More on Private Nuisance from the UK Supreme Court

In Hearsay 91 Private Nuisance – Mere Overlooking, or Use for Overlooking? there was addressed the decision of the UK Supreme Court in Fearn v Board of Trustees of the Tait Gallery [2024] AC; [2023] UKSC 4, the court addressed and deployed the principles pertaining to the tort of private nuisance. The court returned to such legal issue – fully constituted to the extent of seven members of the court – in the Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2024] UKSC 22 (2 July 2024). Thomas de la Mare KC led for the appellant and Jonathan Karas KC led for the respondent. Lord Reed (President) and Lord Hodge (Deputy President) – with the agreement of the balance of the complement of the court – wrote:

Introduction

1.

This appeal raises the question whether the owners of watercourses (an expression we shall use to describe all channels through which water flows, whether natural or artificial) or bodies of water can bring actions in nuisance or trespass in the event that the water is polluted by discharges of foul water from the infrastructure of statutory sewerage undertakers, in the absence of negligence or deliberate misconduct. The court is not asked at this stage to decide whether such proceedings would be well-founded on the facts of the case: the question is whether such actions are barred on the ground that they would be inconsistent with the legislative scheme established by the Water Industry Act 1991 (“the 1991 Act”).

2.

The appeal arises in the context of long-running litigation about the Manchester Ship Canal (“the canal”), which runs from Manchester to the Mersey Estuary. In its upper reaches it is a canalisation of the rivers Irwell and Mersey. It was constructed pursuant to the Manchester Ship Canal Act 1885. The appellant, the Manchester Ship Canal Company Ltd (“the Canal Company”), was originally incorporated under that Act, and is the owner of the beds and banks of the canal. The respondent, United Utilities Water Ltd (“United Utilities”), was appointed under the Water Act 1989 (“the 1989 Act”) as the sewerage undertaker for the North West of England. It owns a network of sewers, sewage treatment works and associated infrastructure, mostly constructed by its statutory predecessors, which it acquired on the privatisation of the water industry under that Act.

3.

United Utilities’ sewerage network includes around 100 outfalls from which material emanating from sewers, sewage treatment works and pumping stations is discharged into the canal. At times when the sewerage system is operating within its hydraulic capacity, the discharges are of surface water or treated effluent. At times when the hydraulic capacity of the system is exceeded, at least some of the discharges are of foul water. That is how the system has been designed to operate. When its hydraulic capacity is exceeded, either because the inflow of sewage and surface water is greater than it can accommodate, or because it is unable to dispose of the inflow because of some mechanical failure or loss of power, the problem is resolved by discharging foul water into the canal through the outfalls. Discharges of foul water from the outfalls could be avoided if United Utilities invested in improved infrastructure and treatment processes.

4.

The background to the proceedings is a dispute between the parties over whether United Utilities requires the consent of the Canal Company in order to discharge foul water into the canal, and must therefore pay the Canal Company for a licence, or can pollute the canal without the consent of the Canal Company and free of charge, because the Canal Company is barred by the 1991 Act from bringing actions in nuisance or trespass. However, the appeal has a wider importance. The implication of the judgments in the courts below is that, absent an allegation of negligence or deliberate wrongdoing, no owner of any watercourse or body of water can bring any claim based on nuisance or trespass against any sewerage undertaker in respect of polluting discharges into the water, however frequent and voluminous the discharges may be, and however damaging they may be to the owner’s commercial or other interests or to the owner’s ability to use or enjoy its property. In view of that wider importance, the court has permitted the Environmental Law Foundation to make submissions as intervener.

5.

The appeal turns on the effect on the common law of the provisions of the 1991 Act. As will appear, many of the Act’s provisions have a long history, and most of the judicial decisions which we will have to examine have concerned their statutory predecessors. In order to understand those decisions, and the principles which they establish, it will be necessary to set them in their statutory context. However, we will begin by explaining some general principles which it will be necessary to have clearly in mind in the later discussion, as they are central to our analysis. We will start with some relevant principles of the tort of private nuisance, with which almost all the relevant cases have been concerned. Although the tort of trespass was also mentioned in the parties’ submissions, it was not considered in any detail, and our treatment of it will be correspondingly brief. We will then explain some basic principles governing the tortious liability of bodies exercising statutory powers.

