Authorities test the UK's waterways

Roger Pearson reports on the British Waterways Board's failed High Court fight against water being discharged into its canal.

The High Court has ruled against the British Waterways Board (BWB) in a test case likely to have major implications for water authorities and owners of riparian rights.

The case was one which has been watched closely by water authorities throughout the country and which may go to appeal.

The BWB argued that Severn Trent Water (STW) did not have a general legal right to discharge water from its sewers into BWB canals without consent.

But in the case of Severn Trent Water Ltd v British Waterways Board Mrs Justice Arden ruled that under the Water Industry Act 1991 water authorities have the right to discharge unpolluted water into waterways without the consent of the owners.

Mrs Justice Arden upheld STW's claims that it was entitled to discharge surface water from the Poplars Estate, a development at Brierley Hill near Dudley, into BWB's Stourbridge canal without having to pay a charge.

BWB argued that STW should not be allowed to discharge the water on the basis of a previous licensing agreement which involved a nominal fee, but be made to pay a higher fee for the facility.

The Poplars development began in 1959 with the construction of four houses. In 1973 another 22 properties were built and a pipe was constructed as part of the development to discharge water from the estate as well as some highway drainage.

At that time the developer negotiated a temporary licence with BWB to discharge the water into the canal through a pipe between locks nine and 10 of the canal. Following the adoption of the pipe by the sewerage authority (STW's predecessors) in 1976, a licence was agreed between BWB and the sewerage authority with a nominal annual payment of £29.

But in the 1990s BWB initiated a policy of seeking more commercial fees for licences and took the view that STW should pay a licence fee commensurate with the value of the drainage facility. BWB therefore terminated the licence.

STW argued that it had a legal right to discharge water, at whatever frequency and volume it wished – provided the water did not fall foul of environmental controls – without the consent of BWB.

It also argued that BWB was not entitled to impose any condition or charge.

Andrew Lidbetter, a Herbert Smith litigation partner specialising in administrative law, who represented STW, says: "It is an important case for the water industry.

"It demonstrates that sewerage undertakers dealing with surface water are authorised by section 159 of the Water Industry Act 1991 to discharge surface water out of pipes into canals.

"Although sewage undertakers will be subject to limitations such as the compensation provisions and environmental controls, they will not otherwise have to pay canal owners to discharge."