Marcic v Thames Water Plc, [2003] UKHL 66
Citation:Marcic v Thames Water Plc, [2003] UKHL 66
Rule of thumb:Where there are repeated water leaks or water impurity concerns, can anything be done legally about this? Yes, all the water laws are on a statutory footing and it is a matter of tracking down the appropriate section and relying on it until something is done.
Background facts:
The facts of this case were that the ‘pursuer’ took an extreme, uncompromising and robust legal position, and ironically this led to a Judicial decision that we could learn a lot of the fundamentals about water law from. The facts of the case were that 16 times intermittently over an approximately 8 year period, 1992-2000, the pursuer, Mr Marcic, was having varying amounts sewage water from nearby sewer drainage systems, operated by Thames Water Plc, enter his garden in his property – not necessarily after major storms, but just after general heavy rainfall or heavy usage. This happened not because the sewers were broken, as there was nothing to be fixed, rather it was just that the number of people who lived in the area had increased and every now and again the system overflowed due to overcrowding in the area.
Parties argued:
The pursuer argued that this sewage water entering his premises constituted a ‘nuisance’ – and he substantiated his case with many private law nuisance legal arguments in which neighbours owed other neighbours damages after water escaped from their property and entered into another person’s property – and he also argued that these entries of water into his property violated his ‘human right’ to peaceful enjoyment of private property. Notably, the pursuer did not make arguments based upon the ‘Water Acts’ and regulations to try to just force the water authority to improve the sewer systems so that it could accommodate more people.
Judgment:
The Court held that the private law nuisance cases cannot be argued against the water authority, and that people cannot use these water nuisance cases to obtain damages from the water authority if water from public drainage systems enters their property. The Court held that statute based water law arguments have to be made against the water authority, and decisions by water authorities about improving a water system have to be made with budget considerations in mind - how much the defects in the public water system would cost to fix or enhance, how great the interference with a person’s water supply the defect is, how much people’s actual homes are at risk, and how much is spent overall from the water budget etc. The Court further held that the interferences with the pursuer’s property were not sufficiently extreme to constitute a violation of his human rights due to the authorities prioritising properties at risk of water entering the inside of their property.
The Court further confirmed that water control is a staple part of human society and if someone is having water deficiencies then it is reasonable to expect the water authority to fix these. This Court further confirmed that if someone wants to force the water authority to carry out these duties in a reasonable way then they need to base their argument upon the interpretation of Acts, regulations and directives in the field of water law. The Court held that if the water authority repeatedly fails to fix a problem, and they are extremely unreasonable in failing to fix a water problem in the system, then sometimes even a nuisance action could be brought against the water authority. The Court held that where a problem is caused because the systems need improved due to overcrowding in an area, rather than needing fixed due to being broken, this is a budget consideration that involves different arguments. The Court further confirmed that where public duties have been contracted out to a private organisation, it does not mean that private law arguments as well public law arguments can be used against them.
Ratio-decidendi:
‘Thames Water has a statutory duty under section 94(1) of the 1991 Water Industry Act “(a) to provide, improve and extend such a system of public sewers ... and so to cleanse and maintain those sewers... (b) to make provision for the emptying of those sewers...” Mr Marcic however has not attempted to enforce this duty... section 18... make an “enforcement order” provisional or final, for the purpose of securing compliance. If an order is made, a failure to comply with the order is actionable ... damages... all that Mr Marcic could do ... was to make a complaint to the director ... to consider the complaint and take such steps, if any, as he thought appropriate... Mr Marcic chose not to avail himself of this... instead... claiming... damages for nuisance... The flooding has not been due to any failure on the part of Thames Water... increased use... failure to construct new sewers with a greater capacity... The only remedy was by way of ... s94(1) of the 1991 Act... the Courts consistently held that failure to construct a new sewer was not such a nuisance... Denning LJ, “have a perfectly good cause of action for nuisance, if they can show the defendants created or continued the cause of trouble; and it must be remembered that a person may “continue” a nuisance by not adopting it, or in some circumstances by omitting to remedy it... 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 or drainage system ... which subsequently becomes inadequate owing to increased building... they are not guilty of ensuing the nuisance... the only remedy is to complain to the minister of health”... a local authority does not continue a nuisance emanating from a sewer merely by doing nothing to enlarge and improve the system... recoiled from the prospect of a detailed examination of the defendant’s financial resources and said it should be done on a broad basis... the exercise becomes very different when one is dealing with the capital expenditure of a statutory undertaking providing public utilities on a large scale. The matter is no longer confined to the parties to the action. If one customer is given a certain level of services, everyone in the same circumstances should receive the same level of services. So the effect of a decision about what would be reasonable to expect a sewerage undertaker to do for the plaintiff is extrapolated across the country. This in turn raises questions of public interest. Capital expenditure on new sewers has to be financed; interest must be paid on borrowing... These are decisions which Courts are not equipped to make in ordinary litigation... (The Minister’s statutory duties) ... require him to exercise his powers in the manner best calculated to achieve certain objectives... the director has addressed to himself of flooding and formulated policies... required to achieve a reasonable level of alleviation of flooding... But no allowance was made for properties, like that of Mr Marcic, which were only at risk of external flooding... Thames Water... duty... take reasonable steps to abate the nuisance... It would subvert the scheme of the 1991 Act if the Courts were to impose... on a case by case basis, a system of priorities... the Convention does not accord absolute protection to property...’, Lord Hoffmann at 50-71
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.