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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Falmouth And Truro Port Health Authority v South West Water Ltd [2000] EWCA Civ 96 (30 March 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/96.html
Cite as: [2000] EWCA Civ 96, [2000] 3 WLR 1464, [2000] 3 All ER 306, [2001] QB 445, [2000] EG 50, (2000) 2 LGLR 1061, [2000] EHLR 306, [2000] Env LR 658
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Case No: PTA 2000/5533/C
QBCOF 1999/0505/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE HARRISON
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 30 March 2000
LORD JUSTICE SIMON BROWN
LORD JUSTICE PILL
and
LADY JUSTICE HALE
- - - - - - - - - - - - - - - - - - - - -
FALMOUTH & TRURO PORT HEALTH AUTHORITY |
Appellant | |
- and - |
||
SOUTH WEST WATER LIMITED |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr R. Gordon QC & Mr M.J.C.Diggins (instructed by Toller Beattie of Queens House, Queens Street, Barnstaple, Devon, solicitors) for the Appellant
Mr P. Havers QC & Mr D. Hart (instructed by The Pennon Group, Peninsula House, Rydon Lane, Exeter EX2 7HR, solicitors) for the Respondent
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
Introduction
This is an appeal by Falmouth and Truro Port Health Authority (the Health Authority) against the order of Harrison J made on 23 April 1999 quashing their decision to serve an abatement notice on South West Water Limited (the Water Undertaker) on 8 July 1998 requiring them within three months to cease discharging sewage into a part of the Fal estuary known as the Carrick Roads at a point north of Black Rock, Falmouth in Cornwall.
The decisions were quashed on three independent grounds. It was held first, that the Water Undertaker was given a legitimate expectation of consultation which in the event was unfairly denied it; second, that the abatement notice was invalid for failing to specify the works required to abate the nuisance; and third, that the Carrick Roads are not a "watercourse" within the meaning of s.259(1)(a) of the Public Health Act 1936 and so, whatever their state, are not capable of constituting a public nuisance.
All three of these holdings raised difficult and important questions. So too does the judge's further ruling that all these issues could properly be determined in judicial review proceedings rather than the Water Undertaker being confined to its statutory right of appeal to the magistrates' court.
The Health Authority appeal to this court on each of those four issues; the Water Undertaker by respondent's notice contend that even if it was not given a legitimate expectation of consultation, fairness nevertheless required that it be consulted.
The transcript of the judgment below extends to sixty-three pages. It is a masterpiece of organisation and clarity. In large measure I gratefully take the facts from it.
The Facts
Pursuant to s.94 of the Water Industry Act 1991 the Water Undertaker is charged with the statutory duty of effectually dealing with the contents of sewers within it area, the south-west of England. The sewerage outfall north of Black Rock was provided by it pursuant to that duty and as an interim phase of a larger scheme. The purpose of the interim phase was to replace outfalls at Middle Point and Pennance Point which were affecting the quality of the bathing waters at three nearby beaches, all of which are designated as bathing waters pursuant to the EC Bathing Waters Directive. In particular, the outfall at Middle Point discharged unscreened sewage into the Carrick Roads. The purpose of the interim phase, therefore, was to enable compliance with the United Kingdom's obligations under the Directive. It involved the laying of a pipe 760 metres off-shore to the outfall point to the north of Black Rock where the sewage having been fine screened was to be discharged at specific times in the tidal cycle with the object of being taken out to sea on the strong ebb tide, thereby eliminating continous discharges from the outfalls at Middle Point and Pennance Point.
Phase 2 of the scheme, which will include the addition of biological treatment of the sewage at the outfall in order to comply with the UK's obligations under the EC Urban Waste Water Treatment Directive, was scheduled to be completed by 31 December 2000 although it now appears likely to be completed sooner.
The Black Rock outfall required a discharge consent from the Environment Agency under Part III of the Water Resources Act 1991. Despite objections to the application, the Environment Agency eventually on 31 March 1998 granted such a consent, subject to a number of conditions including the discharge operating times relating to the tides.
On 14 April 1998 the Water Undertaker commenced operation of the discharge. During that month the Environment Agency carried out commissioning surveys involving sampling at various states of the tide, and the Health Authority also obtained some samples immediately above the outfall.
Complaints were received by the Health Authority about the effect of the operation of the outfall. As a result, their deputy port health officer wrote to the Water Undertaker on 29 April 1998 in these terms:
"I write to confirm that complaints have been received alleging that the so-called interim sewage scheme in Falmouth is both prejudicial to health and a public nuisance to users of the water course in the vicinity of the outfall north of Black Rock.
We are the statutory body responsible for investigating such matters and are presently trying to satisfy ourselves whether or not the complaints are justified. Early indications would suggest that the allegations referred to in my opening paragraph are not without foundation. If you have any observations to make regarding this matter please do not hesitate to contact us."
The Water Undertaker replied to that letter on 11 May 1998:
"Thank you for your letter of 29 April 1998 regarding the Falmouth Interim Sewage Treatment Scheme. You will be aware that South West Water is operating the new outfall in accordance with the discharge consent issued by the Environment Agency. The discharge is subject to high natural dispersion and dilution and the company does not accept that it is causing any kind of nuisance. I should of course be grateful of the opportunity to view any evidence of a medical or scientific nature which you have in your possession."
That letter was never answered.
By coincidence, on the same day, 11 May 1998, there was a meeting of the Health Authority at which the Falmouth interim sewage scheme was considered. It was resolved that, subject to a favourable opinion being obtained from counsel as to whether the Carrick Roads are a watercourse, an abatement notice would be served.
Prior to the meeting of 11 May, the Health Authority on 8 May had been given an initial batch of the Environment Agency's water quality sampling results and had been informed that the Agency was preparing a report which would present all the bacterial results of the survey carried out to date, a report which would be ready very soon and sent to the Health Authority when available. In fact that report, which was described as a preliminary assessment of the water quality before and during commissioning of the interim scheme, was sent to both the Health Authority and the Water Undertaker on 18 May.
On 16 June 1998 the Health Authority received a report from Professor Kay, a professor of environmental science at the Environment Centre of Leeds University, assessing whether there was a risk to the health of recreational water users arising from the discharge of sewage from the Black Rock outfall.
On 24 June 1998 the Health Authority sought advice from Environment Agency as to how long it might take to make changes to the interim scheme. The Agency suggested that the Health Authority should discuss that with the Water Undertaker. No such discussion took place before the abatement notice was served.
On 26 June 1998 the Health Authority commenced their own water quality sampling in a wider area than immediately over the outfall. On 1 July 1998 the results of the sampling became available to the Health Authority and they decided that an abatement notice should be served.
On 8 July 1998 the Health Authority served an abatement notice on the Water Undertaker under s.80 of the Environmental Protection Act 1990. The notice stated that the Health Authority were satisfied that a statutory nuisance existed under s.79(h) of the Act, namely a nuisance under s.259(1)(a) of the Public Health Act 1936. The notice specified the statutory nuisance as being that the watercourse known colloquially as the Carrick Roads was so foul or in such a state as to be prejudicial to health or a nuisance as a result of the discharge of sewage from the Black Rock outfall. It required the cessation of the discharge of sewage from that outfall within three months from the service of the notice. The notice also contained a statement in accordance with regulation 3(3)(b) of the Statutory Nuisance (Appeals) Regulations 1995 to the effect that the notice would not be suspended pending any appeal to the magistrates' court because the nuisance to which it related was injurious to health.
On 20 July 1998 the Water Undertaker appealed to the magistrates court against the abatement notice. On the basis, however, that there was no real prospect of the appeal being heard within three months, that compliance with the notice would necessarily involve making alternative provision for the discharge of the sewage which would take many months to implement, and that expenditure in attempted compliance would be unnecessary and uncompensatable if the appeal were eventually successful, the Water Undertaker in addition sought leave to apply for judicial review.
On 30 July 1998, following a contested hearing, Collins J granted both leave to apply for judicial review and also a stay of the abatement notice and of the Water Undertaker's appeal to the magistrates court pending the determination of the substantive application.
Statutory Provisions
The Water Undertaker has a statutory duty under s.94(1) of the Water Industry Act 1991 to deal effectually with the contents of the sewers in its area. It is, therefore, required to dispose of the sewage from Falmouth. The Secretary of State and the Director General of Water Services have power, under s.94(3) of the Act, to enforce that statutory duty.
The Environment Agency was established under s.1 of the Environment Act 1995. Amongst the various functions transferred to it by s.2 of that Act were the functions of the control of pollution of water resources under Part III of the Water Resources Act 1991 which previously had been exercised by the National Rivers Authority. The principal aim of the Agency under s.4 of the Act is to discharge its functions to protect or enhance the environment with the object of achieving sustainable development. S.5 of the Act provides that the Agency's pollution control powers shall be exercised for the purpose of preventing, minimising, remedying or mitigating the effects of pollution of the environment. Finally, under s.6(1) of the Act, the Agency is under a duty generally to promote, inter alia, the conservation and enhancement of the amenity of inland and coastal waters and the use of such waters for recreational purposes.
The Agency's functions to control the pollution of water resources includes the duty, under s.84(2) of the Act, to monitor the extent of pollution in controlled waters. S.85 of the Act makes it an offence to cause or knowingly permit sewage effluent to be discharged into controlled waters, but s.88 provides that such a discharge shall not be an offence if a discharge consent has been given by the Agency pursuant to schedule 10 of the Act. The discharge consent for the Black Rock outfall was given by the Agency under those provisions.
I come next to the Environmental Protection Act 1990 which governed the powers and duties of the Health Authority. S.79(1) of the Act specifies matters which constitute "statutory nuisances". They include, under paragraph (h), "any other matter declared by any enactment to be a statutory nuisance". That brings in s.259(1)(a) of the Public Health Act 1936 which provides:
"(1) The following matters shall be statutory nuisances for the purposes of Part III of the Environmental Protection Act 1990, that is to say -
(a) any pond, pool, ditch, gutter or watercourse which is so foul or in such a state as to be prejudicial to health or a nuisance."
"Prejudicial to health" is defined by both s.343 of the 1936 Act and s.79(7) of the 1990 Act to mean "injurious, or likely to cause injury to health".
S.79(1) of the 1990 Act, having incorporated that statutory nuisance under paragraph (h) , then imposes two duties on the local authority (which, for present purposes, is the Health Authority) in the following way:
"... and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under s.80 or ss.80 and 80A below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint."
Complaints had been made to the Health Authority about the effect of the Black Rock outfall.
S.80(1) of the Act provides as follows:
"Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (´an abatement notice') imposing all or any of the following requirements -
(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;
(b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes,
and the notice shall specify the time or times within which the requirements of the notice are to be complied with."
S.80(3) enables the alleged perpetrator of the nuisance to appeal against the notice to a magistrates' court. S.80(4) provides that a person served with an abatement notice shall be guilty of an offence if, "without reasonable excuse", he fails to comply with the notice. S.80(7) provides a "best practicable means" defence, but sub-section (8) then provides that it shall not be available in the case of a nuisance falling within s.79(1)(a), so that no such defence is available in this case.
Appeals to the magistrates' court against an enforcement notice are governed by the Statutory Nuisance (Appeals) Regulations 1995 which by regulation 2(2) provides inter alia for the following grounds of appeal:
"(a) that the abatement notice is not justified by s.80 of the 1990 Act (summary proceedings for statutory nuisances);
(b) that there has been some informality, defect or error in, or in connection with, the abatement notice ... ;
(c) that the authority have refused unreasonably to accept compliance with alternative requirements, or that the requirements of the abatement notice are otherwise unreasonable in character or extent, or are unnecessary;
(d) that the time, or ... times, within which the requirements of the abatement notice are to be complied with is not reasonably sufficient for the purpose."
The Water Undertaker's appeal to the magistrates court in this case was brought on each of those four grounds.
Regulation 3 deals with suspension of an abatement notice. Ordinarily an appeal operates to suspend the notice. As already indicated, however, the notice is not suspended where the nuisance to which it relates is injurious to health and the notice contains a statement to that effect, as this one did.
I turn now to the issues arising on the appeal.
