No rights to sewerage claim

Marcic v Thames Water Utilities (House of Lords - 4 December 2003)

The claimant's property suffered repeated and extreme external sewerage flooding when the system in his area became overloaded.

The claimant sought damages and an order compelling Thames Water, the statutory sewerage undertaker, to improve the sewerage system. A claim was brought in nuisance under the Human Rights Act 1998.

Thames Water has a duty under section 94 of the Water Industry Act 1991 to provide public sewers that ensure the area is effectually drained.

Under this system of priorities (agreed with the director general of water services), there was no prospect of any work being carried out to prevent further flooding of the claimant's property.

The 1991 Act provided a statutory scheme whereby the director has the power to make an enforcement order against a statutory sewerage undertaker to secure its compliance with its obligations under the act. Victims of flooding could only issue proceedings against a statutory undertaker where it had not complied with an enforcement order.

The House of Lords decided the claimant had no entitlement to bring a claim in nuisance or under the HRA against Thames Water. Thames Water's liability was limited to the statutory scheme provided by the 1991 Act, but the claimant had not requested an enforcement order be made against Thames Water under the statutory scheme.

COMMENT: This case has important ramifications for victims of sewerage flooding and their property insurers. Statutory sewerage undertakers will only be liable for incidents of sewerage flooding caused by an inadequate sewerage system where they have failed to comply with an enforcement order made by the director general. - Chris Downey, BLM Manchester.

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