England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 May 2003

Mr Justice Pitchford:

1. On 19 July 2001 London Borough of Hounslow served on Thames Water Utilities Ltd an abatement notice pursuant to its powers under section 80 Environmental Protection Act 1990 which in its material parts read as follows:

"Take notice that under the provisions of the Environmental Protection Act 1990 Section 79(1)(d), the Council of the London Borough of Hounslow is satisfied that odour amounting to a nuisance has occurred and is likely to recur at the premises known as

Mogden Sewage Treatment Works, Mogden Lane, Isleworth, Middlesex TW7 7LP

Arising from the release of malodorous gases detectable outside the process boundary including Hydrogen Sulphide, mercaptans and all other gases associated with, and as a by-product of, the processing and treatment of sewage.

Now therefore, the Council requires you as the owner, occupier and person responsible for the nuisance within 60 days from the service of this notice, to abate the nuisance and prevent the recurrence of the nuisance."

2. Thames Water appealed against the notice to the Magistrates' Court on several grounds provided by Regulation 2(2) Statutory Nuisance Appeals Regulations 1995, including (a) that the abatement notice was not "justified" by section 80 of the 1990 Act.

3. Thames Water took the preliminary point that Mogden Sewage Treatment Works of which they were the undoubted occupiers did not constitute premises within the meaning of section 79(1)(d) of the 1990 Act.

4. The preliminary hearing took place before District Judge Day sitting at Hounslow on 13 and 14 May 2002. He accepted the submissions made on behalf of Thames Water and quashed the notice. In so doing the District Judge adopted the reasoning of District Judge Abelson who, in a similar appeal heard at Liverpool City Magistrates Court, reached the same conclusion.

5. London Borough of Hounslow now appeals the District Judge's order by way of case stated. The question posed for the determination of this court is whether the District Judge was right to hold that sewage works were excluded from the operation of section 79(1)(d) of the Act.

6. The long title to the 1990 Act expresses the legislative purpose to be, among many other things, "…to restate the law defining statutory nuisances and to improve the summary procedures for dealing with them".

7. Section 79 defines, subject to specified exceptions, statutory nuisances. Section 79(1) reads as follows:

"Subject to subsections [(1A)] to [(6A)] below, the following matters constitute "statutory nuisances" for the purposes of the Part, that is to say---

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;

(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;

(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;

(e) any accumulation or deposit which is prejudicial to health or a nuisance;

(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(g) noise emitted from premises so as to be prejudicial to health or a nuisance;

[(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street [or in Scotland, road];]

(h) any other matter declared by any enactment to be a statutory nuisance; 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 nuisance which ought to be dealt with under section 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."

The existence of a statutory nuisance triggers the enforcement powers contained in section 80. By regulation 2(2) Statutory Nuisance (Appeals) Regulations 1995, the person served may appeal the notice on several grounds including "(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". Should summary proceedings alleging breach of the abatement notice follow, by section 80(4) a reasonable excuse constitutes a defence and, by section 80(7), "…it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance".

8. Section 79(1A)-(6A) excludes from the definition of statutory nuisance various specific types and sources of pollution. By subsection (1A) land in a contaminated state is excluded. By subsection (2) premises occupied on behalf of the Crown for the purposes of the armed services or the Secretary of State for Defence, or by a visiting force are excluded from the operation of subsection (1)(b) and (g). Subsection (3) creates exceptions in the case of smoke emission for the purpose of subsection (1)(b). By subsection (4) premises other than private dwellings are excluded from subsection (1)(c). Subsection (5) excludes smoke from railway locomotives from the operation of subsection (1)(d). Subsection (1)(g), by subsection (6), does not apply to noise caused by aircraft other than model aircraft. By subsection (6A), subsection (1)(ga) does not include noise generated by traffic, by the armed forces or by a public demonstration.

9. Returning to subsection (1)(d), by subsection (7):

"…premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing".

10. Produced to the District Judge was a booklet issued by the Respondent describing the process carried out at Mogden Sewage Treatment Works. It informs the reader that every day an average of 500 million litres of waste water, a mixture of domestic and industrial waste and rain, is treated at Mogden in a continuous cycle. The raw sewage arrives at the works through sewers. It is made up of 99% water, the rest being grit and organic matter. The booklet describes seven stages of the process, screening, grit removal, settlement, aeration, sludge treatment and discharge to the river Thames. Thus the business, now privatised, of Thames Water is the collection and treatment of a noxious product for profit.

11. The local authority's case is that the abatement notice was justified by the escape from the sewage treatment works of malodorous gases amounting to a nuisance. Applying ordinary English usage to section 79(1)(d) and (7) it would appear beyond question that the Respondents were carrying on an industrial process on premises. On the face of it the Respondents qualified for the service of an abatement notice.

12. However, the Respondent's case is that section 79 does not apply to sewage treatment works because we are bound to or should follow The Queen v Parlby and others [1889] 22 Q.B. 520, a decision upon the construction of the 1875 predecessor of section 79(1)(a) of the 1990 Act. There is, we have been told, no subsequent decision directly upon the proper construction of section 79(1)(d) or its predecessors. There has been some disagreement among practitioners in the field of environmental protection as to the effect of Parlby and at least one leading commentator considers section 79 does not in general apply to sewage treatment works.

13. Both Mr Tromans, counsel for the Appellant, and Mr Wignall, counsel for the Respondent, have taken us to the legislative history.

14. For a summary of the statutory origin of section 79 I borrow the description by Lord Hoffmann in Birmingham City Council v Oakley [2001] 1 ALL ER 385 at 395:

"Section 79(1)(a) can be traced back to temporary emergency legislation rushed through Parliament in August of the unusually hot summer of 1846, when rumours of cholera and typhoid were rife. The long title of the 1846 Act (9 &10 Vict c 96) said that it was to make provision for 'the more speedy Removal of certain Nuisances'. It gave power to magistrates upon complaint to make abatement orders if two medical practitioners certified the 'filthy and unwholesome Condition of any Dwelling House or other Building, or ... the Accumulation of any offensive or noxious Matter, Refuse, Dung, or Offal, or .... the Existence of any foul or offensive Drain, Privy, or Cesspool' and that the same was 'likely to be prejudicial to the Health of the Occupiers, or of the Persons whose Habitations are in the Neighbourhood'. The 1846 Act was renewed by the Nuisance Removal and Diseases Prevention Act 1848 (11 & 12 Vict c 123) and consolidated with amendments by the Nuisances Removal Act 1855 (18 & 19 Vict c 121). The 1855 Act, by s 8 defined 'nuisance' as, among other things. 'Any Premises in such a State as to be a Nuisance or injurious to Health'. This is substantially the same as the current definition in s 79(1)(a) of the 1990 Act, the precise language of which dates back to the consolidation effected by the Public Health Act 1936."

15. The House, in Oakley, was also concerned with section 79(1)(a). The question was whether the internal location of toilet facilities was capable of causing premises to be in "such a state…as to be prejudicial to health". Parlby was a decision based upon the equivalent provision in section 91 of the 1875 Act. Section 91 read:

"For the purposes of this Act,---

1. Any premises in such a state as to be a nuisance or injurious to health:

2. 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:

3. Any animal so kept as to be a nuisance or injurious to health:

4. Any accumulation or deposit which is a nuisance or injurious to health:

5. Any house or part of a house so overcrowded as to be dangerous or injurious to the health of the inmates, whether or not members of the same family:

6. Any factory, workshop, or workplace (not already under the operation of any general Act for the regulation of factories or bakehouses), not kept in a cleanly state, or not ventilated in such a manner as to render harmless as far as practicable any gases vapours dust or other impurities generated in the course of the work carried on therein that are a nuisance or injurious to health, or so overcrowded while work is carried on as to be dangerous or injurious to the health of those employed therein:

7. Any fireplace or furnace which does not as far as practicable consume the smoke arising from the combustible used therein, and which is used for working engines by steam, or in any mill factory dyehouse brewery bakehouse or gaswork, or in any manufacturing or trade process whatsoever; and

Any chimney (not being the chimney of a private dwelling-house) sending forth black smoke in such quantity as to be a nuisance,

shall be deemed to be nuisances to be dealt with summarily in manner provided by this Act: Provided ----

First. That a penalty shall not be imposed on any person in respect of any accumulation or deposit necessary for the effectual carrying on any business or manufacture if it be proved to the satisfaction of the court that the accumulation or deposit has not been kept longer than is necessary for the purposes of the business or manufacture, and that the best available means have been taken for preventing injury thereby to the public health:

Secondly. That where a person is summoned before any court in respect of a nuisance arising from a fireplace or furnace which does not consume the smoke arising from the combustible used in such fireplace or furnace, the court shall hold that no nuisance is created within the meaning of this Act, and dismiss the complaint, if it is satisfied that such fireplace or furnace is constructed in such manner as to consume as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that such fireplace or furnace has been carefully attended to by the person having the charge thereof."

