BLG Environment and Health & Safety-UK Developments-Spring 2004

CASES

HUMAN RIGHTS/NUISANCE. On 4 December, in Marcic v Thames Water Utilities Ltd, the†House of Lords decided, in an action for damage caused by flooding from overloaded sewers,†that private remedies under nuisance law or breaches of the Human Rights Act 1998 have no†part to play.

Mr Marcic, a homeowner, had suffered repeated and serious flooding from an overloaded public†sewerage system since 1992. He claimed against Thames Water (which was the statutory sewerage†undertaker for the relevant area) in common law nuisance and under the Human Rights Act 1998,†alleging that Thames Water as a public authority had acted incompatibly with his Convention rights†under Article 8 (respect for family life and home) and Article 1 of the first protocol (protection of†property).

At trial, the nuisance claim was rejected but the human rights claim was upheld. On appeal to the†Court of Appeal, both claims were upheld (see Summer 2002 Digest). The House of Lords,†however, rejected both claims.

In dismissing the nuisance claim, the House of Lords noted that pursuant to the Water Industry†Act 1991, a sewerage undertaker has a general duty to provide a system of public sewers to ensure†that its area is drained effectively. The Act expressly excludes actions by individuals for breach of†statutory duty, opting instead to empower the Secretary of State and water regulator Ofwat to†serve an enforcement order on undertakers who are in breach of their statutory duties. It is only†where an enforcement order has been served that an individual may seek damages where breach†of the order results in damage.

In this case, no enforcement order had been served on Thames Water. In pursuing a claim under†common law nuisance, Mr Marcic was effectively seeking to sidestep the statutory enforcement†code. The correct approach would have been for Mr Marcic to get Ofwat to make an enforcement†order (with the use of judicial review proceedings if necessary).

In dismissing the human rights claim, it was noted, following the decision of the Grand Chamber†of the European Court of Human Rights in the case of Hatton v United Kingdom (see Autumn†2003 Digest), that national institutions, and in particular the national legislature, are accorded a†broad discretion in choosing the solution appropriate to their society or creating the machinery for†doing so. Although the claimant had clearly suffered, there was nothing to suggest that the†statutory scheme as a whole did not comply with the...