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Scottish Water, Re Judicial Review [2004] ScotCS 41 (24 February 2004)

OUTER HOUSE, COURT OF SESSION

P492/03

OPINION OF

LORD CAMERON OF LOCHBROOM

in the cause

SCOTTISH WATER

Petitioners;

for

Judicial Review

________________

Pursuers: R.L. Martin, Q.C., Sutherland; Dundas & Wilson

First Respondents: Mure, R. Henderson

Second Respondents: Connal, Solicitor-Advocate, Q.C.; McGrigor Donald

24 February 2004

[1] The petitioners are the statutory successors to the North of Scotland Water Authority ("NOSWA"). On or about 19 April 2000 the Orkneys Islands Council ("the Council") resolved to grant NOSWA a works licence under section 11 of the Orkney County Council Act 1974 ("the 1974 Act") in respect of an application dated 8 February 2000 for the construction of a long sea outfall and diffuser leading from a new waste water treatment works at Head of Work, Kirkwall, Orkney. The outfall was stated to be approximately 350m long (with 280m of that beneath MHWS) and 1.5m beneath the seabed level. In a note to the printed application form the Council stated that a works licence was issued for a specific site within the Orkney Harbours Area and should the applicant subsequently wish to modify the plans a further application would be required. In terms of the licence NOSWA was permitted

"to place a sea outfall pipe for a public sewage treatment plant as described in the application form, plans, specifications and other documents mentioned in Schedule 1 to this licence upon the terms and conditions set out in Schedule 2 to this licence, notwithstanding any interference with public rights of navigation or other public rights by the works as constructed or placed and maintained".

The terms and conditions of the licence included provisions that the sea outfall pipe should be "maintained in good repair at all times" (paragraph 3), for revocation of the licence and removal by the applicant of the works to which the licence related in certain events (paragraphs 4, 7and 8), forbidding the carrying out of any alteration to or reconstruction of the works without the prior written consent of the Council (paragraph 13) and reserving to the Council the right to review the terms and conditions upon which the licence was granted (paragraph 14). In the application for the licence it was stated that the applicable works were intended to be commenced on 1 May 2000 and completed by 31 August 2000 and that it was intended to start using the site on 31 December 2000.

[2] In the petition it is averred that the grid reference for the termination point of the outfall pipe was to be 347900E and 1014430N. It is further averred that prior to the application being granted NOSWA advised that it might be necessary to change the location end of the outfall pipe. As built the outfall pipe was 325m long and the grid reference for the termination point of the outfall pipe was 347862E and

1014330N. As built the outfall pipe provided for secondary treatment of waste water by means of a secondary treatment plant. These averments are admitted by the Council and are not challenged by the remaining respondents.

[3] When built the final position for the outfall and diffuser did not lie fully within the limits specified in the first licence although it appeared to be accepted by parties that in large part it did so. The reason for the deviation is not, however, relevant to the issue that arises in these proceedings since it principally concerns the vires of the Council's actings in granting a second licence.

[4] Following discovery that a deviation had taken place from the limits specified in the first licence, the Council advised NOSWA that it was not possible to amend a works licence once it had been granted and that a second application for a works licence should be made. Accordingly on or about 18 June 2001 a further application under section 11 of the 1974 Act was submitted by NOSWA for construction of a long sea outfall and diffuser in the position as built along with details of the design specification and a location plan which described the outfall and the position of its termination point as built. The application was notified to a number of statutory and other public bodies none of which took specific objection to the application. Two objections were received from the public, one being from the third respondents, Aquascot Group. On 20 September 2001 the Council decided to grant the second application for a works licence subject to certain conditions being fulfilled prior to issue of the licence.

[5] On or about 25 October 2001 the agents for the third respondents appealed to the first respondents under section 13(1) of the 1974 Act. Thereafter on or about 25 March 2002 the First Respondents issued their decision on the appeal.

[6] The decision letter addressed to the Council stated as follows:

"The Scottish Ministers, having considered the grounds of appeal very carefully, hereby, in terms of Section 13(4) of the Orkney County Council Act 1974, revoke the decision by Orkney Islands Council to grant a works licence to NOSWA for a seabed outfall at Head of Work, St. Ola. They have taken that action on the basis that there is no provision in the Orkney County Council Act 1974 for the issue of a retrospective licence. Indeed, they consider that the wording of section 11 envisages that licences will be issued prior to the works being carried out."

[7] A copy of the decision letter was sent to the petitioners on or about 27 March 2002. The events which occurred thereafter are set out in the first respondents' answers to this petition and are not challenged by the petitioners. I do not repeat these events in detail. It is sufficient to note that intimation that an intention to raise proceedings was first intimated to the first respondents on about 22 March 2003 and that the first order in these proceedings was pronounced on 3 April 2003.