16. By subsequent sections a local authority was empowered to require abatement of such nuisances and justices to enforce the requirement.

17. In 1936 the Public Health Act consolidated with amendments previous enactments (including the 1875 Act) relating to public health. By section 92 subsection 1:

"(1) Without prejudice to the exercise by a local authority of any other powers vested in them by or under this Act, the following matters may, subject to the provisions of this Part of this Act, be dealt with summarily, and are in this Part of this Act referred to as "statutory nuisances," that is to say:-

(a) any premises in such a state as to be prejudicial to health or a nuisance;

(b) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;

(c) any accumulation or deposit which is prejudicial to health or a nuisance;

(d) any dust or effluvia caused by any trade, business, manufacture or process and being prejudicial to the health of, or a nuisance to, the inhabitants of the neighbourhood;

(e) any factory (not being a factory to which section one of the Factory and Workshop Act 1901, applies) workshop, or workplace, which is not provided with sufficient means of ventilation, or in which sufficient ventilation is not maintained, or which is not kept clean or not kept free from noxious effluvia, or which is so overcrowded while work is carried on as to be prejudicial to the health of those employed therein;

(f) any other matter declared by any provision of this Act to be a statutory nuisance."

18. It is necessary to examine the decision in Parlby with some care. The Public Health Act 1875 gave powers to local authorities to acquire, and make sewers within their districts, imposed a duty to maintain them and required them to purify sewage before discharging it into a watercourse. Section 27 gave to local authorities the power to construct works for the disposal of sewage within their own districts and, subject to agreement and the consent of the Local Government Board, to construct sewage works in adjoining districts. The Compton Gifford urban district was a sanitary district in north Devon which was a local authority for the purposes of section 27. Its local board constructed a drainage system for its own district and, for the purpose of treating and disposing of sewage, created a system of subsidence tanks within the adjoining district of Plympton St. Mary rural sanitary authority. Plympton St. Mary, the Respondent local authority, gave notice to the Compton Gifford Local Sanitary Board under section 94 of the 1875 Act requiring them within 14 days to cease the flow of sewage into their subsidence tanks because the tanks were causing a nuisance by smell within the meaning of section 91.1. The Board disregarded the notice and the local authority obtained a summons returnable before the justices. The justices made an order requiring the Board within 8 months to cease the flow of sewage and to remove the tanks.

19. The minute of the order is to be found in the judgment of Wills J, delivering the judgment of the Queens Bench Divisional Court, at page 522:

" 'Whereas on the 28^th May complaint was made before one of the justice of the peace for the county of Devon that in or on the subsidence tanks and the site thereof situated at Laira, in the district of' the respondents, 'the following nuisance then existed, that is to say a nuisance offensive and injurious to health caused by smells arising from the said subsidence tanks and the contents thereof, and that the said nuisance was caused by the act and default of' the applicants, 'the owners and occupiers of the said premises, and whereas the appellants have duly appeared before us,' &c. 'Now, on proof before us that the nuisance so complained of doth exist on the said premises and that the same is caused by the act or default of' the applicants. 'We, in pursuance of the Public Health Act, 1875, do order' the applicants 'within eight calendar months from the service of this order to discontinue the flow of sewage into the said subsidence tanks, and to remove the said tanks, and to discontinue the deposit of sewage matter in certain pits adjacent to, or near to, and connected with, the said subsidence tanks.' "

20. Counsel for the Respondents argued that since the powers given by section 27 were granted "Provided that no nuisance be created in [their] exercise" the Board forfeited those powers on creation of the nuisance alleged and the justices were entitled to order the removal of the works. Wills J accepted that section 27 had given to the Applicant the power to erect the sewage works but not to create a nuisance. However, he concluded, at page 523, that meant only that there was no statutory authority to create a nuisance. It did not mean that statutory authority to discharge into the sewage works became forfeit upon proof of a nuisance.

21. At page 525 he continued:

"In our opinion the provisions we have stated have no application to sewage works constructed under the powers of s.27; we think the words of s.91 do not include them, and we think they were not meant to include them. It is clear that the expression "premises in such a state as to be a nuisance" has not the wide application claimed for it by the respondents, who say that it is answered by any premises on which a nuisance exists. If that were so the enumeration of, at all events, the several kinds of nuisance specified under heads, 2, 3, 4 and 6, would be unnecessary; we do not attempt to define every class of case to which the first head applies, but we think it is confined to cases in which the premises themselves are decayed, dilapidated, dirty, or out of order, as, for instance, where houses have been inhabited by tenants whose habits and ways of life have rendered them filthy or impregnated with disease, or where foul matter has been allowed to soak into walls or floors, or where they are so dilapidated as to be a source of danger to life and limb.

It is a significant fact that under the second head the various receptacles for running or stagnant water which may be foul stop with drains, which, by the interpretation clause, are not sewers; and to take broader and higher ground, it seems to us incredible that when the legislature had entrusted the local boards with a most difficult and thankless task, in the execution of which there was certain to be, as there has been in fact, a proportion of failures, involving, perhaps, a cost to the district of tens or even hundreds of thousands of pounds, and taxing the utmost resources of mechanical art and engineering skill to set them right, a jurisdiction should be conferred upon two magistrates, with an appeal to a recorder or to a bench of justices at quarter sessions, to substitute their judgment of the mode in which and the cost at which the mischief should be cured for that of the local board and their skilled advisers. It would be still more extraordinary if the legislature had conferred upon two magistrates the power of doing what the justices in the present case have assumed the right to do: viz. to set aside the scheme sanctioned, under parliamentary authority to do so, by the Local Government Board, and to say that the local board shall cease to discharge their sewage at the appointed outfall and in the appointed manner."

And he concluded, at page 528, with these words:

"The truth is that legislation with respect to public bodies, such as the local authorities under the Public Health Act, 1875, is largely founded on the assumption that they will honestly do all that they can to carry out in a proper fashion and with due regard to the rights of others the very important and difficult duties cast upon them. Impossibilities cannot be and are not expected of them. With respect to drainage, success was certain not always to attend their first efforts, and it would have been strange, indeed, if upon their first failure to establish a system which should have no weak point and create no nuisance anywhere, their charter, as it were, should be forfeited, and the views of two magistrates upon a difficult subject, with which they might be absolutely incompetent to deal, could be compulsorily substituted for plans upon which the defendant local authority might have spent hundreds of thousands of pounds."

22. It is clear that when considering the question whether the nuisance alleged was a statutory nuisance within the meaning of section 91, Wills J found that paragraph 1 was not apt to embrace sewage works. What was contemplated by paragraph 1 was a deterioration in the fabric of occupied premises to an extent such that they had become a nuisance, not the treatment of a substance with a view to purifying it. Such was the decision in Parlby adopted by Lord Slynn (at page 390d and 392e) and Lord Clyde (at page 398g-399b) in Oakley.

23. Secondly, the court in Parlby was construing section 91 against the powers granted by section 27 and concluded that the policy of the Act was to exclude from statutory liability boards such as the Applicant, which was carrying out the local authority's bidding pursuant to section 27. Mr. Wignall submits that properly understood the ratio of Parlby is wider than the mere construction of the words used in section 91. He suggests that the policy considerations which the Court engaged to explain the legislative intention behind the 1875 Act apply today just they did in 1889. It is therefore necessary to examine them.

