirement and was done without negligence.

Here there was a mandatory obligation on the defendant, imposed by section 106 of the Water Industry Act, to accept discharge of foul and surface water into its sewers. Sellers L.J. went on to say (ib., p.837):

The corporation did not intentionally discharge the water.....it was an escape. It is clear that water may escape without negligence and as an incident of its provision in pipes.....In our opinion the cases establish that in such circumstances a water authority is not liable under the strict rule in Rylands v. Fletcher or in nuisance.

32. Mr. Harrison submitted that those authorities were affected by recent developments in the law of nuisance.

33. Mr. Harrison submitted that under what he called the principle in Leakey v. National Trust [1980] 1 Q.B. 485 the defendants were liable as occupiers of the sewers for the escapes of water arising from them. The principle was that an occupier owed a general duty to a neighbouring occupier in relation to a hazard arising on the land to take steps that were reasonable in all the circumstances to deal with the hazard. Leakey was a unanimous decision of the Court of Appeal (albeit with Shaw L.J. assenting reluctantly) in which Megaw L.J. exhaustively analysed the authorities, especially the decision of the Privy Council in Goldman v. Hargrave [1967] AC 645. The headnote in Leakey fairly summarizes the decision:

That an occupier of land owed a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such a hazard was natural or man-made; that the duty was to take such steps as were reasonable in all the circumstances to prevent or minimize the risk of injury or damage to the neighbour or his property of which the occupier knew or ought to have known; that the circumstances included his knowledge of the hazard, the extent of the risk, the practicability of preventing or minimizing the foreseeable injury or damage, the time available for doing so, the probable cost of the work involved and the relative financial and other resources, taken on a broad basis, of the parties.....

Mr. Michael Daiches, counsel for the defendant, submitted that for greater accuracy the words "and not created by the occupier or his agents" ought to be inserted between the words "land" and "whether". No doubt such an amendment would avoid any risk that the reader would conclude that where the hazard was created by the occupier or his agents, the duty was limited to a duty of care.

34. Mr. Daiches submitted that the duty on an occupier of land under the Leakey principle was a measured duty to take reasonable steps to remove physical hazards from his own land provided that he was able to do so, and that the duty did not extend to executing works on adjacent land or to moving or eliminating the occupier's own land if that was the only way of removing the hazard. As to moving or eliminating the occupier's own land, to wit the sewers, that is not a question in issue. But it is clear that the only way the nuisance can be stopped is by the execution of works on neighbouring land. Mr. Daiches relied on the view expressed by Scrutton L.J. in Job Edwards Ltd. V. Birmingham Navigations [1924] 1 K.B. 341, 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.

Mr. Daiches also relied on the following passage from the judgment of Megaw L.J. in Leakey (ib., p. 526 F):

.....to avert an immediate danger.....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 form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.

Mr. Daiches submitted that that passage suggested that if it were not reasonably practicable for the occupier to remove the hazard from his own land, the options (by implication, the only options) were (a) to permit a neighbour to execute works on the occupier's own land, and (b) to invite neighbours to erect barriers on their land. There was no suggestion that the occupier was under a duty to do works on the neighbour's land. Whilst I accept that there was no such suggestion, I am not persuaded that the duty of care is incapable of extending to the execution of works on neighbouring land. In Bybrook Barn Centre Ltd. v. Kent County Council Court of Appeal transcript 1^st December 2000, the Court of Appeal (Peter Gibson, Waller and Jonathan Parker L.JJ.) appears to have granted an injunction (possibly, however, in agreed terms) requiring the defendant highway authority to enlarge a culvert. Mr. Daiches told me that he understood from counsel for the highway authority in that case that the enlargement works would have had to be constructed on adjacent land owned by the claimant, but the claimant had indicated that it had no objection to allowing the works to be executed on its land.

35. Whether the Leakey principle is termed negligence or nuisance, the gist of the principle is negligence. The only negligence alleged in this connection is negligent failure to fulfil the statutory duty of drainage. If the defendants are liable under the Leakey principle, that can only be on the basis that that principle has overturned the pre-existing law on non-feasance.

36. The Leakey principle is based on the Privy Council decision in Goldman v. Hargrave. The pre-existing law on non-feasance has House of Lords authority. In Cowley v. Newmarket Local Board [1892] AC 345, Lord Herschell cited Glossop with approval. In Robinson, both Lord Esher M.R. and Lopes L.J. relied on Cowley. Mr. Daiches submitted that the Leakey principle went back at least to the end of the nineteenth century. He relied on a decision of 1911, Barker v. Herbert [1911] 2 KB 633. In that case Vaughan Williams L.J., referring to the liability of a landowner whose property was adjacent to the highway, said (pp.636, 637):

In my judgment there can be no liability upon the part of the possessor of land in such a case, unless it is shown either that he himself, or some person for whose action he is responsible, created that danger which constitutes a nuisance to the highway, or that he has neglected for an undue time after he became, or, if he had used reasonable care, ought to have become, aware of it, to abate or prevent the danger or nuisance.

He said (p. 638) that the law which defined the liability of the possessor of land in cases of that kind had been settled for many years. Farwell L.J. said (p. 645):

In my opinion a landowner is not liable for a nuisance caused, not by his own action, but by something done by another person against his will, subject to the qualification that he may become liable if he permits it to continue and fails to abate it within a reasonable time after it has come, or ought to have come, to his knowledge.

37. Thus I accept Mr. Daiches's submission that the Leakey principle was not a new principle. It merely provided further elaboration of the scope of an occupier's duty in relation to hazards arising on his land which he did not himself create. I conclude that Leakey does not affect the existing law relating to the liability of drainage undertakers in cases of non-feasance of their statutory duties of drainage.

