Nuisance - failure to abate - sewage flooding garden after heavy rain owing to inadequate sewerage - sewerage undertaker not liable in nuisance

Marcic v Thames Water Utilities Ltd: HL (Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Scott of Foscote): 4 December 2003

For many years, the claimant's garden had been subject to flooding from sewers operated and maintained by the defendant, the statutory sewerage undertaker under the Water Industry Act 1991.

The flooding was caused by the overloading of a section of the sewerage system arising from increased user following the connection of newer properties to the system as of right.

Under the system the defendant used to prioritise its expenditure on the alleviation of sewer flooding, there was no prospect of any work being done to improve the sewers near the claimant's house for the foreseeable future.

The claimant brought an action claiming, among other things, that the defendant was liable under the common law of nuisance and under the Human Rights Act 1998 for interference with his right to respect for his private life and his home under article 8(1) of the European Convention on Human Rights and of his right to peaceful enjoyment of his possessions under article 1 of the first protocol to the convention.

The judge found for the claimant under the 1998 Act.

The Court of Appeal additionally held that the defendant was liable in nuisance.

The defendant appealed.

Jonathan Sumption QC, David Pannick QC and Michael Daiches (instructed by Beale & Co for Thames Water Legal Services) for the defendant; Stephen Hockman QC and Peter Harrison (instructed by South & Co) for the claimant.

Held, allowing the appeal, that sewage disposal and drainage was the subject of statutory regulation under the 1991 Act, which set out the powers and duties of both water undertakers and sewerage undertakers; that the exercise of those functions was subject to supervision and control by the director-general of water services, the regulator of the water industry in England and Wales: that sections 18 to 22 of the Act made provision for enforcement orders, by which the director-general could enforce the obligations of a sewerage undertaker including the statutory drainage obligation; that the existence of a parallel common law right, whereby individual householders who suffered sewer flooding might themselves bring court proceedings when no enforcement order had been made, would effectively supplant the regulatory role that the director-general was intended to discharge; that, consequently, there was no room for a common law cause of action in nuisance; that the statutory scheme entrusted enforcement of the general drainage obligation to an independent regulator who had regard to all the different interests involved and whose decisions were subject to an appropriately penetrating degree of judicial review by the courts; that the scheme provided a remedy, by way of complaint to the director-general, for persons in the claimant's unhappy position, but he had chosen not to avail himself of that remedy; that whether a system of prioritisation of expenditure adopted by a sewerage undertaker was fair was a matter inherently more suited to decision by an industry regulator than a court; and that, accordingly, the scheme was compatible with the convention and the claimant's claim under the Human Rights Act 1998 was ill-founded.

(WLR)