Consultation
Under this heading I shall consider also the various related arguments advanced with regard to legitimate expectation, failure to take account of relevant considerations, and irrationality. First, however, it is convenient to quote the conclusions of the judge below on these issues. These passages, I should note, although lengthy, occupy only a small part of the twenty-seven pages of judgment devoted to these issues.
First, under the heading "duty to consult":
"Having considered those competing submissions, I have come to the conclusion, after some hesitation, that there is no duty on the enforcing authority to consult the alleged perpetrator before serving the abatement notice, either as part of the statutory scheme or by implication in order to achieve fairness. I do not accept that the statutory duty under section 79 of the 1990 Act to investigate complaints of a statutory nuisance necessarily includes a duty to consult the alleged perpetrator. In the vast majority of cases, consultation with the alleged perpetrator by the enforcing authority would form both a sensible and appropriate part of the investigative process, but that arises at the enforcing authority's discretion, not as part of a statutory duty. The investigation of complaints of statutory nuisances arises in a myriad of different circumstances and there will be situations where the enforcing authority could quite properly conclude that it would not be appropriate to consult the alleged perpetrator, whether for reasons relating to the nature of the alleged perpetrator, the need for urgent action or for any other reason. If a lack of consultation thereby leads to service of an abatement notice when it should not have been issued, the alleged perpetrator can appeal to the magistrates' court under section 80(3) of the 1990 Act on any of the grounds set out in regulation 2(2) of the 1995 Regulations.
There will be many situations where fairness may suggest that the enforcing authority should consult with the alleged perpetrator, particularly in cases like the present one, where the notice is not suspended pending appeal because the nuisance is injurious to health, but the very fact that statute has provided for non-suspension of the notice in those circumstances indicates the more draconian nature of the power given to the enforcing authority where injury to health in involved. The more serious the alleged injury to health, the more urgent is the need for action by the enforcing authority. The more urgent the need for action, the greater the likelihood that it may not be possible or appropriate to consult the alleged perpetrator.
In view of the fact that there will be cases where consultation with the alleged perpetrator is not possible or is inappropriate, it would be wrong to hold that such a duty of consultation exists before an abatement notice is served. That being so, the difficulty then arises in determining when there should be consultation. As I have said, there may be many cases where fairness may suggest that there should be consultation, but, if there is to be a duty to consult in those circumstances, the enforcing authority needs to know when that duty arises, but it is not something that is capable of precise definition. The resulting uncertainty about whether the circumstances are such as to give rise to a duty to consult would militate against effective action being taken by the enforcing authority, thereby frustrating the statutory purpose of protecting the public against statutory nuisances, particularly those injurious to health. That was the reasoning which led the Court of Appeal in the Ferrero case [R v Birmingham City Council ex parte Ferrero [1993] 1 AllER 530] to hold, per curiam, that there was no duty to consult traders before serving a suspension notice under the Consumer Protection Act 1987. Whilst I accept that that case involved a materially different statutory regime, the point of principle is nevertheless relevant to this case as well.
I should just add that it is noteworthy that section 266(1) of the 1936 Act expressly requires consultation with a land drainage authority when certain powers are exercised, but not when proceedings for a statutory nuisance are being taken. That, of course, is in the 1936 Act, not in the 1990 Act, which does not mention consultation, and it does not bear directly on this case, but it does provide an example of where the legislature, when expressly imposing a duty of consultation, thought fit to disapply it where proceedings for a statutory nuisance were involved.
My overall conclusion therefore is that the enforcing authority is not under a duty to consult the alleged perpetrator before serving an abatement notice. It is ultimately a matter of discretion for the enforcing authority whether to do so or not but, as a matter of commonsense and good administration, it would usually be reasonable for it to do so.
In my judgment, it would have been reasonable in this case, as a matter of commonsense and good administration, for the respondent to exercise its discretion to consult the applicant before deciding to serve the abatement notice."
Next, under the headings "legitimate expectation" and "adequacy of consultation":
"As I mentioned when dealing with the first issue relating to whether there was a duty to consult, it would have been reasonable in the circumstances of this case, as a matter of commonsense and good administration, for the respondent to have exercised its discretion to consult the applicant before deciding to serve the abatement notice. The applicant is the statutory body responsible for dealing with the sewage from Falmouth and the complaints related to the way in which it was performing that function. The views of the applicant would be highly relevant as to whether the complaints of a statutory nuisance were justified and, if they were, how they could be overcome and within what timetable. In my view, it would have been irresponsible of the respondent not to have consulted the applicant.
The applicant's argument on the second issue relating to legitimate expectation is based on the premise that the respondent's letter of 29 April 1998 to the applicant, set out earlier in this judgment, constituted the commencement of consultation by the respondent. I agree. The whole purpose of that letter was to let the applicant know that it had received complaints that the discharge of sewage from the Black Rock outfall was prejudicial to health and a public nuisance to users of the ´watercourse' in that area, and to invite the applicant to make observations or representations about the complaints that it had received. In my view, the respondent was doing what it could reasonably have been expected to have done, namely to consult the applicant on the complaints it had received. Thereafter, the applicant had a legitimate expectation of a genuine consultation exercise.
However, the respondent went ahead and took the decision in principle on 11 May 1998 to serve the abatement notice, subject only to the ´watercourse' point, without waiting for the applicant's response and without warning the applicant that its response should be received by that date. The respondent's letter of 29 April 1998 had given no indication that a decision was likely to be taken on that date - indeed, the tone of the letter was to the contrary, in that it referred to ´early indications' suggesting that the allegations were not without foundation. If the respondent had intended to have genuine consultation with the applicant, I feel sure that it would have sought to ensure that it had a reply from the applicant before it took its decision on 11 May. Such indications as there are from the affidavit evidence and from what was said on the respondent's behalf at the leave hearing suggest that the respondent thought it already knew what the applicant would say. Although the applicant was entitled to think, as a result of the letter of 29 April 1998, that this was a genuine consultation exercise, I doubt whether, in reality, the respondent intended it to be so.
In my view, it was not unreasonable for the applicant to ask for the information it requested in its letter of 11 May 1998. It was not privy to the details of the complaints that had been received by the respondent and it did not know the evidential reasons for asserting that the discharge was prejudicial to health or a public nuisance. If it was being asked to make observations on the allegations that had been made, it needed to know the basis for those allegations before it could usefully make observations about them. I find it quite extraordinary that the respondent never replied to the applicant's letter of 11 May 1998 before the abatement notice was served on 8 July 1998. No explanation has been given for that failure. To my mind, it is a further indication that, despite its letter of 29 April 1998, the respondent was not intent on a genuine consultation exercise. That is further borne out by the fact that between 11 May 1998 and 8 July 1998 the respondent obtained advice from Professor Kay on 16 June 1998 and it obtained the results of its own test sampling on 1 July 1998, but it never mentioned anything about them to the applicant before serving the notice, despite the request contained in the applicant's letter of 11 May 1998.
On the other hand, although the applicant did not know about that evidence which had been obtained by the respondent subsequent to the decision in principle to serve the abatement notice, it did know, at least by 26 May 1998, that the respondent had made the decision in principle on 11 May 1998. In fact, the evidence suggests that it knew of that decision sometime between 13th and 15th May 1998. Despite that knowledge, the applicant did not contact the respondent about that decision or seek to reiterate its request for information. There seems to have been a virtual stand-off between the two public authorities which, to my mind, was most regrettable. If ever there was a situation in which two responsible public authorities ought to have got together to try and resolve the situation, this was surely it.
Nevertheless, although the applicant can properly be criticised for its inactivity and lack of reaction to the respondent's decision of 11 May 1998, the situation was that it had made a reasonable request for information to which the respondent had never replied before the decision in principle was made. Thereafter, when, unknown to the applicant, the respondent really did have some information that could usefully have been discussed, it failed to disclose it to the applicant.
Furthermore, there was no attempt by the respondent to discuss with the applicant the alternative options if the Black Rock discharge were to cease, or the timetable involved. The respondent plainly recognised the relevance of some alternative having to be provided because it sought information about it from the Environment Agency but, when referred to the applicant for the relevant information, it failed to ask the applicant. The applicant, of course, did not know that there was to be an abatement notice requiring cessation of the discharge within three months. If it had been consulted about it beforehand, it could have explained, as Mr Trengove now has in his affidavit, that it was an impracticable suggestion.
I have reached the conclusion that the respondent's letter of 29 April 1998 gave rise to a legitimate expectation of a genuine consultation exercise which never took place due to the respondent's decision in principle on 11 May 1998 to serve the abatement notice and its subsequent failure to make contact with, or to supply the relevant information to, the applicant. Although the applicant could have written to the respondent again between 11 May and 8 July, by then the decision in principle had already been made and no information had been provided by the respondent upon which the applicant could comment. The applicant has therefore suffered detriment because it lost the opportunity to persuade the respondent not to serve the abatement notice by commenting on the information obtained by the respondent on which the notice was based.
It cannot be said that genuine consultation would not have made any difference. The applicant may or may not have persuaded the respondent that there was not a statutory nuisance - it simply is not possible to say. If there had been a consultation about the practicality and timetable for alternative arrangements for the discharge of sewage, I doubt very much whether the notice would have specified the period of three months.
In those circumstances, and subject to consideration of the seventh issue relating to the availability of an alternative remedy, I would quash the decisions to serve the abatement notice because the applicant was not afforded the genuine consultation which, in the circumstances, it was legitimately entitled to expect."
Finally, under the heading "failure to take into account relevant considerations":
"Dealing first with the alleged failure to take into consideration what the applicant could do to remedy the statutory nuisance and the time required for doing so, I do not accept Mr Gordon's submission to the effect that the respondent need not have considered those matters once it was satisfied that a statutory nuisance existed. Section 80(1)(b) provides that the notice may contain a requirement to execute works to abate the nuisance and that it shall specify the time for compliance. Those are matters which the respondent has to consider before serving the notice even though it is satisfied that a statutory nuisance exists. In my view, Mr Havers is correct in saying that if that leads to any delay in the service of the notice it is the consequence of the requirement of the statute.
There is, however, insufficient evidence for me to conclude that the respondent failed to take those matters into account. There is, in fact, evidence that the respondent was considering alternative options to the existing outfall when making inquiry of the Environment Agency, albeit that it did not consult the applicant about it. As I have said when dealing with the consultation issue, I doubt very much whether the three month period would have been put in the notice if the respondent had consulted the applicant on that aspect. That requirement would, in my view, be vulnerable on an appeal under regulation 2(2)(d) of the 1995 Regulations. This is an aspect which is more appropriately dealt with under the consultation issue rather than under a failure to take into account relevant considerations, and I have already dealt with it under the consultation issue.
The essential threads of the competing arguments (which the judge had set out at considerable length) are clearly detectable from those passages and I do not propose to repeat them. Rather I shall proceed at once to state my own conclusions on the various issues arising on this part of the case.
I Duty to consult
It was the Water Undertaker's submission below, and (by its respondent's notice) again on appeal, that the Health Authority are under a general duty to consult the alleged perpetrator of a nuisance, either by reason of the statutory scheme under the 1990 Act (in particular as a "reasonably practicable" step to "investigate the complaint" under s.79(1)), or at common law in order to achieve fairness (in particular to safeguard the alleged perpetrator from having an inappropriate abatement notice served upon him), before serving an abatement notice.
Suffice it to say that I, like the judge below, would reject this contention for the reasons he gave (although in my case without "some hesitation"). I would furthermore respectfully question the judge's view that "in the vast majority of cases, consultation with the alleged perpetrator by the enforcing authority would form both a sensible and appropriate part of the investigative process" in the exercise of the enforcing authority's discretion. That seems to me to go altogether too far. Often, certainly, it will be appropriate to consult the alleged perpetrator, at least on some aspect of the matter, before serving an abatement notice, but the enforcing authority should be wary of being drawn too deeply and lengthily into scientific or technical debate, and warier still of unintentionally finding itself fixed with all the obligations of a formal consultation process.
II Legitimate expectation
Did the letter of 29 April 1998 give rise to a legitimate expectation of consultation? This category of case I identified in R v Devon County Council ex parte Baker [1995] 1 AllER 73 at p.89 as follows:
"(4) The final category of legitimate expectation encompasses those cases in which it is held that a particular procedure, not otherwise required by law in the protection of an interest, must be followed consequent upon some specific promise or practice. Fairness requires that the public authority be held to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by way of an established practice. Re Liverpool Taxi Owners' Association [1972] 2 QB 299 and AG of Hong Kong v Ny Yuen Shiu [1983] 2 AC 629 are illustrations of the court giving effect to legitimate expectations based upon expressed promises; Council of Civil Service Unions v Minister for the Civil Service an illustration of a legitimate expectation founded upon practice albeit one denied on the facts by virtue of the national security implications."
