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Implied Power of Sewerage Discharge Swept Away

In a decision of importance to landowners and water utility companies, the Court of Appeal has confirmed that the implied power enjoyed by sewerage undertakers for over 100 years to discharge waste water on to third party property without the owner’s consent has effectively been swept away. Such a power had been recognised since the late 19th century but had been repealed by legislation that was introduced to implement privatisation of the water industry.

A water utility company had argued that it had retained a residual power to discharge sewage without landowners’ consent despite the passage of the Water Industry Act 1991 and the Water Act 1989. It was submitted that the acts could not retrospectively affect pre-existing sewage outfalls and that the power to make use of them to discharge sewage onto third party land had been passed to the company and other water undertakers on privatisation.

However, dismissing the company’s appeal, the court ruled that even if implied rights of discharge had been transferred to privatised undertakers, such rights remained subject to amendment by statute. Arguments that privatisation legislation had ‘frozen’ the position, effectively making the power of discharge incapable of repeal, were rejected. The court concluded that the statutory provisions currently in force are inconsistent with the implied right of discharge which had been enjoyed by sewerage undertakers since a Court of Appeal decision in 1897.