24. First, the Court accepted that the Act permitted individuals to make complaint to the justices. Wills J, at page 526-527, did not accept a legislative intention to empower a private individual to bring a major public sewage system to a halt by establishing that the works created a nuisance. That would have created the very evil which the statute had empowered public authorities to prevent. Second, at page 527, the complaining authority was not without remedy. With the support of the Attorney General an injunction could be sought in proceedings for public nuisance. Third, at page 528, impossibilities were not expected of those charged with the responsibility for public works. It cannot have been the intention of the legislature to deprive them of their powers merely because they were not immediately successful in their efforts to fulfil their duties.

25. It seems to me an important consideration, not expressly stated by Wills J, that the first and second provisos to section 91 could not have provided the Applicant authority with any defence to an allegation of nuisance under paragraph 1 since they applied respectively only to nuisances defined by paragraphs 4 and 7. There was no saving from conviction by the application, as in the modern statute, of a reasonableness test. The effect of the section was that proof of the circumstances required by paragraph 1 would have left the urban district without the means of treating and discharging sewage. It is not difficult to understand the Court's unwillingness to countenance that Parliament intended any such thing.

26. In my judgment, the Court's reading of the policy considerations behind the scheme of the Act amounted to no more than an aid to construction of section 91. The ratio of the decision in Parlby is that paragraph 1 of section 91 of the Public Health Act 1875, the paragraph under which the justices justified their order, was not a provision which embraced all 'premises' and all nuisances arising on such premises, but was intended to catch only those nuisances arising from the decayed state of premises. It is noteworthy that nowhere else in paragraphs 2-7 of section 91 did the word 'premises' appear. If I am wrong in so confining the ratio in Parlby, then it seems to me that the considerations of policy which led the Court to exclude sewage treatment works from the operation of section 91 altogether are limited to the terms of section 91 as they appear in the Act of 1875 and any later consolidation. Policy, social assumptions and conditions change. I would respectfully adopt the approach to interpretation explained by Lord Hoffman when considering the expression 'premises in such a state' in Oakley, at page 396e-f:

"I quite agree that when a statute employs a concept which may change in content with advancing knowledge, technology or social standards, it should be interpreted as it would be currently understood. The content may change but the concept remains the same. The meaning of the statutory language remains unaltered….This doctrine does not mean, however, that one can construe the language of an old statute to mean something conceptually different from what the contemporary evidence shows Parliament must have intended."

27. The Queens Bench Divisional Court in The Vestry of the Palace of Fulham v. The London County Council [1897] 2 QB 76 considered the meaning of section 2(1)(b) Public Health (London) Act 1891 which provided: "Any pool, ditch, gutter, watercourse, cistern, water-closet, earth closet, privy, urinal, cesspool, drain, dung-pit, or ash pit, so foul or in such a state as to be a nuisance or injurious to health…shall be nuisances liable to be dealt with summarily under this Act."

28. The Respondents, London County Council, argued that the 1891 Act was designed to do for London what the 1875 Act (in particular the equivalent provision in section 91.2 of the 1875 Act) had done for country districts. Parlby therefore applied. In short judgments in which Parlby was not cited Day and Lawrance JJ declined to hold that London's public sewer system was caught by the wording of the subsection. Their Lordships agreed that the words used applied to nuisances arising from private sources. Lawrance J expressed the view that in order to construe the subsection as the Respondent contended it would be necessary to read in the word 'sewer'. He thought the word had been omitted deliberately to exclude sewers from the operation of the subsection.

29. Parlby again arose for consideration in The King v. Epping (Waltham Abbey) Justices Ex parte Burlinson [1948] 1 K.B. 79. The issue for the Court was whether a public authority could be summoned to answer the information of a private individual who complained that the authority itself was creating a statutory nuisance under the Public Health Act 1936. The Court, Lord Goddard CJ presiding, held that it could. Finding that Parlby and Fulham Vestry were not cases of much assistance on the issue, Lord Goddard continued at page 87:

"That case [Parlby] seems to me to decide no more than this, that a nuisance alleged to arise from the construction of a sewage system is not one of the statutory nuisances within the sections of the Public Health Act, and that is really the whole of the decision in that case. No doubt there was an offensive smell arising from it, but the court would not hold that main sewers and sewage works of that description fell within the words of the section; they would not hold that it was one of these statutory nuisances in respect of which alone the justices had power to make an abatement order, and they said the case must be decided by the High Court."

Lord Goddard was distinguishing the issue which arose in Parlby from that which arose in Burlinson but he did not engage in consideration of the reasoning which caused the decision in Parlby.

30. Of some importance is the following passage in Lord Goddard's judgment at page 87, that Wills J's acceptance of an individual's right to complain to justices was:

"…what we are holding now, that the local board, as it was in those days, or the urban sanitary authority as it is under the present Act, can be made respondents before the justices for the purpose of this section, provided always that the nuisance in respect of which they are summoned is a statutory nuisance within the terms of the section."

And at page 88:

"If the local authority can be made respondents in a case…I do not think it is any answer to say that the nuisance arises from operation in the course of their carrying out a public duty, or, rather, the work is being carried out under statutory powers, but if in the course of …[it]… a nuisance is thereby caused [by vermin attracted by dumping]…I cannot see any reason why I am compelled to hold that that because those are the facts the justices cannot inquire into it."

31. Mr Wignall submitted that sewage works were, on the authority of Parlby, excluded altogether from the operation of section 79 of the 1990 Act. Major public works were not contemplated. It seems to me that Lord Goddard was by his remarks expressing an important limit upon the policy considerations which lay behind the wider decision in Parlby. It was not authority for the proposition that the performance of a public duty or the exercise of a power to execute public works was enough to absolve the local authority of responsibility. It was liable if it created a statutory nuisance within the meaning of the relevant statutory provision. The issue in each case, it seems to me, is whether the nuisance created is prohibited by the terms of the statute.

32. In East Riding of Yorkshire Council v Yorkshire Water Services Ltd [2000] Env.LR7, Maurice Kay J. considered the meaning of section 79(1)(a) of the 1990 Act and accepted that given the legislative consistency since 1875 there was a presumption of construction, not displaced, that the word "premises" in subsection 1(a) meant the same as it had in 1875. What was contemplated by the word in context was a building. It could not include a sewer.

33. In Maunsell v. Olins [1975] 1 All E.R. 16 at page 19 Viscount Dilhorne had observed:

" 'Premises' is an ordinary word of the English language which takes colour and content from the context in which it is used…it has, in my opinion, no recognised and established primary meaning. Frequently it is used in relation to structures of one kind or another."

Lord Wilberforce agreed, at page 21, that the word 'premises' should be construed in its context.

34. Counsel sought to argue that since premises tended to include structures of one kind or another, and the construction of a pipeline under the ground created a structure, a sewer pipe was 'premises' for the purpose of section 79(1)(a).

35. Maurice Kay J. considered Parlby, Fulham Vestry and ex parte Burlinson. Relevant to the issue whether the decision in Parlby upon paragraph 1, section 91 of the 1875 Act should be applied to its successor in the 1990 Act was the case of Stirling Homes v Birmingham City Council [1996] Env.LR 121. The court was faced with the construction of section 80(1) of the 1990 Act, giving power to the local authority to require execution of works in abatement of nuisance. The question was whether the local authority was bound to specify the works required if the notice was to be valid. In R v Wheatley [1885] 16 Q.B.D. 34 the court had construed a similar provision in section 94 of the 1875 Act by which justices could require work to be done in enforcement of such a notice. In giving judgment, at page 127, McCullough J. said this:

"[Counsel's] argument is simple: the relevant provision in the 1875 Act was interpreted as requiring such specification: see R v Wheatley [1885] 16 QBD 34; and section 80(1) of the 1990 Act is in essentially the same terms. [The opposing Counsel] ... while accepting that the decision in that case cannot be questioned in this court, wishes to preserve his right to question it should this case go further. In any event, he submits that the 1990 Act should not be interpreted in the same way as was the 1875 Act. The 1990 Act was not a merely consolidating measure, and there was good practical reason for suggesting that Parliament did not in 1990 intend that such specification was essential."