Mr Havers QC for the Water Undertaker put this case on the basis of an express promise, submitting that the letter at one and the same time both promised and initiated a consultation process. To my mind it did no such thing. It seems to me a very far cry from, for example, the assurance given in the Hong Kong case that each illegal entrant would be interviewed and his case treated on its merits, of which the Privy Council said:
"The justification for it [the principle that a public authority is bound by its undertakings] is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise so long as implementation does not interfere with its statutory duty." - per Lord Fraser at p.638.
Once one accepts (as the judge did, and as I do too) that consultation was "not otherwise required by law", then only the clearest of assurances can give rise to its legitimate expectation - see Ex p MFK Underwriting Agencies Limited [1991] WLR 1545 at 1569-1570 - and that is not to be found in this letter.
That said, it seems to me unfortunate that the letter did not indicate that the Health Authority would obviously need to complete their investigation as speedily as possible so that any response should be made with due urgency. And it is, of course, yet more regrettable that the Health Authority never replied to the Water Undertaker's letter of 11 May.
Having concluded, as I do, that the Water Undertaker here was given no legitimate expectation of consultation, it necessarily follows that the judge's finding (clearly correct) that in the event that no genuine or adequate consultation process ever took place, becomes immaterial. The Health Authority neither intended nor promised consultation. Merely by giving the Water Undertaker an opportunity to comment, they assumed no further legal obligation. Of course they would have been required to take account of any relevant comments made. But that is because they must have regard to all relevant considerations, not because they had embarked on a consultation process.
It is on this basis that I would find for the Health Authority on the issue of legitimate expectation. Mr Gordon's further arguments under this head I found less persuasive. His argument that, even if the Water Undertaker was led to expect consultation, there was no evidence of detrimental reliance as a consequence, I would reject for a different reason to that given by the judge. The judge concluded that the Water Undertaker had "suffered detriment because it lost the opportunity to persuade [the Health Authority] not to serve the abatement notice." That, with respect, seems to me a difficult conclusion: the Water Undertaker was no worse off as a result of the supposed promise of consultation than had it not been made. I would instead reject Mr Gordon's argument because the authority upon which it depends - R v Jockey Club ex parte RAM Racecourses Limited [1993] 2 AllER 225 - dealt with a very different situation. The applicant there had spent £100,000 in reliance upon what he contended was the Jockey Club's assurance. His challenge failed, however, because he did not come within the class of persons entitled to rely upon the assurance and it was not reasonable for him to have done so. RAM Racecourses was in the first of the four categories of legitimate expectation which I identified in ex parte Baker, cases where "the phrase is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him." As I pointed out, it is when the doctrine of legitimate expectation is employed "in this sense" that it is "akin to an estoppel." I do not accept that detrimental reliance on the assurance given is necessary to make good a legitimate expectation challenge in the present category of case. There was no such reliance in the Hong Kong case.
Mr Gordon's third argument was that the implementation of the Health Authority's postulated promise of consultation would have interfered with their statutory duty which was to serve an abatement notice as soon as they were satisfied of the existence of a statutory nuisance - see R v Carrick District Council ex parte Shelley [1996] Env.LR 273, where at p.277-278 Carnwath J said this:
"... the issue under s.80 is one of fact, not discretion. So far as the decision to serve an abatement notice is concerned, if the authority are satisfied on the balance of probabilities that there is a statutory nuisance, they have a duty to serve a notice."
I would reject this argument on two grounds. First, because it reads too much into Shelley. That case was concerned with a health authority which had simply resolved to take no action on complaints made about the state of a beach, in particular because of a long outstanding appeal by the Water Undertaker (the predecessor body to the respondent here) to the Secretary of State against a screening condition on their discharge consent. As Carnwath J said immediately after the above-cited passage:
"... that [s.80] duty is not affected by any action of the NRA under the Acts relating to them. They are separate duties. If there is a statutory nuisance on the beach that is a matter for the District Council, even if it is caused by discharges from outfalls within the jurisdiction of the NRA."
The nuisance alleged there, I should perhaps note, was one arising under s.79(1)(e) of the 1990 Act: "any accumulation or deposit which is prejudicial to health or a nuisance".
Shelley is not, as it seems to me, authority for Mr Gordon's bald proposition that to have consulted would have involved the Health Authority in delays such as to place them in breach of their statutory duty. In the first place, the Health Authority might properly have taken the view that only after consultation could they in fact be satisfied that a statutory nuisance existed. Secondly, I share the judge's view that an enforcing authority is bound to consider (and, if it thinks it appropriate, consult upon) (a) whether to specify works to abate the nuisance (and, if so, what works), and (b) what time(s) for compliance should be specified.
The second reason why this argument must fail is because in any event, as the history of events demonstrates, there would in fact have been time for consultation before this particular abatement notice was served.
III. Relevant considerations/rationality/fairness
Under the respondent's notice, Mr Havers argues that even if the Water Authority here had neither a general right to be consulted nor, following an assurance, the legitimate expectation of consultation, nevertheless on the facts of this case the Health Authority were in law bound to consult them before serving an enforcement notice. The argument is put on various different grounds: either that fairness demanded it; or that, absent consultation, the Health Authority were depriving themselves of important information and therefore failing to have regard to all relevant considerations; or that they had an undoubted discretion to consult and it was a Wednesbury irrational exercise of that discretion not to have consulted here.
The principal considerations in support of the argument seem to me to be these. First, that the Water Undertaker, no less than the Health Authority, has important statutory functions to perform and, as a responsible body, ought properly to have been consulted upon the best solution to the problem rather than treated merely as a recalcitrant private company. The situation here, not least having regard to the complex inter-relationship between the various public authorities concerned, cried out for resolution by cooperation rather than prosecution. Second, even assuming that an enforcement notice was appropriate so as to secure the abatement of this particular nuisance, it would inevitably be necessary to decide what alternative option for discharging Falmouth's sewage should be adopted, and the time table involved.
Third, the question of time for compliance was of particular importance in this case given (a) that an appeal would not operate to suspend the notice, (b) that no compensation would be payable to the Water Undertaker even if its appeal against the notice succeeded, and (c) that the Water Undertaker would be committing a criminal offence (subject only to a defence of reasonable excuse) if, as was likely, it could neither abate within the three months specified nor get its appeal heard (and thus if necessary its time for compliance extended) within that time.
It is in these circumstances hardly surprising, submits Mr Havers, that the judge said not only that "it would have been reasonable in this case as a matter of common sense and good administration, for the [Health Authority] to exercise its discretion to consult the [Water Undertaker] before deciding to serve the abatement notice", but also that "it would have been irresponsible" not to do so. If it was "irresponsible", Mr Havers argues, not to consult, then it follows that it was unfair and/or irrational not to do so.
For my part, I regard this as the high point of the Water Undertaker's case on consultation. In combination, these considerations seem to me to provide them with a formidable argument.
I have nevertheless come to the conclusion that it should not prevail and that the Health Authority should be held entitled as a matter of law, unwise though I think it was, to have proceeded as they did, leaving the Water Undertaker to its right of appeal under the statute. I would be reluctant to conclude that an abatement notice, designed ex hypothesi to bring an end to a statutory nuisance, could ever properly be defeated by a complaint of non-consultation, certainly in a case where no consultation was ever promised.
Specification of works
As stated, the abatement notice required the Water Undertaking "within three months from the service of this notice, to cease the discharge of sewage ... via the said New Long Sea Outfall from the sewerage system for which you are the responsible body". It did not impose any requirement under s.80(1)(b) of the 1990 Act "requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes" (i.e. the purpose of abatement).
The judge concluded that on this ground too the challenge succeeded: the notice was invalid for failing to specify the works required to abate the nuisance. In ruling as he did, he was faithfully following a line of Divisional Court authority apparently to the effect that if the only way in which the nuisance can be abated is by works or steps, then the notice must specify them.
It was Mr Gordon's first submission that no steps were required to abate the nuisance: all that was required was that the pumps be switched off. This was given justifiably short shrift. Collins J, in granting leave to move for judicial review, had thought it absurd; Harrison J pointed out that it was unrealistic:
"Switching off the pumps without making any alternative arrangement for disposing of Falmouth sewage is plainly quite out of the question and could not be contemplated by any rational public health authority. It follows that alternative arrangements have to be made before the pumps are switched off. The works required for such an alternative arrangement are therefore necessary works to enable compliance with the requirement of the notice to cease the discharge."
It is therefore necessary to decide whether indeed an abatement notice must specify the works or steps required in any and every case (like the present) where the nuisance can only be abated by the execution of works or the taking of steps.
One's starting point must be s.80(1) itself: "... the local authority shall serve a notice ... imposing all or any of the following requirements ... " (emphasis added).
That provision, unlike s.93(1) of the Public Health Act 1936 (and its predecessors), on its face gives the local authority a discretion in the matter: it can, if it wishes, in addition to requiring abatement, require the execution of necessary works. S.93(1) of the 1936 Act had by contrast provided:
"... a local authority ... shall serve a notice ... requiring [the person served] to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose." (emphasis added)
I come then to the authorities, four of which (including two at both Divisional Court and Court of Appeal level) I must deal with in some detail. I take them chronologically.
(1) Sterling Homes (Midlands) Limited v Birmingham City Council [1995] EnvLR 121 (Sterling), a decision of the Divisional Court.
The nuisance there derived from the operations of a mammoth press by an industrial operator in close proximity to a residential block of which Sterling were freehold owners. The City Council served on Sterling (not on the neighbouring industrial operator) an abatement notice referring to the transmission of noise and vibration through the structure from the nearby industrial premises which in terms read:
"Do hereby require you to abate the said nuisance within fifty-six days ..., and for that same purpose require you to carry out such works as may be necessary to ensure that the noise and vibration does not cause prejudice to health or a nuisance, take any steps as may be necessary for that purpose."
McCullough J (with whose judgment Kennedy LJ agreed), having considered a number of Divisional Court authorities (including in particular The Network Housing Association Ltd v Westminster City Council [1994] EnvLR), holding that where works or steps are required by an abatement notice (as they had been in Network and were in Sterling) they must be specified, continued:
"There are, nevertheless, considerations of practicality which may point the other way. It may be fairer to the owner if he, and not the local authority, has the duty to decide what should be done: he is likely to know his own premises better than the officials of the local authority; he may be able to abate the nuisance by doing works less expensive than those required by the local authority. If the measures he at first selects are ineffectual, there is no unfairness in obliging him to do more: the provisions exist to protect the interests of those who suffer nuisances, not to protect from expense or repeated prosecution those who cause and do not remedy them. Whichever interpretation of s.80(1) is adopted, further work may have to be done, for, if the nuisance is not abated, the complainant will complain anew, the local authority will have to serve a second notice and the person served will have to comply with it or risk further penalty. Further, it will be cheaper for the public purse if local authorities do not have to spend time and money telling those responsible for nuisances how to abate them; it should be enough to tell them to do so and to carry out the necessary works or take whatever other steps may be necessary. It may clearly be helpful if local authorities feel able to specify what works should be done or what steps should be taken, but I see little advantage in obliging them to do so. As the law stands, local authorities are not, in any event, obliged to require works to be done or other steps to be taken; they can, consonant with R v Wheatley (1885) 16 QBD 34, simply require the nuisance to be abated: see McGillivray v Stephenson [1951] AllER 942; the obligation to specify the `works' and the `steps' only arises if they choose to include in their notices a requirement for works to be done or steps to be taken.
For these reasons I would have preferred to have held that the abatement notice served on Sterling was sufficient, but, as I have said, I do not think that course is open to this court."
(2) Budd v Colchester Borough Council [1997] EnvLR 128 (Budd) in the Divisional Court.
