ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
MRS JUSTICE THORNTON
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DINGEMANS
and
LADY JUSTICE ELISABETH LAING
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THE MANCHESTER SHIP CANAL COMPANY LIMITED |
Appellant |
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- and - |
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(1) SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS |
First Respondent |
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(2) UNITED UTILITIES WATER LIMITED |
Second Respondent |
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Guy Williams KC and Sasha Blackmore KC (instructed by Government Legal Department) for the First Respondent
James Strachan KC and Jonathan Darby (instructed by Pinsent Masons LLP) for the Second Respondent
Hearing date: 1 May 2025
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Crown Copyright ©
Lord Justice Dingemans:
Introduction
Factual background
The discharge proviso
"Any right to discharge "water soil and effluent" under this Order shall be subject to the following provisions of the Water Industry Act 1991 (or any re-enactment, replacement or amendment of those provisions), which shall apply as conditions to which the right to discharge is subject in the like manner as if the right arose impliedly under section 116 of the Water Industry Act 1991:
a. Section 117(5)(a) and (b)
b. Section 117(6)
c. Section 186(1),(3),(6) and (7)
d. Schedule 12 paragraph 4".
"(5) Nothing in sections 102 to 109 above or in sections 111 to 116 above shall be construed as authorising a sewerage undertaker to construct or use any public or other sewer, or any drain or outfall—
(a) in contravention of any applicable provision of the Water Resources Act 1991[ or [the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154); or
(b) for the purpose of conveying foul water into any natural or artificial stream, watercourse, canal, pond or lake, without the water having been so treated as not to affect prejudicially the purity and quality of the water in the stream, watercourse, canal, pond or lake."
"(3) Nothing in the relevant sewerage provisions shall authorise a sewerage undertaker injuriously to affect—
(a) any reservoir, canal, watercourse, river or stream, or any feeder thereof; or
(b) the supply, quality or fall of water contained in, or in any feeder of, any reservoir, canal, watercourse, river or stream,
without the consent of any person who would, apart from this Act, have been entitled by law to prevent, or be relieved against, the injurious affection of, or of the supply, quality or fall of water contained in, that reservoir, canal, watercourse, river, stream or feeder."
The report
The decision
The issues on the appeal
The judgment below
Relevant statutory provisions and provisions of law
"(1) A relevant undertaker may be authorised by the Secretary of State to purchase compulsorily any land anywhere in England and Wales which is required by the undertaker for the purposes of, or in connection with, the carrying out of its functions.
(2) The power of the Secretary of State under subsection (1) above shall include power–
(a) to authorise the acquisition of interests in and rights over land by the creation of new interests and rights…
…
(4) Subject to section 188 below, the Acquisition of Land Act 1981 shall apply to any compulsory purchase under subsection (1) above of any land by a relevant undertaker; and Schedule 3 to the said Act of 1981 shall apply to the compulsory acquisition under that subsection of rights by the creation of new rights."
"(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court.
(2) If any person aggrieved by—
(a) a compulsory purchase order, or
(b) a certificate under Part III of, or Schedule 3 to, this Act,
desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order or certificate he may make an application to the High Court."
"1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
Whether the judge misunderstood MSC's closing submissions to the inspector, meaning that the judge wrongly dismissed MSC's complaints about an infringement of its A1P1 property rights – issue one
Whether as a result of the judge's misunderstanding the judge's formulation of the fair balance was flawed, and there was no compliance with the principle of lawfulness so that there has been an infringement of MSC's A1P1 property rights – issue two
Whether, because of the decision in MSC (No.2), the judge was wrong in finding that the absence of the discharge proviso did not infringe MSC's A1P1 property rights – issue three
Conclusion
Lady Justice Elisabeth Laing:
Lord Justice Males:
'64. Part VI of the Act is concerned with undertakers' powers and works. The powers conferred include powers of compulsory acquisition of rights over land (which could include the right to discharge foul water into a watercourse). …'