And at page 131 McCullough J. continued:

"The similarity of wording suggests that, if the local authority decides to require works to be executed or other steps to be taken to abate the nuisance, Parliament intended the interpretation that the courts had put on substantially the same provisions in the Act of 1875 (which had been repeated in the Act of 1936) to be perpetuated. Had Parliament intended to repeat the pattern of section 58(1)(b) of the 1974 Act it would, no doubt, have followed the wording of that subsection. I therefore conclude .... that such works and other steps as are required by an abatement notice issued under section 80(1) of the 1990 Act must specify the works, or the other steps as was decided in R v Wheatley."

36. Counsel were agreed, page 120 East Riding of Yorkshire, that, "There is a presumption that wording carried forward from one Act to a subsequent Act will be interpreted in the same way as judicial interpretation which arose in relation to the earlier Act. However, it is only a presumption." Maurice Kay J. found that the decision in Parlby had stood for many years in relation to the earlier Acts and should be presumed to represent the correct interpretation of section 79(1)(a), there being nothing in the context or later authority to displace the presumption. He made clear that his decision was confined to subsection (1)(a) and did not consider the contribution of policy considerations to the decision in Parlby .

37. Upon the question of presumptions for the interpretation of statutory provisions, our attention has been directed to R v Chard [1984] 1AC 279. The question for the House of Lords was whether a reference of a case to the Court of Appeal (Criminal Division) by the Secretary of State under section 17(1)(a) Criminal Appeal Act 1968 constituted an invitation to the court to consider the whole case (the words of the subsection) or merely issues raised by the Secretary of State upon the case forming his reasons for making the reference. Their Lordships held that the words used in the 1968 Act were more emphatic and all embracing than those used in its predecessor, section 19(a) Criminal Appeal Act 1907. Accordingly, the Court of Appeal was not limited to consideration of the grounds for reference raised by the Secretary of State. Commenting upon the canon of construction which presumed consistent judicial interpretation of the same statutory words, Lord Scarman said:

".... it would be wrong to extract from the speeches of their Lordships in Barras v Aberdeen Steam Trawling and Fishing Co. Ltd [1933] AC 402 an inflexible rule of construction to the effect that where once certain words in an Act of Parliament have received a judicial construction in one of the superior courts and the legislature has repeated them without alteration in a subsequent statute, the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction had given to them. Viscount Buckmaster (p. 412) clearly thought that such a rule existed and that it was salutary and necessary: but others of their Lordships took a different view, notably Lord Blanesburgh (p. 414) and Lord Macmillan (pp. 446-447). Lord Macmillan---for, as I respectfully think, compelling reasons---treated the rule not "as a canon construction of absolute obligation" but as a presumption in circumstances where the judicial interpretation was well settled and well recognised: and even then his Lordship thought the rule must yield to the fundamental rule that in construing statutes the grammatical and ordinary sense of the words is to be adhered to, unless it leads to some absurdity, repugnance, or inconsistency. This view accords with modern principles of statutory interpretation and should, in my opinion, be preferred to that adopted by Viscount Buckmaster."

38. The majority of their Lordships expressly agreed with Lord Scarman's observation and Lord Diplock's speech was to similar effect. We were invited by Mr Tromans for the Applicant to follow the same course.

39. Mr Tromans' short point is that this court is not bound by Parlby. The presumption of identical meaning is displaced by analysis of the words used in the modern statute and the separate legislative route by which section 79(1)(d) came to be enacted. It is possible to follow section 79(1)(a) of the 1990 Act back to its legislative origin in the Act of 1846 which enabled a town council and others to complain to justices of the "filthy and unwholesome Condition of any Dwelling House or other Building". In its material parts that provision was re-enacted in the Act of 1848. In the Nuisances Removal and Disease Prevention (Amendment) Act 1855 section VIII, the modern form of words developed, "The Word "Nuisances" under this Act shall include-Any Premises in Such a State as to be a Nuisance or Injurious to Health". The word 'Premises' was defined as extending "to all Messuages, Lands, or Tenements, whether open or inclosed, whether built on or not, and whether public or private". That form was repeated in section 91.1 of the 1875 Act. Section 4, the definition section in the 1875 Act, provided "'Lands' and 'Premises' include messuages buildings lands easements and hereditaments of any nature". Section 91.1 was re-enacted in the Act of 1936 as, section 92(1)(a), "any premises in such a state as to be prejudicial to health or a nuisance" and the definition of 'Premises' was repeated in section 343(1). Section 92(1)(a) became Section 79(1)(a) of 1990 Act in identical terms and, by section 79(12), "'Premises' includes land" and, subject to an exception, "any vessel". It is plain that, save for the 1990 addition of vessels, the term "premises in such a state", used in the context of statutory nuisance under the public health legislation, has been construed consistently since 1889 as applying only to a condition arising from the state of a building.

40. Mr Tromans drew our attention to the development of what is now section 79(1)(d) of the 1990 Act. There was no equivalent provision in the Acts of 1846 or 1848. The Act of 1848 for the first time defined the prohibited conditions as 'Nuisances'. They did not include "dust, steam smell or other effluvia" or the like. The Act of 1855 developed in section VIII the concept of 'Nuisances' in connection with dwellings. By section XXVII, if certain named places of business "or any Manufactory, Building or Place used for any Trade, Business, Process or Manufacture causing effluvia" were certified by two medical practitioners to have become "a Nuisance or injurious to the health of the Inhabitants of the Neighbourhood", a duty was imposed on the local authority to make complaint to the justices. The justices were empowered to impose penalties and orders if "such Person shall not have used best practicable Means for abating such Nuisance or preventing or counteracting such Nuisance…or Effluvia". Herein is the statutory origin of the defence of best practicable means now provided by section 79(7) of the 1990 Act.

41. By section 19 Public Health Act 1866 further conditions and sources were added to the section VIII definition of statutory nuisance including, "Any Factory, Workshop or Workplace not already under the Operation of any General Act for the Regulation of Factories or Bakehouses, not kept in a cleanly State or not ventilated in such a Manner as to render harmless, as far as practicable, any Gases, Vapours, Dust or other Impurities generated in the course of the Work carried on therein, that are a Nuisance or injurious or dangerous to Health, or so overcrowded while Work is carried on as to be dangerous or prejudicial to the Health of those employed therein".

42. This provision was substantially re-enacted in section 91, paragraph 6 of the 1875 Act. Sections 114 and 115 of the 1875 Act made separate provision for the former section XXVII nuisances created within and without urban areas by "any manufactory building or place used for any trade business process or manufacture causing effluvia" which, when attracting the certification of a medical officer of health or two medical practitioners, or any ten inhabitants of the urban district that effluvia was a nuisance or injurious to health, required the urban authority to make a complaint to the justices. 'Best practicable means' was again a defence.

43. Two parallel but separate schemes for dealing with nuisance arising from smell, dust and the like appear thus to have developed, one concerned primarily, if not wholly, with the injurious effects upon workmen of inadequate ventilation in the workplace, and the other concerned with the injurious effects of effluvia, literally vapours or particles arising from decaying matter, upon the inhabitants of a district. 'Best practicable means' was a defence to the latter but not to the former.

44. Both forms were included in the same statutory nuisances section, section 92, of the Public Health Act 1936, section 92(1)(d) [dust and effluvia arising from "trade, business, manufacture or process"] and (e) [inadequate ventilation etc. in workplace causing "noxious effluvia"]. By section 92(5) the use of 'best practicable means' was a defence to creation of the subsection (1)(d) nuisance. In common with section 92(1)(a), no such defence was provided for breach of section 92(1)(e). No definition of 'process' was included in the 1936 Act or its predecessors.