[8] Following the first order, answers were lodged by each of the first respondents, the Council as second respondents and Acquascot as third respondents. Although Acquascot lodged answers to the petition, they did not appear at the hearing before me, being content to rest on the submissions for the first respondents.

Preliminary plea
[9] The first respondents have tabled a preliminary plea of mora, taciturnity and acquiescence and counsel for the first respondents presented argument in support of it, seeking dismissal of the petition. He observed, as is the case, that no explanation for the delay is offered in the petitioners' averments. Further, while reference was made by the petitioners to possible criminal proceedings in respect of a contravention of the terms and conditions of the first licence, such a possibility was not, on the facts, in issue. For their part, the petitioners accepted that there had been significant delay in raising the present proceedings but submitted that in the circumstances there was nothing to justify dismissal of the petition.

[10] I am satisfied that there is no merit in the submissions for the first respondents. The issue as to vires is of substantial importance not only to the petitioners but also to the Council, although they appear only as respondents. The third respondents in their grounds of appeal, amongst other things, challenged the lawfulness of the Council's decision to grant the second licence. But there were other grounds of appeal which have not been considered by the first respondents. Parties appearing before me were agreed that in the event that I sustained the submissions for the petitioners on the issue of vires, it would be necessary for the matter to be remitted back to the Scottish Ministers to consider further and reach a decision on these remaining grounds of appeal. The issue of vires is a fundamental one which could affect other cases in future. The third respondents will still have an opportunity to present their remaining grounds of appeal. While they have not appeared at the hearing before me, their interest in the present proceedings is no different from that of the first respondents. It is to be noted, however, that in their answers the third respondents have not tabled a similar preliminary plea. Accordingly there can be no prejudice to them arising from the delay that has occurred. Furthermore, at no time in the course of correspondence following the decision of the first respondents have the petitioners indicated that they would not be challenging the first respondents' decision or led the first or third respondents to think that they would not do so. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice - see Lord Hope of Craighead in R. v Hammersmith and Fulham Borough Council 2002 1 WLR 1593 at p.1613D. In particular, I find nothing in the facts to support the plea so far as it is directed to taciturnity or acquiescence, the ingredients for which are referred to in the recent judgement of Lord Clarke in Maitland Makgill Crichton and Others v Scottish Water (unreported 26 July 2002). I shall accordingly repel the preliminary plea.

Plea to relevancy
[11] The first respondents have also tabled a plea to relevancy and lack of specification seeking dismissal. Before considering the submissions directed to this plea, it is convenient to refer to certain of the provisions of the 1974 Act.

[12] The 1974 Act is a private Act of Parliament. It authorises the Council to exercise harbour jurisdiction and powers in respect of development, including, amongst other things, powers to license the construction of works and dredging, in certain areas of and adjacent to the county.

[13] The preamble to the 1974 Act includes the following paragraphs:

"(1) The county council of the county of Orkney (hereinafter respectively referred to as "the Council" and "the county") are the local authority for that county entrusted under the Local Government (Scotland) Act 1947 with the management of the administrative and financial business of the county.

(2) As a result of its physical characteristics and location the county enjoys a stable agricultural economy with little or no unemployment, and has a low rate income, but it is now threatened for the first time with potential industrial development on an extensive scale:

(3) In view of growing indications of such development it is necessary that steps be taken to avoid any such development producing a harmful imbalance in the economy of the county and affecting adversely the utilisation of labour, and to ensure -

(a) the best use of land and natural resources;

(b) that adequate services can be provided within the limits of the county's available finances; and

(4) The types of development anticipated will for the most part be dependent upon proper communications, mainly by way of marine facilities.

(5) The foregoing and other anticipated effects render it expedient that powers be conferred upon the Council for the improvement, conservancy and development of certain areas of and adjacent to the county, for the exercise of harbour jurisdiction in respect of those areas, and for the acquisition of lands for and in connection with such development:"

[14] Part II of the 1974 Act and in particular section 5 set out the general duties and powers of the Council.

[15] Section 5 is in the following terms:

"(1) It shall be the duty of the Council, subject to the General provisions of this Act, to take all such action as they consider necessary or desirable for or in connection with their functions under this Act, including -

(a) the promotion of development, and the provision, maintenance,

operation and improvement of port and harbour services and facilities, in, and in the vicinity of, a harbour area;

(b) turning the resources of the undertaking to account so far as not

required for the purposes of that undertaking.

