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Nuisance – statutory flooding regime |
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In Marcic [2002] the CA reached a ground-breaking decision in the context of a water company’s liability for nuisance. The case involved a property which started to flood because of the extra sewage and water that main drains were having to carry because of increased development. The CA held there was a nuisance and it was also held that there had been a breach of HRA 1998.
However, that decision has now been reversed by the HL. In its view, the landowner’s remedies lay under the statutory scheme of enforcement, which allowed a complaint to be made (plus of course there was the possibility of bringing an action for judicial review if the regulatory body did not act properly when considering the activities of the water company). In the HL’s view, those were the proper remedies, rather than the common law of nuisance or HRA 1998. Thus, the HL has made it clear that it is not prepared to allow a parallel claim to be brought using the tort of nuisance because that would undermine the statutory scheme and thus be counter to the intentions of Parliament. Whilst it might be perfectly fair and reasonable to use private nuisance as against individual landowners, such a remedy could not be taken against public utility providers without taking into account the complex statutory background against which they operated.
Many will regret this decision. It is now clear that a claimant in this situation has no real opportunity to call evidence and test a public utility provider’s justification for allowing an intolerable nuisance to continue unabated. In practical terms, the only access to the courts is via judicial review – which many will regard as a theoretical rather than a practical remedy.
The point should also be made that there is an alternative and inexpensive remedy available for many other forms of nuisance by simply complaining to the magistrates court of a statutory nuisance. That legislation has been very important in raising standards of LA housing, and even though those issues involve large sums of money and a prioritisation of improvements (as is the case with sewage and drainage schemes), that tried and tested remedy does not seem to be available against sewage and water undertakers (and presumably other public service utility providers). As far as the tort of private nuisance is concerned it now seems quite clear that there is indeed one law for private individuals and another for utility providers. See commentary on Marcic v Thames Water [2003] UK HL 66 in [2004] SJ 86; [2004] EG 24 January 107.
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March 2004 |