45. A significant omission from the provisions relating to nuisance arising from trade, business manufacture or process in section 92(1)(d) was the word 'premises'. Neither did it appear in the 1855, 1875 or 1936 Acts in relation to either parallel scheme. However, the abatement notice was to be served upon either the person responsible for the nuisance or, if that person could not be found, the owner or occupier of 'the premises' on which the nuisance arose (section 93 in the Public Health Act 1936). As my Lord, Scott Baker LJ, remarked in course of argument, if Parliament had intended a consistency of approach, via Parlby, to interpretation of section 92 as a whole, the omission of the word 'premises' and of any exception for sewage works from section 92(1)(d) is surprising. On the contrary, each subparagraph appears to stand independently of the next. It would be even more surprising if sewage works were caught by section 92(1)(d) of the 1936 Act but not by section 79(1)(d) of the 1990 Act merely by the addition of the word 'premises' in subsection (1)(d). Subsection (1)(d) was still concerned with the emission of noxious substances, while subsection (1)(a) was still concerned with the state of a building itself.

46. In an endeavour to overcome the separate evolution of nuisance contemplated by section 79(1)(d), Mr Wignall relied upon R. v. Falmouth & Truro Port Health Authority, ex parte South West Water Ltd [2000] Env LR 658, a decision of the Court Appeal (Civil Division) upon a similar but not identical problem of interpretation. The Health Authority issued an abatement notice to the Water Undertaker under section 80 Environmental Protection Act 1990, requiring cessation of discharge of sewage into Carrick Roads, part of the estuary of the River Fal. One of the questions for consideration of the Court was whether the prohibition of statutory nuisance in section 79(h), which incorporated section 259(1)(a) Public Health Act 1936, could apply to discharge into the estuary. Section 259(1) provided:

"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;

(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 impede the proper flow of water and thereby create a nuisance…"

47. In a judgment with which Simon Brown and Pill LJJ agreed, Hale LJ traced the separate legislative sources of paragraphs (a) and (b) and examined what must have been meant by the term 'watercourse' at different stages of legislative evolution. She said in respect of paragraph (a):

"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 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."

48. Hale LJ proceeded to examine how the list to be found in paragraph (a) had expanded in 1875 and again in 1936 so that the 1936 list looked very different from its predecessors. The scope of the provision was broader than it had been, an impression reinforced by the addition of paragraph (b) which assumed a larger body of water. She continued:

"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.

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 have been one and the same."

49. There was, therefore, an inherent improbability that Parliament intended the word "watercourse" in either paragraph (a) or (b) to apply to a tidal estuary. That would have been tantamount to saying that the open sea was covered by the term "watercourse", a possibility which could be excluded having regard to the legislative purpose of protecting inhabitants from the accumulation of human waste.

50. I do not agree that the observations of the Court in Falmouth & Truro PHA, on analysis, support Mr Wignall's plea for identical meaning. Hale LJ was applying the textual context of the word "watercourse" in each paragraph and the historical and social context in which it was used. The Court found a consistent legislative purpose and was not faced with any textually inconsistent use of the word. The presumption of consistent interpretation of identical words, particularly words used in the same subsection of a statute, is, I accept, usually of paramount influence but not in all cases (see, for example, Maddox v. Storer [1961] 1 Q.B. 451). The authorities seem to be unanimous in applying context to ascertain the true meaning of a word used in a statute.

51. It seems to me that the definition of statutory nuisance by identification of conditions was completely recast by the Environmental Protection Act 1990. As the preamble to the Act informs, it was Parliament's intention to restate the law. Section 79 has adopted a recognisable technique of draftsmanship to achieve that restatement. In general, section 79(1) is inclusive subject to identified exceptions. I do not consider that when framing section 79(1)(d) the legislative intention was to exclude any particular premises (including land) from its operation unless by necessary implication, or the exclusion was identified in the following subsections. In my view, it is not possible to transplant the Parlby construction of the words 'premises in such a state' to the use of the word 'premises' in section 79(1)(d) when by subsection (7) premises are deemed to be "used for industrial purposes where they are used for the purposes of any treatment or process". No doubt, since the precise form of words is used in section 79(1)(a) as was used in section 91.1, paragraph (a) is to be construed as it was in 1889 since, to use Lord Hoffman's words in Oakley "the concept remains the same". However, each separate paragraph identifies a separate nuisance by different means from different sources, just as, in my view, did the Acts of 1875 and 1936. As Wills J. himself remarked paragraph 1, section 91 of the 1875 Act was not intended to be a catchall provision since, if it was, the following paragraphs were unnecessary. All that can be said about section 91.1 and its successors is that in context it contemplated a state of being in a building rather than the injurious product of a trade, business, manufacture or process. That cannot, in my view, be said about section 79(1)(d) and its predecessors and to hold otherwise would insult the language of the statute.

52. The policy considerations which assisted the court to its conclusion in Parlby do not I think apply in the year 2003 as they did in 1889. Justices frequently, when considering nuisance allegations, have to deal with large undertakings, public and private, and technical evidence by which the nuisance is measured or the best practicable means assessed. It is common ground that the summary procedure provided by section 79 is not an exclusive procedure. The private individual and public authorities have other means by to which seek the cessation of a common law nuisance but the existence of alternative remedies does not in this case, in my view, inform construction of the plain words of section 79, any more than does the existence of a regulatory scheme under the Water Industry Act 1991. Finally, there is no question that here the local authority is demanding from the statutory undertaker an impossible task. Section 80(9) provides Thames Water with the defence of best practicable means and that phrase is to be interpreted as follows:

"(a) "practicable" means reasonably practicable having regard among other things to local conditions and circumstances, to the current state of technical knowledge and to the financial implications;

(b) the means to be employed include the design, installation, maintenance and manner and periods of operation of plant and machinery, and the design, construction and maintenance of buildings and structure;

(c) the test is to apply only so far as compatible with any duty imposed by law;

(d) the test is to apply only so far as compatible with safety and safe working conditions, and with the exigencies of any emergency or unforeseeable circumstances."

53. In my judgment, the presumption for interpretation of section 79(1)(d) which Mr Wignall requests of us is displaced, first because the word 'premises' in paragraph 1 of section 91 of the 1875 Act was used in a context special to that paragraph (and its successors) and, second, because none of the policy considerations which informed the Court's wider observations in Parlby upon the intention of the legislature in enacting section 91 apply to section 79 of the 1990 Act.

54. Since we are not bound by the Parlby construction I revert to the plain meaning of section 79(1)(d). The words used, read together with subsection (7), embrace without strain the emission of smell from sewage treatment works. While sympathising with the District Judge for the difficult problem of interpretation with which he was presented, I consider that he was in error in holding that he was bound by authority to find as he did.

55. I would answer the District Judge's question in the negative, quash the order allowing the Respondent's appeal against the abatement notice and remit the matter for a continuation of the appeal hearing.

Lord Justice Scott Baker:

56. As the preamble to the Environment Protection Act 1990 makes clear, its purposes include improving the control of pollution arising from certain industrial and other processes, restating the law defining statutory nuisances and improving the summary procedures for dealing with them. What constitutes a statutory nuisance is carefully defined in section 79(1) and so too are numerous exceptions. There is no obvious reason why, in the present age, sewage treatment works should be treated as a special case. They are nowhere specifically referred to in the section and, absent reliance on the nineteenth century decision in The Queen v Parlby [1889] XXII QB 520, the respondent's case has no foundation at all. Life has moved on over the last century, not least in the relationship between local authorities, public utilities and the expectations of the public.

57. The thrust of the respondent's case is that because of the decision in Parlby the word 'premises' in section 79(1) does not include sewage treatment works. Although Parlby was a decision on the predecessor to section 79(1)(a) and the present case involves section 79(1)(d), the word 'premises' must, submits Mr Wignall, be given the same meaning in both. Indeed, absent some compelling reason to the contrary, 'premises' must always have the same meaning wherever it appears throughout the Act.

58. The word 'premises' appears, on no less than fourteen occasions in section 79. In the definition subsection (7) 'premises' includes land and, subject to exceptions, any vessel. This to my mind emphasises the width of meaning being given to the word.

