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Cite as: [2002] EWHC 229 (Admin)
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MWH & H Ward Estates Ltd., R (on the application of) v Monmouthshire County Council [2002] EWHC 229 (Admin) (20th February, 2002)
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL | ||
B e f o r e :
____________________
| The Queen (on the application of MWH & H Ward Estates Ltd) | Claimant | |
| - and - | ||
| Monmouthshire County Council | Defendant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Findlay and Miss Katie Skerrett (instructed by Sharpe Pritchard) for the Defendant
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- These proceedings arise out of a notice served by Monmouthshire County Council on the claimant on 20 October 2001. The notice, expressed to be given under s.64 of the Land Drainage Act 1991, was a notice of intended entry on the claimant’s land for the purpose of enabling the council to carry out land drainage works. The land in question (“the claimant’s land”) comprises approximately half an acre of agricultural land between Watery Lane, Monmouth and land formerly owned by the claimant but now owned by Robert Hitchins Limited (“the Hitchins land”). It was proposed in essence to construct a drainage channel linking the Hitchins land (where drainage was being constructed in the context of residential development) with a stream running along Watery Lane. The purpose was to alleviate a long standing flooding problem relating to residential properties adjacent to Watery Lane.
- The claimant objected to the proposed works and challenged the lawfulness of the notice. It made a prompt application for permission to apply for judicial review and for an injunction. An interim injunction was granted by Silber J on 26 October, restraining the council from entering the claimant’s land pending an oral hearing of the permission application. On 14 November there was an oral hearing before Scott Baker J, who granted permission but discharged the injunction. The works have since been carried out.
- The question remains whether the notice was lawful and, therefore, whether the council’s entry on the claimant’s land was authorised by statute or was a trespass. There are two main issues: (1) whether the council had power under s.64 to enter the claimant’s land for the construction of new drainage works and (2) whether the council’s action was a disproportionate interference with the claimant’s property rights.
- The relevant parts of the notice read as follows:
- The Environment Agency had given its consent under s.17 of the 1991 Act to the proposed works, described in the consent as “construction of the mitigation water course, 750mm diameter access culvert and side weir”.
- The 1991 Act was an Act to consolidate the enactments relating to internal drainage boards and to the functions of such boards and of local authorities in relation to land drainage, with amendments to give effect to recommendations of the Law Commission. The main provisions of relevance are contained in s.14 and s.64, but there are a number of other provisions that feature in the argument and that it is convenient to mention at this stage.
- Section 14 provides in material part:
- Section 17(1) provides that a local authority shall not carry out or maintain any drainage works authorised by s.14 in connection with any watercourse except with the consent of, and in accordance with any reasonable conditions imposed by, the Environment Agency. There are further detailed provisions concerning the giving and withholding of consent and the carrying out of works without consent in an emergency.
- Section 18 makes provision for schemes for the “drainage of small areas”. Subsection (1) provides:
- By s.62(2), the exercise of the powers conferred on local authorities by ss.14 to 17 are included in the purposes for which the council may be authorised to purchase land compulsorily, “land” being defined by s.72(1) as including "any interests in land … and any easement or right in, to or over land …."
- Section 64 provides in material part:
- It is common ground that s.14 conferred no power of entry in this case, since subs.(4)(a) authorises entry onto land only for the purpose of maintaining existing works whereas the purpose in this case was to construct new works. The council contends, however, that a power to enter was conferred by s.64, under which the notice was given. The first issue is whether that contention is correct.
- Mr Jones for the claimant submits that a right of entry is required to be expressed in plain terms (see Grove v. Eastern Gas Board [1952] 1 KB 77 at 82 per Somervell LJ). Section 64 does not confer such a right. It confers no additional powers of entry beyond those existing elsewhere in the Act. All it does is to provide a mechanism whereby a local authority already possessed of a power of entry may authorise “any person” to exercise the relevant functions of the authority on the conditions laid down; or, as the point was expressed in oral argument, it governs the facilitation of the exercise of powers of entry conferred by other provisions. If s.64 were construed as conferring an independent power of entry, it is submitted, then s.14(4)(a) would be otiose and there would be no purpose in distinguishing between powers granted under s.14(2)(b) and (c) (for which a power of entry is excluded by s.14(4)(a)) and powers granted under s.14(2)(a) (for which a power of entry is granted by s.14(4)(a)). Moreover, to construe s.64 as conferring a power of entry would be to produce a Draconian result. It would give a local authority uninhibited power to carry out new and improvement works on private land without the consent of the owner on seven days’ notice. There would be an interference with the owner’s proprietary interests without any right of appeal or other opportunity to appear before an independent tribunal to challenge the merits of the proposed work, contrary to article 6 of the European Convention on Human Rights. The owner would also be deprived of an interest in land, i.e. an easement to lay and maintain pipes across the land, without compensation, contrary to article 1 of the first protocol of the Convention.