2.

General principles

(1)

The tort of private nuisance

6.

In general terms, the tort of private nuisance is committed where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with the use and enjoyment of the claimant’s land: Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16; [2023] 2 WLR 1085 (“ Jalla ”), para 2. In most cases the undue interference with the use and enjoyment of the claimant’s land will be caused by an activity or a state of affairs on the defendant’s land. “The ground of responsibility is the possession and control of the land from which the nuisance proceeds”: Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903 per Lord Wright (“ Sedleigh-Denfield ”). “Deliberate act or negligence is not an essential ingredient but some degree of personal responsibility is required”: Sedleigh-Denfield, p 897 per Lord Atkin.

7.

Nuisances may be, and often are, of a continuing nature. As was explained in Jalla, para 26, in general terms a continuing nuisance is one where there is repeated activity by the defendant, or an ongoing state of affairs for which the defendant is responsible, which causes continuing undue interference with the use and enjoyment of the claimant’s land. For example, noise and smells are continuing nuisances where they occur on a regular basis. So is the repeated discharge of sewage into a watercourse which runs through the claimant’s land: Hole v Chard Union [1894] 1 Ch 293. In such cases there is a continuing cause of action, which accrues afresh from day to day. It is because nuisances are often of a continuing nature that an injunction prohibiting the continuation of the relevant activity or state of affairs is a standard remedy. Damages are also an available remedy, but can be awarded at common law only in respect of causes of action that have already accrued, and not in respect of future causes of action which have not yet accrued. The result, at common law, is that the claimant must periodically bring further claims. In contrast, damages for future causes of action can be awarded in equity in lieu of an injunction, under section 50 of the Senior Courts Act 1981 (the successor to the Chancery Amendment Act 1858, commonly known as Lord Cairns’ Act).

8.

It is important not to confuse the concept of a continuing nuisance with the concept of continuing a nuisance. The latter concept refers to the situation where defendants are responsible (and therefore liable) for a nuisance not because they created it but because they failed, with actual or constructive knowledge of the state of affairs which resulted in the nuisance, to take reasonable steps to prevent it.

9.

The difference between the two concepts is illustrated by Sedleigh-Denfield . In that case, a local authority had laid a pipe in a ditch on the defendants’ land in order to carry away rain water. When laying it, they omitted to place a protective grating close to the mouth of the pipe, so as to prevent it from becoming choked with leaves. The pipe was laid without the defendants’ knowledge or consent, but they became aware of its presence and used it as a land drain for their fields. During a heavy rainstorm the pipe became choked with leaves, so that the water overflowed and flooded a neighbour’s land. This was not a continuing nuisance: the flooding was an isolated incident. The defendants were held responsible for the nuisance, although they had not created it: the state of affairs which brought about the flooding had been created by the local authority, trespassing on the defendants’ land. The defendants were responsible because, knowing (actually or constructively) of a state of affairs which created a risk of flooding of their neighbour’s land, they allowed that state of affairs to continue without taking reasonable steps to prevent such flooding by fitting a grating close to the pipe. This was described, following the language used in earlier authorities, as “continuing” the nuisance, although there was not any nuisance in existence until the flooding occurred.

10.

The cause of action for continuance of a private nuisance depends on the claimant’s establishing not only that the nuisance has occurred, but also that the defendants knew of its possible cause, actually or constructively, and failed to take reasonable means to bring it to an end. As Viscount Maugham put it in Sedleigh-Denfield , discussing the earlier case of Job Edwards Ltd v Birmingham Navigations Proprietors [1924] 1 KB 341, if “there was no evidence that the [alleged wrongdoers] either caused or continued the nuisance or were guilty of any negligence in relation to it”, then they were properly held not liable (p 893; see also, in relation to the burden of proof on the plaintiff, p 887). In his opinion, the defendants in Sedleigh-Denfield were also responsible because they had “adopted” the nuisance by using the pipe to drain their property without taking the proper means to render it safe. He stated (p 894):

“In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so. He ‘adopts’ it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance. In these sentences I am not attempting exclusive definitions.”