(2) The Council shall have power either themselves or by arrangement between themselves and other persons to take such action as the Council consider necessary or desirable whether or not in, or in the vicinity of, a harbour area -

(a) for the purposes of discharging or facilitating the discharge of any of

their duties under this Act, including the proper development or operation of the harbour undertaking;

(b) for the provision, maintenance and operation in connection with the undertaking of -

(i) warehousing services and facilities;

(ii) services and facilities for the consignment of goods on routes which include port premises.

(3) Particular powers conferred upon the Council by this Act shall not be construed as derogating from each other or from the generality of subsections (1) and (2) of this section."

[16] Section 11 of the 1974 Act is in the following terms:

"(1) The Council may upon such terms and conditions as they think fit grant to any person a licence to construct, place, maintain, alter, renew or extend any works on, under or over tidal waters or tidal lands below the level of high water in a harbour area notwithstanding any interference with public rights of navigation or other public rights by such works as constructed, placed, maintained, altered, renewed or extended.

(2) Application for a works licence shall be made in writing to the Council and shall -

(a) be accompanied by plans, sections and particulars of the works to which the application relates;

(b) specify whether the applicant holds such rights in, under or over land

as are necessary to enable him to enjoy the benefits of the licence and, if not, the action taken to enable him to obtain such rights if the licence is granted; and

newspaper or some other newspaper circulating in the country, stating that application is being made to the Council for the grant of a licence, containing a general description of the nature of the works for which application is being made and of the land upon which the works are proposed to be constructed, placed, altered, renewed or extended, naming a place where a copy of the plans, sections and particulars of the proposed works may be seen at any reasonable hours and stating that any person who desires to object to the Council to the granting of the application should do so in writing stating the grounds of his objection before the expiration of a period of twenty-eight days from the date of the newspaper advertisement.

(3) In deciding whether or not to grant a licence or as to the terms and conditions to be included in the licence the Council shall take into consideration any objection in writing made to them by any person within the time specified in the newspaper notice (hereinafter in this section and in section 13 (Appeals in respect of works or dredging licence) referred to as a valid objection) and in granting a licence the Council may require modifications in the plans, sections and particulars submitted to them by the applicant.

(4) If the Council decide to grant a works licence they shall, in addition to the applicant, give notice of their decision to any person who has made a valid objection and has not withdrawn it.

(5) If within three months from the date of the making of an application under subsection (2) of this section the Council do not grant a works licence in accordance with the application, they shall be deemed to have refused the application.

(6) In the exercise of the powers of a works licence the licensee shall not damage or injuriously affect any submarine cable maintained by the North of Scotland Hydro-Electric Board or any gas work or, without the consent of that board, or (as the case may require) the gas undertakers, interfere with or adversely affect the operation of any such cable or work.

(7) For the purposes of section 7 of the Telegraph Act 1878 work proposed to be done under the authority of a works licence shall be deemed to be work proposed to be done in the execution of an undertaking authorised by an Act of Parliament."

[17] Section 14 provides as follows:

"(1) No person other than the Council shall -

(a) construct, place, alter, renew or extend any works on, under or over

tidal waters or tidal lands below the level of high water in a harbour area unless he is licensed so to do by a works licence and except upon the terms and conditions, if any, upon which the licence is granted and in accordance with plans, sections and particulars approved in pursuance of section 11 (Licensing of works) of this Act.

Provided that this section shall not apply to the construction, placing, alteration, renewal or extension of any such works or to the carrying out of dredging in a harbour area specifically authorised under any enactment.

(2) Any person who offends against the provisions of this section or who contravenes or fails to comply with any term or condition of a works licence or dredging licence granted to him shall be guilty of an offence and liable to a fine not exceeding one thousand pounds and to a daily fine not exceeding one hundred pounds."

In section 3 of the Act "daily fine" is defined as meaning a fine for each day on which an offence is continued after conviction.

[18] Section 71 states that proceedings against any person offending against or committing any breach or contravention of any of the provisions of the Act shall, unless otherwise provided by instituted and conducted under and in conformity with the Summary Jurisdiction (Scotland) Acts. Parties were agreed that insofar as NOSWA had been in breach of the conditions of the first licence by constructing the seabed outfall pipeline as they did, any criminal proceedings required to have been begun within the period of 6 months after the breach occurred - see section 136 of the Criminal Procedure (Scotland) Act 1995. Any such criminal proceedings were now time-barred.