59. By the same subsection "industrial, trade or business premises" means premises used for any industrial trade or business purposes, or premises not so used on which matter is burnt in connection with any industrial trade or business process. Premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing. This is a wide definition and one which, it seems to me, plainly includes, on its natural meaning, sewage treatment works. Indeed the contrary has not been argued.

60. Subsection (1)(a) of section 79 is directed to the state of the premises themselves. See in particular Birmingham City Council v Oakley [2001] 1 ALL ER 385. Subsections (1)(b), (c), (d) and (g) are directed at what is escaping from the premises e.g. smoke, fumes, noise etc. In these circumstances it is possible to see why the draftsman may have intended the broad word 'premises' to have a slightly different meaning in (b), (c), (d) and (g) from that in (a), assuming that is that he intended in (a) the word to have the meaning attributed in Parlby. If, however, the respondent's argument is correct the word 'premises' must be construed throughout as to exclude sewage treatment works.

61. The Public Health Act 1875 contained no equivalent to section 79(1)(d) of the 1990 Act. I gratefully adopt Pitchford J's analysis of the legislative history in which he traces the origins of the relevant provisions back to the middle of the nineteenth century. The point that I find particularly compelling is that section 92(1(d) of the Public Health Act 1936, which is the forerunner of section 79(1)(d) of the 1990 Act, makes no reference whatsoever to premises. The subsection provides that the matters described in (a) to (f) may be dealt with summarily and they are referred to as statutory nuisances. The description in (d) is "any dust or effluvia caused by any trade, business, manufacture or process and being prejudicial to the health of, or a nuisance to, the inhabitants of the neighbourhood". When a nuisance arose under the 1936 Act the primary target for service of an abatement notice was the person responsible, rather than the premises on which the nuisance arose (see section 93). Under the 1936 Act I can see no viable argument for exemption of sewage treatment works, or those responsible for them, from liability under section 92(1)(d). The only reason for excluding sewage treatment works would have been because, following Parlby, they did not fall within the description 'premises'. But section 92(1)(d) did not mention premises. It would be odd if the change in wording from 'caused by any trade, business, manufacture or process' in the 1936 Act to 'arising on industrial trade or business premises' in the 1960 Act has the effect of exempting those responsible for sewage treatment works when all other industrial trade or business premises are covered.

62. The wording of section 79(1)(a) of the 1990 Act is identical to that in section 92(1)(a) of the 1936 Act and, for all practical purposes, the same as that in head 1 of section 91 of the 1875 Act. Accordingly, I would regard the decision in Parlby as binding for the purposes of section 79(1)(a), despite this creating something of an anachronism in the present day. The fact, however, that the word 'premises' occurs elsewhere in different parts of the subsection dealing not with the condition of the premises themselves but with what is escaping from them is not in my view a good reason for extending the ambit of Parlby so as to exclude sewage treatment works from the subsection altogether.

Parlby

63. Parlby decided that the words of section 91 of the Public Health Act 1875 did not include sewage works constructed under the powers of section 27 of that Act. This is the section that contained relevant enabling power. The only part of section 91 that was relevant was the expression 'premises in such a state as to be a nuisance'. The court rejected the submission that this expression was wide enough to cover any premises on which a nuisance existed. As Wills J observed, the expression was confined to cases where the premises themselves were decayed, dilapidated, dirty or out of order i.e. it was directed to the fabric of the premises.

64. The word 'premises' figures only in the first head of those circumstances deemed to be nuisances under section 91 of the Act. The court in Parlby was not, in my judgment, seeking to define premises as such; rather it was saying that 'premises in such a state as to be a nuisance' related to the fabric of the premises rather than to anything that happened on the premises and caused a nuisance to those outside.

65. Eight years after Parlby came The Vestry of the Parish of Fulham v the London County Council [1897] 2 QB 76. This case concerned the Public Health (London) Act 1891 which was the equivalent Act for the metropolis of London to the Public Health Act 1875 for country districts. Day J, with whom Lawrance J agreed, said the Act did not apply to nuisances arising from the defects of sewers in London. He said, and I think these words are equally applicable to the 1875 Act:

"What are contemplated are nuisances arising from the acts of owners of property as distinguished from anything which may be caused by the construction of great public works, which are entrusted to the county council."

This accords with the wider basis for the decision in Parlby that a summary procedure simply was not appropriate for dealing with problems of this nature caused by public authorities in the late nineteenth century. The answer in the twenty first century is that times have changed. There is no longer the same distinction between great public works entrusted to public undertaking and private enterprises answerable to shareholders.

66. Day J has been criticised for using rather wide language, which was obiter, in particular by Lord Goddard C.J in R v Epping (Waltham Abbey) Ex parte Burlinson [1948] 1KB 79, 87. The issue in that case was whether a private individual could lay a complaint for statutory nuisance against a local authority under the Public Health Act 1936. The Divisional Court held that a local authority was not in a privileged position. Lord Goddard C. J pointed out that justices did not have power to deal with any nuisance, only those enumerated as statutory nuisances under section 92 of the 1936 Act. The particular statutory nuisance alleged in Burlinson was an accumulation or deposit prejudicial to health or a nuisance. Accordingly, the justices plainly had jurisdiction unless for some reason the identity of the respondent as a local authority prevented it. There was no mention in the Act of excluding a local authority and the Divisional Court could find no reason for doing so.

67. In referring to Parlby Lord Goddard C.J did say that all it decided was that a nuisance alleged to arise from the construction of a sewage system was not one of the statutory nuisances within the section of the Public Health Act. These words were obiter and in my judgment are too wide accurately to reflect the ratio of Parlby.

68. In my judgment the importance of Burlinson is that it illustrates a shift away from the concept that the summary statutory nuisance procedure is for dealing with private organisations rather than public undertakings and local authorities.

69. The final authority to which it is necessary to refer is East Riding of Yorkshire Council v Yorkshire Water Services Ltd [2000] Env. L.R 113. The issue in that case was whether a public sewer can be 'premises' for the purposes of section 79(1)(a) of the 1990 Act. Maurice Kay J held that it cannot, a view supported, he pointed out, by a line of authority. The wording of the subsection was virtually identical to the comparable wording in the 1875 Act and by re-enacting the old wording Parliament is presumed to have affirmed the decision in Parlby. The Yorkshire case, it should be noted, was like the other authorities not concerned with section 79(1)(d).

70. Whilst I agree that ordinarily a word appearing in more than one place in the same statute should be given the same meaning wherever it appears and particularly so when it appears in the same section or subsection this, like all rules of construction, is but a guide to achieve the overriding objective which is to ascertain the intention of Parliament. Parlby interpreted not just the word 'premises' but the whole expression 'premises in such a state as to be a nuisance'. In my judgment the effect of Parlby is relevant only to section 79(1)(a) of the 1990 Act. It should not be allowed to spill over into other provisions where the word 'premises' is used and which on its natural interpretation must include sewage treatment works.

71. For these reasons, and for the reasons given by Pitchford J whose judgment I have had the advantage of reading in draft, I would allow the appeal and remit the case to the Magistrates' Court for hearing to proceed.

- - - - - - - - - - - - -

LORD JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this appeal will be allowed.

MR WIGNALL: My Lords, I want to apologise for the late start this morning.

LORD JUSTICE SCOTT BAKER: No, we understand the problem.

MR TROMANS: My Lords, on that basis, I would ask for an order that the decision of the District Judge quashing the notice 79(1)(a) be quashed, and the matter be remitted for continuation of the appeal in the light of it.

LORD JUSTICE SCOTT BAKER: Yes, very well. You cannot object to that, can you?

MR WIGNALL: No.

MR TROMANS: As to costs, I would ask for an order for costs in this court, and dealing with the preliminary matter in the Magistrates' Court, to be assessed on a summary basis. A schedule was sent through to the Court, I believe, on Wednesday.

LORD JUSTICE SCOTT BAKER: Yes, it comes to about £21,000.

MR TROMANS: £21,313.63 in total.

LORD JUSTICE SCOTT BAKER: Have the other side agreed it, or not?

MR TROMANS: I do not understand it to be agreed.