11.

Lord Atkin explained that a person who made active use of the source of a nuisance was himself causing the nuisance, even if he was not responsible for the presence of the source of the nuisance on his land (p 897):

“If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc, causing a nuisance. Continuing in this sense and causing are the same thing.”

This situation, which seems to correspond to what Viscount Maugham described as “adopting” a nuisance, was to be contrasted with passively “continuing” a nuisance (ibid):

“It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is, if he knows that it is operating offensively, is able to prevent it, and omits to prevent it, he is permitting the nuisance to continue; in other words he is continuing it.”

On the facts of Sedleigh-Denfield, there was “sufficient proof of the knowledge of the defendants both of the cause and its probable effect” (p 899).

12.

Lord Wright distinguished between, on the one hand, the situation where the defendant has himself created the source of a nuisance, and on the other hand, the situation where he has taken it over when he acquired the property or where it is due to the act of a trespasser or stranger. In the latter situation, there was an additional ingredient of liability (pp 904-905):

“If he is to be liable a further condition is necessary, namely, that he had knowledge or means of knowledge, that he knew or should have known of the nuisance in time to correct it and obviate its mischievous effects … Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it.”

The onus of proving these elements of liability rested on the plaintiff (p 908). Lord Romer agreed with Viscount Maugham’s formulation (p 913).

13.

The principle laid down in Sedleigh-Denfield in the context of a hazard created by a trespasser was applied to a natural hazard in the Australian case of Goldman v Hargrave [1967] 1 AC 645, which concerned a fire caused by lightning. That decision was followed by the Court of Appeal in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 (“ Leakey ”), which concerned the movement of an unstable hillside. The judgments in those cases are consistent with the view that the relevant cause of action depends on more than proof of the existence of the nuisance. In Goldman v Hargrave it was said by Lord Wilberforce that “the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it” (p 663), and similar dicta in other cases were cited approvingly in Leakey (eg at p 522; see also Smith v Littlewoods Organisation Ltd [1987] AC 241, 274).

14.

Finally, in relation to general aspects of the law of private nuisance, two further points should be made. First, it is not a defence to a claim for private nuisance that the activity carried on by the defendant is of public benefit, although this may be relevant in determining the appropriate remedy, as this court explained in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 (“ Lawrence ”) and Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2024] AC 1 (“ Fearn ”). Secondly, statutory controls over pollution have never been treated as a reason for cutting down the rights arising under the law of private nuisance. In Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] QB 455, Carnwath LJ stated (para 46(ii)):

“The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19 th century. There is no principle that the common law should ‘march with’ a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance … there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

That dictum was cited with approval, in connection with the relationship between the law of private nuisance and planning law, in Lawrence , para 92, and Fearn , para 110.

(2)

Tortious liability and statutory powers

15.

Bodies exercising statutory powers enjoy no dispensation from the ordinary law of tort, except in so far as statute gives it to them. Unless acting within their statutory powers, or granted some statutory immunity from suit, they are liable like any other person for trespass, nuisance, negligence and so forth: see, for example, Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414.

16.

What is duly done under statutory authority is lawful action of which no-one is entitled to complain. Even if it would otherwise have been a tort, the authority conferred by Parliament renders it lawful. It is therefore necessary to distinguish between interferences with private rights which Parliament can be taken to have authorised, which are lawful, and interferences which Parliament is not to be taken to have authorised, which are unlawful. In doing so, two important and related principles have to be borne in mind.

17.

First, an individual’s right to the peaceful enjoyment of his or her property is a fundamental right, long recognised by the common law and now also protected by the Human Rights Act 1998. The right of access to a court in the event that such enjoyment is threatened is another fundamental right, also long recognised by the common law and statute, and also protected by the Human Rights Act. It follows that the process of interpreting a statute which is said to authorise what would otherwise be an unlawful interference with rights of property, or to deprive individuals of rights of action which would otherwise be available to them to protect their property against such interference, brings into play the principle of legality, which Lord Hoffmann summarised in these terms in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131:

“Fundamental rights cannot be overridden by general or ambiguous words … In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

The requirement of express language or necessary implication imposes a high hurdle.