The local authority there served an abatement notice on the owner of premises in respect of a nuisance arising from the barking of his dogs. The notice simply required him to abate the nuisance within twenty-one days and to prohibit its recurrence. In rejecting the challenge to its validity Schiemann LJ stated:
"In my judgment, in a case such as the present, dealing with barking dogs, there is no necessity, either in setting out the nuisance to indicate the levels of barking which the dogs have exhibited so as to constitute a nuisance, or the precise times when they have been barking so as to constitute a nuisance, or in requiring the abatement of the nuisance, for the nuisance to specify precisely what has to be done about the nuisance."
(3) Kirklees Metropolitan Council v Field & Others [1998] EnvLR 337 (Kirklees), a decision of the Divisional Court. As Brooke LJ observed:
"This three judge court was assembled in case there was found to be any differences in the approaches of two judge courts on the interpretation of s.80(1) which needed to be resolved once and for all."
In that case a rock face and a wall were in imminent danger of collapse onto some cottages and the notice merely required the owners of the rock face and wall "to abate the statutory nuisance". It was clear from the notice itself that the only way the nuisance could be abated was by carrying out very extensive works of shoring up the wall and securing the rock face. Owen J, giving the leading judgment, said:
"A consideration of R v Wheatley [1885] 16 QBD 34 ... shows that under previous Acts if the justices considered that it was necessary for things to be done to abate the nuisance it was for them to specify them in their order. When failure to comply will constitute a criminal offence this requirement shall cause no surprise."
He then referred to The Network Housing Association v Westminster City Council and Sterling and continued:
"... it is with pleasure that I am able to say that I fully accept McCullough J's result which I take to be that which I have stated as the 1875 Act requirements, namely that if works or action are required they should be specified if there is any doubt."
Having then referred to Budd, Owen J concluded:
"From these decisions I see the law to be that an abatement notice must inform the landowner of what is wrong so that he knows what is wrong - which it could be argued the notices here did - but as it must also ensure that the landowner knows what he is to do to abate the nuisance, it may be necessary to specify the works required."
Brooke LJ quoted the long title to the 1990 Act which, he said, "does not suggest that Parliament intended to take the drastic step of imposing criminal penalties on citizens who had failed to execute works which were positively needed to abate a nuisance without specifying what was required of them", and concluded:
"I hope that the judgment of Owen J in this case, with which I agree, reinforcing as it does the detailed reasons given by McCullough J [in Sterling] will make the position completely clear in the future."
The commentary to the report of Kirklees in the Environmental Law Reports said this:
"McCullough J seems to have viewed the question of whether or not to require works to be done (which leads to a requirement to specify them) as a matter of choice for the local authority. In the present case, Owen J seems to focus more on the nature of the nuisance itself, leading to a requirement to specify (particularise) works in the notice and does not reject the respondents' submissions that a requirement to take steps or carry out works may be implicit in an abatement notice, due to the nature of what the recipient is being asked to abate, even though not explicitly required to carry out any works. Thus a reading of the judgments together may lead to the conclusion that Owen J is not in full agreement with McCullough J and that on the facts of the present case McCullough J would not have found a requirement to specify works, the local authority having exercised its prerogative merely to require abatement. ... the three judge court may not have clarified the position to the extent to which it had hoped."
(4) Surrey Free Inns plc v Gosport Borough Council [1999] EnvLR 1 (Gosport), a decision of the Divisional Court.
The case concerned amplified music emanating from a bar in Gosport and the abatement notice simply alleged nuisance by amplified music and called on the company to abate the same and prohibit its recurrence.
Mance J (with whose judgment I agreed) concluded:
"The present case falls squarely, in my judgment, within the same category [as Budd]. ... The respondent council was entitled to serve an abatement notice simply requiring the appellant to abate the nuisance by playing of amplified music. This left it open to the appellant to abate the nuisance in any number of ways, not all of which would involve any works or other positive steps within s.80(1)(b). For example, the appellant could cease playing amplified music at all, or cease doing so on warm days when the doors/windows were open; or it could give instructions or introduce restrictions to reduce the volume of music; or it could undertake works, such as it in fact chose to do, involving new doors, double glazing and air-conditioning. The notice is neither defective nor in error in leaving it to the appellant to abate in any way it chose."
Earlier in his judgment, however, Mance J had reviewed the early authorities and said this:
"I would accept that, if a local authority `chooses' to include a requirement of works in circumstances where it is not strictly necessary to do so and fails sufficiently to specify such works, the notice must, at least pro tanto, be a nullity. If it also contains a simple requirement to abate the nuisance, that may on appeal survive the quashing of the defective further requirement, as in Fenny Stratford JJ [R v Fenny Stratford JJ ex p Watney Mann [1976] 1 WLR 1101, a case about nuisance caused by loud noise from a juke box in respect of which an abatement notice had been served requiring that the nuisance be abated `and the level of noise in the premises shall not exceed 70 decibels']. The mere presence in a notice of a simple requirement to abate will not, however, assist on a prosecution for failing to comply with a defectively unspecific requirement to do works: see Sterling Homes.
Kirklees concerns the situation where it is not a matter of choice on the part of the local authority to require works, because works or other steps are `positively needed'. If the only way in which the nuisance can be abated is by works or steps, then the notice must specify them. That was in fact plainly also the situation in Sterling. Sterling were not owners or occupiers or operators of the press on the neighbouring industrial premises. All that they could do to prevent the nuisance to their tenants was undertake works on their own residential block.
The Network Housing Association v Westminster C.C. [1995] Env.LR 176, is another case where the abatement notice was addressed by the respondent city council to freehold owners of tenanted premises, in respect of a noise source which it was out of their power to stop. This was noise from perfectly normal everyday living, which reached one flat from the flat above due to the absence (under ceiling, on floor or in the ceiling/underfloor void) of proper insulation. The only way in which the housing association could therefore abate the nuisance was by installing proper sound insulation. The notice failed to address or resolve a question, contentious between experts, whether the works should be in the void or under the ceiling or on the floor. The notice was held invalid because of this lack of precision in relation to necessary works."
(5) Budd v Colchester Borough Council [1999] EnvLR 739, a decision of the Court of Appeal.
Swinton Thomas LJ, giving the only reasoned judgment, cited McCullough J's judgment in Sterling and continued:
"Accordingly it was held in that case that under the provisions of s.80 a local authority has a clear choice: they can either call upon the recipient of the notice simply to abate the nuisance or, alternatively, they can call upon him to abate the nuisance by carrying out works or taking steps. If they require works to be carried out or steps to be taken, then those works or steps must be specified."
Swinton Thomas LJ then referred to the Gosport Borough Council case and contined:
"In my judgment there is not in truth any divergence or conflict between the decided cases. I agree with the views expressed by McCullough J in Sterling, by Mance J in Surrey Free Inns, and by Schiemann LJ in the Divisional Court in this case. The position in relation to the provisions in s.80(1) of the 1990 Act is clear. ... Depending on the circumstances, it is open to the local authority to take one or other course when serving the notice. I accept that it is not difficult to envisage facts where it would be wholly unreasonable for a local authority to serve a notice merely requiring the recipient to abate the nuisance without stating the works or steps which the local authority required to be taken for that purpose, or where it is clear on the face of the notice that the notice itself required such works or steps to be taken. Kirklees was such a case."
His judgment concluded:
"As I have said earlier, there may be cases where the facts relating to the alleged nuisance and the required abatement themselves show on their face that the notice must set out the works or steps required to be taken, or the notice itself on its face may import such works or steps, and in such a case the local authority may well be under a duty to set out the works or steps which they require to be taken in the abatement notice. However, in the ordinary case, the local authority are given the choice under s.80(1) to which I have referred to serve a simple notice requiring the abatement of the nuisance."
(6) SFI Group plc (formerly Surrey Free Inns plc) v Gosport Borough Council [1999] ENVLR 750, a decision of the Court of Appeal.
Stuart-Smith LJ alone gave a reasoned judgment on the validity of the notice. He said this:
"... Mance J analysed the principles which emerged from the authorities. These principles can I think be summarised in this way -
(a) s.80(1) gives the local authority serving a notice a discretion as to what requirements should be imposed (see the words `imposing all or any of the following requirements ...'). The authority may simply require the abatement of the nuisance or it may require `the execution of works and the taking of some other steps as may be necessary ...'.
(b) However, in some cases, it may be obvious from the notice and surrounding circumstances that the only way in which a nuisance can be abated is by the carrying out of works which need to be specified in the notice served in order for that action to be valid (see Network Housing Association v Westminster County Council [1995] EnvLR 176; Kirklees Metropolitan Council v Field [1998] EnvLR 337).
(c) Alternatively, if a local authority chooses to require works or steps to be carried out then these matters should be set out in the notice with sufficient clarity (... Sterling Houses v Birmingham County Council [1996] EnvLR 121).
The Divisional Court held:
(a) that the circumstances fell within that category of cases where the local authority may exercise its discretion by imposing only a general requirement that the notice be abated (see, e.g. Budd v Colchester B.C. [1997] EnvLR 128 affirmed in the Court of Appeal, transcript March 3 1999);
(b) that such a requirement would leave it open to the appellant to abate the nuisance in a variety of ways, not all of which would involve the execution of work or positive steps within s.80(1)(b). It could be satisfied by ceasing to play the music or reducing its volume; ...
Mance J's judgment was cited with approval by the Court of Appeal in Budd's case (see Swinton Thomas LJ). In my judgment there is no substance in [counsel's] criticism of the Divisional Court's decision on this point."
Those, then, are the four main authorities: two (Sterling and Kirklees) concerned with nuisances which could only be abated by the execution of works; two (Budd and Gosport) concerned with noise nuisances, respectively barking dogs and amplified music, which could be abated otherwise than by works - these being the two which went to the Court of Appeal (whose judgments, although delivered just before Harrison J's judgment, were clearly not available to him).
Analysis of those authorities seems to me to reveal the following:
1. McCullough J in Sterling was holding that in all cases a local authority has a choice whether simply to require abatement of the nuisance or whether also to require works or steps, a requirement to specify those works or steps arising only in the latter event.
2. The Divisional Court in Kirklees appears to have misunderstood that holding and itself to have held (to my mind inconsistently) that if works or steps are in fact required then they must be specified. The commentary upon the case in the Environmental Law Report is, I believe, well-judged.
3. The Divisional Court in Gosport overlooked the inconsistency between Sterling and Kirklees and stated the law to be as Kirklees had held:
"If the only way in which the nuisance can be abated is by works or steps, then the notice must specify them."
4. The Court of Appeal in Budd correctly summarised and understood the holding in Sterling. It explained Kirklees as a case "where it would be wholly unreasonable for a local authority to serve a notice merely requiring the recipient to abate the nuisance without stating the works or steps which the local authority required to be taken for that purpose, or where it is clear on the face of the notice that the notice itself required such works or steps to be taken." Or, as it was put later in the judgment, a case where the local authority "may well be under a duty to set out the works or steps which they require to be taken in the abatement notice" (in contrast to "the ordinary case" where the local authority has a "choice"). Mr Gordon submits, to my mind correctly, that the Court of Appeal there was identifying a class of case where, given the discretion arising under s.80(1)(b) to require works in addition to mere abatement, it would be irrational not to do so. Even accepting this, however, I still find it difficult to understand how Swinton Thomas LJ could say that "there is not in truth any divergence or conflict between the decided cases".
5. The Court of Appeal in Gosport accurately summarised one of the principles elicited from the authorities by Mance J in the Divisional Court to be: where it is "obvious from the notice and the surrounding circumstances that the only way in which a nuisance can be abated is by the carrying out of works [they] need to be specified in the notice". That, indeed, is what Kirklees (although not Network) had held. The Court of Appeal was further correct in stating that Mance J's judgment had been cited with approval by the Court of Appeal in Budd, and clearly was itself impliedly approving it.
In the light of that analysis the first question arising is whether we ourselves are now free to decide the issue. The primary submission of both parties is that we are not. Mr Gordon suggests that the Court of Appeal in Budd has decided that there is always a discretion not to require works and that the exercise of the discretion can be attacked only on grounds of irrationality. Mr Havers submits to the contrary that the Court of Appeal's approval in Gosport of Mance J's dictum that "if the only way in which the nuisance can be abated is by works or steps, then the notice must specify them" was part of its reasoning process and that therefore we must follow it.