MR WIGNALL: We have not agreed it, I am afraid. There are a few points we would like to make about the figures.

LORD JUSTICE SCOTT BAKER: Yes. Shall we deal with that now?

MR WIGNALL: Yes. My Lord, the first point appears on the first page of the schedule. The schedule sets out, so far as the solicitor's costs are concerned, which is a reasonable hourly rate, sums for a "Preliminary point of law", and then the "Appeal by case stated", at the bottom of the page. So far as the preliminary point of law is concerned, there were originally two abatement notices, you will remember, so the work must have dealt with both matters, not just the one. We would suggest a fair reduction there of 50 per cent, given that there were two abatement notices.

LORD JUSTICE SCOTT BAKER: So what figure are we looking at?

MR WIGNALL: The total figure is £1,750, which we suggest should be £875.

LORD JUSTICE SCOTT BAKER: Yes.

MR JUSTICE PITCHFORD: I thought you told us, Mr Wignall, that there was a concession made in respect of this application.

MR WIGNALL: That is why we say nothing about the solicitor's costs in respect of the appeal by case stated.

MR JUSTICE PITCHFORD: I see.

MR WIGNALL: The point only goes to the preliminary point of law in the Magistrates' Court. Originally, there were the two abatement notices, but the concession was only made at the beginning of the hearing.

LORD JUSTICE SCOTT BAKER: Yes.

MR WIGNALL: Then turning over the page, "Counsel's costs". We have a few points to make about those. We say that taken together, the figure for the first two items, "Finalising skeleton submissions" and "Brief on hearing", was too high at £3,250. We say there should be a reduction of that. I am reminded that my own fees were £2,000.

A little later, you will see that there is a figure of £850 for "Drafting further submissions to the court in the light of the Liverpool City judgment". Clearly, the matter would have been given some consideration, but we say that the figure of £850 is too high. I am reminded that my own fee for drafting was £250.

In respect of the "Brief to represent counsel at the costs hearing", six hours is claimed. We say the figure of £1,750 is too high, and a figure of about £1,200 would be a fairer representation, at a rate of about £200 an hour.

Then underneath, "Counsel's costs, appeal by way of case stated", there are two advices: one at £900, one at £825. We know from a previous schedule that the first written advice was written on 9th June, and the second was written on 17th June. We say there should be a substantial reduction there. I am reminded that my own fee in respect of written advice on appeal was £300.

I am also reminded that in respect of all those matters of costs in relation to the preliminary hearing, I said they were too high. The court should also note that we make the same objections that we made in respect of the preliminary point of law for the costs of the solicitor: that these must have dealt with both abatement notices. The correct way to approach it would be, perhaps, to take 50 per cent off, and then reduce it, in any event.

Having said that, my Lords, I should perhaps point out that counsel's costs at £11,160 are broadly in line with mine, but a little bit higher. Those are my submissions in relation to costs.

LORD JUSTICE SCOTT BAKER: Yes. Mr Tromans?

MR TROMANS: My Lord, could I deal with the general preliminary point which Mr Wignall makes first? There were indeed two notices, and a concession was made immediately at the preliminary hearing before the District Judge in relation to the 79(1)(a) notice. In my submission, the costs of my solicitor in dealing with the preliminary point of law, and certainly my own costs in preparing for the hearings, would not have been substantially affected by the 79(1)(a) notice, because the entire focus was on section 79(1)(d) in that preparatory work. Certainly, a reduction of 50 per cent would in no sense be merited. That is my submission on that first point.

In relation to the points made by Mr Wignall on counsel's costs in relation to the preliminary hearing, the figure of £850 was criticised. That should be under the heading, "Counsel's costs for preliminary hearing in Magistrates' Court", and it should be the fifth item, "Drafting further submissions to the court in the light of the Liverpool City judgment". Simply, that is the time it took to deal --

LORD JUSTICE SCOTT BAKER: You have missed out a point. First of all, if you look at "Finalising the skeleton submissions" and "Brief on the hearing", he says that is covering the same territory twice, and that it is higher than his side.

MR TROMANS: Well, my Lord, I would not accept that it is covering the same point twice: one is the preparation of the skeleton submissions; one is the fee for the brief at the hearing. To put the matter in context overall, I could point out to your Lordships that in the hearing following the District Judge's decision, Thames Water sought costs against Hounslow of some £45,400.25, which were reduced by the District Judge by around £9,000 to something over £36,000. So looked at globally, one can see that the figure which is claimed by Hounslow for work in relation to the preliminary hearing looks very reasonable indeed.

LORD JUSTICE SCOTT BAKER: Yes, the boot is on the other foot now.

MR TROMANS: In relation to the drafting of submissions in the Liverpool City Council matter, what happened there was that the District Judge obtained a copy of District Judge Abelson's decision in the Liverpool Magistrates' Court, and invited both parties to make submissions on that. It is perhaps not surprising that I would have spent more time on those submissions than my learned friend, since essentially all he was required to do was to agree them, whereas I had to seek to rebut them.

LORD JUSTICE SCOTT BAKER: Yes.

MR TROMANS: My Lord, in terms of the overall counsel's costs, as my learned friend very fairly concedes, they are broadly in line in terms of the hearing in front of your Lordships.

One specific point which my learned friend makes concerns the two pieces of written advice. The first of those items, £900, was written advice, which was sought on the merits in law of proceeding with an appeal by way of case stated, and the prospect of success. That, in my submission, is an entirely reasonable cost for the authority to incur. A review was also sought of the merits of continuing with the substantive issues of the appeal; in other words, was there a risk that having succeeded in the Divisional Court, we might lose on the substantive appeal before the magistrates? So that was a second, separate piece of advice on the matter. Again, in my submission, it was a reasonable thing for the authority to stop and just take stock at that point, before deciding whether to trouble the Divisional Court and to press on with the appeal which your Lordship's have just heard. Those are my responses to my learned friend's submissions.

MR WIGNALL: My Lord, I am sorry to rise again. So far as the 40-odd thousand pounds is concerned, I am reminded by my instructing solicitor that it dealt with all the costs, including, for instance, the costs of the many experts which were required to be involved.

So far as the £850 is concerned, my recollection, for what it is worth, is that my own submissions had to deal with the substantial issues raised by the judge at Liverpool. It was not just simply that I would agree with those submissions.

With regard to the £825 for the written advice on the merits of proceeding to appeal, if that was concerned with the question of whether or not the substantive issues would be upheld in favour of the local authority and court below, then that is a matter of costs which should be considered at the end of the appeal hearing, when it is remitted.

LORD JUSTICE SCOTT BAKER: I did wonder about that. I was about to mention it but I thought, well, in fact it does affect the viability of going on with the appeal as well. Then I wondered whether the two written advices ought really not to have been dealt with as one item.

MR WIGNALL: That would be my submission, my Lord.

LORD JUSTICE SCOTT BAKER: Thank you very much. We will just retire for a moment to consider these points.

(The court adjourned for a short time)

LORD JUSTICE SCOTT BAKER: As to the second notice point, we think that the effect of that on the figure of £1,750 is that it ought to be reduced broadly by between 10 and 20 per cent. Therefore, we reduce £1,700 to £1500.

As far as any further effect on the dropping of the 79(1)(a) resistance, we do not think it has any further effect, and that is the end of that point.

Then counsel's costs: we think £1,250 and £2,000 are appropriate and should not be reduced.

As to the £850, we think there is force in Mr Tromans' point that he obviously had to spend more time on submissions on the Liverpool City judgment than did Mr Wignall. "Brief to counsel at the Feltham Magistrates' Court", we think should remain at £1,750 and not be reduced.

The only other item where we think some reduction is necessary is the written advice on appeal against the decision of District Judge Day, and the written advice on the merits of continuing with the appeal. At the present time, those two figures come to £1,725. We think that they ought to be dealt with as one item, and that the appropriate figure would be £1,000.

In the result, that aspect of the costs is reduced by £725. The other aspect, namely on the first page, £1,750 reduced to £1,500, is a reduction of £250. So the total effect on the bill is that £21,313.63 is reduced by £975. There ought also to be a consequential adjustment for VAT. No doubt somebody will tell me what the final figure should be.

