QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of
|VALE OF WHITE HORSE DISTRICT COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Harwood (instructed by the Legal Department, The Vale of White Horse District Council, Abbey House, Abingdon, Oxfordshire, OX14 3JE) for the Defendant
Crown Copyright ©
Mr Justice Lightman:
"My view and the view of the Council's most senior lawyer was that it would not have been right to have notified residents when the legal position was so uncertain. That position did not become clearer until October 2000 when Leading Counsel's opinion was received…. Vague and ambiguous comments by the Council about the possibility of charging at an earlier time might well have caused unnecessary anxiety to residents, when the position might subsequently have changed and in any event it would not have been within the Council's power to bring the matter to a speedy conclusion."
"The purpose of this letter is to inform you that every property will now be charged for the reception, treatment and disposal of sewage waste and the maintenance of the system. Since 1995, you have received the sewage treatment service without payment but you will appreciate that there has been cost to the Council in providing the service. You will be aware that the majority of sewage treatment plants across the County of Oxfordshire, and beyond, are operated and maintained by Thames Water Utilities and the residents benefiting from these plants are and always have been charged for the service as part of their water bill.
The Council now proposes to issue invoices to cover the cost of the service that has been provided over the period from April 1995 to the present.
The charges per property will be based on the actual costs of operating the individual works up to March 2001, and a proposed fixed annual charge of £250 for the year 2001/02. The charges will either be comparable to or less than the charges Thames Water Utilities would have made for similar services over the same period.
Recognising that six years worth of charges will be onerous for most owners, the Council will offer a facility to pay over two years (or longer by agreement) to clear the outstanding amounts, interest free."
i) the disposal of sewage from a residential property is an essential, and (in the case of Mr Rowe) there was no practicable alternative at a comparable price;
ii) no local authority since 1974, when the function was transferred to (now privatised) water authorities, has provided sewerage services for the public paid for out of its General Fund (i.e. by Council Tax payers). The position in this regard is different from the position e.g. in respect of refuse collection. The sewerage service is a service targeted at specific properties rather than a service made available by the Council to all taxpayers but taken up by only a few;
iii) consequently householders have to pay separately from their Council Tax for sewerage services either by paying rates to the sewerage undertaker (here TWA) or by paying for the private disposal of their sewage, e.g. by the Council's sewerage facilities or by arranging for the emptying of septic tanks. In a word Mr Rowe was not legally entitled to the provision of sewerage services except on terms that he paid for those services;
iv) the charges made by the Council are cheaper than any alternative available (including installation and use of a septic tank) and if fully informed at any time prior to 2001 Mr Rowe would have chosen to use the Council's services and pay accordingly.
"Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some of the benefit derived from another which it is against conscience that he should keep."
i) a benefit must have been gained by the defendant;
ii) the benefit must have been obtained at the claimant's expense;
iii) it must be legally unjust, that is to say there must exist a factor (referred to as an unjust factor) rendering it unjust, for the defendant to retain the benefit;
iv) there must be no defence available to extinguish or reduce the defendant's liability to make restitution.
"… a defendant who is not contractually bound may have benefited from services rendered in circumstances in which the court holds him liable to pay for them. Such will be the case if he freely accepts the services. In our view he will be held to have benefited from the services rendered if he, as a reasonable man, should have known that the [claimant] who rendered the services expected to be paid for them and yet he did not take a reasonable opportunity open to him to reject the proffered services. Moreover in such a case he cannot deny that he has been unjustly enriched."
In a word free acceptance may satisfy not only the second, but also the third condition.
MR JUSTICE LIGHTMAN: For the reasons set out in the judgment, which I have just handed down, I hold that the defendant council has no legal right to the arrears which it claims in the second appeal from the 1st April 1995 to the 31st March 2001.
MR HUNT: My Lord, a draft form of the order, which I think your Lordship will see, is agreed subject to one addition in the first paragraph of the order. Counsel has requested that it be inserted in the second line in its letter to Mr Rowe of 26th March 2001.
MR JUSTICE LIGHTMAN: Yes, that is fine.
MR HUNT: Subject to that, my Lord, no orders.
MR JUSTICE LIGHTMAN: Otherwise it is all agreed, is it?
MISS GREANEY: Yes, we do, my Lord.
MR JUSTICE LIGHTMAN: Then I will make an order on that. Thank you both very much.