I would state my own conclusions as follows:- (1) The approval of Mance J's dictum, and indeed the implicit approval of the Divisional Court's approach in Network, Sterling and Kirklees, were not in my judgment a necessary part of the Court of Appeal's reasoning in either Budd or Gosport. I think we are free to decide the central issue for ourselves. (2) If, as Mr Havers accepts, there is no duty to specify works in those cases where the nuisance can be abated in a number of ways, not all of which require the execution of works, then I can see no good reason why the position should be any different merely because in a particular case some works are essential to abate the nuisance. If, as the Court of Appeal held in Budd, "it is quite sufficient for the local authority to require the appellant himself to abate the nuisance in a manner which is the least inconvenient or expensive and the most acceptable to him", why should this be any the less sufficient in a case like the present where, although some works are required, there is a clear choice between various options. Why should the local authority have to make that choice rather than leave it to the owner? For my part, I find McCullough J's reasoning in Sterling - in favour of leaving the choice to the owner - more persuasive than the Court's reasoning in Kirklees that, because of the criminal sanctions attending non-abatement. the specification must be made by the local authority. (3) I would, therefore, overrule Kirklees and hold that in all cases the local authority can if it wishes leave the choice of means of abatement to the perpetrator of the nuisance. If, however, the means of abatement are required by the local authority, then they must be specified; Network and Sterling remain good law. (4) Even if I was prepared (like the Court of Appeal in Budd, strictly obiter as I think) to recognise a class of case where it was irrational for the local authority not to use its discretion to require specific works for the abatement of the nuisance, the present case would not fall within it. On the contrary, there were compelling reasons here for leaving the decision as to how the nuisance should be abated to the Water Undertaker. The statutory responsibility for discharging sewage was vested in it and, of course, any substitute discharge (including a return to the previous outfalls) required compliance with the Environment Agency's consents, (5) On either view, therefore, I would reverse the judge's decision on this point and hold that the notice here was not invalid for failing to specify the works required to abate the nuisance.
Watercourse
I have had the opportunity to read in draft Hale LJ's judgment on this issue and need say no more than that I am in full agreement with it.
Alternative remedy
It was Mr Gordon's submission below and again on appeal that all the issues considered above could and should have been dealt with on the Water Undertaker's application to the magistrates' court. Given the availability of that statutory remedy, he submits, and given too the public health dimension to this case, the High Court should not have granted leave to apply for judicial review and meantime a stay of the abatement notice. There is, Mr Gordon accepts, a discretion in the court to allow a judicial review challenge despite the existence of an alternative remedy. But here, he submits, that discretion was wrongly exercised.
Central to the arguments advanced on this issue is R v Birmingham City Council ex parte Ferrero [1993] 1 AllER 530 where the Court of Appeal reversed the exercise of the judge's discretion to grant judicial review and then, having allowed the Council's appeal on that ground alone, found (obiter) in favour of the Council on the substantive issues also. Ferrero concerned a trader's challenge (on grounds of non-consultation) to a suspension notice issued by the Council under s.14 of the Consumer Protection Act 1987. Giving the only reasoned judgment, Taylor LJ referred to a number of earlier authorities and continued (at p.537):
"These are very strong dicta both in this court and the House of Lords as cited, emphasising that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure it is only exceptionally that judicial review should be granted. It is therefore necessary, where the exception is invoked, to look carefully at the suitability of the statutory appeal in the context of the particular case. In the present context the statutory provisions are all contained in Pt II of the 1987 Act, and are thus concerned with consumer safety. S.14 is clearly aimed at providing enforcement authorities with a means of swift, short-term action to prevent goods which have come to their notice from endangering the public. S.14 is the only provision which enables action to be taken by a local authority against a trader, other than through the courts. The action does not require proof that the goods contravene a safety provision, but merely that the authority has reasonable grounds for suspecting they do. The notice is effective only for six months. It is intended to be an emergency holding operation. The suspension notice has to inform the recipient of his appeal rights (s.14(2)(c)), and the very next section, s.15 sets them out. They provide for application to a magistrates court, which can set aside the notice only if satisfied that there has been no contravention of a safety provision. If the goods are not shown to be safe, the notice will remain in place. Conversely, if the goods are shown not to contravene the safety provision, the notice is set aside. Moreover, in that event, even if the enforcement authority had reasonable grounds for their suspicion, they are required to pay compensation to any person having an interest in the goods (s.14(7))."
Later, at pp.538-539, Taylor LJ said this:
"[The judge] did not, in my view, ask himself the right questions. He asked whether, on the s.15 appeal, Ferrero could have aired their various complains about ... [consultation]. Having concluded they could not, he held they were entitled to proceed by judicial review. He should have asked himself what, in the context of the statutory provisions, was the real issue to be determined and whether a s.15 appeal was suitable to determine it. The real issue was whether the goods contravened a safety provision and the s.15 appeal was geared exactly to deciding that issue. If the goods did contravene a safety provision and were dangerous to children then, surely, procedural impropriety or unfairness in the decision-making process should not persuade a court to quash the order."
So too here, submits Mr Gordon, "the real issue" is whether the Black Rock discharge constitutes a statutory nuisance. And the problem with judicial review is that the real issue never comes to the trial. As Taylor LJ said in Ferrero: "The matter is now academic since the six-month life of the suspension notice terminated long ago." Similarly here, given that the next stage of the sewerage scheme is now imminent. Mr Gordon accordingly submits that the "judicial review has, in fact, plainly subverted Parliament's intention of a streamlined and swift regime for the abatement of nuisances", not least given the express statutory provision that abatement notices should not be suspended where injury to health is alleged.
Mr Havers points to a number of differences between Ferrero and the present case. These include particularly (a) that no compensation is provided for in the nuisance legislation, (b) that a suspension notice served under the Consumer Protection Act is designed as "an emergency holding operation", and (c) that whereas the only "real issue" there was whether the goods contravened a safety provision, here there were several real issues, including not least the validity of the notice on its face (having regard to the non-specification of works required for abatement) and the "watercourse" issue.
Harrison J, dealing with this issue at the conclusion of his judgment, said this:
"I bear very much in mind the decision of the Court of Appeal in the Ferrero case, namely that it is only exceptionally that judicial review should be granted where the alternative remedy of the statutory appeal procedure is available. It is necessary to identify the real issues involved and to consider whether the appeal process is suitable to determine them.
I accept that the statutory regime in the Ferrero case, and the real issue to be decided in that case, were materially different from the present case, for the reasons given by Mr Havers. In my view, the real issues involved in the present case are, firstly, the consultation issues and, secondly, the legal issues relating to the validity of the notice, in particular the meaning of the word `watercourse'.
I doubt very much whether the consultation issues could have been raised under ground (a) of regulation 2(2) of the 1995 Regulations because that ground relates to the question whether the notice is justified by s.80, whereas the consultation issues were mainly directed to the investigation stage under s.79 of the Act. However, whether that is so or not, I take the view that the issues of consultation and legitimate expectation are issues which are particularly suitable for decision by judicial review. Furthermore, the resolution of the legal issue as to the meaning of the word `watercourse' is more conveniently dealt with by way of judicial review in the circumstances of this case. For those reasons, I have concluded that this is a case which is an exception to the general rule, where judicial review is a more convenient and suitable remedy than the alternative appeal procedure for resolution of the real issues involved in the case."
I have not found this an altogether easy issue to decide. It is complicated, moreover, by a recognition that there were two stages at which the court had to exercise a discretion, the permission/stay stage and then the substantive hearing. Perhaps the most important decision was that taken by the Collins J on 30 July 1998, just three weeks after the abatement notice was served. The hearing before Harrison J was some nine months later by when different considerations were in play. Of course Harrison J could simply have ruled that the Water Undertaker should be left to its statutory right of appeal and lifted the stay (expressing no views on the substantive issues), but really that would not have been very helpful given the time, effort and expense spent in preparing for, and holding, a five day hearing. The real question seems to me to be whether permission to move and a stay ought ever to have been granted in the first place. Since our judgments on this part of the case are more likely to be relevant to the approach to these cases in future than to the outcome of the present appeal, that is the question which I propose to address.
Generally speaking, as I observed in R v Devon County Council ex parte Baker [1995] 1 AllER 73 at 92 (an authority referred to by the judge below):
"Which of two available remedies, or perhaps more accurately, avenues of redress, is to be preferred will depend ultimately upon which is the more convenient, expeditious and effective. ... Where ... what is required is the authoritative resolution of a legal issue ... I would regard judicial review as the more convenient alternative remedy."
That, however, was where the suggested alternative remedy was a ministerial default power rather than a statutory appeal process. Furthermore, in cases like Ferrero and the present appeal, the need to safeguard the public, even sometimes at the expense of the other party, is likely to be the paramount consideration. In deciding whether, exceptionally, to allow an application for judicial review, the judge should never lose sight of this. Questions of convenience, expedition and effectiveness should be assessed accordingly. If, for example, in this case, as ultimately in Ferrero, the enforcing authority had defeated all grounds of challenge, then the decision to allow a judicial review would have delayed abatement, quite possibly with damaging public health consequences. This should be recognised.
With these thoughts in mind I, for my part, conclude that it was inappropriate for permission and a stay to have been granted here on so wide-ranging a basis. In particular, I do not share Harrison J's "view that the issues of consultation and legitimate expectation [were] particularly suitable for decision by judicial review". I acknowledge that in Devon County Council these were precisely the issues which I suggested could conveniently be decided by judicial review but, as I have sought to explain, that was in a very different context. Here it was imperative that if any judicial review challenge was to go ahead it should be dealt with expeditiously and the stay kept as short as possible. Given the volume of evidence required for the consultation issues it is unsurprising that the hearing was delayed. In any event, moreover, as in Ferrero, non-consultation might well have been thought an inappropriate basis upon which to quash an abatement notice in a public health case.
I reach a different conclusion, however, on the other two issues: the specification of abatement works and the meaning of "watercourse". The resolution of these issues needed no evidence whatever, merely the notice itself and a map. These issues, moreover, if decided in the Water Undertaker's favour, would inevitably have been decisive of the case. I see no reason why an expedited judicial review hearing could not have resolved them within a very short time.
Given (a) that the Water Undertaker's appeal did not operate to suspend the notice, (b) that it might well not be heard before (and at best would be heard only shortly before) the three month period for compliance expired (bearing in mind that the appeal would be heard on all issues and involve extensive oral evidence), (c) that to avoid the risk of committing an offence the Water Undertaker would have to start work on an alternative sewage scheme before its appeal could be heard, (d) that it would not be compensated for its work even if its appeal succeeded, and (e) that if its appeal failed, it would almost certainly wish to appeal by case stated to the Divisional Court, I think that a limited judicial review along the lines I have indicated could properly have been permitted.
The lesson to be learned is, I suggest, this. The critical decision in an alternative remedy case, certainly one which requires a stay, is that taken at the grant of permission stage. If the applicant has a statutory right of appeal, permission should only exceptionally be given; rarer still will permission be appropriate in a case concerning public safety. The judge should, however, have regard to all relevant circumstances which typically will include, besides any public health consideration, the comparative speed, expense and finality of the alternative processes, the need and scope for fact finding, the desirability of an authoritative ruling on any point of law arising, and (perhaps) the apparent strength of the applicant's substantive challenge.
That, however, I repeat, is essentially a lesson for the future. As for this appeal, I see no sufficient reason, having regard to our decision on the meaning of "watercourse", to overturn the relevant part of the order below, namely that the abatement notice was ultra vires the Health Authority's powers.
I would accordingly dismiss this appeal.
LORD JUSTICE PILL:
I agree that the appeal should be dismissed and I agree with the conclusion of Simon Brown LJ on each of the issues addressed. On the issue of specification of works, there is nothing I wish to add save in so far as my remarks on consultation may incidentally touch upon it.
Consultation
I gratefully adopt the statement of facts by Simon Brown LJ. The reasons for the Environment Agency giving consent for the Falmouth Interim Sewage Scheme were stated in the Agency's letter of 31 March 1998 to the Health Authority:
"The agency will now proceed with issuing a consent for the new discharge to the Carrick Roads, in line with our letter to you dated 27th March 1997. The Agency recognises that a number of concerns have been raised about the interim proposals. These have been given full and careful consideration. Nevertheless, the Agency remains convinced that the interim proposals do offer definite environmental advantages and has therefore decided to proceed with the issuing of consent.