38. Mr. Harrison submitted that the continued use of the sewers by the defendant to carry out its functions constituted adoption of the nuisance. Lord Maugham in Sedleigh-Denfield v. O'Callaghan [1940] AC 880, 894 explained that someone adopted a nuisance if he made any use of the erection, building, bank or artificial contrivance which constituted the nuisance. 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. I shall assume that it can be said that the sewers cause (or "constitute") the nuisance. Mr. Daiches submitted that the concept of adopting a nuisance does not apply to the present situation, where the occupier does not actively use the actual or potential nuisance but merely permits it to continue. The way I would put it is to say that the defendant passively uses the sewers in order to carry out its statutory duty of draining its area. It passively permits the nuisance to continue. On the assumption that I have made above, the defendant has adopted the nuisance.

39. Mr. Daiches relied on the defence of statutory authority. He submitted that the general principle of law is that when the legislature imposes a statutory duty on a body, that carries with it an implied immunity from action in nuisance, provided that the body has not been "negligent" in the sense used by Lord Wilberforce in Allen v. Gulf Oil [1981] AC 1001. That sense was such 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. The statutory authority upon which Mr. Daiches relied was section 106(1) of the Water Industry Act 1991. That sub-section reads as follows:

106 Right to communicate with public sewers

(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.

A statutory sewerage undertaker, he submitted, has no power to refuse such a connection with the public sewers on the ground that the existing public sewer system is inadequate to cope with any new connections. Mr. Daiches submitted that it was a necessary implication from section 106 and its statutory predecessors that Parliament intended that the defendant should be absolved from any liability for nuisance attributable to having "adopted" a public sewer which had become inadequate as a consequence of the performance by the defendant and its predecessors in title of the statutory duty imposed by section 106 and its statutory predecessors. He submitted that there was no suggestion that the defendant had been "negligent" in the sense used by Lord Wilberforce in the conduct of its operations in relation to the existing public sewer system.

40. I reject that argument. Lord Wilberforce said at p. 1014B:

[The statutory authority] confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the [defendant]) 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.

In the instant case, the nuisance is by no means inevitable. On the evidence, I am satisfied that the defendant has the resources and the powers necessary to remedy the nuisance. But although the defendant may have adopted the nuisance, it has not caused or 'created' it by any action on its part. The facts of this case are not significantly distinguishable from those of Robinson or of Smeaton. Thus the defendant has non-feasance immunity.

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. In Stovin v. Wise [1996] AC 923, 952 Lord Hoffman, with whom Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed (Lord Slynn of Hadley and Lord Nicholls of Birkenhead dissenting) said:

Whether a statutory duty gives rise to a private cause of action is a question of construction: see Reg. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. Whether it can be relied upon to support the existence of a common law duty of care is not exactly a question of construction, because the cause of action does not arise out of the statute itself. But the policy of the statute is nevertheless a crucial factor in the decision. As Lord Browne-Wilkinson said in X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, 739C in relation to the duty of care owed by a public authority performing statutory functions:

"the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done."

The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.

In my judgment, the same applies to a statutory undertaker, such as the defendant, whether or not it is a public authority as that expression was used by Lord Hoffman.

42. The relevant statutory duty appears in section 94 of the Water Industry Act 1991. 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.

43. 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;

(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.

44. 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.

45. Thus 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.

46. I heard argument on the effect of section 18(8). Mr. Daiches conveniently described the omission to carry out the works necessary to prevent the nuisance as a "contravention omission". That is an apt expression, since the omission is an omission on the part of the defendant to do its duty under section 94 to ensure that the area is effectually drained. So far as the Leakey principle is concerned, the cause of action is negligence, or nuisance by negligence. The argument on adoption of the nuisance bases the cause of action in nuisance simpliciter. There is also the Rylands v. Fletcher argument, which may be said to be a variety of nuisance. In all those cases the omission relied on is failure on the part of the defendant to exercise its statutory powers. But it is, indeed, a contravention omission. It appears that the expression "the only remedies for that contravention" must mean "the only remedies for that act or omission", given the last few words of the subsection "available in respect of that act or omission otherwise than by virtue of its constituting such a contravention". The remedies for negligence and nuisance are claimed in respect of the omission "otherwise than by virtue of its constituting such a contravention". But are they "available"? They are of course generally available; but the statutory undertaker has an immunity. In my judgment, such remedies do fall within the expression "those that are available in respect of that.....omission otherwise than by virtue of its constituting such a contravention". Thus I conclude that section 18(8) does not in itself preclude an action for nuisance or negligence.

47. Nevertheless, the policy of the act is clear: there is no statutory liability to pay compensation. I conclude that that policy excludes the existence of a common law duty of care to fulfil the duty.

48. A further particular of negligence that Mr. Harrison relied on was this:

The defendants instructed their agents the London Borough of Harrow to ensure that all further built developments included measures to ensure that rainfall run-off was minimized or held back so as to prevent flooding. The defendants never monitored whether or not this was occurring or took any other measures to ensure that the remedial system that they had implemented was carried out. The defendants did not institute any further measures when it became apparent that development was being permitted without the imposition of conditions designed to minimize or hold back water run-off.

49. On Mr. Regnier's evidence I find that the London Borough of Harrow did impose relevant conditions in relation to large developments, but that it was not worth while to do so in relation to small developments. There may have been some increase in run-off by reason of new developments, but it was not significant. This allegation fails on the facts.

50. I conclude that Mr. Marcic has no remedy under the law as it existed before the passing of the Human Rights Act.

51. In reaching the above conclusion, I have not overlooked the following arguments of Mr. Harrison.

52. Mr. Harrison submitted that the older cases, concerned as they were with local authorities, which were prevented from making any profit on their activities, did not apply to the defendant, a private company. The defendant chose to become a sewerage undertaker and to make a profit out of it. The necessary change of approach had been recognized in British Waterways Board v. Severn Trent Water Ltd. [2001] EWCA CIV 276. Mr. Harrison relied in particular on the following passage in paragraph 74 of the judgment of Chadwick L.J:

.....one of the important changes made in the Water Act 1989 (and perpetuated in the Water Industry Act 1991) is that sewerage functions were transferred from public authorities (which derived their corporate powers from the statute by which they were established) to limited companies (which derive their corporate powers from their memoranda of association).....I would not expect an implied power [to discharge without payment of compensation on to the land (or into the watercourse) of another] to follow from the fact that a company limited by shares.....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.

