A long-running legal battle between the owners of the Manchester Ship Canal and the area’s water company over the dumping of sewage into the canal has reached the Court of Appeal.
The Manchester Ship Canal Company (MSCC) is seeking to overturn last year’s rulings that United Utilities (UU) is and continues to have the right to discharge water and/or other material into the canal, and that the Canal Company cannot bring any future private legal action regarding this matter. There are a total of 121 sewage outfalls overseen by United Utilities that can discharge waste into the canal.
The canal stretches over 35 miles from east of Salford Quays to the Mersey Estuary at Eastham on the Wirral. A court has previously heard that the discharges occur on occasions when heavy rains cause the sewer system to exceed its capacity.
The dispute between the parties reached the Supreme Court in 2014, which ruled that the company had the legal right to discharge “surface water and treated effluent” from sewers that existed before privatization in 1991. did not include five sewers that the canal company had specific. contractual agreements regarding.
In a case heard last year, Judge Fancourt then ruled that the UU also had the right to continue to drain water through these. The Ship Canal Company had argued that any discharge of insufficiently treated water was “unlawful” and therefore “trespassing” on their property – which the judge dismissed.
In response, United Utilities also successfully obtained a ruling that in the absence of an allegation of “negligence or willful wrongdoing”, the MSCC was unable to bring private law actions for trespassing. or nuisance against United Utilities with respect to specified sewer discharges. . This means that the only action that could be taken against them would come from bodies such as the Environment Agency.
Legal experts now say the rulings, issued following a hearing in the Business and Property Court last April, could have wider implications for water companies across the country. But, in the latest development, MSCC is now trying to overthrow them.
Alongside MSCC, a number of organizations specializing in environmental law issues, including the nonprofit The Good Law Project, have also been allowed to formally intervene in the case.
They claim that if the decision is not overturned, it will in effect mean that any water company will be able to discharge sewage into any waterway in England and Wales without fear of being sued in the civil courts. by landowners, angling clubs, swimming groups or other groups with an interest in the land.
They say their interest stems from “concern for the environmental health of water bodies in the region, as the implications of the appeal extend far beyond the particular trade dispute between MSCC and UU.”
In a witness statement, they say there is “abundant evidence that polluting discharges occur frequently in many other bodies of water”. They also claim that “the public bodies responsible for enforcing the bans on such releases are in practice overwhelmed and unable to intervene in the face of numerous releases”.
They say banning private law claims would “remove an important potential incentive for remediation companies to prevent such releases from occurring.”
Opening the company’s case in the Court of Appeal today, David Hart QC, representing MSCC, said part of the claim was in fact “about money” and that the channel body “wished be paid for UU’s use of its channel.
However, he added: “On another level – and this is illustrated quite graphically by the stakeholder submissions – there are broader interests in seeking to make our inland waters clean. And the importance of having a private law remedy available to help achieve this goal. »
The hearing, at the Royal Courts of Justice in Westminster, began today (Tuesday) and is expected to last three days. A judgment will then follow, although these can sometimes take weeks or months to be published.
The Manchester Ship Canal confirmed its involvement in the matter but declined to comment due to ongoing litigation. A United Utilities spokesperson told the Manchester Evening News “We take our environmental responsibilities very seriously and work closely with our regulators to ensure that any stormwater overflows are monitored and kept to a minimum.
“We recently announced plans for how we can play our part in improving rivers and other waterways, committing to reduce the number of spills from storm surges by at least a third. by 2025 and investing £230m to improve 184km of waterways across the North West.”