If your home played host to the contents of your neighbours’ toilets 17 times in eight years, you might expect the law to offer you some redress. Remarkably, as one London householder found out, it does nothing of the sort
Well, it was a wet summer for folk living in South Yorkshire, Lincolnshire, Gloucestershire and Worcestershire, wasn’t it? Say what you like about climate change, it’s certain that building ever more houses puts an overwhelming demand on the nation’s sewerage. The house might be new, but 19th-century public drains can no longer deal with heavy rainfall. Flooding is ghastly and inevitable. And it’s not “just” surface water flooding, is it? When rain overloads the surface drains, it floods the foul water sewer. Untreated sewage on your moquette settee is a bit of a nuisance.
“Nuisance” here is a legal concept. Peter Marcic used it to get Thames Water Utilities to sort out what happens to him when it rains. His fight took him to the Technology and Construction Court, the Court of Appeal, then the House of Lords. He lost – albeit by a hair’s breadth – but I bet he frightened the hell out of those water boys on the way.
Mr Marcic’s house is in Stanmore, a north-western suburb of London. He’s lived there for 20 years. Two public sewers run under the street: one for foul water and the other, which probably dates from the thirties, for surface water. Mr Marcic’s home is at the low point in the drainage system. Once in 1993, 1994, 1995 and 1996; twice in 1992 and 1997; four times in 1999; and five times in 2000, his house was flooded by raw sewage. It could happen after 15 minutes of rain.
The remedy? Easy: enlarge and extend that public sewer in the street. Meanwhile, Mr Marcic spent £16,000 setting up a flood defence system in his front garden. Every time the weather girl forecast rain, this poor chap spent 20 minutes erecting a dam – then next morning, he would dismantle it.
As for Thames Water, it sent him a cheque for £40 by way of compensation. He sent it back. Thames Water would have to spend £260,000 for a 600mm sewer. It said finance was not available. Would you be at the end of your tether by now?
The lawyers got weaving. In due course, they came before an experienced construction industry judge. The snag in the litigation was, and is, that the overall control of water companies is exercised by the head of Ofwat. It is this chap who has the power to make the water boys behave. No order by Ofwat was breached and no breach meant Mr Marcic’s claim for nuisance was defeated.
In 2000, Mr Marcic’s house was flooded by raw sewage five times. It could happen after only 15 minutes of rain
Except that the judge thought he could rescue him by applying the Human Rights Act 1998: nine years of flooding and sewage was an infringement of article eight, which protects family life and the home.
Thames Water, and probably Ofwat, and probably Her Majesty’s Government, were worried by this, so they went to the Court of Appeal, which backed the first judge. So, on to the House of Lords. The argument went like this: parliament appointed a director-general to decide on the use of resources. The Treasury does not fund the water authorities – money comes from sewerage charges, so Ofwat has to balance the interest of the flooded with the financial burden on the rest of the public. In Thames Water’s neck of the woods, the money required to help customers in a similar position to Mr Marcic would be £1bn. Now then, if Ofwat is “in charge” and if a water company is doing what it authorises, and if Ofwat didn’t authorise a remedy for Mr Marcic, then the company can’t be blamed. That’s why Thames Water won, regardless of article eight.
Ah, but there is an epilogue. Ofwat got to hear of this awful story and authorised £27m to relieve 250 properties from risk of internal sewer flooding … including Mr Marcic’s house. Five years after going to court, the work was done. As the Ofwat chief said, Mr Marcic’s case “highlighted the importance of robust prioritisation schemes”.
The House of Lords said: “In Mr Marcic’s case, matters plainly went awry. It was a malfunctioning of the statutory scheme but does not cast doubt on its overall fairness.
A complaint by an individual can, and should, be pursued with the director, with the longstop availability of judicial review.” Think about that when you are next in your rowing boat swerving to miss the sewage.
Tony Bingham is a barrister and arbitrator