18.

Secondly, Parliament will not be taken to have intended that powers should be exercised, or duties performed, in a way which causes an interference with private rights where such an interference could have been avoided. Where, on the other hand, private rights must inevitably suffer, no cause of action will arise. Accordingly, as Viscount Dunedin stated in Manchester Corpn v Farnworth [1930] AC 171, 183:

“When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorised. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.”

19.

The leading modern authority on this point is Allen v Gulf Oil Refining Ltd [1981] AC 1001, which concerned a claim in private nuisance arising from the operation of an oil refinery. The statutory authority to construct and operate a refinery was held to confer immunity from proceedings for any nuisance which might be the inevitable result of constructing a refinery on the land. Lord Wilberforce stated (pp 1013-1014):

“It is … for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site, conforming with Parliament’s intention, without creating the nuisance alleged, or at least a nuisance … [T]he statutory authority … confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site – not, I repeat, the existing refinery, but any refinery – however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated.”

20.

This test of inevitability reflects the wider principle that legislation is not construed as depriving individuals of their rights unless it does so expressly or by necessary implication. As Lord Blackburn said in Metropolitan Asylum District v Hill (1881) 6 App Cas 193, p 208, “the burthen lies on those who seek to establish that the Legislature intended to take away the private rights of individuals, to shew that by express words, or by necessary implication, such an intention appears”. As Lord Blackburn made clear at p 203, the absence of provision for compensation is an important (but not conclusive) indication that the legislation in question was not intended to authorise interference with private rights: see also Allen v Gulf Oil Refining Ltd at p 1016.

21.

Many of the cases in which these principles were developed and applied concerned the operation of sewerage systems under statutory powers. At common law, the discharge of foul water on to private land, or into a private watercourse or body of water, may be a trespass or a private nuisance, depending on the circumstances. If so, then the owner has legal remedies available at common law and in equity, in the form of an action for damages and an application for an injunction or for damages in lieu. Applying the general principles which we have explained, the question has therefore arisen in such cases whether there was any provision of the relevant legislation which expressly or impliedly authorised such a trespass or private nuisance, or which expressly or impliedly deprived the owner of the remedies otherwise available. Those are also the questions which arise in the present case. As we have explained, they arise in the context of provisions in the 1991 Act whose roots, in many instances, stretch far into the past, and which cannot be understood without reference to the earlier law. We therefore turn next to consider how the law stood prior to the privatisation of the water and sewerage industry under the 1989 Act.

…..

113.

The conclusion that the 1991 Act does not authorise sewerage undertakers to cause a nuisance or to trespass by discharging untreated effluent into watercourses also follows from the application of the inevitability test laid down in Manchester Corpn v Farnworth and Allen v Gulf Oil Refining Ltd, and applied by this court in Manchester Ship Canal (No 1). The discharge of untreated effluent into watercourses cannot be taken to be the inevitable consequence of the performance of the powers and duties imposed on sewerage undertakers by the Act, given the terms of sections 117(5) and (6) and section 186(3): see, for example, Attorney General v Leeds Corpn (para 31 above). Nor is such a nuisance inevitable in fact, as Romer LJ recognised in Pride of Derby (para 47 above) . In the present case, it is accepted that the discharge of polluting effluent could be avoided by means of investment in improved infrastructure and better treatment processes.

114.

The parties are accordingly correct to agree on this appeal that Parliament has not conferred authority on sewerage undertakers to cause a nuisance by discharging untreated sewage into watercourses. One would therefore expect that the victims of the nuisance retained a common law remedy. As Blackburn J explained in R v Darlington Local Board of Health , at p 526; ER p 928, where Parliament has not authorised the wrong, the right of action at common law has not been taken away. The effect of a provision in the form of section 117(5) or section 186(3) of the 1991 Act is therefore to preserve common law rights and remedies, as the Court of Appeal recognised in Radstock Co-operative and Industrial Society Ltd v Norton-Radstock Urban District Council [1968] Ch 605.