MR TROMANS: My Lord, we can work out the figure later.

LORD JUSTICE SCOTT BAKER: Thank you.

MR WIGNALL: My Lord, that raises the question of an appeal. I ask for a certificate under Section 12 of the 1969 Act.

LORD JUSTICE SCOTT BAKER: Can you just read us that?

MR WIGNALL: Yes, that is the leap-frog appeal from the High Court to the House of Lords.

LORD JUSTICE SCOTT BAKER: But this is a criminal matter, is it not?

MR WIGNALL: No, my Lord, it would be a civil matter because the appeal is under the Civil Jurisdiction Law for the magistrates.

LORD JUSTICE SCOTT BAKER: So you have a right of appeal to the Court of Appeal?

MR WIGNALL: Yes, although Mr Tromans points out quite accurately that if we chose to go to the Court of Appeal, the second tier appeal, we would have to go direct to the Court of Appeal to ask for permission.

LORD JUSTICE SCOTT BAKER: Yes.

MR WIGNALL: The view of both of us, however, is that that does not affect the jurisdiction under Section 12 of the 1969 Act. Mr Tromans has told me that he would consent to a certificate, subject to us satisfying you that this is a sufficient case for appeal to the House of Lords, and that a point of law of general importance is concerned. Would you turn to section 12 of the Administration of Justice Act 1969, which can be found in the White Book, 9B-38, at the bottom of page 2057.

LORD JUSTICE SCOTT BAKER:

"(1)Where on the application of any of the parties to any proceedings to which this section applies the judge is satisfied -

"(a)that the relevant conditions are fulfilled in relation to his decision in those proceedings, and

"(b)that a sufficient case for an appeal to the House of Lords under this Part of this Act has been made out to justify an application for leave to bring such an appeal, and

"(c)that all the parties to the proceedings consent to the grant of a certificate under this section,

"the judge ... may grant a certificate."

MR WIGNALL: The relevant conditions are set out a little further on, in (3)(a).

LORD JUSTICE SCOTT BAKER:

"(a)relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings".

And (b) is an alternative.

MR WIGNALL: It is, yes, which we do not seek to rely on.

LORD JUSTICE SCOTT BAKER: What is the effect of granting a certificate?

MR WIGNALL: The effect is this: if you are minded to grant a certificate, then we do not have to make an application to the Court of Appeal to ask them to make an appeal; we can go to the House of Lords, but we then have to seek permission from the House of Lords.

LORD JUSTICE SCOTT BAKER: That is what I wanted to find out. I am bound to say, I have given some thought to this, but on the basis that it was a criminal matter, in which case it would go direct to the Lords. It seems to me that there is a point of law of some importance here, but it is quite another matter whether the House of Lords would wish to consider it.

MR WIGNALL: Well, that is up to them. We have to make a written application for permission. You see that at Section 13. That is determined without a hearing, so we simply put in a petition for leave and a committee will grant it. If they refuse it, there is no appeal against that refusal, and we cannot renew the matter before the House of Lords.

LORD JUSTICE SCOTT BAKER: Is your goose then cooked as far as seeking to go to the Court of Appeal is concerned?

MR WIGNALL: No, we do not think it is, but then we would have to go direct to the Court of Appeal and ask them for permission.

LORD JUSTICE SCOTT BAKER: They might be rather less inclined to take it.

MR WIGNALL: Yes. Looking at it realistically, if the House of Lords said "No", then it would surely be very unlikely that the Court of Appeal would be willing to hear it themselves. It may be that our client would take a certain view about it anyway.

LORD JUSTICE SCOTT BAKER: Yes. The real point is that when one is dealing solely with the question of construction, there is this short circuit route.

MR WIGNALL: My Lord, I would say nothing more about the predominance of the identical meaning point, which was the critical issue, but clearly there is a major issue of general public importance, relying extensively on the DEFRA(?) document, which we saw. You conceded the extent to which the belief is held by the government, amongst the industry, and amongst local authorities, that sewage treatment works are exempt from the whole ambit of section 79(1).

LORD JUSTICE SCOTT BAKER: Yes.

MR WIGNALL: You will remember that in your judgment it was said that each of the individual subsections should be read separately and have a separate meaning. It does mean that further explanation is needed as to what the word "premises" means in the other subsections, which your Lordship has not had to deal with.

I do not want to trouble your Lordships any further. You have heard all of my substantive points. It would not be very conducive to your time to repeat them all, but there is a general point of public importance and we would hope the House of Lords would grant permission, and do ask for a certificate.

LORD JUSTICE SCOTT BAKER: Mr Tromans, are you agreed?

MR TROMANS: My Lord, I would wish to address some brief submissions on the question of general public importance, but my position is that if Mr Wignall's submissions are successful, then we would not wish to, effectively, exercise a veto by withholding our consent. If your Lordships are satisfied that the point is of sufficient public importance, then clearly it would seem right for the House of Lords to consider whether they wish to hear it rather than the Court of Appeal.

My Lords, on the criteria of Section 12, the relevant conditions have to be fulfilled under Section 12(1)(a). I would clearly accept that the matter does relate to the construction of an enactment, and has been fully argued. I would question whether the point of law is, in fact, of sufficient general public importance. It is certainly of some public interest, as is evidenced by the DEFRA consultation paper, but your Lordships found in their judgment that, in fact, the position as between 1936 and 1990 was quite clear that sewage works were subject to the equivalent provisions, section 79(1)(d). They have the defence of best practical means, and certainly those very important public policy points made by Wills J in the Parlby case, in my submission, carry much less force these days, when the sewage undertaker has exactly the same type of defence as any other major --

LORD JUSTICE SCOTT BAKER: Well, you are really telling us what we say in the judgment.

MR TROMANS: My Lord, effectively, yes. In my submission, that is a countervailing consideration to Mr Wignall's submissions on the public interest point.

The only other point I would make is that sufficient case has to be made out. On that, I would submit that there is no real prospect of success on Mr Wignall's part. Your Lordship has considered very fully the interpretation of the relevant provision and the ratio of Parlby, and the decision is quite clearly consistent with House of Lords authority, in particular Oakley, and the way in which the House of Lords in the Oakley decision treated Parlby.

For those reasons, my submission is that the criteria for a leap-frog certificate under (a) and (b) are not made out. If your Lordship is against me on that point, then I would not propose to withhold consent.

LORD JUSTICE SCOTT BAKER: Thank you very much.

MR WIGNALL: My Lord, on the public importance question. It is plainly a matter of more than public interest. Apart from anything else, substantial amounts have to be paid on making alterations to sewage treatment works because of statutory proceedings under the first subsection. That, of course, is going to increase the bills for the general public. The question will then arise, how can the bill be increased, and to what extent can it be increased? So it is a matter that goes beyond general public interest. In any event, general public importance has a wider definition than whether the issue really matters to every individual in the street, and the case of DEFRA shows that there are wider issues at stake.

LORD JUSTICE SCOTT BAKER: Is it necessary to define the point of law or construction that arises?

MR WIGNALL: It does not seem so from the sections of the Act, no.

LORD JUSTICE SCOTT BAKER: It is relatively easy to define. It is simply whether public sewage works are capable of falling within 79(1)(b).

MR WIGNALL: So far as the merits are concerned, I will not say anything about your views of the merits, although we say that we have a real prospect of success. Of course, if we went to the Court of Appeal, the Court of Appeal would want to ask itself whether there is some other compelling reason why the appeal should be heard. We would say that the question of public importance means that that criteria has been satisfied. In fact, the wider criteria (inaudible) procedure under Section 12 is plainly satisfied, and is perhaps wider than the criteria under CPR.

(The court adjourned for a short time)

LORD JUSTICE SCOTT BAKER: We shall grant you your certificate.

MR WIGNALL: I am grateful, my Lord. I do not think there is anything else in this matter.

LORD JUSTICE SCOTT BAKER: Thank you both very much indeed for your helpful arguments. We will wait with interest to see what happens.