In coming to this decision, it is important to reiterate why Falmouth has a proposed interim scheme in the first place. A scheme to improve sewage treatment for Falmouth has been planned since 1989. The original programme was for the provision of secondary treatment by 1995. However, in 1994 the Ministers advised that the scheme, within the context of complying with the EC Urban Waste Water Treatment Directive, should be deferred until the end of 2000. The NRA, one of the Agency's predecessor organisations, negotiated for an interim scheme which would allow some improvements to be carried out ahead of the main scheme to improve the bathing water quality at the EC Bathing Waters at Gyllyngvase, Swanpool and Maenporth.
At Falmouth, the proposed interim scheme is driven by the following two fundamental requirements:
(i) Compliance with the EC Bathing Water Directive;
(ii) No deterioration of water quality for other specific uses. For example, shellfisheries, non-designated bathing waters and areas of ecological interest.
Our view remains that the interim scheme will deliver a benefit to the Falmouth area, in particular:
i) Improvements to the storm sewages discharge to the Penryn River;
ii) Improvements to the bathing waters at Gyllyngvase, Swanpool and Maenporth;
iii) Improvements to the inshore areas in the vicinity of Middle Point.
We must emphasise that this interim scheme represents the first stage towards the completion of the full scheme, which will provide secondary treatment to meet the requirements of the Urban Waste Water Treatment Directive. This requirement must be provided by December 2000 and given this target, we expect South West Water to commence work in the very near future. I can confirm that the Agency will consult fully on the final scheme proposals."
Plainly the improvement was for bathers; for other uses there was to be "no deterioration". The waters of Carrick Roads are also used by fishermen, yachtsmen, windsurfers, canoeists and divers.
Discharge began on 14 April 1998 and on 20 April 1998 the Health Authority wrote their letter to the Water Undertaker, set out by Simon Brown LJ in his judgment, which is claimed to give rise to a legitimate expectation of consultation. On 1 May, the Port of Falmouth Sailing Association wrote to the Water Undertaker stating:
"We would welcome discussing with you alternatives to this interim scheme. We are very concerned the Falmouth shell-fisheries are threatened and even more worried about the health threat to Contact Water Sports in Carrick Roads."
The Cornwall Sea Fisheries Committee wrote on 5 May stating:
"It is considered that this scheme, which connects the existing crude discharges and channels them to a single discharge, amounting to approximately 23,000 cubic metres of effluent per day, will have a massive impact both in the immediate area adjacent to the Black Rock and throughout Carrick Roads and Falmouth Bay. Although the effluent will be screened to separate out the solids, it will still contain the same components as before, with the result that it will have a potentially severe detrimental effect on fish stocks in the area, particularly the oyster beds and other important shellfish, such as scallops and clams. It is essential, therefore, that full treatment is provided for the scheme as a matter of urgency."
Complaints were made to the Health Authority about the new outfall and at their meeting on 11 May 1998 the Chairman referred to the "importance" of the Agenda Item "Falmouth Interim Sewage Scheme" and the "intense public and media interest". It was resolved to serve an abatement notice, subject to a favourable opinion from Counsel. Simon Brown LJ has described subsequent events, including the receipt by the Health Authority, before the abatement notice was served, of the Environment Agency's preliminary assessment of water quality, the report of Professor Kay of Leeds University and the results of the Health Authority's own water quality sampling.
In the meantime, the Water Undertaker had on 11 May 1998 written to the Health Authority in reply to their letter of 19 April:
"Thank you for your letter of 29 April regarding the Falmouth Interim Sewage Treatment Scheme. You will be aware that South West Water is operating the new outfall in accordance with the discharge consent issued by the Environment Agency. The discharge is subject to high natural dispersion and dilution and the company does not accept that it is causing any kind of nuisance. I should of course be grateful for the opportunity to view any evidence of a medical or scientific nature that you have in you possession."
The Water Undertaker cannot have been unaware of the concerns which had been expressed about the outfall near Black Rock. Moreover, their scientific adviser, Dr Stephen Bird, had written an internal memorandum on the letter of 29 April: "Please produce list of bullet points for report". While the letter of 11 May does also request an opportunity to view evidence obtained by the Health Authority, essentially it makes two points: first the Environment Agency's consent is relied on to justify the discharge, and, secondly, nuisance is denied.
I have referred to this additional evidence as throwing light on the argument that the Water Undertaker had a legitimate expectation of consultation. I agree with Simon Brown LJ first that there was no general duty to consult and secondly that the Health Authority should be wary of being drawn too deeply and lengthily into scientific or technical debate. The Authority have duties to the public at large with respect to the abatement of public nuisances. They have resources to conduct appropriate investigations for that purpose. Consultation with the perpetrator of the alleged nuisance may be helpful and administratively useful but must not prejudice the independent and objective judgment required of the Health Authority.
I agree with Simon Brown LJ that the letter of 29 April did not create a legitimate expectation of consultation. As he states, merely by giving the Water Undertaker an opportunity to comment, they assumed no further legal obligation towards the Water Undertaker. I see less force than does Simon Brown LJ in the argument of the Water Undertaker summarised under the heading "Relevant considerations/rationality/fairness". The consent of the Environment Agency was clearly based on its understandable wish to implement the EC Bathing Directive. The bathing interest was paramount. The Water Undertaker made clear that they relied on that consent and that they denied nuisance. That was the stance they took. They did not, on the evidence before the Court, respond either urgently or positively to expressions of serious concern. They were no less responsible for the stand-off that occurred than the Health Authority. In the circumstances, I consider it far-fetched to attempt to label the Health Authority "irresponsible" in the action they took. Having perceived a public nuisance affecting many people and interests, they were not irrational in taking action as they did. It was unfortunate that each body appears to have taken a less than positive attitude towards the other. I should add that the attitude of the Water Undertaker may have been influenced by its view that the Health Authority should not be concerned with this type of public nuisance in Carrick Roads, a view which Harrison J and this Court have in the event found to be correct.
The Water Undertaker's best point, in my view, is in relation to the time for compliance, put in the abatement notice at three months from 8 July 1998. However, the choice of that period cannot be regarded on the evidence as irrational, particularly as it extended beyond the end of the bathing season, that is the period during which the former outfalls presented particular problems.
The perpetrator of an alleged nuisance, however well informed, cannot be permitted to dictate the time for compliance. It has been a theme underlying the Water Undertaker's case that the Health Authority were obliged to bargain with them as the body with the expertise in sewage. Realism must of course govern the activities of public bodies but the Health Authority cannot properly put itself into the hands of the alleged perpetrator of a public nuisance when deciding what action is necessary in the public interest. They are not obliged to accept the course proposed by the Water Undertaker on the ground that it is proposed by the Undertaker. The Water Undertaker's remedy was to make a case to the Magistrates that, if the abatement notice stood, the three month period should be extended. As Mr Gordon QC has repeatedly and correctly stated, the result of the procedure adopted in this case is that the factual issues whether there is a public nuisance and, if so, what should be done about it, have never been resolved. This Court, on affidavits, cannot properly resolve them.
Alternative remedy
I respectfully agree with Simon Brown LJ's general conclusion that, having regard to the public health consideration and the existence of the statutory right of appeal, permission to apply for judicial review should only exceptionally be given in this context. The grant of permission to apply, with a stay, effectively determined the present dispute in the Water Undertaker's favour. The issues in the litigation are such that, even if they had eventually been resolved in the Health Authority's favour, it would have had no practical significance because the interim scheme would by then have been superseded. The irony is that permission was granted, we are told, principally on the issue of consultation, an issue which has been determined in the Health Authority's favour. It was not, in my view, an appropriate ground in this case and I understand Simon Brown LJ to be of the same view.
Parliament has in this context provided a statutory appeal procedure. Simon Brown LJ has set out the relevant provisions which appear in section 80 of the Environment Protection Act 1990 and the Statutory Nuisance (Appeals) Regulations 1995. An appeal to the Magistrates was entered by the Water Undertaker but has been overtaken by the present proceedings. In R v Birmingham City Council ex parte Farrero [1993] 1 All ER 530, Taylor LJ identified the relevant question as "What, in the context of the statutory provision, was the real issue in the proceedings and whether [the statutory] appeal was suitable to determine it?".
In the present context, the need to safeguard the public is, as Simon Brown LJ has stated, likely to be the paramount consideration. An indication of a statutory intention to that effect emerges in the power of the Health Authority under Regulation 3(2), exercised in this case, to require, where the alleged nuisance is injurious to health, that the notice shall have effect notwithstanding any appeal to a Magistrates' Court which has not been decided by the Court.
Given the public health context and the provision of a statutory remedy, I question whether matters of convenience and expedition should be allowed to permit proceedings by way of judicial review the effect of which is to circumvent or, as Mr Gordon puts it, subvert a detailed statutory procedure. If the statutory intention is to provide that any appeal is to be to the Magistrates' Court, the aim must be to make that remedy effective rather than to surmise that it is so ineffective that judicial review is permitted. I do not accept for a moment the Water Undertaker's submission that Magistrates' Court proceedings could not have been brought on within the three month period. There are also procedures by which conclusions of law in the Magistrates' Court can be challenged in the High Court. I see no reason why the procedure laid down by Parliament should not be made an effective procedure. It is the duty of the Courts to ensure that it is.
The emphasis should in my judgment be upon making the statutory procedures effective rather than assuming ineffectiveness and treating judicial review as a default procedure. There is in my view a very high burden on a party claiming, in the context of public health, that the statutory remedy will be ineffective before he can expect permission to apply to be granted. The grant has the effect of deferring the resolution of factual issues and, in this case, rendering ineffective by passage of time the operation of a notice which the statutory scheme contemplates should, subject to the powers of the Magistrates, be effective.
There may be cases where a grant of permission to apply for judicial review is appropriate. They will be rare. The fact that a legal point arises on the wording of the notice does not of itself in my view justify the intervention of the High Court by way of judicial review. The clarification in this case by Simon Brown LJ of the law on the specification of works should further limit the occasions on which resort to judicial review is permitted.
Watercourse
The abatement notice alleges that what is so foul or in such a state as to be prejudicial to health or a nuisance, contrary to section 259(1) of the Public Health Act 1959, is the "watercourse" known as Carrick Roads. I have had the opportunity to read in draft the judgment of Hale LJ, and her analysis of the relevant legislation, and I agree with her that Carrick Roads is not a watercourse within the meaning of that word in the section. As defined in the abatement notice, Carrick Roads are 7 km long and in the main about 2 km wide. Four rivers, the Fal, Carnon, Percuil and Penryn discharge into it and there are other creeks. Abutting onto it are seven what are described on the ordnance survey map as "points", including the substantial promontories of Pendennis Point, Castle Point and Penarrow Point. It is tidal and includes a part of Falmouth Docks. It adjoins the open sea.
In it origins in the public health legislation, the word watercourse had a narrow meaning. That is still reflected in its association with the words "pond, pool, ditch and gutter" in section 259(1)(a). The words in the equivalent section of the Public Health Act 1875 were "pool ditch gutter watercourse privy urinal cesspool drain and ashpit". While section 259(1)(b) has a different statutory origin, as explained by Hale LJ, I cannot accept that the draftsman intended it to bear a completely different meaning in two paragraphs of the same sub-section. Since paragraph (b) contemplates that there are watercourses which are navigable by vessels employed in the carriage of goods by water, the word bears a wider meaning in that paragraph than it would by the application of the ejusdem generis principle to the words used in paragraph (a). However, the association with "ditch" and "gutter" cannot be ignored and neither can what I regard as the limited meaning the word bears in ordinary speech. "Course", in this sense, is defined in the Shorter Oxford Dictionary as "the line path or way along which anything runs or travels".
On the other hand, regard must be had to the broader meaning suggested by paragraph (b). The word has also been used in statute so as to include "all rivers, streams, ditches, drains, cuts, culverts, dykes, sluices, sewers and passages through which water flows, except mains and other pipes ... ." (Water Resources Act 1991, section 221(1) following similar use in the Water Act 1945 and the Water Resources Act 1963).
In the context of a statute dealing with public health, I am quite unable to conclude that the word "watercourse" includes a stretch of water of the character and extent of Carrick Roads. The use of the word in section 259(1) does not extend so far.