115.

Sections 117(5) and 186(3), in setting limits to the authority conferred by the Act, are predicated on the existence of common law remedies where those limits are exceeded: otherwise, they would have no purpose. United Utilities seeks to meet that point by arguing that there are limited exceptions to the exclusion of common law remedies by the statutory machinery for enforcing the section 94 duty. It was suggested before Fancourt J that there might be cases where a claim in nuisance would not be excluded because the remedy for the matter of complaint did not involve the provision of new infrastructure. It is suggested on this appeal, echoing the reasoning in Dobson, that sections 117(5) and 186(3) have no effect in relation to matters involving the exercise of judgement, or cases where preventing the nuisance requires capital expenditure, but might preserve common law rights of action in relation to operational matters, and cases where preventing the nuisance requires current rather than capital expenditure. We are not persuaded that the effect of those sections has been so confined by the scheme of the 1991 Act. Nor are we persuaded that, as submitted by Mr Karas KC, the role of section 117(5) is simply to exclude the possibility that a sewerage undertaker might argue that the implied authority to discharge surface water and treated effluent into watercourses arising out of section 116 allows it routinely to discharge untreated effluent into watercourses. No doubt it has that effect, but that does not exhaust its role.

116.

Furthermore, section 117(6) prohibits a sewerage undertaker from carrying out its functions under the relevant sections, including section 116, so as to create a nuisance. That is significant, because section 94(4) provides that the remedies available in respect of contraventions of obligations imposed on a sewerage undertaker by the following Chapters of Part IV of the Act shall be “in addition to any duty imposed or remedy available by virtue of any provision of this section or section 95 below and shall not be in any way qualified by any such provision.” The obligations referred to in that provision include the obligation imposed by section 117(6), which forms part of Chapter II of Part IV. Accordingly, remedies available at common law in respect of the creation of a nuisance in breach of that obligation are available in addition to any remedy available by virtue of section 94.

117.

A further indication of the survival of common law rights can be found in section 186(7), quoted at para 66 above. That section provides for arbitration of the question whether the quality of water in a watercourse is injuriously affected by the exercise of powers under the relevant sewerage provisions, so that consent is required under section 186(3). Arbitration under that provision is at the option of the party complaining. Since there is no statutory remedy for such unauthorised injurious affection, one must ask: what is the purpose of the arbitration, unless there is a common law claim available to the party complaining? Further, giving the party complaining the option of arbitration strongly suggests that that person has an alternative, namely to enforce its rights of property, preserved by section 186(3) against injurious affection, by means of common law claims in the courts.

118.

A further indication can be found in the limitations on the provision of compensation in the 1991 Act. On the interpretation of the 1991 Act advanced on behalf of United Utilities, Parliament has enacted a regime under which sewerage undertakers can, without parliamentary authorisation, discharge untreated sewage into watercourses, and which at the same time both deprives the owners of their common law rights to protect their property and also makes no provision for compensation for the injurious affection of that property.

119.

Such an outcome would be surprising. As Mr de la Mare KC submits, a coherent statutory scheme is one in which a statutorily authorised interference with a right of property and the ouster of a private law remedy are balanced by a statutory scheme of compensation. A statutory scheme under which an interference with a right of property is not authorised, and under which compensation is not provided, but under which the private law remedy is nevertheless ousted, would be anomalous: see, for example, Metropolitan Asylum District v Hill, Price’s Patent Candle Co Ltd v London County Council, British Waterways Board v Severn Trent Water Ltd and Manchester Ship Canal (No 1), as well as the recent decision of this court in Fearn . In that case Lord Leggatt, with whom Lord Reed and Lord Lloyd-Jones agreed, stated (para 122) that property rights are not absolute and that there are circumstances in which they may be subordinated to the general good of the community. But, he continued, it is fundamental to the integrity of a system of property rights that an individual whose rights are so infringed receive compensation therefor.