Mr. Harrison submitted that that passage showed that the defendant was not a public authority in the sense in which that expression was used by Lord Hoffman in Stovin v. Wise, and was not to be treated as one. Whilst in that passage Chadwick L.J. recognized a distinction between the sources of the powers of local authorities and of private companies, the case does not in my judgment support those submissions of Mr. Harrison.

53. Further, Mr. Douch (the most senior policy witness of the defendant) accepted that there was no prospect of relief for Mr. Marcic for decades in the absence of exceptional circumstances: the situation would continue until the defendant chose to pay for any works. Mr. Harrison submitted that the defendant was thereby asserting a right to discharge water from the surface water sewer on to Mr. Marcic's property. If the defendant had put an overflow pipe from the sewer on to the edge of Mr. Marcic's property, there was no dispute that it would be liable for the consequences of the flooding. On the facts of this case, submitted Mr. Harrison, there was no valid distinction between overflow and deliberate discharge. In support of that submission, Mr. Harrison cited various passages from the judgments in British Waterways Board v. Severn Trent Water Ltd. (ib.) of which I quote two from the judgment of Peter Gibson, L.J:

[para. 36] It was common ground between the parties.....that STW [the defendant] needed the implied statutory authority for which it contended, because to discharge water on to another's land would be an interference with private rights.....there is a presumption that a statute does not give the right so to interfere. However this presumption will yield to a sufficiently clear intention in a statute, as the House of Lords held in Allen v. Gulf Oil Refining Ltd. [1981] AC 1001. In that case statutory authority for the construction and operation of a refinery was held to confer immunity against actions in nuisance because the refinery could not be operated without causing a nuisance. Mr. Beloff accepted that the 1991 Act did not authorize a sewerage undertaker to commit a nuisance. That is plainly right: it is not inevitable that nuisance will be caused by a sewerage undertaker performing its statutory functions.

[para. 41] .....It is entirely consistent with the presumption against Parliament interfering with private rights that no right to commit a trespass should be implied.

I reject Mr. Harrison's submission that the evidence supports the proposition that the flooding should be treated as deliberate discharges by the defendant. In my judgment, there is nothing in British Waterways inconsistent with the conclusion that I have reached.

54. Mr. Marcic claims that the failure of the defendant to provide a proper drainage system infringes his human rights as provided in the European Convention on Human Rights and constitutes a breach of the duty owed to him by the defendant under the Human Rights Act 1998. Section 6 of the Human Rights Act provides, so far as material, as follows:

6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if-

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently;

.....

(3) In this section "public authority" includes-

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

.....

(6) "An act" includes a failure to act.....

55. The Convention rights upon which Mr. Marcic relies are those contained in Article 8 (right to respect for private and family life) and in Article 1 of the First Protocol (Protection of Property). Those articles read as follows:

ARTICLE 8. RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

THE FIRST PROTOCOL: ARTICLE 1. PROTECTION OF PROPERTY

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

56. In the absence of authority, I would have thought that those articles had nothing to do with the case. But I would have been wrong. There is clear authority that matters of this kind do fall within those articles. In Baggs v. United Kingdom (1985) 9 E.H.R.R. 235, a case of nuisance by noise from Heathrow airport affecting the applicant's enjoyment of his home, the European Commission of Human Rights ("the Commission") deemed his complaints under both articles admissible. In S. v. France (1990) 65 D. & R. 250, 258 the applicant complained under both articles of the effect of a nuclear power station near her home. It was said to cause noise, light during the hours of darkness, and, by reason of repeated release of steam, humidity and a reduction in direct sunlight. The applicant had received compensation in the sum of 250,000 francs. As to the claim under Article 1 of the First Protocol, the Commission decided that noise nuisance could seriously affect the value of real property and thus amount to a partial expropriation. But having regard to the compensation, there was no appearance of a violation of that article. In relation to the complaint under Article 8, the Commission stated:

Article 8, para. 1 of the Convention, which guarantees [the right to respect for the applicant's private life and the inviolability of her home] cannot be interpreted so as to apply only with regard to direct measures taken by the authorities against the privacy and/or home of an individual. It may also cover indirect intrusions which are unavoidable consequences of measures not at all directed against private individuals.....Considerable noise and other types of nuisance can undoubtedly affect the physical well-being of a person and thus interfere with his private life. They may also deprive a person of the possibility of enjoying the amenities of his home.....In the circumstances of the present case the noise and other types of nuisance complained of by the applicant amount to an interference with the above-mentioned rights guaranteed by Article 8 para. 1 of the Convention.

As to the effect of paragraph 2 of Article 8, the Commission decided that bearing in mind the compensation, the interference did not go beyond what was necessary in a democratic society.

57. In Guerra v. Italy (1998) 26 EHRR 357, 382, 383 the European Court of Human Rights held that the effect of toxic emissions from a factory polluting the atmosphere in the applicants' homes fell within Article 8, observing

.....Italy cannot be said to have "interfered" with the applicants' private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life.

In the present case it need only be ascertained whether the national authorities took the necessary steps to ensure effective protection of the applicants' right to respect for their private and family life as guaranteed by Article 8.

58. In Lopez Ostra v. Spain (1994) 20 E.H.R.R. 277 the European Court of Human Rights found a violation of Article 8 by reason of interference with the applicant's home by fumes and smells emanating from a waste treatment plant.

59. It is not in issue that the flooding of Mr. Marcic's house falls within the first paragraph of Article 8 of the Convention and Article 1 of the First Protocol. However, Mr. Daiches submitted that the interference with those rights was not such as to impair "the very essence" of those rights. It is common ground that Mr. Marcic falls within the definition of a victim and is therefore a proper claimant. It is common ground that the defendant is a public authority within the meaning of the Human Rights Act.

60. Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(6) provides that "an act" includes a failure to act. That is clearly a wide expression, and is not expressed to be confined to omissions to carry out a duty, let alone a duty that can be enforced by a claimant otherwise than under the act. Indeed, if it were confined in the latter way, there would be little point in the act. On the other hand, someone who suffers an infringement of his human rights by reason of inactivity manifestly cannot pick a defendant at random. Failure to act in my judgment must involve the concept that the defendant could reasonably have acted so as to prevent or put an end to the infringement of the claimant's human rights. Otherwise the failure would not be "incompatible with a Convention right".

61. Mr. Daiches submitted that the defendant was the wrong defendant. In the case of omissions, it would always be necessary to identify the relevant public authority that is alleged to be under the duty to take the relevant positive steps. I accept that submission, save for the implication that there is necessarily only one relevant public authority. The relevant omission, which he labelled a "contravention omission", constituted a contravention of a statutory requirement contained in section 94(1) of the Water Industry Act which was enforceable under section 18 of that act. He submitted that on the true construction of the Water Industry Act, and in particular of section 18(8), the legislature had decided that the relevant public authorities answerable to the courts in respect of contravention omissions were the Secretary of State and the Director General of Water Services. He referred to those two officers generically as "the Director". The legislature had charged the Director with the duty of enforcement in relation to contravention omissions, and had enacted a detailed scheme of enforcement, contained in sections 18 to 22 of the act, to enable positive steps to be taken to remedy any contravention omissions. Under the statutory scheme of enforcement, the duty was initially on the Director to take positive steps to consider whether an enforcement order should be made, and if so, to make an order. It was only if and when an enforcement order was made by the Director that the undertaker came under a duty, pursuant to section 22, to take the positive steps required under the enforcement order.

62. Mr. Daiches accepted that his argument depended on the true construction of section 18(8) of the Water Industry Act. He submitted that the words "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" did not include remedies under the Human Rights Act for contravention omissions. Mr. Harrison submitted that they did, and that the starting-point of the argument was the Human Rights Act, not the Water Industry Act. Mr. Daiches said that Mr. Harrison's argument begged the question whether there was a remedy under the Human Rights Act. In fact the argument is circular, and it seems to me that the starting-point is immaterial.

63. The foundation of the argument is that the undertaker is under no duty until the enforcement order has been made. I do not think that that foundation bears the weight of the argument. It is true that there is no private law duty under the Water Industry Act until section 22 comes into play, but the enforcement order is a means of enforcing an existing statutory duty. The Water Industry Act was passed before the Human Rights Act. In my judgment, section 18(8) of the former act is not to be interpreted as showing any intention whether a statutory undertaker is a proper defendant in any given case under the Human Rights Act.

64. Mr. Daiches rightly put forward no argument on the basis that Mr. Marcic, by not following up the suggestion of the Department of the Environment that he complain to the Director General of Water Services, had failed to exhaust his remedies.

65. The defendant has statutory powers, and indeed is under a statutory duty, effectually to drain its area. In the case of Mr. Marcic, it has failed to do so. In my judgment, the defendant is a proper defendant. Section 18(8) of the Water Industry Act does not in my judgment purport to prohibit the bringing of Mr. Marcic's claim. It is not incompatible with the Human Rights Act.

66. Mr. Daiches submitted that the defendant and its predecessors in title were compelled by section 106 of the Water Industry Act to permit householders to connect their drains to the public sewer system, so that the defendant could not have acted any differently. He relied on section 6(2)(a) of the Human Rights Act as disapplying section 6(1) in those circumstances. I note in passing, though I have heard no argument on the point, that section 106 does not require an undertaker to accept surface water into a sewer provided for foul water: see section 106(2)(b)(ii), which provides:

.....nothing in subsection (1) above shall entitle any person

.....

(b) where separate public sewers are provided for foul water and for surface water, to discharge directly or indirectly

.....

(ii) except with the approval of the undertaker, surface water into a sewer provided for foul water;.....

Since, on the evidence, I am satisfied that the foul water sewer would have ample capacity but for the fact that it accepts surface water in addition to sewage, Mr. Daiches's argument may not apply to the foul water element of the flooding to which Mr. Marcic's property is subjected. But in any case, in my judgment section 6(2)(a) of the Human Rights Act does not apply since the defendant's inactivity is not the necessary consequence of any legislation.

67. The rights embodied in Article 8 of the Convention and in Article 1 of the First Protocol are qualified rights. The right expressed in paragraph 1 of Article 8 is qualified by the provisions of paragraph 2. The right expressed in the first sentence of Article 1 of the First Protocol is qualified by what follows in the remainder of the first paragraph of that article. The second paragraph is irrelevant for present purposes.

68. I find that the defendant's failure to carry out works to bring to an end the repeated flooding of Mr. Marcic's property constitutes an interference with the exercise of Mr. Marcic's right under paragraph 1 of Article 8 of the Convention. That is so notwithstanding that it is inactivity that is complained of. I reach that conclusion on the authority of Guerra. The right is a qualified right in that interference with it by a public authority may be justified in accordance with the provisions of paragraph 2 of that article. If it is justified, then Mr. Marcic's qualified right has not been infringed and the defendant has not acted in a way which is incompatible with Mr. Marcic's Convention right under Article 8.

69. As to Article 1 of the First Protocol, I find that Mr. Marcic has been deprived, at any rate in part, of the peaceful enjoyment of his possessions. Although I have not heard expert evidence of any diminution in value of his property, there is expert evidence of damage to the property and the evidence of Mr. Marcic, who considers it to be unsaleable. The value of Mr. Marcic's property must have been seriously and adversely affected by the nuisance. That effect has constituted a partial expropriation: in S v. France (ib., p.261) the Commission observed that where the value of real property was seriously affected by noise nuisance, that nuisance would amount to a partial expropriation.

