On appeal from: [2013] EWCA Civ 40.

Whether, under the Water Industry Act 1991, a sewerage undertaker had a statutory right to discharge surface water and treated effluent into private watercourses such as the respondents’ canals without the consent of their owners and, if so, whether the right extended to any sewer or only to those which were in existence in 1991 when new sewerage legislation was passed.

In allowing the appeal, the Court held that it was common ground that no express statutory right was conferred by the 1991 Act. The question was therefore whether it should be implied, a test that has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this would involve showing either that the existence of the power was necessarily implicit in the express terms of the statute, or else that the statutory purpose could not be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power was incapable of being exercised or a statutory duty was incapable of being performed without doing the act in question.

For judgment, please download: [2014] UKSC 40
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII