In its alternative claim, Southern Gas sought to recover the FSG payments from Thames Water in negligence. Thames Water accepted that, if it owed a duty of care to Southern Gas to maintain its water pipes, it would have breached that duty in this case; and that that breach of duty would have resulted in recoverable loss and damage including the FSG payments. However, it contended that it owed no such duty, because the statutory scheme of section 82 of the NRSW Act ousted the common law. The issue therefore arises as to whether, on its true construction, section 82 – looked at discretely, or as part of a broader scheme comprising various sections of both the WI Act and the NRSW Act (including section 82) – provides a strict liability scheme for the expenses incurred in making good damage to apparatus in the street which is in addition to, or displacement of, the rights of the victim of that damage at common law. Whether section 82 in itself is a complete code which excludes common law liability, or whether the code is better seen as being broader, are not entirely distinct points – but the former can be conveniently dealt with first (paragraphs 30-58 below), before the broader proposition is considered (paragraphs 59-83 below).

The Deputy Judge held that section 82 in itself comprised a complete statutory code such that a cause of action in negligence was not available to Southern Gas. He did so on the basis that observations of this court in Yorkshire Electricity Distribution Plc v Telewest Limited [2006] EWCA Civ 1418 (“Yorkshire Electricity”) to that effect, if not binding upon him, were “very persuasive”, were in line with more recent authorities on ouster of common law rights (particularly R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54; [2011] 2 AC 15 (“CPAG”)), and were correct.

In Yorkshire Electricity, both parties had cables under the same streets of Bradford. Yorkshire Electricity regularly had to cut out pieces of the ducting containing Telewest cables to give their engineers sufficient room to work on their own cables. Telewest made a claim against Yorkshire Electricity under section 82(1)(b) for the cost of making good their ducting in four test cases. The judge at first instance (His Honour Judge Grenfell sitting as a Deputy High Court Judge) made findings of fact sufficient to dispose of the claims; but, in his judgment at [47]-[52], he considered the more general issue of whether, despite the availability of the section 82 remedy, Yorkshire Electricity could rely on negligence. He held that it could not, for two related reasons.

The Court of Appeal agreed that section 82 formed a complete code which excluded the operation of the common law. Buxton LJ (with whom Sedley and Dyson LJJ agreed) dealt with that issue thus:

“5.

By section 82(1)(b) of the Act an undertaker shall compensate any other person having apparatus in the street in respect of any expense reasonably incurred in making good damage to that apparatus as a result of the execution by the undertaker of street works. That section imposes strict or absolute liability on the undertaker, a provision that is reinforced by section 82(3)(a) which provides in terms that the liability arises whether or not the damage or loss is attributable to negligence on his part or the part of any person for whom he is responsible. The only relief for the undertaker is found in section 82(4), which provides that his liability under section 82 does not extend to damage or loss which is “attributable to” misconduct or negligence on the part of any third party; or of the person suffering the damage or loss or any person for whom that person is responsible.

6.

To dispose of an issue that was raised before us, though not in the event affecting the outcome of any particular case, we are satisfied that these provisions form a complete code, excluding the operation of the common law, in respect of the subject-matter that they address, the execution of street works under the authority of statute or of a licence. It would be very odd if Parliament had provided relief based on strict liability, but with a specific exemption, if it intended the common law of negligence nonetheless to continue in parallel with that scheme. That view is not displaced by section 82(6), providing that the section does not exonerate an undertaker “from any liability to which he would otherwise be subject”. That saving, as Mr Cousins QC [Leading Counsel for Yorkshire Electricity] argued, is in the nature of the avoidance of doubt, and is directed at liability to third parties other than those listed as benefiting from the imposition of strict liability. If the draftsman had intended to say that the imposition of statutory liability between particular parties was without prejudice to rights of action at common law between those parties he had at his disposal much clearer and more direct ways of expressing himself.”

In considering Judge Grenfell’s view as to whether section 82(1)(b) allowed recovery when there was no financial loss, Buxton LJ added this:

“The judge thought, we would respectfully think correctly, that the provision that there should be recovery even in a case where there had been no ‘economic’ (i.e. financial) loss showed that the statutory scheme was different from, and intended to replace, the common law.”

Although these observations were in an ex tempore judgment and were obiter – in [6], Buxton LJ expressly recognised that the issue did not affect the outcome of the cases before the court – the court recognised the general importance of the issues raised in the appeal, and Buxton LJ indicated that his purpose was to “say a good deal about the law and its implications” (see [3]). Mr Rigney submitted that, although that case concerned damage caused by an undertaker performing street works rather than any section 82 event, there is no justification for any distinction to be drawn in this context. The unequivocal view expressed by Buxton LJ – that section 82 excluded rights of action at common law – was consequently, at least, highly persuasive in this case.

Mr Rigney identified various strands which, he submitted, supported Buxton LJ’s conclusion, as follows.

Mr Rigney put forward his submission that section 82 ousted rights at common law with force. It is supported by the strongly worded observations of Buxton LJ in this court in Yorkshire Electricity, the analysis of which the Deputy Judge below clearly considered was correct. Nevertheless, after particularly careful consideration, I am unable to accept it, for the following reasons.

It is unnecessary to quote at length from the cases to which I have already referred. The following propositions can be drawn from them.

The question before this court is whether, on its true construction, section 82 provides a strict liability scheme for the expenses incurred in making good damage to apparatus in the street which is in addition to, or displacement of, the rights of the victim of that damage at common law.

In considering that issue, it is clear that we must grapple with the issue of construction from scratch. Yorkshire Electricity does nothing to relieve this court of that burden.

Mr Hart submitted that Yorkshire Electricity could be distinguished from this case, because it concerned damage to street apparatus caused by street works rather than a section 82(2) event; but I can see no reason why there should be any difference in principle as to approach.

But, in my respectful view, the assistance we can derive from Yorkshire Electricity is limited. Buxton LJ’s observations in that case were clearly – indeed, expressly – obiter; and, as the issue of ouster was not determinative in the cases before the court, the extent of the debate on the issue of ouster in that case is not clear. Certainly, the court does not seem to have considered the history of the provision that is now found in section 82. The issue is dealt with very briefly by Buxton LJ in one paragraph (namely, [6]) of his judgment. Although, in [3], Buxton LJ indicated that the court proposed to say “a good deal about the law and its implications”, Mr Hart submitted, with some force, that that seems to be a reference to the issues dealt with in his judgment from [9] onwards rather than on the issue of ouster. As the issue concerns statutory construction, the mere fact that Buxton LJ considered section 82 to exclude common law remedies as between the same parties is not in itself persuasive, and Scotland Gas Networks (in which the issue was not debated) and the text books to which we were referred (which merely stated Buxton LJ’s conclusion) are of no assistance to us; although, of course, it is necessary to consider Buxton LJ’s substantive analysis – which the Deputy Judge below found compelling.

I will of course deal with all the matters upon which Mr Rigney relied in support of the opposite conclusion; but it seems to me that the short answer to the issue lies in section 82(6):

“Nothing in this section shall be taken as exonerating an undertaker from any liability to which he would otherwise be subject.”

In my view, on its face, this expressly retains any liability an undertaker might have over and above its liability under the strict liability provisions of section 82.

Buxton LJ in Yorkshire Electricity at [6], considered that this saving was “in the nature of the avoidance of doubt, and is directed at liability to third parties other than those listed as benefiting from the imposition of strict liability”. However, I find that difficult: given that section 82 is in the part of the NRSW Act that deals with “Duties and liabilities of undertakers with respect to apparatus” and is solely concerned with such liabilities, it would be peculiarly unnecessary and inappropriate to confirm that section 82 does not displace or otherwise adversely affect the undertaker’s liabilities to those without street apparatus, who clearly have no rights under, and are entirely unaffected by, section 82. It seems to me, with respect, that in that regard there is no possible doubt to avoid. In any event, section 82(6) is not written in terms of liability to only third parties: it is written in more general terms. Had the draftsman intended it to be restricted to liabilities to third parties, he could (and, in my judgment, would) have said so.

Therefore, although I appreciate that the Deputy Judge held that, clearly and unambiguously, section 82(6) applied only to an undertaker’s liabilities to third parties, in my view, on its face and with reasonable clarity and lack of ambiguity, it expressly retains common law remedies that are or might be available to those with a strict liability claim under section 82.

However, even if I am wrong in considering section 82(6) to be unambiguous, then, with respect to the Deputy Judge, I do not consider that it is arguable that it clearly and unambiguously has the construction which he favoured. In those circumstances, to ascertain its true meaning and scope, it would be appropriate to look at the history of the provision (just as Lord Brown of Eaton-under-Heywood in CPAG, at [7], looked at the history of section 71 of the Social Security Administration Act 1992).

The Public Utilities Street Works Act 1950 (“the PUSW Act”) was passed following the publication of the Report of a Joint Committee of the House of Lords and the House of Commons chaired by Lord Carnock, which recommended that liability of statutory undertakers under the Gasworks Clauses Act 1871 (which applied to both gas and electricity undertakers, and did not exonerate undertakers from claims at common law) should be maintained and extended to water undertakers, with legislation being introduced to provide a new code applying to all utilities.

The 1950 Act provided for liability for damage caused by works carried out by utilities (including water) in three separate sections: damage to property of street and bridge authorities or managers was covered by section 18(1), damage to property of transport authorities by section 19, and damage to property of other utilities by section 26. Each contained a non-exoneration provision. For example, section 18(4) provided:

“… [T]he preceding provisions of this section shall not exonerate undertakers from any liability to which they are subject apart from the preceding provisions of this section, whether to a street authority or street managers, to a bridge authority or managers or to any other person.”

It is noteworthy that this provision expressly stated that the statutory compensation remedy available to street and bridge authorities or managers under section 18 did not exonerate an undertaker from any liability “to any other person”. Section 19(3) was in materially identical terms. Section 26(7) was in different terms – but with an identical effect (see Yorkshire Electricity Board v British Telecommunications plc [1986] 1 WLR 1029 at page 1036C per Lord Bridge of Harwich with whom the rest of the Appeal Committee agreed) – namely:

“Obligations and liabilities imposed on operating undertakers by the preceding provisions of this section shall be in addition to, and not in substitution for, obligations and liabilities to which they are subject apart from those provisions…”.

It is uncontroversial that, as assumed in cases such as Department of Transport v North West Water Authority [1984] 1 AC 336 (which held that a person could not be liable for nuisance in the execution of a statutory duty, rather than power), these three sections did not displace the common law remedies otherwise available to any of the undertakings etc which had the benefit of one of the statutory remedies provided.

In the Department of Transport Review of the Public Utilities Street Works Act 1950 chaired by Professor Michael Horne (“the Horne Report”), the general liability of undertakers for damage caused by their works to other service providers, as found in the PUSW Act, was discussed. The Horne Report recorded (at paragraph 18.1) that the Committee had not received any representations that suggested that the arrangements set out in section 18, 19 and 26 were regarded as inequitable or not working satisfactorily; and the Report itself did not suggest that there should be any substantive change to that liability. It did, however, recommend, that the effect of the North West Water Authority case should be reviewed.

The NRSW Act was passed, in part, to implement the recommendations of the Horne Report. Section 82 was introduced to replace section 18, 19 and 26; and, to that extent, was a consolidation provision. The effect of the North West Water Authority case was overturned by section 82(3)(b), which made clear that liability under that section arises even where the undertaker is acting pursuant to a statutory duty.

Mr Rigney submits that the absence in section 82 of any specific non-exoneration provision operating in relation to liabilities between parties to which the section applies is telling; because such specific provision existed in each of its predecessors. However, in my view, that change merely reflects the evolution of drafting styles over the years. Although Buxton LJ, Deputy Judge Bowdery and, in his turn, Mr Rigney said that, had the draftsman wished to say that the imposition of statutory liability between particular parties was without prejudice to rights at common law between those parties “he had at his disposal much clearer and more direct ways of expressing himself”, that point is, at best, neutral – because, equally, had the draftsman wished to say that common law rights were ousted, there were better ways in which he could have expressed himself. But, as I have indicated, in my view section 82(6) is clear and unambiguous on its face; and, certainly, it would be quite remarkable if the substantive change in respect of the liability of statutory undertakers suggested by Mr Rigney had been introduced as a result of section 82, particularly given the terms of section 82(6).

For those reasons, I consider section 82(6) is determinative of Ground 2.

However, in any event, looking at matters as a whole, I do not consider that there is any “incompatibility” or “positive inconsistency” between the common law remedy and the statutory remedy. In my view, on the true construction of section 82(1)(b), in respect of damage to street apparatus by an undertaker, Parliament intended the statutory regime (of strict liability with recovery limited to expenses of making good, with a complete statutory defence in respect of damage attributable to the misconduct or negligence of the person suffering the damage or a third party) to run with, and not displace, common law rights (with its requirement to prove negligence, but with full financial recovery, subject to a defence of contributory negligence).

Of course, when compared with common law remedies, the statutory remedy is restricted in that only “expenses reasonably incurred in making good damage to that apparatus” are recoverable. But, in my view, that element cannot be considered in isolation. Although both remedies arise out of the same events and circumstances, they do not cover precisely the same ground, because the statutory remedy does not require proof of negligence. There is therefore no logical inconsistency between the two: it would be perfectly open to Parliament to consider that, when street apparatus is damaged by a section 82 event, the person having that apparatus in the street should be paid the costs of repair on a strict liability basis, but, if he wishes to recover anything more, then he must prove negligence. The question is whether that was Parliament’s intention here.

For the reasons I have given, in my view section 82(6) is sufficient to answer that question positively. Nothing within the scheme suggests that Parliament did not intend there to be two different schemes in play, with the limited statutory remedy being available even without proof of negligence, as had been the case under the PUSW Act before it.

At first instance in Yorkshire Electricity, Judge Grenfell said that the purpose of section 82 was “that there should be no need for considerations such as negligence or wrongful interference with goods”, which was a main plank of his analysis and conclusion that it displaced common law actions (see paragraph 31 above). However, on any view, the section did not eradicate all consideration of such matters, because section 82(4) requires consideration of whether the relevant damage is attributable to the misconduct or negligence of the person suffering the damage or a third party which is the foundation of a statutory defence. It is true that liability under the section is strict and does not require any consideration of whether the undertaker was itself negligent – section 82(3) confirms that to be the case – but, in itself, that does not lead to a conclusion that Parliament intended to alleviate an undertaker from damage over and above the expenses of making good recoverable under section 82 when that damage was caused by its own negligence, subject to the usual rules about such claims (including contributory negligence).

For those reasons, I do not consider section 82 of the NRSW Act, looked at alone, displaces the common law rights of a person whose apparatus is damaged by an undertaker performing works or a section 82(2) event.

However, Mr Rigney submitted that, if section 82 looked at alone could not be regarded as a scheme that displaced such common law rights, then it did when looked at as part of a broader scheme. It is to that which I now turn.

Mr Rigney submitted that the fact that section 82 of the NRSW Act is, or is part of, a complete code which excludes common law liability is reinforced by the broader scheme relating to the maintenance of water supply, found within sections 18-22, 37 and 209 of the WI Act, and sections 81-82 of the NRSW Act, seen together. The Deputy Judge agreed, concluding that “these sections provide a complete statutory code which excludes the operation of the common law” (see [34] of his judgment).

Part III of the WI Act is headed “General duties of water undertakers”. Section 37(1)(b) imposes upon a water undertaker a general duty “to develop and maintain an efficient and economical system of water supply within its area, and to ensure that all such arrangements have been made… for maintaining, improving and extending the water undertaker’s water mains and other pipes, as are necessary for securing that the undertaker is and continues to be able to meet its obligations under this Part [of the Act]”. By section 37(2), that duty “shall be enforceable under section 18 above” by the Secretary of State or the Water Services Regulation Authority (“Ofwat”) established under section 1A.

Under section 18 of the WI Act, where satisfied that a water undertaker is contravening a relevant statutory requirement, the Secretary of State or Ofwat may serve a “final compliance notice”. Where any act or omission constitutes a contravention of any such statutory requirement, “the only remedies for… that contravention (apart from those available by virtue of [section 18]), shall be those for which express provision is made by or under any enactment and those that are available in respect of that act or omission otherwise than by virtue of its constituting… such a contravention” (section 18(8)). However, where an enforcement order is made, then it is enforceable by any person who may be affected by contravention of it (section 22).

Other provisions of the WI Act, however, expressly confer private rights of action on identified persons. Some do so to enable a private individual to enforce rights that exclusively arise from the WI Act itself. For example, section 41(1) imposes a duty on a water undertaker to provide a water main sufficient for domestic purposes, and section 41(2) confers onto a relevant property owner a right of action to require the provision of such a water main. Other private rights are conferred, not to enforce rights established by the WI Act itself, but where a water undertaking would or may otherwise have a liability under the common law in any event. For example, section 209 of the WI Act (quoted at paragraph 8 above) gives those suffering damage as a result of an escape of water from a pipe vested in a water undertaker (who would or may in any event have common law rights in negligence or nuisance) a right to sue that undertaker for damages on the basis of strict liability. In Bowden v South West Water Services Limited [1997] 3 CMLR 330 at [47], Carnwath J (as he then was) said of the specific rights in the WI Act and its sister statute in the regulation of water services, the Water Resources Act 1991:

“These specific references make it unlikely that Parliament intended other duties, where there is no such reference, to give rise to similar rights.”

He went on to say (in [48]) that he considered the provisions of the two water statutes to constitute an elaborate “regulatory code” analogous to the social welfare legislation reviewed in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, and that the expectation, in the absence of any indication to the contrary, is that such a code is enforceable in public, not private, law.

Mr Rigney submitted that sections 81 and 82 of the NRSW Act could be regarded as falling within the same scheme. Section 81, he submitted, could be regarded as a provision parallel with section 37 of the WI Act enforceable through section 18 of that Act. It provides that statutory undertakers (including water undertakers) shall maintain street apparatus to the reasonable satisfaction of the street authority, failing which, there is also a public law remedy – the street authority may execute any emergency works which are required as a consequence of such failure. I have already quoted and described the effect of section 82: in short, it provides a statutory monetary remedy for street authorities and those who have street apparatus, where they are adversely affected by a statutory undertaker’s works or a section 82(2) event.

Finally, Mr Rigney relied upon Stovin v Wise [1995] 2 AC 923 at page 952 (as recently adopted by Lloyd Jones LJ (as he then was) in Barratt Homes Limited v Dŵr Cymru Cyfyngedig (No 2) [2013] EWCA Civ 233; [2013] 1 WLR 3486 in the context of a claim that a sewerage undertaker’s failure to satisfy a private owner’s right under section 106 of the WI Act to have his drains or sewer connect with the undertaker’s public sewer gave rise to a private right to claim damages for breach of statutory duty), where Lord Hoffmann said that, if a statutory duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.

On the basis of that analysis, Mr Rigney submitted that, not only does section 82 contain its own complete code, but it also forms part of a wider statutory code pursuant to which the operation of the common law is excluded so far as any failure to maintain is concerned.

However, I am unpersuaded that these submissions materially support Mr Rigney’s cause.

First and overridingly, this appeal does not concern the relationship between public law and private law remedies, central to the WI Act; nor is it concerned with whether a statutory duty gives rise to a private right to compensation for breach. It concerns the scope of the express private law monetary remedy provided by section 82, and whether the grant of that statutory remedy excludes common law rights and remedies which, it is uncontroversial, would be available but for any ouster. The answer to that issue lies in the construction of section 82. Of course, that section has to be seen in its proper context, but I do not consider that any significant assistance can be derived from looking at the very different provisions in the WI Act, where Ofwat as regulator is a basic (although, I accept, not exclusive) instrument through which enforcement is effected. I do not consider section 81 of the NRSW Act assists Mr Rigney in this argument; particularly as, although it provides a public law remedy for a failure to maintain street apparatus, that is expressly without prejudice to any other means of securing compliance with the duty to maintain that apparatus (section 81(7)). None of the authorities to which we were referred suggest that the NRSW Act (which applies to all statutory undertakers, and was, as I have explained, derived out of legislation that did not apply to water undertakers) and the WI Act (which applies only to water undertakers) should be read together in the form of a single code. Indeed, in Bowden, in relation to the enforceability of water undertakers’ obligations, following a magisterial review of the relevant UK provisions (in which he did not refer to the NRSW Act), Carnwath J said in terms that it was the provisions of the water legislation (i.e. the WI Act and the Water Resources Act 1991) that constituted “an elaborate regulatory code”. Far from section 82 being part of that scheme, liability of a water undertaking to a street authority or persons having street apparatus damaged by that undertaking’s works or a section 82(2) event is carved out of the scheme applicable to water undertakings, and given its own specific provision in a different Act which is applicable, not just to water undertakings, but service undertakings generally.