70. Mr. Marcic cannot complain before this court of any infringement or damage occurring before 2^nd October 2000, when the Human Rights Act came into force. I shall consider the question of damage at a later hearing. As to infringement, the interference with the exercise of Mr. Marcic's qualified right under Article 8 continues; and the deprivation of his possessions continues. I thus have to consider whether the exceptions contained in the two articles apply.

71. Mr. Daiches submitted that there was a principle of proportionality in the interpretation of the Human Rights Act. There was a general principle inherent in the whole of the Convention that it is seeking to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Lester and Pannick Human Rights Law and Practice p.68). I accept that in applying the qualifications to the rights in question the court must strike a fair balance between the competing considerations. As to Article 8, the only qualifications to the right that it has been suggested or, I think, could have been suggested are relevant in this case are encapsulated in the words "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". In Article 1 of the First Protocol the public interest is the competing consideration. It is common ground that the burden lies on the defendant to show that there is a justification for the prima facie breach of Mr. Marcic's human rights.

72. Mr. Daiches submitted that in considering the question of proportionality I should apply the principle of judicial deference. An expression of that principle is to be found in the speech of Lord Hope of Craighead in Reg. v. D.P.P., Ex parte Kebilene [1999] 3 WLR 972, 994:

.....the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognize that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.

Mr. Daiches's submission was that I should defer to the views and specialist expertise of the defendant. In summary, his reasons were these. Prior to the introduction of the Human Rights Act it was clear that the legislature intended that the Director, and not statutory sewerage undertakers, should be the public authority responsible for deciding whether to enforce the remedying of contravention omissions. The clear inference was that the legislature intended that decisions whether to enforce such a remedy should involve a discretion, to be exercised having regard to many factors, including the amount of funds available to the relevant undertaker and the priority of the complainant as compared with other owners and occupiers who were suffering from the harmful effects of an old and inadequate public sewerage system. The underlying political question was whether statutory sewerage undertakers should be under a strict duty to provide a perfect public sewerage system for everyone in the country, regardless of cost or whether they should be under some lesser, and if so what, duty. Social and economic factors involved the degree of control by the Director, the amount by which the Director permitted sewerage undertakers to raise their charges to enable capital and infrastructure works to be carried out, and the amounts which consumers could reasonably be expected to pay to improve the public sewerage system. Social and economic factors also involved consideration of a proper system of priorities to deal with the thousands of owners and occupiers who currently suffered from inadequate public sewerage systems. The court patently lacked the expertise necessary to make a primary finding as to whether the omission to take the relevant steps was proportionate as between the claimant and the community as a whole. The court had not heard any evidence from the other owners or occupiers who might be regarded by the undertaker as having priority over Mr. Marcic. It was clearly impractical for the defendant to subpoena all the thousands of owners and occupiers on the defendant's flooding history database. In such circumstances, the court could not properly assess whether Mr. Marcic should be entitled to the benefit of new public sewerage works in priority to all the other owners and occupiers who were suffering from old and inadequate public sewers. It was the Director who was the person best fitted to decide whether or not an enforcement order should be made. However, on the premise that the relevant duty was on the defendant, Mr. Daiches submitted that the defendant still had more specialist expertise than the court in relation to the issues raised in this case.

73. That is a powerful argument. But since I have to decide whether Mr. Marcic's human rights have been infringed, it is implicit that I am being asked to conclude that the statutory framework itself, and not simply its operation in this case, provides the appropriate balance of the competing interests. There is precedent for such a conclusion. Mr. Daiches cited the case of Powell and Rayner v. United Kingdom (1990) 12 EHRR 355. The high point of that case from Mr. Daiches's point of view is this sentence in the judgment of the European Court of Human Rights (p.369):

It is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere.

The fact remains that the court did consider the merits of the case. The discussion appears in paragraphs 40 to 45 of its judgment on pages 368 and 369 of the report. The claims related to noise nuisance emanating from Heathrow airport. The facts are fully set out in the report. The court stated in its judgment that in each case, albeit to greatly differing degrees, the quality of the applicant's private life and the scope for enjoying the amenities of his home had been adversely affected by the noise. The existence of large international airports, even in densely populated urban areas, and the increasing use of jet aircraft had without question become necessary in the interests of a country's economic well-being. A number of measures had been introduced by the responsible authorities to control, abate and compensate for the noise. Nine such measures were specified in the judgment. Those measures had taken due account of international standards and the varying levels of disturbance suffered by those living around the airport. On the other hand, section 76(1) of the Civil Aviation Act 1982 limited the possibility of legal redress open to the aggrieved person. The court concluded that the assessment of the best policy in that difficult social and technical sphere was an area where the Contracting States were to be recognized as having a wide margin of appreciation.

74. Mr. Daiches also relied on Reg. v. Cambridge Health Authority, ex parte B. [1995] 1 WLR 898, 906 D to F. In that case the claimant, the father of a sick child, sought judicial review of a decision of a health authority not to allocate Ł75,000 for the treatment of the child. Without the treatment the child was thought to have some six to eight weeks to live. The proposed treatment was experimental. Its chance of success was between 10 and 20 per cent. Some of the doctors had thought that it was not in the child's interest to undertake it. The passage on which Mr. Daiches relied was from the judgment of Sir Thomas Bingham M.R. in the Court of Appeal, where he said

Difficult and agonizing judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make. In my judgment, it is not something that a health authority such as this authority can be fairly criticized for not advancing before the court.

Sir Thomas Bingham M.R. had observed that it was common knowledge that health authorities of all kinds were constantly pressed to make ends meet. And he went on to say that it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B. then there would be a patient C. who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration. It is clear from the report that the Court of Appeal did very carefully consider the reasonableness of the decision of the health authority.