[19] In presenting his submissions, counsel for the first respondents made reference to the principles that underlie the construction of provisions in a private Act of Parliament set out in Maxwell on the Interpretation of Statutes (12^th ed) pages 262 and 263 and Bennion on Statutory Interpretation (4^th ed) page 780 to the effect that such Acts are to be strictly construed since by their very nature they create exceptions to the general law of the realm, partake of the nature of a contract and fall within the contra proferentem principle if there be ambiguity. Reference was also made to Altrincham Union Assessment Committee v Cheshire Lines Committee (1885) 25 QBD 597: Stewart v Thames Conservators 1908 1 KB 893 and Maitland Makgill Crichton and Others v Scottish Water (unreported Outer House 26 July 2002). If there were omissions which constrained the exercise of the powers granted by the 1974 Act or lacunae, the promoters could return to the Scottish Parliament for altered or stronger powers. The power to license works in the 1974 Act should not be construed as a power to authorise or ratify what had already been done unless the statutory provisions warranted such a construction. Reference was made to Howell v Falmouth Boat Construction Co. Ltd 1951 AC 837. However what was done deviated so far from the works authorised by the first licence that it could not be regarded as works carried out under any authority. There was nothing in the provisions of the 1974 Act that permitted the Council to grant authority retrospectively. Reference was made to Jackson Stansfield and Sons v Butterworth 1948 2 AER 558. By contrast specific statutory provision could be imported by plain words. Reference, by way of example, was made to provisions in the Town and Country Planning Act 1990, the Town and Country Planning (Scotland) Act 1997 and the Building Regulations (Amendment) Regulations 1994. The provisions of section 11 proceeded upon the basis that an application for and a grant of a works licence took place in advance of any works. Thus the provision for advertisement allowed for objections to be intimated and considered before any works were undertaken. In any event, in the present case there was nothing by way of urgency or the like which called for the works to be undertaken without the immediate grant of a licence or in anticipation of a grant. Other provisions of the 1974 Act relating to electricity undertakers (section 75 and in particular sub-section 11) and to gas undertakers (section 76 and in particular sub-section 2(a) clearly indicated that except in an emergency any works would be authorised by the Council in advance of the execution of the works. Accordingly, the first respondents were fully justified in reaching the determination that the Council had no power under the 1974 Act to grant a works licence where the works had been executed in contravention of the first licence and so were not authorised under in terms of that licence.

[20] In reply counsel for the petitioners submitted that in the context of the provisions of the 1974 Act as a whole and of section 11 in particular, the Council were entitled, even after works for which a licence was required, had been undertaken and executed without their authority, to grant a licence authorising those works as built. It was not a case of retrospective consent. The word "maintain" in section 11 was to be understood as meaning "to preserve in existence" - cf. The Oxford English Dictionary.p.224 para.4. In terms of the section the Council were empowered to grant a licence to an applicant for the purpose of maintaining in place that which had already been constructed or put in place. The word "maintain" as it appeared in subsection (1), and hence the purpose and scope of a licence "to maintain ....any works", was to be contrasted with the scope and purpose of a licence to "construct", "place", "alter", "renew" or "extend" any works. Each of these latter words were different in meaning from "maintain". Again it was significant that in sub-section 2 an application for a works licence which was limited in scope to a licence to "maintain", while it required to be accompanied by plans and others specified in paragraph (a) and the requirements of paragraph (b), did not require to be accompanied by a copy of a notice published in a newspaper which also contained a general description of the "land upon which the works are proposed to be constructed, placed, altered, renewed or extended". The absence of the word "maintained" was deliberate since the works for a licence to maintain would already be in existence and not merely be proposed works. However, when deciding whether or not to grant a works licence of any kind, including one to maintain works, the Council were bound, in terms of sub-section 3, to take into consideration any objection in writing which was a valid objection and in granting a licence were empowered to require modification in the plans and others submitted by the applicant. A similar meaning was to be ascribed to the words "maintain", "maintained by" and "maintenance" in their context in, for example, sections 7, 11(6), 12(6), 75(4) and (6) and 76(2).

[21] If the first respondents were correct in their interpretation, there was a lacuna in the extent of the powers granted to the Council which could not be corrected other than by requiring the works to be removed and thereafter an application made for their construction. This was a strained and irrational construction of the powers given to the Council to grant works licences under section 11. There was no ambiguity in the nature or extent of the powers given to the Council. Accordingly, the fact that the pipeline was already in place before the licence was applied for, was an irrelevant consideration. However, the Council were obliged in terms of section 11 to take account of any objections lodged to the application and of the matters referred to in section 73 and in doing so to have regard to the fact of the existence of the pipeline as built and the consequences of permitting the pipeline to be left in that position as opposed to the position previously authorised by the first licence. The second licence could not take effect until issued and could never, for instance, serve to protect the applicant from any criminal proceedings instituted before its issue in relation to works which were executed in contravention of the first licence. The first licence was not overtaken unless and until the second licence was issued. Accordingly the decision of the first respondents should be set aside and the matter remitted back to the first respondents to consider the remaining grounds of appeal in terms of section 14 of the 1974 Act.