- Mr Jones further submits that the claimant’s construction leaves other, more appropriate options available if new or improvement works are to be carried out on private land. The council can negotiate in the normal way with the owner of the land for the acquisition of relevant rights. Alternatively it can exercise powers under s.18 or s.62 to make a drainage scheme or to acquire land (whether the freehold or an interest or easement) compulsorily, in each case subject to the statutory safeguards governing the exercise of those powers. What would be the point of such powers, asks Mr Jones rhetorically, if the council had a power of entry under s.64 which it could simply exercise on seven days’ notice so as to carry out new or improvement drainage works on private land.
- Mr Findlay for the council relies on the decision of the High Court in Pattinson v. Finningley Internal Drainage Board [1970] 1 All ER 790 as to the scope of the statutory predecessor of s.64; and he submits that the statutory history not only shows Pattinson still to be a relevant authority but also provides general support for the council’s construction of s.64. That construction, it is submitted, gives effect to the plain language of s.64, is consistent with s.14(4)(a) and leaves that provision with a clear sensible statutory purpose, namely to prevent the inference of a general right of entry arising under s.14 whilst conferring such a right for the limited purpose of maintenance works. Where the right of entry under s.64 is relied on for the purpose of constructing new or improvement works, there is still an obligation to pay “full compensation” under s.14(5) for any injury caused by the exercise of the s.14 powers, as well as compensation under s.64(4) for any injury caused by the exercise of the powers of entry themselves. The compensation under s.14(5) will be the difference in value of the property before and after the execution of the works: see Weeks and Weeks v. Thames Water Authority (1979) 39 P&CR 208 and Marriage v. East Norfolk Rivers Catchment Board [1949] 2 All ER 1021 at 1026H and 1029A. Thus the council’s construction of s.64 does not avoid payment of compensation or have the Draconian effect contended for by the claimant. Nor does the existence of the power to make a drainage scheme under s.18 or the power of compulsory purchase under s.62 tell against that construction. Each of those other powers has features that may render it less suitable in a specific case than entry onto the land under s.64 for the purpose of exercising s.14 powers: for example s.18 makes provision for recovery of the costs from the land owners concerned, whilst compulsory purchase is time-consuming and may be unnecessary.
- Before expressing my conclusions it is convenient to examine more closely the statutory history and the decision in Pattinson relied on by Mr Findlay.
- Section 34 of the Land Drainage Act 1930 gave drainage boards powers to maintain, improve and construct drainage works in terms corresponding to those now in s.14 of the 1991 Act. It also included in s.34(4) the equivalent of s.14(4)(a) of the 1991 Act:
- Section 43 of the 1930 Act conferred powers on drainage boards corresponding to those in s.64(1)(b) and (c) of the 1991 Act, whereby any person authorised by a drainage board was empowered to enter and survey land etc and to inspect and to take copies of any Acts of Parliament and other documents in the possession of a drainage board or navigation authority. Section 51 of the 1930 Act conferred on councils of counties and county boroughs the power to authorise any person to enter on and inspect land for the purpose of the exercise of any of their functions under the Act. In ss.59 and 45 respectively of the 1930 Act there were equivalents of s.18 (drainage schemes) and s.62 (compulsory purchase) of the 1991 Act.
- The Land Drainage Act 1961 extended the powers under the 1930 Act. Section 34 of the 1961 Act gave local authorities all the powers (subject to the same restrictions and liabilities) conferred on drainage boards by s.34 of the 1930 Act, thus empowering local authorities to maintain, improve and construct drainage works. Section 40(1) of the 1961 Act conferred a power of entry, the precursor of s.64(1)(a) of the 1991 Act, in these terms:
- The legislation was consolidated in the Land Drainage Act 1976, which contained in ss.17 and 39 respectively (extended by ss.19 and 103 to local authorities, for the purpose of preventing flooding etc.) provisions equivalent to ss.14 and 64 of the 1991 Act.
- I have already referred to the fact that the 1991 Act itself was essentially a further consolidating statute.
- Pattinson was decided in the context of the 1930 and 1961 Acts and prior to the 1976 consolidation. In that case an agent of a drainage board had entered the plaintiffs’ land on notice and carried out certain drainage works on it. The plaintiffs claimed damages for trespass and damage to the land. The first issue was whether on the proper construction of s.34 of the 1930 Act and s.40 of the 1961 Act the board had a right of entry on the plaintiffs’ land for the purpose of exercising its functions under the 1930 Act. Bean J found in favour of the board, holding that s.40(1) of the 1961 Act conferred a right of entry on drainage board officers for the purpose of exercising any function under the 1930 Act, and not merely for the purpose of maintenance. The argument for the plaintiffs was that s.34(4) of the 1930 Act was declaratory of the powers of entry of drainage boards and that any alterations to those powers must be made unequivocally and not merely by inference. The argument was developed by reference to authorities on implied statutory repeal. The argument did not find favour with Bean J. At page 793f he expressed the view that “both Acts are dealing with the general powers of drainage boards”. He concluded:
- In my judgment that conclusion holds good for s.64 of the 1991 Act, which confers an independent right of entry on persons authorised by the authority to enter land for the purpose of exercising any of the authority's functions under the Act, including the construction of new drainage works. My reasons for that conclusion are as follows:
- For those reasons I hold that the council had power to enter the claimant’s land pursuant to s.64 and that its notice under s.64 and the subsequent entry on the land were lawful.
- On the basis that the council did have a power of entry under s.64, Mr Jones contends that the council nonetheless erred in law by failing to act in a proportionate manner in relation to the exercise of that power in the particular circumstances of the case. The submission is that the works in question constituted an interference with the claimant’s rights under article 1 of the first protocol and that the balancing exercise to determine whether such an interference is justified requires a clearly structured and articulated appraisal of the relevant considerations, which was absent in this case.
- The test put forward is drawn from the decision of the Court of Appeal in South Buckinghamshire District Council v. Porter (The Times, 9 November 2001), a case involving the discretionary power of the court to grant an injunction to restrain a breach of planning controls by gypsies in circumstances where the injunction will interfere with the gypsies’ rights under article 8 of the Convention. At paragraph 42 of his judgment, having referred to a number of interests relevant in the particular context, Simon Brown LJ stated:
- That approach, submits Mr Jones, reflects what was said by the Strasbourg court in Hatton & Others v. United Kingdom (2 October 2001), the case on Heathrow night flights. In relation to the possibility of justifying an interference with Convention rights, the court stated that regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole. But it went on (paragraph 97):
- Mr Jones submits that a similar approach is required of a local authority when considering the exercise of its powers under ss.64 and 14. The council failed to carry out such an approach and, moreover, some of the reasons advanced in support of its decision are erroneous. He further submits that the failure to consider the matter in the correct way renders the decision unlawful and that there is no basis on which the court could withhold relief since, on the evidence before it, the conclusion cannot be drawn that the same decision would have been reached if the matter had been approached correctly.
- It is helpful to consider first to consider the history of the matter. Mr Parsons, head of traffic and development at the council's environment directorate, states in his witness statement that to his knowledge the area of land adjoining Watery Lane, including the highway and adjacent residential properties, has been subject to repeated flooding since 1992. When a consortium of landowners, including the claimant, was formulating proposals for residential development on the nearby land, it employed an independent land drainage consultant to investigate and promote solutions to the land drainage constraints. In 1993, after discussions with the National Rivers Authority, the consultant submitted proposals for measures that "will not only mitigate the effect of the development in respect of surface water runoff, they also provide a comprehensive flood alleviation scheme to the majority of the problem reaches of the Watery Lane stream". The proposal included a flood relief channel across the claimant's land. The proposal was amended in late 1994 but the flood relief channel was retained. It appears that if matters had proceeded smoothly the proposal would have been implemented in pursuance of planning obligations to be entered into by the consortium. But differences of view emerged between the members of the consortium and the planning side became fragmented. It is unnecessary to delve into the complications of the planning position. So far as material, however, the position in mid-2001 was that the claimant had sold, or entered into an agreement for sale of, the Hitchins land to developers and planning permission had been granted to enable the development to proceed. One of the conditions was that no development should take place until the drainage channel had been constructed, but the developers were complaining to the council that they were unable to complete the channel owing to the claimant's refusal to allow them entry onto the claimant's land. This comes back to the "ransom" point that I have already mentioned in the context of the compensation provision in s.14(5).
- The planning issues and the relations between the claimant and the developers are important by way of background, but the central point that emerges is that the flood relief channel carried out pursuant to the council's s.64 notice was substantially the same as that previously investigated and proposed by the claimant's consortium.
- Moreover the evidence of Mr Parsons is that the works will bring about a significant benefit to the local community, as envisaged in the discussions that took place in relation to the original proposal. Without the works it was highly likely that existing properties would continue to suffer flooding. At the time of the s.64 notice the works were urgent because the winter recharge period had commenced and the Watery Lane watercourse had already caused local flooding during the season. The urgency was also said to be affected by the need to complete the work before the restricted season in respect of an adjacent badgers' sett, but that has given rise to a separate dispute in the evidence which I do not need to consider for present purposes.
- In the light of that history and the evidence of Mr Parsons, I reject the submission that the council should have done more by way of analysis of the extent of risk of flooding and alternative means of dealing with it. It is plain that the proposal was the result of detailed consideration dating back many years and in my judgment there was a perfectly sound basis for carrying out the works.
- In the claimant's earlier evidence the need for the works appeared to be conceded, but in a witness statement filed a week before the hearing it was disputed that the works would prevent the recurrence of flooding or that this was the only way of doing so. This late attempt to cast doubt on the appropriateness of the drainage channel lacks conviction and merit. Further, Mr Parsons responds to it by additional evidence to the effect that possible alternative methods were considered prior to seeking the consent of the Environment Agency to the proposed works, but it was felt that the only way to ensure certainty of outcome was to follow the method adopted; and that he and the Environment Agency are satisfied that the works will alleviate and mitigate the occurrence of flooding to the designed standard.
- As to the extent of interference with the claimant's right of enjoyment of its property, in my judgment it is not great. The effect of the drainage channel on the claimant's land is no different from that contemplated under the consortium's proposal. Mr Parsons describes this as agricultural land of no particular consequence; and although the suggestion is made by the claimant that it might have development potential, on the evidence this would appear to be no more than a speculative possibility. Moreover, although the channel takes up an area of about a quarter of an acre of land (and more was required for the actual carrying out of the works), it does not constitute a major impediment to future development of the land. It took about half a day’s work to construct it. If it were necessary to move it for the purposes of some specific use of the land, I see no reason why that could not be done relatively easily. Section 23 of the 1991 Act prohibits the obstruction of existing watercourses without the consent of the drainage board concerned, which consent is not to be unreasonably withheld. Although that would prevent the claimant from simply filling in the drainage channel, it is difficult to see how consent could reasonably be withheld if an alternative were proposed, such as diverting the channel around the edge of the field. I accept that that would have a cost attached to it, but the evidence before the court does not support the view that the sums involved would be very large. A further consideration is that the other options that the claimant says ought to have been considered by the council would have involved at least as great an interference with the claimant's rights as the option in fact adopted.
- A further aspect of the claimant's case is that the council should have considered alternative options in order to effect the works. Those originally identified in the claimant's evidence were compulsory purchase of the land, a drainage scheme under s.18 and enforcement of the condition in the final planning permission. The point concerning the condition has fallen away, since the developer appealed against the condition on legal grounds and the council has advised that it will not seek to uphold it.
- Mr Parsons states in his evidence that he decided against use of compulsory purchase powers as the council had no desire or need to own the land and it was unnecessary to deprive the claimant of the land in order to carry out the works. The council does not unnecessarily compulsorily acquire land that would be surplus to that required for use of any permanent infrastructure. Although Mr Parsons is there responding to the case advanced by the claimant, Mr Jones submits for the claimant that the absence of reference to the possibility of acquisition of an interest in or easement over the land, rather than purchase of the freehold, evidences a mistaken understanding of compulsory purchase powers or a failure to consider a relevant option. I do not accept that such an inference can be drawn. In my judgment the council's evidence responds sensibly to the case at that time advanced and shows that the question of compulsory purchase was addressed. In any event I do not see how compulsory purchase could have significantly benefited the claimant. It would have involved a greater interference with the claimant's property rights and, as previously indicated, it would not in my view have led to a significantly different basis of compensation. I do not attach great weight to the fact that it would have brought with it the possibility of an independent inquiry.
- Mr Parsons also states that he considered the exercise of powers under s.18 of the 1991 Act but in view of the limited nature of the works required and the limited effect of the drainage he did not consider it appropriate. These were not major works. The claimant contends that Mr Parsons has misunderstood the purpose of s.18, in that it is the extent of the land to be benefited and not the extent of works themselves that is relevant under s.18: the section places no limits on the type and degree of works that may be undertaken and is indeed designed for small works. That contention, however, is in my view itself based on a misunderstanding of Mr Parsons's earlier evidence, which is clarified in his final witness statement where he states that what he meant by his reference to these not being major works was that the area of land and properties benefiting from the scheme were limited. In my view the claimant's argument falls away in the light of that evidence. I am satisfied that the possibility of a s.18 scheme was properly considered. Nor do I think that a s.18 scheme, which would have had the additional feature of recovery of expenses from the claimant, would have been significantly better for the claimant even if otherwise appropriate. Again I do not attach much weight to the point that a proposal to carry out a s.18 scheme would have given an opportunity for independent examination of the merits of the proposed works.
- In the light of those considerations, and bearing in mind that compensation is payable under s.14(5) for the injury caused to the claimant by the exercise of the council's powers under that section, I have reached the clear conclusion that there is no breach of the claimant's rights under article 1 of the first protocol. In my judgment there was a sufficient consideration of the need for the works, of their effect on the claimant and on others, and of other options. It was unnecessary in the circumstances to carry out any more elaborate appraisal, let alone to embody all relevant considerations in a single document as Mr Jones appeared at one point to submit. This was a relatively limited though beneficial proposal. Its only controversial character appears to have lain in the claimant's wish to hold the developer of the Hitchins land to ransom in negotiating a right for the channel to be constructed across the claimant's land. As I have already indicated, the compensation provision deals sufficiently with that. In any event I reject the submission that the council's action involved a disproportionate interference with the claimant's Convention rights. In my judgment, having regard to all the circumstances of the case, the interference was justified.
- If, contrary to my view, the council ought to have carried out a more detailed and/or structured assessment of the justification for an interference with the claimant's rights, then I would still have withheld relief in this case. In my judgment, on the evidence before the court, there is no real possibility that the council would have reached any different decision had it considered the matter more fully than it did.
- For the reasons given above, the claim for judicial review is dismissed. It is unnecessary for me to consider the further issues that would have arisen, including an application to amend the relief sought, if I had held that the council acted unlawfully in entering on the claimant’s land.
Mr Justice Richards:
The notice
“I GIVE YOU NOTICE in accordance with section 64 of the Land Drainage Act 1964 (“the Act”) that, after the expiration of seven days from service of this Notice, W.R.Parsons – Head of Traffic and Development (being the person duly authorised in writing by Monmouthshire County Council … (“the Council”)) will enter upon the land at Land off Watery Lane, Monmouth, shown hatched blue on the attached plan, marked “site plan”, all of which is owned and occupied by you, for the purpose of enabling the Council to carry out the land drainage works more particularly shown on the drawing accompanying this notice and referred to below.
AND FURTHER TAKE NOTICE that W.R.Parsons will take with him on that land such other persons, including the duly appointed contractors of the Council and its workmen and such plant, machinery and other equipment as may be necessary for that purpose and that the entry will continue until that purpose is satisfied."
An attached drawing shows the works in more detail, identifying the “area required to construct permanent works and for future maintenance”.
Statutory framework
“(1) Subject to … subsection (4) and section 17 below-
(a) every drainage board acting within the internal drainage district for which they are the drainage board; and
(b) every local authority acting either-
(i) for the purpose of carrying out works in pursuance of a scheme under section 18 below; or
(ii) so far as may be necessary for the purpose of preventing flooding or mitigating any damage caused by flooding in their area,
shall have the powers specified in subsection (2) below.
(2) The powers mentioned in subsection (1) above are the powers, otherwise than in connection with a main river or the banks of such a river-
(a) to maintain existing works, that is to say, to cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or drainage work;
(b) to improve any existing works, that is to say, to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work;
(c) to construct new works, that is to say, to make any new watercourse or drainage work or erect any machinery or do any other act (other than an act referred to in paragraph (a) or (b) above) required for the drainage of any land.
….
(4) Nothing in this section-
(a) authorises any person to enter on the land of any person except for the purpose of maintaining existing works; ….
(5) Where injury is sustained by any person by reason of the exercise by a drainage board or local authority of any of their powers under this section, the board or authority shall be liable to make full compensation to the injured person.
(6) In case of dispute, the amount of the compensation payable under subsection (5) above shall be determined by the Lands Tribunal.”
“Where -
(a) the Agency is of the opinion that any land is capable of improvement by drainage works but that the constitution for that purpose of an internal drainage district would not be practicable; or
(b) a local authority … is of that opinion in relation to any land in their area,
the Agency or, as the case may be, that local authority may, in accordance with the provisions of a scheme made by it or them under this section, enter on the land and carry out such drainage works as appear to it or them desirable.
There are detailed provisions as to the making of such a scheme. There is an upper limit, currently £50 per hectare, on the estimated expenses of the carrying out of the works. Expenses incurred by a local authority up to that amount shall be recoverable by the authority from the several owners of the land to which the scheme relates.
“(1) any person authorised by an internal drainage board or local authority, after producing (if so required) a duly authenticated document showing his authority, may at all reasonable times -
(a) enter any land for the purpose of exercising any functions of the board or, as the case may be, any functions under this Act of that authority;
(b) without prejudice to paragraph (a) above, enter and survey any land … and take levels of the land and inspect the condition of any drainage work on it; and
(c) inspect and take copies of any Acts of Parliament, awards or other documents which-
(i) are in the possession of any internal drainage board, local authority or navigation authority;
(ii) relate to the drainage of land; and
(iii) confer any powers or impose any duties on that board or authority.
(2) A person entitled under this section to enter any land-
(a) may take with him such other persons and such equipment as may be necessary ….
(3) Except in an emergency, admission to any land shall not be demanded as of right under this section, unless notice of the intended entry -
(a) has been given to the occupier; and
(b) if the land is used for residential purposes or the demand is for admission with heavy equipment, has been given not less than seven days before the demand is made.
(4) Where injury is sustained by any person by reason of the exercise by an internal drainage board or local authority of any of their powers under this section, the board or authority shall be liable to make full compensation to the injured person.
(5) In case of dispute, the amount of the compensation payable under subsection (4) above shall be determined by the Lands Tribunal.
(6) If any person intentionally obstructs or impedes any person exercising a power conferred by this section, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
….
(8) This section shall be without prejudice to any other enactment conferring powers of entry.”
First issue
“It is hereby declared that nothing in this section authorises any person to enter on the land of any person except for the purpose of maintaining existing works.”
“Without prejudice to any other enactment conferring powers of entry, a person authorised by a drainage board may, after producing, if so required, some duly authenticated documented showing his authority, enter any land at all reasonable times for the purpose of exercising any function of the board under the Act of 1930.”
Section 40 of the 1961 Act also contained additional provisions, including a notice requirement in subs.(3) and a compensation requirement in subs.(4), corresponding to those in s.64 of the 1991 Act.
“Counsel for the plaintiffs acknowledges that, on the interpretation of s.40 that he seeks, a landowner could refuse entry to a drainage board for purposes other than maintenance, however acute the emergency, until the board had gone through the procedure envisaged by s.59 of the 1930 Act, in short, the public inquiry procedure. In my judgment, s.34(4) of the 1930 Act now has to be read in the light of the wording of the 1961 Act and, in particular, s.40 thereof. Subsection (1) of this latter section, I think, gives the right to the drainage board’s officers to enter any land for the purpose of exercising any function under the 1930 Act, and not merely for the purpose of maintenance. It is difficult to give any useful meaning to s.40(3) of the 1961 Act if this is not the true construction of s.40(1). It is argued strenuously on behalf of the plaintiffs that no one can come on their land without their permission, just by the defendant board writing a letter and saying that one of its officials is coming. I am afraid that that is exactly what the defendant board can do. It is another example of the inroad often made into individual rights in the interests of the wider community. In a modern civilised society, there must always be a delicate balance between the right of the individual and the need of the community at large. Authorities who act on behalf of the community are often given powers which so long as they exercise them reasonably, do entitle the authority to encroach, usually with compensation to be paid, on the rights of the individual. In my judgment, the drainage boards are given such a power by s.40 of the 1961 Act.”
i) That is the natural construction of the section. It states in terms that “[a]ny person authorised by … [a] local authority … may at all reasonable times … enter any land for the purpose of exercising any functions under this Act of that authority”. On the ordinary meaning of the words used, they convey a power of entry for the stated purpose, rather than qualifying or facilitating the exercise of powers of entry conferred by other provisions. The right of entry is expressed "in plain terms" (see Grove v. Eastern Gas Board, above).
ii) That the section is intended to confer an independent power of entry rather than to qualify rights of entry conferred by other provisions is supported by subs.(8), which provides that the sanction is to be "without prejudice to any other enactment conferring powers of entry".
iii) Such a construction is consistent with s.14(4)(a) and does not render that provision otiose. By virtue of s.14(4)(a), s.14 is to be read as conferring a power of entry for the purpose of maintaining existing works but not for any other purpose. Any power of entry that might otherwise have been implied for the purpose of improving existing works or constructing new works is excluded. For the limited purpose of maintenance, therefore, reliance can be placed on the power of entry under s.14 itself, which imposes no requirement as to notice. So, for example, a council employee clearing the ditches along a road is empowered, without giving notice or establishing urgency, to enter an adjacent field in order to clear a culvert draining into that ditch. In my view that gives the provision a perfectly intelligible and sensible purpose. In relation to improvement and construction works, however, the council has to rely on its power of entry under s.64 and to comply with the additional conditions there laid down. Again that is intelligible and sensible.
iv) Nor does the construction render otiose the other powers conferred on the council under the Act. Section 18 is a provision directed specifically to land considered to be “capable of improvement” by drainage works. It requires a statutory scheme and it provides for the apportionment of expenses between, and their recovery from, the owners of the lands to which the scheme relates. The very fact that expenses are recoverable from the land owners gives it an obvious practical utility in circumstances falling within its scope. The existence of a general power of entry under s.64 to carry out works under s.14 cannot possibly be said to deprive it of all purpose. So too the power of compulsory purchase under s.62 would have advantages in some circumstances, as for example in the case of major works where the council wishes to exercise full control over the land. There is no substance in the submission that a power of compulsory purchase would be pointless if councils were empowered by s.64 to enter private land to carry out works under s.14.
v) The statutory history supports my preferred construction of s.64. For example, it seems clear that the powers under s.43 of the 1930 Act to enter and survey land and to take copies of documents were independent powers rather than in some way qualifying the exercise of powers conferred by other provisions. The same must still apply to those powers where they appear in s.64(1)(b) and (c). The power of entry in s.64(1)(a) cannot sensibly be read as having an altogether different character.
vi) That the predecessor of s.64(1)(a) conferred an independent right of entry is established by Pattinson. I reject the claimant’s contention that the reasoning in that case was based upon a doctrine of implied statutory repeal and that the decision was therefore undermined by the retention, in the 1976 consolidating Act, of the equivalents of both s.34(4) of the 1930 Act and s.40(1) of the 1961 Act. The decision was based on the proper construction of the two provisions, in particular giving to s.40(1) its natural meaning as conferring a wide general power of entry on local authorities. The fact that Parliament, after the decision in Pattinson, retained equivalent provisions in the consolidating legislation of 1976 and 1991 is a strong indication that the provisions are intended still to be construed in the same way as they were in Pattinson.
vii) The claimant’s contention that this construction of s.64 would enable the council to enter private land to carry out works without paying compensation is also without substance. Section 14(4) gives a clear entitlement to compensation for any “injury” sustained by the claimant by reason of the council’s exercise of powers under s.14 to construct new drainage works. That is not limited to compensation for physical damage to the land, but includes compensation for diminution in the value of the land. The Lands Tribunal (Sir Douglas Frank QC) in Weeks and Weeks, a case under s.34 of the 1930 Act, considered that “the traditional method of assessment should be applied, namely, the difference in value of the property before and after the execution of the works”. I see no reason to disagree with that approach. It is consistent with the judgments in Marriage v. East Norfolk Rivers Catchment Board, though I do not think those judgments take the matter much further. It also seems to me to be consistent with the approach that would be adopted if powers of compulsory purchase were exercised. In written submissions after the hearing, Mr Jones drew my attention to the commentary on s.34 of the 1930 Act at page 50 of A.S. Wisdom's work on Land Drainage, and to Oakes v. Mersey River Board (1961) 9 P&CR 268. Mr Findlay's response added Glazebrook v. Gwynedd River Board (1963) 15 P&CR and an extract from Bates on Water and Drainage Law to the material before the court. I have considered all that material but it does not alter the conclusion I had provisionally reached, as set out above, and I do not think it necessary to examine it in any further detail here. I should, however, add that if there were any doubt as to the construction of the compensation provision in s.14(4), then I accept Mr Findlay's submission that a construction favourable to the land owner is to be preferred in order to ensure compliance with the Convention in circumstances where the carrying out of the works involves an interference with the land owner’s rights under article 1 of the first protocol. I do not, however, have to decide the precise scope of the compensation provision in relation to the facts of the present case. It suffices that I do not accept that my preferred construction of s.64 has the Draconian effect contended for by the claimant.
viii) In relation to the last point I should mention one particular theme in the submissions for the claimant, which was that my preferred construction of s.64 would effectively deprive the claimant, as land owner, of the right it would otherwise have to negotiate the grant of an interest in the land or an easement over the land for the purposes of construction of the drainage channel. In the present case, it is said, the negotiation would include a ransom element in relation to the development of the Hitchins land, since it is necessary for the purposes of the residential development on the Hitchins land that drainage is provided across the claimant’s land. It seems to me that, in so far as any such “right” (or opportunity) was reflected in the value of the land prior to the works, the carrying out of the works and the consequent loss of the “right” will have resulted in a diminution in the value of the land which should be reflected in any compensation payable under s.14(4); and that in so far as the “right” was not reflected in the value of the land, its loss is not a matter of great substance. In any event the point does not have the persuasive force that Mr Jones sought to attach to it in relation to the proper construction of s.64.
ix) The fact that a land owner has no right of appeal or independent inquiry against the exercise of a local authority’s powers under ss.64 and 14 does not tell against my preferred construction of s.64. Leaving aside a s.18 scheme, the powers can be exercised by a local authority only “so far as may be necessary for the purpose of preventing flooding or mitigating any damage caused by flooding in their area” (s.14(1)(b)). There is nothing unusual about a power of that kind. It is for the authority to form a primary judgment as to what, if any, works are necessary for the stated purpose. It is subject to control by the court in the normal way. Save for a reference to my judgment in R (Kathro) v. Rhondda Cynon Taff County Borough Council [2001] EWHC Admin 527, Mr Jones did not cite any authorities on the scope and application of article 6 of the Convention. But I am not aware of anything in those authorities that would compel the conclusion that the availability of judicial review is insufficient to secure compliance with article 6 in a situation such as this. Unless it would lead to a breach of the claimant’s Convention rights, it does not seem to me that the lack of a right of appeal or independent inquiry could justify a different conclusion from that reached above on the construction of s.64.
x) I should also mention s.138 of the Local Government Act 1972, a copy of which was provided to me by Mr Jones after the hearing. That section confers certain powers on local authorities to take action with respect to emergencies and disasters, but by s.138(3) nothing in the section authorises a local authority to execute any works which local authorities have power to execute under s.14 of the 1991 Act. The only relevance of the provision is that it serves as a reminder that emergency works, including new or improvement works, may be undertaken under s.14; and it would be surprising if (as is inherent in the claimant's case) a local authority did not have power to enter land for that purpose.
Second issue
“I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge”
“The Court would, however, underline that in striking the required balance, States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others …. [The Court] considers that States are required to minimise, as far as possible, the interference with these rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should precede the relevant project.”
Conclusion
MR JUSTICE RICHARDS: I am handing down judgment in this case. The case concerns the powers of entry of a local authority under the Land Drainage Act. I have held that the local authority had the relevant power of entry and that its exercise of the power in the circumstances did not involve a breach of the claimants' rights under the European Convention on Human Rights. PRIVATE
Accordingly, and for the detailed reasons given in the judgment, I dismiss the application for judicial review.
MISS SKERRETT: My Lord, I appear on behalf of Monmouthshire County Council. On the basis of your judgment, my Lord, we will be applying for our costs in this matter, subject to detailed assessment. The reason for that being you have found conclusively in favour of the defendant, both on the statutory construction point and the human rights issue. On that basis we are seeking our costs, my Lord.
MR JUSTICE RICHARDS: Thank you.
MR JONES: My Lord, I do not resist the principle of costs, save only one limited respect. Your Lordship will have seen in the bundle that there was an oral permission hearing....
MR JUSTICE RICHARDS: Yes.
MR JONES: ....before Scott Baker J, and that was also the return date of the interim injunction granted by Silber J.
MR JUSTICE RICHARDS: He discharged the injunction.
MR JONES: He discharged the injunction. There were two issues before Scott Baker J: one whether permission should be granted and Mr Findley appeared for the local authority to argue that there was no arguable case; and the second issue was whether the injunction should remain in place. The result, as your Lordship no doubt appreciates, was the injunction was discharged but permission was granted. My Lord, I simply say this: your Lordship has discretion now to look at that hearing because the council asked for those costs to be reserved and for it specifically not to be costs in the case. Your Lordship, in my submission, should look and see there were two main issues. One the county won on and one it lost on, and in those circumstances the appropriate order in respect of just the costs of the permission hearing would be to let each side bear its own costs.
