Lawyers challenge water firm’s immunity over sewage discharge

Environmental campaigners are fighting to stop a water company being given almost total immunity from any private legal action for discharging untreated sewage into waterways.

Sandra Laville 

The Good Law Project (GLP) and the Environmental Law Foundation (ELF) are challenging a decision by the high court that the water company United Utilities cannot be subject to any private legal action for its discharges of raw sewage from storm outfalls into the Manchester ship canal.

The decision made last April is being reviewed by the court of appeal, which this week granted permission for the legal groups to submit evidence as part of the case.

Jo Maugham, the director of the GLP, said if United Utilities was to win the case it could end a vital legal option to hold water companies to account for sewage dumping. Lawyers for the GLP say the decision would effectively act as a precedent which all water companies would seek to rely on.

The environmental groups will tell the court of appeal it has now become clear that sewage dumping from storm overflows has been occurring with alarming regularity and does not just take place in exceptional circumstances, for instance after very heavy rainfall.

Emma Montlake, the joint executive director of the ELF, said: “ELF works with and assists communities across the country plagued by the environmental and health consequences associated with sewage pollution into British water systems.

“We are delighted that the court [of appeal] has agreed that the ELF’s evidence and that of others in the consortium will be able to assist the court of appeal to understand the context and wider ramifications of unchecked sewage pollution.”

The fight over the rights to sue a water company over discharges from outflows of raw sewage began in 2010 when the owners of the Manchester ship canal sought damages against United Utilities for discharges of sewage into the waterway. MSC argued that water companies did not have a legal right to pollute waterways with raw sewage. They argued that untreated, or inadequately treated, discharge that was unauthorised would be unlawful and therefore could be challenged by legal action.

In response United Utilities sought a declaration in court that as a water company it could not be subject to private legal action because it was a matter for the regulator.

The high court agreed with the water company and granted the declaration it sought, that there was no case in law against United Utilities in respect of discharges from the company’s outfalls. The judge – in supporting his decision – said discharges were “the effect of sudden heavy rainfall, which causes flooding and results in the capacity of the existing system being exceeded” and had “occurred without United Utilities doing anything to cause it or being able to do anything lawfully to stop it, except by spending money on large-scale capital improvements”.

In 2020 water companies discharged raw sewage into rivers and waterways more than 400,000 times over 3.1m hours.

A United Utilities spokesperson said: “The legal case you have referenced is not about avoiding accountability, the aim is to clarify the regulatory position regarding wastewater outfalls. This is the latest in a long series of cases brought against United Utilities by the owners of the Manchester ship canal. We cannot comment any further on this as the legal proceedings are ongoing.”