For that reason alone, I do not consider that consideration of the WI Act provisions assists in ascertaining the true construction of section 82 of the NRSW Act.

However, Mr Rigney also faces the difficulty that there is authority to the effect that, even where the section 18 procedure is available under the WI Act, some private rights remain.

Dobson v Thames Water Utilities Limited (No 1) [2007] EWHC 2021 (TCC); [2008] 2 All ER 362 concerned the general duty on a sewerage undertaker under section 94(1) of the WI Act, namely:

“(a)

to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere), and so to cleanse and maintain those sewers… as to ensure that that area is and continues to be effectually drained; and

(b)

to make provision for the emptying of those sewers and further provision (whether inside its area of elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers”

That duty, like the duty with regard to water supply under section 31, shall be enforceable under section 18 (section 94(3)).

In Dobson (No 1), the claimants, who lived near a sewage treatment works, complained that odours and mosquitoes from the works caused a nuisance. Because the claim was based upon an allegation that the odours etc resulted from the defendant water undertaker’s failure effectually to deal with the contents of the sewer, the claimants were effectively seeking to enforce duties which arose under section 94(1)(b). The issue arose as to whether the availability of the section 18 enforcement procedure precluded the claimants from bringing a common law claim in nuisance or negligence.

Relying on Marcic v Thames Water Utilities Limited [2003] UKHL 66; [2004] 2 AC 42, Ramsey J held that it did not. He concluded that the claimants were precluded from bringing claims which required the court to embark on a process which was inconsistent with the statutory process under the WI Act, but not from bringing a claim in nuisance or negligence where, as a matter of fact and degree, the exercise of adjudicating on the cause of action brought did not involve any inconsistency with that statutory process. The boundary between the two was difficult to draw; but, Ramsey J considered, may depend upon the distinction between “policy” and “operational” matters. This reasoning was followed by His Honour Judge Saffman sitting as a Deputy High Court Judge in Bell v Northumbrian Water Limited [2016] EWHC 133 (TCC), and by His Honour Judge McKenna sitting as a Deputy High Court Judge in Oldcorn v Southern Water Services Limited [2017] EWHC 62 (TCC); [2017] Env LR 25.

Ramsey J considered that, in Marcic, the boundary he had identified fell between building new sewers on the one hand, and cleaning and maintaining sewers on the other. In Marcic, the plaintiff’s garden suffered repeated flooding by sewage discharge caused by overloading of the section of the sewerage system as a result of increased usage following the connection of third parties to the sewerage system as of right. The claimant sued the defendant water undertaker in nuisance and under the Human Rights Act 1999. The House of Lords concluded that the claim should be dismissed; but, Ramsey J considered, their Lordships left open the possibility of private causes of action for a failure to cleanse or maintain the sewer, as opposed to a failure to build new sewers.

Mr Rigney submitted that Marcic and Dobson (No 1) were not relevant to this claim, because they were concerned with section 94 obligations in respect of sewers which does not form part of the scheme upon which he relies, which relates to the maintenance of water pipes and escapes of water; and escapes of sewage have no special provisions corresponding to section 209 of the WI Act. But, if section 94 is considered relevant because analogous to section 37 and the rest of the water supply scheme, he submitted that Ramsey J’s analysis is wrong, for two reasons.

First, it elides the duty to maintain a sewer with the duty to cleanse it, whereas, in Baron v Portslade Urban District Council [1900] 2 QB 588, the Court of Appeal held that, although there was no common law right of action in nuisance in respect of a failure to maintain sewers, there was such a right of action in relation to a failure to cleanse them.

Second, it proceeds on the basis that the difference between policy and operations is a valid distinction to inform a decision as to whether a common law duty of care arises, whereas it has been said that “the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not” (Stovin v Wise at page 951C-D per Lord Hoffmann, Lord Hoffmann setting out his reasons for considering the distinction inadequate at pages 951D-952A).

For the reasons I have given above, it is unnecessary for me to determine whether Dobson (No 1) is good law; and, in my view, reconsideration of the issues raised in Ramsey J’s judgment, and by Marcic, should be undertaken in a case in which those issues are live. In considering them in this appeal, we are in my view a very long way away from the facts of this case and the true construction of section 82, upon which this appeal turns and in respect of which I do not consider the issues arising under section 94 of the WI Act assist.