For those reasons, and adopting the reasoning of Hale LJ on this point, accepted also by Simon Brown LJ, I would dismiss the appeal. I agree with Simon Brown LJ that the appeal should otherwise have been allowed.
LADY JUSTICE HALE:
Watercourse
1. This appeal raises the discrete but vital question of whether Carrick Roads is a 'watercourse' within the meaning of section 259(1)(a) of the Public Health Act 1936. If it is not, the Port Health Authority had no power to issue the abatement notice.
2. Section 79(1) of the Environmental Protection Act 1990 defines a number of 'statutory nuisances' for the purpose of Part III of that Act, including '(h) any other matter declared by any enactment to be a statutory nuisance.' One such enactment is section 259(1) of the 1936 Act. As amended by the 1990 Act, and as material for present purposes, this provides:
'The following matters shall be statutory nuisances for the purposes of Part III of the Environmental Protection Act 1990, that is to say -
(a) any pond, pool, ditch, gutter or watercourse which is so foul and in such a state as to be prejudicial to health or a nuisance;
(b) any part of a watercourse, not being a part normally navigated by vessels employed in the carriage of goods by water, which is so choked or silted up as to obstruct or impeded the proper flow of water and thereby cause a nuisance, or to give rise to conditions prejudicial to health: . . . '
3. Mr Havers QC, for South West Water, argues that a 'watercourse' in section 259(1)(a) cannot possibly extend to an estuary or other large body of water such as Carrick Roads. He relies upon the ejusdem generis principle coupled with the statutory history of paragraph (a) which dates back to 1855. Mr Gordon QC, for the Port Health Authority, argues that the word 'watercourse' is capable of extending to a river or estuary, as is clear from paragraph (b) of section 259(1), and that Parliament cannot have intended that the same word should have a different meaning in two paragraphs of the same subsection. He also argues that in setting up the Port Health Authority it must have been intended that it would have these powers in relation to the waters within its jurisdiction.
4. We have therefore looked in detail at the statutory history of both these provisions and at other uses of the term 'watercourse' in the same legislation. We have also been referred to the common law and opinio juris. It may be helpful, therefore, to begin at the beginning.
5. The definition of a 'watercourse' in the Shorter Oxford English Dictionary on Historical Principles is:
'1510 1. A stream of water, a river or brook; also an artificial channel for the conveyance of water. 2. The bed or channel of a river or stream 1566.'
6. At common law there were important distinctions between the rights of landowners to surface water, percolating water and water flowing in a known and defined channel or 'watercourse'. But there was also an important distinction between tidal and non-tidal waters. Angell, in A Treatise on the Law of Watercourses (3rd edition, published by Little and Brown of Boston, Massachusetts, 1840) explains:
'Property in a watercourse, is derived from the ownership of the land through which it passes; it being an established rule of law, that a grant of "land" conveys to the grantee, not only the "field", or the "meadow", but all running streams of water, (not tide water) whose natural course is over the surface of such field or meadow.' [The reference is to 1 Co Litt 4.]
Further, where there are two riparian owners directly opposite each other (p 4):
' . . . grants of land bounded on rivers and streams, above tide water, extend usque filum acquae. The rule is indeed as well settled in this country as it has been for centuries in England. . . . Thus, a grant of land by the State of New York, bounded on the margin of a river, above tide water, was regarded as vesting in the grantee the right of soil to the thread of the river.'
Below tide water, the rule was different (p 204):
'According to the technical and legal definition of a navigable river, it does not extend above the flowing of the tide. The soil under a river, navigable, in this sense of the term, does not belong to the riparian owners, but to the public. In adjusting controversies between individuals and the public, as to the right of soil covered with water, the mode resorted to in England, and, in most cases, in this country, has been by ascertaining the extent of the flowing of the tide.'
For that purpose, therefore, the concept of a watercourse was capable of encompassing anything from a beck or small stream to a sizeable river but did not, it appears, extend to tidal waters (see also Halsbury's Laws of England, vol 49(2), paras 98 to 107). Hence Wisdom, in his Law of Rivers and Watercourses (4th edition, Shaw, London, 1979, p 2) states that 'Angell defined a watercourse as a body of water issuing ex iure [naturae] from the earth, and by the same law pursuing a certain direction in a defined channel, until it found a confluence with tidal water.'.This did not, of course, mean that the riparian owner could do what he liked with the water. Reverting to Angell (p 11):
'In the language of one of the ancient cases in England, "A watercourse begins ex iure naturae, and having taken a certain course naturally, cannot be diverted" [the reference is to Shury v Piggot, Bulstrode's Rep 339] The language of the old cases also is "Aqua currit et debit currere;" that is, water flows in its natural course, and should be permitted thus to flow, so that all through whose land it naturally flows, may enjoy the privilege of using it. The property in the water therefore, by virtue of the riparian ownership, is in its nature usu-fructuary, and consists not so much of the fluid itself, as the advantage of its impetus.' [The reference is to Williams v Moreland, 2 B & Cress 510.]
7. However Wisdom (4th edition, 1979, at p 4) also stated that a watercourse included a tidal river. As Howarth points out in the most recent edition of Wisdom on Watercourses (5th edition, Shaw, 1992, at p 6), the authority quoted relates to the construction of a private Act of Parliament. In Somersetshire Drainage Commissioners v Corporation of Bridgwater (1899) 81 Law Times 729, the House of Lords was concerned with a dispute in many ways similar to the present one but with the roles reversed. The urban sanitary authority wished to replace the existing sewage outfalls into the tidal River Parrett with a new one. The drainage commissioners wished to prevent them. Section 134 of the Somersetshire Drainage Act 1877 prohibited anyone from causing filthy or unwholesome water to flow into any watercourse within the jurisdiction of the commissioners without their consent. Lord MacNaghten was prepared to assume 'without meaning to decide the point' that the River Parrett at Bridgwater, 'though an arm of the sea' was a watercourse for that purpose (p 730) but found for the Corporation on the ground that the section did not apply to anyone with an existing right to do this. Lord Davey would not even discuss the point (p 732). It is difficult therefore to regard the case as authority for the proposition for which it is cited.
8. The case before us also concerns the construction of the term in the context of legislation dating back to the mass of 19th century legislation aimed at protecting the public health by procuring proper sanitation, drainage, and water supply and preventing a variety of nuisances. The Public Health Act 1848 was designed to 'improve the sanitary Condition of Towns and populous Places' by putting their water supply and sewerage, drainage, cleansing and paving under 'one and the same local Management and Control'. It provided for the setting up of local Boards of Health for this purpose. They took over the existing sewerage systems and had the duty of making such sewers as were necessary for effectually draining their district. No new houses were to be built without proper drains and sanitation facilities. They had various powers to perform or require works to remedy any 'drain, watercloset, privy, cesspool or ashpit' which was a nuisance or injurious to health (section 54), and 'all Ponds, Pools, open Ditches, Sewers, Drains and Places containing or used for the collection of any drainage, filth, water, matter or thing of an offensive nature, or likely to be prejudicial to health' (section 58, under the shoulder note 'Nuisances'). However, the 1848 Act was not mandatory: it only applied in those places where it had been brought into effect.
9. The origin of the provision with which we are concerned lies in section 8 of the Nuisances Removal and Diseases Prevention Act 1855. This consolidated and amended provisions which had earlier been found in the Nuisances Removal and Diseases Prevention Act of 1848, which renewed and amended an earlier temporary Act of 1846 and was itself amended in 1849. These were of national application. Responsibility under the 1855 Act was given to the new local Boards of Health wherever they existed and to a descending hierarchy of other local authorities where they did not. In section 8, the word 'nuisance' was defined to include
'Any Premises in such a State as to be a Nuisance or injurious to Health;
Any Pool, Ditch, Gutter, Watercourse, Privy, Urinal, Cesspool, Drain, or Ashpit so foul as to be a Nuisance or injurious to Health [emphasis supplied];
Any Animal so kept as to be a Nuisance or injurious to Health;
Any Accumulation or Deposit which is a Nuisance or injurious to Health.'
The enforcement mechanism under sections 12 and 13 was a complaint to the local Justices. They could require an offending watercourse etc to be drained, emptied, cleansed, filled up or removed, or a substitute to be provided, or such other works as necessary to abate the nuisance. Mr Gordon accepts that these provisions are not apt to refer to a large body of water.
10. As Professor Hughes, in Environmental Law (3rd edition, 1996, p 4) recounts:
'Throughout the 1850s and 60s public health administration was not properly centrally directed, while the various local government bodies that littered the map reacted, often in a less than interested fashion, to the responsibilities increasingly laid upon them. Between 1848 and 1872 a multiplicity of enactment covering issues such as nuisances, sewage and sanitation, vaccination, diseases, general public health and common lodging houses were put on the statue book. The essential basics of modern public health law were created in this period, but, sadly, in a confused tangled manner which was beyond the comprehension even of trained minds'.
Hence the Royal Sanitary Commission was set up in 1868 and its report of 1872 led to the comprehensive Public Health Act of 1875.
11. Many provisions which had begun their life in earlier statutes found their way into the 1875 Act. Part III was headed 'Sanitary Provisions' and brought together, among other things, the provisions about sewerage and drainage and water supply which stemmed from the Public Health Act 1848 and the provisions about nuisances which stemmed from the Nuisances Removal and Diseases Prevention Act 1855. There were several references to watercourses in Part III, and some of them were clearly capable of referring to large bodies of water.
12. Section 17 prohibited local authorities in effect from discharging sewage into 'any natural stream or watercourse, or into any canal, pond or lake' unless it had been treated so that it would not deteriorate the water quality. This serves to remind us that in those days the local sanitary authorities (as they were now called) might themselves be polluters, as they had to provide the sewers necessary to drain their areas and had to do something with the sewage thus collected. Section 48 (repeating in almost identical terms a provision first found in section 31 of the Local Government Act 1858) provided a procedure for neighbouring local authorities to resolve disputes about cleaning up a 'watercourse or open ditch' lying near to or forming the boundary between them.
13. Section 69, in the division of Part III which dealt with water supply, gave power to local sanitary authorities, with the consent of the Attorney General, to take proceedings 'for the purpose of protecting any watercourse within their jurisdiction from pollutions arising from sewage either within or without their district.' It is worthwhile tracing this provision forward, as it formed part of a stream of legislation dealing with water pollution which did not find its way into the Public Health Act 1936. Section 69 was repealed and replaced by the Rivers (Prevention of Pollution) Act 1951 (which has itself since been replaced by other legislation). The Rivers Pollution Prevention Act of 1876 had created various water pollution offences usually enforced by the local authorities. The River Boards Act 1948 created River Boards, based around river catchments. The 1951 Act retained the old offences but provided for a system of consents to all new or altered discharges into any 'stream'. 'Stream' included 'any river, stream, watercourse or inland water' but did not include any tidal waters without a specific ministerial order (s 11(1)). The Clean Rivers (Estuaries and Tidal Waters) Act 1960 extended this jurisdiction to specified estuaries and tidal waters including Carrick Roads.
14. These water pollution functions passed to the pre-privatisation water authorities in 1974, as did the sewerage and water supply functions of local authorities. In 1989, upon water privatisation, the sewerage and water supply functions remained with the privatised water companies. The control of pollution functions were taken over by the National Rivers Authority and consolidated in the Water Resources Act 1991. Under the Environment Act 1995 they have now been taken over by the Environment Agency. The principal aim of the Agency is 'so to protect and enhance the environment, taken as a whole, as to make the contribution [which the Minister considers appropriate] towards attaining the objective of sustainable development.' (1995 Act, s 4(1)) It also has duties to conserve, redistribute and augment water resources, and to secure their proper use (s 6(2), and to promote the conservation of the natural beauty and amenity of inland and coastal waters, the conservation of aquatic flora and fauna, and the use of such waters for recreational purposes (s 6(1)). Under section 84 of the Water Resources Act 1991, the Agency must exercise its water pollution powers to achieve water quality objectives in controlled waters. Controlled waters cover relevant territorial waters, coastal waters, inland freshwaters and ground waters (s 104(1)). There are water quality objectives for designated bathing beaches (but not for all waters which are used for bathing and water sports). The Agency has no specific duties in relation to public health, nor does it have the necessary medical expertise to provide advice on potential health risks. Section 100C of the Water Resources Act 1991 makes it clear that a discharge consent does not affect the powers and duties of other bodies.
