Case law: 'Implied right' to discharge into private watercourse
Jen Hawkins from LexisPSL outlines a recent supreme court case that considered whether a sewerage undertaker had an implied statutory right to discharge into a private watercourse without the owner's consent.
In Manchester Ship Canal Company Ltd v United Utilities Water plc  the supreme court considered whether a sewerage undertaker had an implied statutory right to discharge into a private watercourse without the owner’s consent.
It was accepted that there was no express statutory right to discharge surface water and treated effluent into a private watercourse, so, if this was done without the owner’s consent, it would be a tort. Both parties acknowledged that Durrant v Branksome  established an implied right to discharge and that right existed at least until 1989. The court had to consider whether the right remained under the Water Industry Act 1991.
The court rejected the argument that there was a general right of discharge under the 1991 Act similar to the one recognised in Durrant. Lord Sumption held that the Act “merely authorised the laying of pipes across private land and in itself provided no basis for any implication about the places where those pipes were authorised to discharge”. In addition, a right of discharge into private watercourses was not necessary to enable a sewerage undertaker to exercise its statutory powers, said the court. It did, however, accept the second argument put forward by United Utilities, which centre on whether the pre-existing rights of discharge survived the 1991 Act.
Sewerage undertakers whose pipes had been laid before the Act came into force could only perform their statutory duties by continuing to discharge from existing outfalls, wherever they may be, even into private watercourses, said the court.
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