Sewage companies could face new legal bids after ‘landmark’ Manchester Ship Canal ruling

Water companies could now face new legal challenges over sewage discharges, campaigners have said, following a “landmark” Supreme Court ruling.

The judgment, by seven justices of the UK's highest court, enables the Manchester Ship Canal Company (MSCC), which owns the waterway of the same name, to sue United Utilities over alleged discharges of contaminated water into the canal.

It overturns previous rulings from the High Court and Court of Appeal, where judges had said the canal company could not bring legal action for trespass or nuisance.

Campaigners now say the decision could now allow other water companies to face legal action over sewage discharges.

It comes after a long-running dispute between MSCC and United Utilities around discharges of foul water contaminated with untreated sewage into the canal.

The canal runs for more than 35 miles from just east of Salford Quays to the Mersey Estuary at Eastham on the Wirral.

The United Utilities sewerage network includes around 100 outfalls from which material emanating from sewers, sewage treatment works and pumping stations is discharged into the water.

When operating within its hydraulic capacity, the discharges are of surface water or treated effluent, but when the system’s hydraulic capacity is exceeded at least some foul water is discharged.

It had previously been ruled by the High Court and Court of Appeal that water companies could not be sued by private individuals or businesses over sewage dumping, so MSCC took an appeal against those rulings to the Supreme Court.

On social media, former singer Feargal Sharkey, who now campaigns against pollution described the ruling as "massive" adding that it "opens the way for 1,000s of claims by fishing clubs, swimmers, riparian owners against water companies".

During a two day hearing in March 2023, the court was asked to decide whether MSCC, which owns the beds and banks of the canal, could bring a claim in nuisance or trespass when the canal is polluted by discharges of foul water from outfalls, which are maintained by United Utilities.

In its ruling on Tuesday 2 July 2024, The Supreme Court unanimously allowed the Canal Company’s appeal.

It holds that the 1991 Act does not prevent the Canal Company from bringing a claim in nuisance or trespass when the canal is polluted by discharges of foul water from United Utilities’ outfalls, even if there has been no negligence or deliberate misconduct.

The Environmental Law Foundation, a charity which intervened in the Supreme Court hearing in March, welcomed the ruling.

Its co-director and casework manager, Emma Montlake, said: “This was a ‘monster case’ as characterised by lead counsel for the Manchester Ship Canal.

“Enormously complex, the outcome has the potential to be a game-changer for communities up and down the land.

“Our water environments have been regularly polluted with untreated sewage, water biodiversity denuded and degraded with impunity by private water companies.

“A national scandal doesn’t come close to describing what we have put up with. This is a glad day for environmental justice, not just for the public, but for nature.”

Jennine Walker, Good Law Project's Interim Head of Legal, explains the implications of the judgment

The Good Law Project, which supported the Environmental Law Foundation, described the judgment as a “landmark” decision.

Jennine Walker, the group’s interim head of legal, said: “This is a sensational victory and a real boost to the clean-up of our rivers, waterways and seas.

“It gives people stronger legal tools to turn the tide on the sewage scandal and hold water companies to account, after our toothless and underfunded regulators have failed to do so.”

A United Utilities spokesperson said: "We are considering the implications of the Supreme Court’s ruling and the clarification of the circumstances in which private owners could bring proceedings in respect of discharges.

"We understand and share people’s concerns about the need for change and we have already made an early start on an ambitious proposed £3 billion programme to improve over 400 storm overflows across the North West which would cut spills by 60% over the decade to 2030.

"These proposals form part of our business plan which is currently under consideration as part of Ofwat’s price review process."