WATER AND WATERCOURSES—FLOODING—NUISANCE

Court of Appeal, Civil Division
Sir Andrew Morritt C, Lloyd and Toulson LJJ
30 July 2007

Something considerably more than increased surface water would be required to change the status of a culvert in law from a watercourse to a sewer. 

Clifford Darton (instructed by Kevin Hall, Worthing) for the second defendant.
Graham Chapman (instructed by Jacobs & Reeves) for the claimant.
Jeremy Burns (instructed by the Solicitor to the Council, Southampton) for the first defendant.

The Bitterne Stream was once a natural stream running westwards from Humm Hole to the River Itchen. What now existed, from the same starting point, was a channel through which water flowed, passing though Bitterne, effectively a suburb of Southampton, and eventually flowing out into the Itchen. For much of its length it was covered over, and the whole bed of the stream was lined with concrete. Part of one of the open stretches ran along the southern boundary of the claimant’s property.

The claimant contended that several occasions of flooding had occurred in 1999. It issued proceedings seeking to establish that one or other of the defendants was responsible for the maintenance of the channel, and responsible for making good any damage caused by failure to maintain it properly. It contended that the damage to its property caused by the flooding gave rise to a claim in nuisance against the party responsible for the section of the channel which was adjacent to its property.

A preliminary issue was ordered to be tried to determine whether or not the section of the channel adjacent to the claimant’s property (the culvert) was a sewer and whether the second defendant, as sewerage undertaker, had statutory responsibility to maintain it. The judge decided that the culvert had become a surface water sewer, but not a public sewer.

The second defendant appealed. The issue was whether or not the judge was right to hold that the relevant part of the watercourse, the Bitterne Stream, had become a sewer. It was accepted that other parts of it had become a surface water sewer, but that was not accepted as true of the relevant part. 

LORD JUSTICE Lloyd:

The judge posed the question: “Whether the character of the natural stream has changed to such an extent that the channel has become a sewer in the ordinary, non statutory sense of the word”, based on the case of British Railways Board v Tonbridge and Malling District Council (1981) 79 LGR 565 (BRB).

The judge then reviewed the facts, and came to consider their effect, starting with the evidence as to a continued flow of groundwater. He rejected that, on the basis that the defendants had not proved that the continued flow of clear water in dry weather (which he accepted there was) was attributable to groundwater.

The factors which he did regard as relevant were: (i) the complete change in the structure of the channel; (ii) the change in the route of the channel; (iii) the change in the nature of the flow; (iv) the fact that the channel was used for the drainage of buildings and yards appurtenant to buildings; (v) the fact that many tributary conduits were themselves sewers properly so called; (vi) the description given to the channel in documents from 1951 onwards; (vii) the capacity of the channel; and (viii) the occasional presence of foul sewage in the channel.

He went on to consider the second question, whether the sewer was a public sewer, and held that it was not. There was no appeal on that point.
The second defendant submitted that most of the factors relied on by the judge for his finding that it was a sewer rather than a watercourse were irrelevant in law, and that the only relevant matter was the nature of the flow, and that the change in the nature of the flow along the culvert was nothing like substantial enough to satisfy the test set out in BRB.

Where the question for decision was as to the status of a particular stretch of a stream or flow, such as the culvert in this case, his lordship would not regard evidence as to what had happened to other parts of the stream or flow as being irrelevant, but it did seem that the question needed to be addressed by reference to the specific stretch at issue, rather than the stream or flow as a whole.
 

Status of the culvert

If the question was posed specifically in relation to the culvert, the only relevant change that had occurred was the addition of a great deal more surface water to the flow along that part of the channel. Nothing had happened to change the status of the culvert in terms of works done under statutory authority.

The sewerage undertaker had done nothing to that stretch of the channel which could affect its status. Therefore, if there had been a change, it had to have been by virtue of the change in the flow, because the fact that the flow was now channelled and partly piped was not sufficient. Viewed in that light, and by reference to the culvert itself, there was no sufficient change to constitute the flow a sewer rather than a watercourse.

Referring to BRB, there was no relevant discharge of foul sewage, and though there was an increased discharge of surface water, something very much more than that was needed. On the true analysis of the facts concerning the culvert, there was nothing more than that increased discharge which could be relied on.

Accordingly, the status of the stream as it flowed through the culvert as a watercourse had not changed; however, much of its appearance might have changed in that part, and whatever changes there might have been to its character and even its status elsewhere in the channel, both upstream and downstream.

The appeal would therefore be allowed.

Sir Andrew Morrit C delivered a concurring judgment and Lord Justice Toulson dissented.