MR JUSTICE RICHARDS: It lost in the sense that permission was granted?
MR JONES: Permission was granted, but the county turned up to oppose permission and argue that permission should not be granted. The county did not turn up and say, "Look, we do not contest whether it is arguable, but we are just here to deal with the return date of the injunction." It was a full oral hearing on both matters.
MR JUSTICE RICHARDS: I see.
I will order the claimants to pay the defendant's costs, to be subject to detailed assessment if not agreed. I make no exception from that in relation to the costs of the permission hearing. It seems to me that given that although permission was granted, the defendant succeeded in resisting the continuation of interim injunction at that hearing, and that in the event the claim for judicial review has been lost, there is no sufficient basis for depriving the defendant of any part of its costs in relation to that hearing.
Thank you very much. No further application.
MR JONES: My Lord, there are just two matters. I have raised this with my learned friend. Your Lordship will have seen that there was an undertaking in damages given by the claimant in respect of the short period during which the interim injunction applied.
In the circumstances, I understand there is no application before you by the county, no claim to any additional damages having been caused by that period. Your Lordship may recall in any event at the last hearing it was confirmed that I think Robert Hitchins actually paid for the costs of the drainable works in any event.
MR JUSTICE RICHARDS: There was simply a short delay in the carrying out of the drainage works, but they were then carried out before the winter.
MR JONES: That is correct.
MR JUSTICE RICHARDS: And before the flooding that might otherwise have occurred.
MR JONES: That is correct, my Lord. In those circumstances, I would just ask for the undertaking to be formally discharged.
MISS SKERRETT: My Lord, in response to that. We have not made an application for damages because clearly we were awaiting the outcome of these proceedings and at this stage we do not have instructions about whether or not we are going to be making such an application. We are not saying we are going to, we just do not have instructions at this point. So we would submit the best way to deal with it, my Lord, is simply liberty to apply rather than discharging that undertaking.
MR JUSTICE RICHARDS: Yes.
MR JONES: My Lord, in respect of that, in my submission it is not open to the county to come here and say, "We did not know the outcome of the judgment." There was clearly two results: one I would be successful and the other the county would be successful. Since the undertaking was given there has been plenty of time for the county to make an assessment of its position, in the same way the ordinary procedure, my Lord, would be on a one day hearing in respect of costs that both sides would come with a schedule of costs. Your Lordship will be familiar with the requirements for summary assessment of costs. My Lord, I would have some submissions to make on the principle of the undertaking in damages, not least because Robert Hitchins paid for the works; but secondly, also that the county did not indicate prior to the grant of the injunction that there was any particular need for speed other than they wanted just to get on with it. So there was no mention at all of the need to get on with it before winter----
MR JUSTICE RICHARDS: Those are all points that would be made if there were an application pursuant to the undertaking.
MR JONES: My Lord, that is right.
MR JUSTICE RICHARDS: Do I not have to think about the interests of the third party as well, because the undertaking was for the benefit not just of the council but also for anybody else who might be affected by the delay, including Hitchins.
MR JONES: The undertaking does not extend to third parties.
MR JUSTICE RICHARDS: Does it not?
MR JONES: No, it is only to the defendant. There has been no application from the third party for a variation of that undertaking.
MR JUSTICE RICHARDS: It in terms limited to....
MR JONES: My Lord yes.
MR JUSTICE RICHARDS: ....paying the defendant.
MR JONES: The undertaking as ordered by Silber J is restricted to the defendant. Your Lordship will find the order in the main bundle at page 20. It is the first line of the undertaking, the applicant giving an undertaking to pay the defendant.
MR JUSTICE RICHARDS: Yes. Thank you.
MR JONES: My Lord, the interested party, as your Lordship will see from its letter that it wrote, it has written to the court following the claim and your Lordship will have recalled that from the hearing, has made no indication that it wishes to see that undertaking varied or that it had suffered any damages.
MR JUSTICE RICHARDS: Thank you.
I take the view that if the council had any claim under the cross-undertaking in damages it ought to have been raised today. It seems highly improbable that they would have any claim in all the circumstances. I am going to discharge the undertaking.
MR JONES: My Lord, I have a last application, I can make it very shortly. My Lord I apply for permission to appeal. My Lord, unless your Lordship wants elaboration, I simply rely on the points that I put before your Lordship and which your Lordship found against me on. But nonetheless, in my submission, particularly in respect of two aspects of the human rights, on statutory construction and also on the extent to which, when considering proportionality, the right to an independent appeal process should influence those decisions are matters of importance.
MR JUSTICE RICHARDS: Yes I see. Thank you.
I can deal with the application with similar economy. Permission refused. In my judgment, there is no real prospect of success on an appeal and no other circumstances that would make it appropriate to grant permission. You will have to go to the Court of Appeal to seek it.
MR JONES: My Lord, I am grateful.
MR JUSTICE RICHARDS: Thank you both very much.
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