75. I conclude that I must consider the merits of this case, albeit giving the defendant a wide margin of discretion.

76. The defendant is one of the Thames Water PLC group of companies. The defendant is a statutory water and sewerage undertaker for the purposes of the Water Act 1989 and the Water Industry Act 1991. As statutory sewerage undertaker, the defendant is responsible for an area stretching from Cirencester to Brentwood and from Banbury to Crawley. Within that area, the defendant is 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.

77. The revenue of the defendant 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 the defendant submits a strategic business plan to the DG. That plan includes a statement of the capital funding needed to achieve what the defendant believes to be a reasonable level of alleviation of flooding. The defendant keeps 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.

78. The flooding history database, which the defendant maintains with the approval of the DG, includes all properties in the defendant's area which are assessed to be at risk of flooding. There are three categories of risk. Risk A applies to properties statistically categorized 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.

79. 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 Ł132 million. For the period 2000 to 2005, the defendant is required to remove 1500 risk A or risk B properties. The cost allowed is Ł 46 million.

80. Between 1990 and 1997, the defendant has carried out in the London Borough of Harrow 19 flooding projects, affecting 243 properties, at a cost of Ł9,433,300.

81. The way in which the defendant determines 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 the defendant regards 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 the defendant 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.

82. The cost of scheme 2.2 mentioned in the experts' joint statement is Ł200,000. The points value, allowing for the benefit to properties adjacent to that of Mr. Marcic as well as the benefit to Mr. Marcic's own property, is 6, equivalent to 30 per million pounds.

83. On the evidence of the defendants' witnesses, I am satisfied that there is no prospect of any work being carried out in the foreseeable future to prevent flooding of Mr. Marcic's property.

84. There have been put before me some statistics of properties in the defendant's area affected by flooding and at risk of flooding. In the year 1999-2000 the position was this. The number of properties affected by internal flooding incidents caused by overloaded sewers was 851. The number of properties affected by internal flooding incidents from other causes was 911. The number of properties at the end of the year said to be at risk of internal flooding twice or more in ten years was 3611. The number of properties at the end of the year said to be at risk of internal flooding once or more, but less than twice, in ten years was 14,655. Those latter figures, totalling 18,266, included the former, totalling 1762. With reference to those figures, Mr. Douch said in his witness statement that if the defendant were to allocate the level of funding needed to provide the solutions to Mr. Marcic's flooding problem discussed in the experts' joint report, funds would be diverted away from projects to alleviate the risk of flooding of the 18,000 properties that suffer from or are at risk of internal flooding. For both public health and customer interest reasons those must be given priority, he said. He went on to say that the defendant's commitments to fund its regulated public water supply and sewerage functions were such that it was not able to fund all of the many similar cases to Mr. Marcic's without compromising its abilities to meet the regulatory requirements for the range of functions it was required to carry out.

85. In his oral evidence, Mr. Douch said that Mr. Marcic's level of external flooding was quite severe but not exceptional. He had not carried out an analysis, but would suggest that there were, in the defendant's area, several thousand properties experiencing a similar level of flooding. Mr. Sitaranjan estimated that there were several hundred properties within the London Borough of Harrow that suffered from foul water flooding and more severe surface water flooding than that experienced by Mr. Marcic.

86. In cross-examination Mr. Douch accepted that there was nothing other than a managerial decision on the part of the defendant to stop it from spending the money necessary to remedy Mr. Marcic's flooding problem without diverting resources from the 18,000 properties at risk of internal flooding. He also said that the defendant had spent more on alleviation of flooding than the DG had allowed for.

87. I have seen extracts from the reports and accounts of the Thames Water group. Separate accounts for the defendant are not in evidence. The group's financial review for the year 1999-2000 states:

Our objective is to create shareholder value by developing and investing in businesses which deliver strong cash flows and are able to provide returns in excess of our costs of capital. We continued to make good progress towards this objective in 1999/00, again raising returns through margin improvements, rigorous financial control and the substantial growth of businesses outside the UK Utility.....

Despite the substantial regulatory reductions in prices from 2000/01, the UK Utility remains strong with a growing high quality customer base, and provides a solid platform for the vigorous development of our other businesses.

The group profits after tax were Ł344 million.

88. Mr. Douch said that the current cost rate of alleviating flooding problems was of the order of Ł30,000 a property. That figure reflected concentration on schemes where the properties that benefit are grouped together geographically so that several can benefit from a single scheme of alleviation. If all flooding problems were to be alleviated, the unit cost would be substantially in excess of Ł30,000.

89. Whilst the evidence on the subject is imprecise to the point of vagueness, I conclude that it would cost the defendant a sum of the order of Ł1,000 million to alleviate the flooding problems of all customers in its area who are in a similar position to that of Mr. Marcic or whose properties are at risk of internal flooding at least once every ten years. That takes no account of future house-building. It seems, on the limited evidence available, that that alleviation, if it were to be undertaken, would take several, if not many, years in the absence of an increase in sewerage charges.

90. Mr. Harrison submitted that to carry out the works necessary to remedy Mr. Marcic's situation manifestly would not affect the economic well-being of the country, and that there was simply no evidence that the economic well-being of the country would be threatened by a judgment in his favour. I accept that argument so far as it goes, that is to say by taking Mr. Marcic's case in isolation. But on the evidence, there may be thousands of customers in a position similar to that of Mr. Marcic. For reasons that follow, I consider that Mr. Marcic's case must not be taken in isolation.

91. Mr. Harrison further submitted that the "interference" by the defendant with the exercise of Mr. Marcic's right under Article 8 could not be justified as being for the protection of the rights and freedoms of others, since they had no greater rights or freedoms than Mr. Marcic.

92. The question is, what is the meaning of the expression contained in the second paragraph of Article 8 "necessary.....in the interests of.....the economic well-being of the country" in the context of the facts of this case? The answer, I think, appears in Powell and Rayner [ib. p. 368]. The European Court said in paragraph 41 of their judgment:

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.