120.

The anomalous nature of the interpretation urged on the court by United Utilities does not end there. According to its submission, as we have explained, the 1991 Act ousts a private law remedy for the victims of a nuisance which has not been authorised, and does not provide them with any compensation, so that they are left without any remedy for the invasion of their rights (unless Ofwat chooses to intervene; and even then, such intervention, being prospective in effect, will leave unremedied the damage which has already been suffered). On the other hand, the same statute provides compensation for interferences with rights of property which are authorised. Section 180 provides:

“Schedule 12 to this Act shall have effect for making provision for imposing obligations for the purpose of minimising the damage caused in the exercise of certain powers conferred on undertakers and for imposing obligations as to the payment of compensation.” (Emphasis added)

The relevant paragraph in Schedule 12 is para 4 which provides:

“(1)

Subject to the following provisions of this paragraph, a sewerage undertaker shall make full compensation to any person who has sustained damage by reason of the exercise by the undertaker … of any of its powers under the relevant sewerage provisions .” (Emphasis added)

121.

Section 180 and Schedule 12 therefore provide compensation for damage caused by the authorised acts of sewerage undertakers, but no compensation for damage caused by acts of sewerage undertakers which are unauthorised. If persons who suffer such damage are also deprived of a right of action which would otherwise be available to them at common law, the result is that the victims of unauthorised interferences with their property are treated less favourably than the victims of authorised interferences. Such a result would, as Mr de la Mare submitted, be perverse.

122.

A further pointer against the interpretation urged on the court by United Utilities, if any were needed, is that it would mean that the 1991 Act had made a substantial change to the law, depriving the victims of a nuisance of the right of action which they enjoyed at common law. There are three reasons why that argument should be rejected.

123.

The first is the fact that the 1991 Act is a consolidation statute. It is unlikely that a statute of that nature made important changes to the law as set out in the 1989 Act, for the reasons explained in para 53 above. Almost all the provisions which are relevant to this case – sections 94(1), 117(5), 117(6), 186(3) and 186(7), and paragraph 4 of Schedule 12 – are modified versions of provisions which not only appeared in the 1989 Act but have a much longer history, as we have explained. Section 18(8) is a more recent provision, in so far as it establishes a wider-ranging power of enforcement than existed prior to the 1989 Act, but it expressly preserves existing common law rights of action, as we have explained. The second consideration is that the 1991 Act is detailed and elaborate. One would not expect that such a statute left an important change in the law to be a matter of implication. The third and most important consideration is the principle of legality: that fundamental common law rights, such as rights of action to protect private property, are not taken to be abrogated by statute in the absence of express language or necessary implication. Those three considerations were brought together by Lord Neuberger in Manchester Ship Canal (No 1), para 58, in a dictum which applies equally to the present case:

“There is in my view a strong presumption that (i) private rights are only to be taken away by a statute by means of clear and specific words, and (ii) where a statute deals in considerable detail with the rights and obligations in a certain field, it is intended to be exhaustive – particularly where the legislation is both consolidating the law and giving effect to Law Commission recommendations.”

124.

The question whether common law remedies in trespass and nuisance have been preserved by the 1991 Act is put beyond doubt by section 18(8), which expressly preserves common law remedies that are available in respect of an act or omission which contravenes a condition of an appointment or licence or of a statutory or other requirement enforceable under that section, or causes or contributes to such a contravention, so long as the remedy does not arise “by virtue of [the act or omission] constituting, or causing or contributing to, such a contravention”. Such an act or omission might, in particular, constitute a contravention of a duty imposed by section 94. But if the act or omission gives rise to remedies at common law which do not depend upon its also being a breach of the statutory duty, such common law remedies are not excluded by section 18(8). That subsection is, as Mr de la Mare submits, a qualified ouster of common law remedies and not an absolute ouster. Common law remedies remain available where a contravention of a condition of an appointment or licence, or of a statutory or other requirement enforceable under section 18, is not an essential ingredient of the cause of action.

….

(emphasis added)