Supreme Court rules water companies are open to private prosecutions

The Supreme Court has ruled that water companies that foul waterways can be sued under a common law claim for nuisance by private landowners.

According to campaigners, water companies could now face a raft of legal challenges as new legal avenues open up to sue water companies for dumping sewage.

In short, it ramps up the pressure on water companies to sort their shit out (actually, its our shit), get the necessary infrastructure built and stop pumping out raw sewage.

The Supreme Court ruling follows a hearing in March 2023 over United Utilities’ attempts to avoid accountability over its sewage pollution of the Manchester Ship Canal.

The Supreme Court was asked to decide whether the Manchester Ship Canal Company (a subsidiary of Peel Ports),  as the owner of the beds and banks of the canal, could bring a claim in nuisance or trespass when the canal is polluted by discharges of foul water from outfalls maintained by United Utilities.

Ironically, the Canal Company has never even tried to sue United Utilities; it simply made threats. But this was enough to prompt United Utilities to seek a legal ruling that it had immunity from prosecution under the Water Industry Act 1991 (the privatisation legislation).

United Utilities argued that the only way to avoid discharges of foul water into the canal would be to construct new sewerage infrastructure, and previous legal cases had established that it is for Ofwat to tell water companies what to do, not the courts.

The High Court agreed with United Utilities and so did the Court of Appeal. The implication of these judgments was that no owner of a canal, river, lake or pond can bring a claim based on nuisance or trespass against a sewerage undertaker in respect of polluting discharges into the water, unless the sewerage undertaker is guilty of negligence or deliberate wrongdoing. A claim of this kind would be prevented even if the polluting discharges were frequent and had significant and damaging effects on the owner’s commercial or other interests, or on its ability to enjoy its property.

Manchester Ship Canal Company appealed to the Supreme Court.

The Supreme Court held that the 1991 Act does not prevent the Canal Company from bringing a claim in nuisance or trespass when the canal is polluted by discharges of foul water from United Utilities’ outfalls, even if there has been no negligence or deliberate misconduct.

The Environmental Law Foundation (ELF), backed by Good Law Project and represented by Hausfeld, brought an intervention in the hearing.

Good Law Project’s interim head of legal Jennine Walker said: “This is a sensational victory and a real boost to the clean-up of our rivers, waterways and seas. It gives people stronger legal tools to turn the tide on the sewage scandal and hold water companies to account, after our toothless and underfunded regulators have failed to do so.

“We hope this landmark ruling empowers people and businesses to use the courts to challenge industrial-scale polluters like United Utilities, who have put profits and the shareholder interest over protecting our environment”.

Environmental Law Foundation co-director Emma Montlake said: “This was a ‘monster case’ as characterised by lead counsel for the Manchester Ship Canal. Enormously complex, the outcome has the potential to be a game changer for communities up and down the land. 

“Our water environments have been regularly polluted with untreated sewage, water biodiversity denuded and degraded with impunity by private water companies. A national scandal doesn’t come close to describing what we have put up with. This is a glad day for environmental justice, not just for the public, but for nature.”

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