The European Court made similar remarks in Lopez Ostra (ib. p.295, paragraph 51). Whilst the margin of appreciation enjoyed by a State is not in issue here, I have already indicated that in my judgment the defendant and, I may add, the Director enjoy a margin of discretion. I have to decide whether a fair balance has been struck between the competing interests of Mr. Marcic and of the other customers of the defendant, allowing the defendant that margin. The economic well-being of the country as a whole is not, I think, in issue since sewerage costs are financed from sewerage charges. No doubt sewerage charges have an effect on the economy of the country, but it has not been suggested that that is a significant consideration. The striking of the fair balance also protects the rights and freedoms of others.

93. As to Article 1 of the First Protocol, in S. v. France (ib., pp. 262, 261) the Commission referred to a statement of the European Court of Human Rights in James and Others judgment of 21^st February 1986, Series A no.98, p.36, para. 54 that the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 of Protocol 1. The public interest exception specified in Article 1 of the First Protocol raises, in my judgment, the same considerations in this case as those raised in the second paragraph of Article 8.

94. Mr. Daiches submitted that where a private individual complains that a statutory body has omitted to exercise a public law discretion so as to confer a benefit on him, the fair balance must always be struck by precluding that individual from bringing a private law action to compel the statutory body to confer that benefit on him. I reject that argument, at any rate where, as here, the benefit is the abatement of a nuisance or other harm emanating from a defendant or its property. Mr. Daiches submitted that the courts are not fitted to assess the considerations which dictate a public law decision by a statutory body involving the weighing of competing public interests. That argument purports to prove too much. It implies that the courts must wash their hands of their power under section 8(1) of the Human Rights Act to grant such relief or remedy, or make such order, within their powers as they consider just and appropriate. The proposition is vividly put in the words of Sir Thomas Bingham M.R. in R. v. Ministry of Defence, ex parte Smith [1996] QB 517, 554 which are quoted in a case that Mr. Daiches cited to me, R. v. Secretary of State for the Home department, ex parte Turgut [2001] 1 All ER 719, 724f:

While the court must properly defer to the expertise of responsible decision-makers, it must not shrink from its fundamental duty to "do right to all manner of people".

That remark was made in the context of proceedings for judicial review, but it applies here also.

95. Mr. Daiches submitted that the striking of the fair balance in relation to a public law decision requires the existence of a system of law which (a) permits a statutory body to exercise its public law discretion freely and without improper or distorting interference from the executive or the courts, (b) precludes a person who feels aggrieved by the exercise of such discretion from bringing a private law action in relation to the decision, but (c) protects that person's Convention rights by enabling him to bring a public law action to have the discretion judicially reviewed for irrationality, unfairness or illegality. I reject that argument. If correct, it would have the effect that this court should refuse relief and leave it to another court to grant, if it thought right, the relief that it is within the general powers of this court to grant. Illegality includes acting in a way which is incompatible with a Convention right, and a court undertaking judicial review would, as regards illegality, take into account precisely the considerations that are before me.

96. In its system of working out priorities, one of the items that the defendant takes into account, in relation to a customer suffering internal flooding, but not in relation to a customer suffering only external flooding, is the time elapsed since the most recent flooding event. Periods from 0 to 2 years are bracketed together and attract the maximum weighting for this item. It is a matter for consideration whether weightings should be attached for external flooding. The most recent event experienced by Mr. Marcic occurred on 6^th November 2000, four months before the hearing. It is a matter for consideration whether higher weighting should be given where there has been such a recent event. A related point is the frequency of events. The maximum weighting for this item is given (again only for internal flooding) where the frequency of events is more than ten in ten years. Mr. Marcic has suffered three incidents of flooding at his property since 15^th May 2000 plus an occasion at the end of October 2000 when flooding took place on two successive days. That may be counted as four or five incidents in a period of less than a year. It is a matter for consideration whether such a high frequency of incidents should attract a higher weighting than it does.

97. Mr. Marcic has been waiting nine years for something to be done about his flooding problem. No account is taken of the length of time that a customer has been waiting for his problem to be remedied. It is for consideration whether some account should be taken of that.

98. Although a small number of points is given where a customer is unable to obtain insurance, no account is taken of the value of the property flooded or of the amount of any diminution in value or of the cost of repair of any damage to the property caused by the flooding. Again, it is for consideration whether those matters ought to be taken into account in assessing priorities.

99. Another matter for consideration is whether it is fair that a customer such as Mr. Marcic, who has spent Ł16,000 to prevent the flood waters coming into his house, should have no prospect of relief when customers who have not done so, but might have been able to, have priority.

100. Some of the matters taken into account in assessing priorities are irrelevant, e.g. whether a complaint has received press coverage.

101. The defendant's case depends on there being a large number of properties (they rely on the figure of 18,000) which properly have priority over cases like that of Mr. Marcic. There is no evidence before me how many of those properties suffer flooding from foul water. It is by no means obvious that suffering internal flooding from surface water once in eight years, say, is worse than suffering external flooding from foul water more than once a year. Yet the figure of 14,655 properties at risk of internal flooding more than once, but less than twice, in ten years is not broken down. Nor is the figure of 3611 properties at risk of flooding twice or more in ten years. How many properties suffer flooding twice a year, how many once in eight years, say? And no breakdown seems to have been made of Risk X customers, i.e. those whose flooding is entirely external.

102. The system of priorities used by the defendant may be entirely fair, and I have no reason to doubt that it is intended to be. But its fairness in balancing the competing interests of the defendant's various customers must depend in part on the numbers in each class, the total costs involved in relation to each class, and the resources of the defendant. The answers to the questions raised above as matters for consideration might depend on the figures. If the exercise of assessing the fairness of the system were carried out, it might lead to the conclusion that for all its apparent faults, the system fell within the wide margin of discretion open to the defendant and the Director. But on the limited evidence available to me, it is not possible to carry out such an exercise.