15. Returning, therefore, to the powers and duties of local sanitary authorities under the Public Health Act 1875, sections 91 to 111 dealt with 'Nuisances'. Section 91 contained a list of eight items which were 'deemed to be nuisances liable to be dealt with summarily in the manner provided by this Act'. Items 1 to 4 repeated almost word for word the four items listed in section 8 of the 1855 Act (see paragraph 9 above). Item 91.2 read
'Any pool ditch gutter watercourse privy urinal cesspool drain or ashpit so foul or in such a state as to be a nuisance or injurious to health.' [Emphasis supplied]
Others in the list were derived from section 19 of the Public Health Act 1866. Later sections set out the procedure for inspection, investigating complaints, and serving abatement notices, followed by a complaint to the local magistrates' court if there was a default.
16. Most of the 1875 Act was consolidated with related legislation in the Public Health Act 1936. This was clearly a consolidation measure, albeit with certain amendments, but only those which were designed to facilitate consolidation (see Hansard (HC), 16 July 1936, cols 2394-5). The main provisions relating to nuisances were contained in sections 91 to 100. Section 92(1) provided a list of matters which may be dealt with summarily and were referred to as 'statutory nuisances'. Paragraphs (a), (b) and (c) repeated items 1, 3 and 4 in section 91 of the 1875 Act. Paragraph (f) covered 'any other matter declared by any provision of this Act to be a statutory nuisance'.
17. One such provision was section 259(1). This was collected into Part XI of the Act, headed 'Miscellaneous', along with a ragbag of provisions under the sub-heading 'Watercourses, ditches, ponds &c'. The draftsman had obviously found it convenient to deal with certain provisions by reference to their subject matter rather than their legal purpose or technique. Thus we find the old provision about cleansing boundary watercourses, first found in section 31 of the 1858 Act and then in section 48 of the 1875 Act, repeated in section 261 of the 1936 Act. A provision dating back to section 47(1) of the Public Health (Amendment) Act 1890, making it an offence (but not a statutory nuisance) to throw rubbish into any 'river, stream or watercourse' found its way into section 259(2).
18. Section 259(1), as seen in paragraph 2 above, provides for two different statutory nuisances. Paragraph (a) repeats the old section 91.2 of the 1875 Act (see paragraph 15), itself derived from section 8 of the 1855 Act (see paragraph 9), but not in identical terms (see paragraph 20 below). Paragraph (b) has its origins in section 54(1) of the Public Health Act 1925, although it is not in exactly the same terms. Section 54(1) provided that choked or silted up parts of watercourses which were likely to cause overflows or 'hinder the usual effectual drainage of water through the same' should be deemed to be a nuisance for the purpose of section 91 of the 1875 Act 'notwithstanding that the same may not be injurious to health.' It is difficult to see what those last words were doing there unless the intention was to make this a specific example of a watercourse in such a state as to be a nuisance under section 91.2. However, the draftsman added what was then a proviso, excluding those parts of such watercourses as were used for the carriage of goods by water. Obviously, he must have contemplated that a watercourse could include a sizeable river or canal.
19. The construction of 'watercourse' as it now appears in section 259(1)(a) of the 1936 Act is thus no easy matter. Although its history can be traced back to section 8 of the 1855 Act, that does not necessarily mean that it has retained exactly the same meaning throughout. It is clearly a word which is capable of bearing different meanings according to the context and purpose of the provision in which it appears. The 1855 provision referred to any pool etc 'so foul as to be a Nuisance or injurious to health' [emphasis supplied]. Whatever else might make a place foul it clearly contemplated that human waste might do so. This is reinforced by the list which covered exactly the sort of places where human waste might accumulate in such a way. It is therefore extremely unlikely that at that stage it was intended to include watercourses into which it was generally thought proper to discharge such matter. By no stretch of the imagination could it have included an estuary such as Carrick Roads or indeed any tidal waters. As Lord MacNaghten said in Somersetshire Drainage Commissioners v Corporation of Bridgwater (1899) 81 Law Times 729, at 731:
'Ever since the attention of the Legislature was first directed to the very difficult subject of the disposal of sewage, it has always been considered, at any rate up to very recent times, that the most proper mode of getting rid of town sewage was to pour it into a tidal or public river.'
He also pointed out that the Rivers Pollution Prevention Act 1876 (see paragraph 13 above) dealt with the matter 'as you would expect, cautiously and tentatively.' It did not apply to any part of any tidal waters unless brought within the Act by order of the Local Government Board after a local inquiry.
20. But by 1936 both the provision and the surrounding circumstances had changed. First, the 1875 Act had referred to a pool etc which was 'so foul or in such a state' [emphasis supplied] thus preserving the connection with foul waste but widening it to encompass other causes of nuisance or injury to health. Secondly, in the 1936 Act the word 'pool' was added at the beginning of the list and the words 'privy urinal cesspool drain or ashpit' were dropped. Cesspools and drains turned up in section 39(1), and 'closets' (which include privies) in section 44(1), not as statutory nuisances but remedied in a very similar way. The effect is to make the 1936 list look very different from the 1855 and 1875 lists, giving the impression that the scope of the provision is now broader than it had been before. That impression is reinforced by the addition of paragraph (b), which clearly assumes that 'watercourse' can refer to a much larger body of water. It is of course possible for the same word to mean different things in the same statute, but it is improbable that it means different things in the same subsection, especially when a deliberate (and quite unnecessary) decision has been taken to put them together.
21. Furthermore, applying the ejusdem generis principle to the provision as it now stands, in the light of the statutory history, one can see that, whatever else it is concerned with, it has always been concerned with protecting the public from threats to health posed by accumulations of human waste. What was an acceptable place of discharge in 1855 was no longer so in 1936. It may very well be, therefore, that the meaning of 'watercourse' in section 259(1)(a) of the 1936 Act is wider than it was in 1855 or 1875. But it cannot be insignificant that pollution control was not fully established over tidal waters such as Carrick Roads until much later. It cannot have been contemplated in 1936 that the Port Health Authority could take action under this legislation against the local health authorities who were responsible for the old outfalls. In many places the responsible authorities would be one and the same.
22. Since then, of course, things have moved on again. Control is now exercised over tidal waters. Recognition that sewage discharged into such waters may indeed cause health hazards has grown. Their use not only for sailing but also for contact water sports has also grown. Local health authorities are no longer responsible for receiving and disposing of sewage. They not only can but must use their statutory nuisance powers to protect their beaches from accumulations or deposits which are prejudicial to health or a nuisance within the meaning of section 79(1)(e) of the Environmental Protection Act 1990: see R v Carrick District Council ex parte Shelley [1996] Env LR 273. Is it therefore possible to hold that the meaning of the term is now broader than it was in 1936? To do so would of course involve applying the principles stated by Lord Wilberforce in Royal College of Nursing v DHSS [1981] AC 800, at p 822, and recently applied by a majority of their lordships to the term 'family' in the Rent Act 1977 in Fitzpatrick v Sterling Housing Association Ltd [1999] 3 WLR 1113.
23. In my view it is not possible to do so. One reason is that the social purpose of protecting such waters from the health hazards arising from sewage pollution can be achieved in other ways. Although the Environment Agency has a wider brief it could have refused consent to this new discharge. Another is that by no linguistic contortions can a 'watercourse' be made to include the open sea. Yet the social purpose now sought to be achieved would require jurisdiction over discharges into the open sea as well as estuaries such as Carrick Roads. If Carricks Roads is a watercourse, the Port Health Authority would have power to control nuisances arising from the new Black Rock and the old Middle Point discharges which are within the estuary but not from the old Pennance Point discharge which is into Falmouth Bay.
24. This brings me to Mr Gordon's final argument. This is a port health authority, successor to the port sanitary authority first set up permanently in 1888 by Order made under section 287 of the Public Health Act 1975. This gave the authority jurisdiction over the port of Truro and as much of the port of Falmouth as lay within a line drawn from Pennance Point (in the west) to Zoze Point (in the east). Most of the waters within this line were in the Carrick Roads estuary but some were in Falmouth Bay. The jurisdiction was extended in 1893 to a line drawn from Zoze Point (in the east) to Dennis Head (in the west), thus covering more of Falmouth Bay and some of the Helford River. (In 1988 it was extended further west and out to sea.) The 1888 authority was given various functions of an urban sanitary authority, including those under sections 91 to 111 of the 1875 Act relating to nuisances. Mr Gordon therefore argues that 'watercourse' in section 91.2 must even then have included Carrick Roads for why else was the authority given these powers? One answer to that is that section 110 of the 1875 Act (repeated from section 32 of the Public Health Act 1866) provided that ships and vessels lying within an authority's jurisdiction were to be treated as houses for the purpose of the Act's provisions as to nuisances. Another answer is that their jurisdiction extended over 'docks, basins, harbours, creeks, rivers, channels, reads, bays and streams' belonging to the ports in question. Some of these might well be watercourses and some might give rise to other forms of statutory nuisance. Above all, however, from the very beginning it appears that this authority has had jurisdiction over waters which were beyond the mouth of the estuary and cannot ever have been a 'watercourse'. Yet it was thought worthwhile creating a port sanitary authority with jurisdiction over them. This argument cannot therefore persuade me that Carrick Roads is a watercourse for the purpose of section 259(1)(a) of the Public Health Act 1936.
25. For those reasons, I agree with Harrison J that Carrick Roads is not a watercourse and that the abatement notice was invalid. I would therefore dismiss this appeal.
Specification of works
26. However, were it not for that conclusion I would have agreed with Simon Brown LJ and Pill LJ that the appeal should be allowed on the other issues raised. I wish only to add a few words on the issue of specification of works in an abatement notice because the conclusion we have reached differs from that of the Divisional Court in Kirklees Metropolitan Council v Field & Others [1998] Env LR 337.
27. In that case, and in the earlier case of Sterling Homes v Birmingham City Council [1996] Env LR 121, the local authorities concerned placed reliance upon the difference in wording between section 80(1) of the Environmental Protection Act 1990 and the previous procedure in section 93 of the Public Health Act 1936 (itself the successor to the Public Health Act 1875). This required that the local authority serve a notice upon the appropriate person ' . . . requiring him to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose.' In Kirklees, Brooke LJ was of the view that the change was simply tidying up to reflect the earlier authorities which had distinguished between cases the nuisance could be abated without works (as in Millard v Wastall [1898] 1 QB 342) and cases where works were required (as in R v Wheatley (1885) 16 QBD 34).
28. R v Wheatley has since been taken as the origin of the rule that if works or steps are required they must be specified. It is interesting to note that Mathew J in that case was concerned with the content of the justices' order made on a local authority's complaint of non-compliance with a notice rather than the notice as such:
'Now who is to say what works and things are necessary? The justices before whom the question is brought and all the facts of the case appear. Looking at the intention of the legislature as shewn by the language of the Act, I think that the sensible interpretation is that the justices, and not the owner or the occupier should decide what is necessary.'
That reasoning is more persuasive when one gets to the stage of an inter partes hearing in court: there may be an argument about what is required and the justices should resolve it.
29. However, the situation under the 1990 Act is different in several ways. It is derived from the equivalent provision dealing with noise nuisance in the Control of Pollution Act 1974. It is clear that in passing the 1990 Act Parliament intended to streamline the statutory nuisance procedure by bringing it into line with the noise nuisance procedure. First, section 80(1) gives the local authority a choice. Secondly, the procedure cuts out the middle stage of applying to the justices for a nuisance order. Section 80(4) puts the recipient of the notice at more immediate risk of prosecution if the notice is not complied with. Thirdly, however, section 80(3) enables the recipient immediately to appeal to a magistrates' court against the notice.
30. These are material changes to the enforcement regime. Nothing in them is inconsistent with the view expressed by Simon Brown LJ that the local authority may, if it wishes, leave the choice of means of abatement to the perpetrator, and need only specify the works required if it chooses to require them. Indeed that view will often be in the interests, not only of the local authority, but also of the perpetrator. It will certainly contribute to the simplification and streamlining of the procedure as Parliament intended.
Permission to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)