However, out of deference to the arguments of Counsel, I make the following three comments.

First, if Mr Rigney wishes to rely on a broad scheme incorporating provisions of the WI Act as well as the NRSW Act as excluding common law remedies, then in my view he cannot ignore the authorities on section 94 and the other provisions that relate to the sewerage system. Section 94 is, in my view, a part of the coherent regulatory scheme in respect of water services to which Carnwath J referred in Bowden; and is subject to the same section 18 enforcement scheme as section 37.

Second, I do not find Marcic an easy case. On the relevant issue, there were two substantive speeches, those of Lord Hoffmann and Lord Nicholls of Birkenhead. Lord Hope of Craighead agreed with Lord Nicholls; but Lords Steyn and Scott of Foscote expressly agreed with both substantive judgments. As a result, there must be a presumption that the speeches of Lords Hoffmann and Nicholls are consistent or, at least, reconcilable.

However, their respective analyses appear to be very different. The claimants’ case was based on the proposition that the only way in which his flooding would cease was if a new sewer was constructed. Lord Hoffmann (at [52]-[54]) held that, by virtue of section 18(8) of the WI Act, if a failure to improve the sewers to meet the new demand gave rise to a cause of action at common law, it was not excluded by the statute; but, he said, the courts had consistently held that a failure to construct new sewers was no such a nuisance. On the other hand, despite the last sentence of [22] – in which he paraphrased section 18(8) – Lord Nicholls appears to assume that the failure to improve the sewers to meet the new demand would give rise to a cause of action at common law but for the statutory limitations on the enforcement of sewerage undertaker’s drainage obligations, notably in section 18. I find those two analyses difficult to reconcile. In Dobson (No 1), Ramsey J purported to reconcile them only by ignoring Lord Nicholls’ analysis, in favour of an observation Lord Nicholls made at [34] which (Ramsey J considered) “strongly suggests” that he would have considered the position different had the case concerned a failure to clean or maintain the sewers. Before us, Mr Hart understandably submitted that, looked at as a whole, Marcic was authority for the proposition that section 18(8) meant that the availability of the section 18 enforcement scheme did not preclude common law remedies in respect of the section 94 duty, irrespective of whether the line between available and non-available remedies suggested by Ramsey J in Dobson (No 1) was correct.

Third, although it is unnecessary to decide the point on this appeal – and I would decline to do so – I am currently unpersuaded by Mr Rigney’s submission that the common law drew a distinction between a duty to cleanse a sewer (common law remedy attached), and a duty to maintain a sewer (no common law attached). In my view, the distinction drawn in Baron v Portslade Urban District Council between a duty to cleanse (under, then, section 19 of the Public Health Act 1875) and a duty to maintain a sewer (under section 15 of the same Act) did not turn on whether a common law remedy would generally attach, but whether such a remedy was ousted in the case of the duty to maintain (but not the duty to cleanse) by section 299 of the 1875 Act. The difference between the two reflects the differences, as I see them, between the analyses of Lord Hoffmann and Lord Nicholls on Marcic. However, neither Lord Hoffmann nor Lord Nicholls suggested that there was the distinction between the duty to maintain a sewer and the duty to cleanse it suggested by Mr Rigney, and suggested by him as one reason why Ramsey J’s analysis in Dobson (No 1) was wrong.

However, for the reasons I have given, it is unnecessary – and, in my view, inappropriate – to resolve issues that might have been left by Dobson (No 1) and/or Marcic in this appeal.

I consider section 82(6) of the NRSW Act expressly to preserve the common law rights of a person having street apparatus who also has a claim against an operator under section 82. It is determinative of the Parliamentary intention with regard to the issue of ouster of common law rights. Looking at the whole of section 82 in its proper context, there is nothing that persuades me that Parliament intended to oust the common law rights of such a person.

I have therefore concluded that, in relation to this issue, the Deputy Judge was wrong. In my view, section 82 properly construed does not oust any common law remedies available to a person with street apparatus which is damaged by works performed by an undertaker, or by a section 82(2) event.

Consequently, I would allow the appeal on Ground 2, quash the order dismissing the claim, and make an order allowing the claim and entering judgment for the Appellant in the agreed sum.