103. My conclusions are these. Mr. Marcic has suffered from increasingly frequent flooding at his property for nine years. The defendant has known about the original flooding incident since it occurred in 1992, and it has had the means of knowledge of the later incidents. Almost nothing has been done about the flooding, other than the works that Mr. Marcic has himself carried out. Under the present system of priorities, there is no prospect of anything being done about it. That, on the face of it, constitutes an infringement of his human rights which requires justification. It would be justified if a system leading to that result and protecting the rights of others were necessary in order to strike a fair balance between the competing interests of Mr. Marcic and of the other customers of the defendant, allowing the defendant a margin of discretion. It is common ground that the burden lies on the defendant to provide that justification. It has failed to do so. The fact that the current system does not obviously fail to strike the fair balance is insufficient.

104. Mr. Marcic seeks a mandatory injunction requiring one of the proposed schemes to be carried out. In the exercise of my discretion, I refuse that injunction on the grounds that (1) the injunction would have to specify the required works precisely; (2) the specification would be a matter of engineering expertise that is not before the court; and (3) performance of the injunction would require the co-operation of third parties, albeit that the defendant has powers of compulsory purchase of land.

105. As to damages, the effect of section 8(3) of the Human Rights Act is that I am to make no award of damages unless I am satisfied that the award is necessary to afford just satisfaction to Mr. Marcic. Section 8(4) requires me to take account of the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. That again requires just satisfaction. In Lopez Ostra (ib., p.299) the European Court of Human Rights made an assessment on an equitable basis of non-pecuniary damage (nuisance caused by gas fumes, noise and smells, and distress and anxiety).

106. The effect of section 22(4) of the Human Rights Act is that Mr. Marcic has no remedy under that act in respect of any act taking place before 2^nd October 2000. Mr. Daiches submitted that it would have been impossible for the defendant to start works on or after 2^nd October 2000 so as to have completed them by the time of the hearing. That is clearly true. He submitted that there was no fresh act or omission on or after 2^nd October 2000 such as to give rise to liability on the part of the defendant. It is clear from the evidence that the defendant intends to continue to operate its existing system of priorities. It intends not to carry out the works necessary to remedy the nuisance. For the purpose of a claim under section 7(1) of the Human Rights Act it is sufficient that the defendant proposes to act in a way made unlawful by section 6(1). But the question remains whether any unlawful failure to act has occurred or, if it has, whether it has caused any damage.

107. The nuisance giving rise to the cause of action for infringement of Mr. Marcic's right under Article 8 of the Convention is a continuing nuisance. The "act" rendered unlawful by section 6(1) of the Human Rights Act is failure to prevent or put an end to the infringement of the claimant's human rights. The concept of failure to prevent or put an end to the infringement implies the proposition that the defendant can reasonably act so as to prevent or put an end to the infringement. The defendant can reasonably act in that way, albeit that given the situation existing on 2^nd October 2000, the defendant could not have put an end to the prima facie breach of Mr. Marcic's rights by the date of trial. In my judgment the inactivity of the defendant became unlawful, and hence the cause of action under section 8(1) of the Human Rights Act arose, when the Human Rights Act came into force on 2^nd October 2000. That cause of action is a continuing cause of action.

108. The position in relation to Article 1 of the First Protocol in my judgment is this. Assuming (and I have yet to hear evidence on the point) that no further diminution in value of Mr. Marcic's property has been occasioned by the nuisance since 2^nd October 2000, there has been no act of expropriation on that account since that date. However, the state of deprivation of his possessions has continued. In my judgment, for the reasons given in the previous paragraph Mr. Marcic has had a cause of action for infringement of his right under Article 1 of the First Protocol since 2^nd October 2000.

109. In my judgment, it is no defence that the defendant cannot immediately remedy the situation. That fact can, of course, affect the relief granted.

110. My answers to the preliminary issues set out in the appendix to this judgment are:

1. No.

2. No.

3. No.

4. No.

5. No.

6. Yes.

APPENDIX

List of preliminary issues

1. Whether, by reason of its omission to execute the works specified in paragraphs 2.2, 2.3, 2.4 or 2.5 of the "Joint statement by drainage experts" dated June 2000, the defendant is liable in negligence under the principle in Leakey v. National Trust [1980] QB 485 in respect of such damage to the claimant's property after August 1992, or after some other and if so what date, as was caused by escapes from surface water sewers vested in the defendant.

2. Whether, by reason of its utilisation of public sewers vested in it which were known by the defendant to be of inadequate capacity, the defendant is liable in nuisance in respect of such damage to the claimant's property after August 1992 as was caused by escapes from surface water sewers vested in the defendant.

3. Whether the defendant is liable under the rule in Rylands v. Fletcher in respect of such damage to the claimant's property after August 1992 as was caused by escapes from surface water sewers vested in the defendant.

4. Whether, by reason of its omission to exercise its statutory powers after August 1992 to execute the works specified in paragraphs 2.2, 2.3, 2.4 or 2.5 of the "Joint statement by drainage experts" dated June 2000, and/or its omission to monitor restrictions imposed by the local planning authority in relation to the drainage of new buildings, the defendant is liable in negligence in respect of such damage to the claimant's property after August 1992 as was caused by escapes from surface water sewers vested in the defendant.

5. Whether, by reason of any omission to provide [such] a system of public sewers as to ensure that the area within which the claimant's property is situated is effectually drained, and/or any omission to make provision for effectually dealing with the contents of its sewers, the claimant has a private law remedy against the defendant for breach of statutory duty in respect of such damage to the claimant's property after August 1992, or after some other and if so what date, as was caused by escapes from surface water sewers vested in the defendant; and if so, whether the defendant is in breach of such duty.

6. Whether the defendant's failure to execute the works specified in paragraphs 2.2, 2.3, 2.4 or 2.5 of the "Joint statement by drainage experts" dated June 2000 was a failure to act which was incompatible with a Convention right within the meaning of section 6(1) of the Human Rights Act 1998.