[22] The solicitor advocate for the second respondents, the Council, supported the submissions for the petitioners as to the proper construction of section 11(1) and the Council's powers under and in terms of the section. Under reference to a passage in Maxwell cit supra at p. 263 he pointed that there was no question of the construction for which the petitioners and the Council contended, being prejudicial to the vested interests of private persons, since the Council were a public representative body and the works concerned were works of a public nature which were of benefit to the public at large. In such circumstances the courts were entitled not to construe the provisions of a private Act strictly.

[23] In my opinion, it cannot be said that there is any ambiguity in the provisions of section 11(1) of the 1974 Act. It empowers the Council to grant a licence to another person to do any one or more of the things in the list "to construct, place, maintain, alter, renew or extend any works" within a specified part of the harbour area, notwithstanding any interference with the specified public rights by such works "as constructed, placed, maintained, altered, renewed or extended". I consider that the appearance of the word "or" in that list makes clear that the licence can be restricted to any one of the things contained in the list. I did not understand that there was any real dispute as to the meaning to be given to the word "maintain" in the context of section 11(1). However, I agree with the petitioners that it means to maintain or keep the works in position in the sense of their continuing in existence from and after the date of the grant of the licence and that it presupposes that the works have earlier been constructed or, as may be, placed in that position. It does not presuppose that such works have earlier been the subject of a licence granted for the purpose of their construction or placing in position. This meaning of the word "maintain" is consistent with other uses of that word in the 1974 Act, for instance, in section 7 or again in section 10 or section 75(4) and (5)(b). It is also consistent with the way in which the word is used in the first licence. The licence allows NOSWA

"to place a sea outfall pipe for a public sewage treatment plant... notwithstanding any interference with public rights of navigation ...or other public rights by the works as constructed or placed and maintained".

Condition 9 provides for indemnification of the Council against claims connected with not only the construction but the "existence" of the works. By contrast where the word "maintain" is used in the sense of keeping in good repair, that is either clear from the context, as in the references to "maintenance" in the context of section 10 or of section 19, or is spelled out in full, as in condition 3 of the first licence. Further, if, as appeared to be suggested for the first respondents, the word "maintain" in section 11(1) is to be read as running along with the prior words "construct" or "place", that is not the way in which the provision is framed.

[24] I am fortified in my opinion by certain other matters. First, I have had regard to the preamble to the 1974 Act and in particular the purposes set out provisions of paragraphs (3), (4) and (5). These make reference, amongst other things, to the provision of "adequate services", to the need to ensure that "the community as a whole benefits from any development" and that for the avoidance of harmful effects it is expedient that the Council be given powers not only "for the improvement, conservancy and development of certain areas" but "for the exercise of harbour jurisdiction" in respect of those areas. The development to which the first licence was related, namely a public sewage plant, was for the provision of adequate services and one which was to the benefit of the community within the Council's jurisdiction. Clearly the Council was so satisfied and, because a sea outfall pipe was a necessary adjunct of the landward works and constituted "tidal works" within the meaning of section 3 of the 1974 Act, considered it necessary and desirable in the exercise of harbour jurisdiction and having regard also to the general duties and powers given to them in Part II of the 1974 Act, to grant the first licence. I would observe in passing that the landward works are not immediately within the scope of the Council's licensing powers, being works on or over land above the level of high water, although they may thereafter become so in the context of section 19 powers in relation to works abandoned or decayed. The first licence remains in existence and it does not appear to be disputed that the sea outfall pipe has, at least in part, been constructed and placed within the limits specified in the first licence. Nevertheless, there has been an admitted departure from those limits and thus a failure to comply with the conditions of the first licence which could have made NOSWA as licensees liable to criminal proceedings in terms of section 14 of the 1974 Act and to a daily fine during the period of non-compliance. While, in this case, no proceedings were taken, it is relevant to take into account the consequence of such an apparently draconian provision. Unless the licensee was able, by way of an application for grant of a licence to maintain the status quo, to attempt to rectify the situation, he could only avoid the continuing criminal sanction of a daily fine, by removal of that part of the works which did not comply with terms and conditions of the first licence. But such further application for a licence required to be placed before the Council in terms of section 11 of the 1974 Act, to be advertised and thereafter to be considered by the Council in the light of any objections stated to it and under reference to such other relevant matters, including those set out in section 73 and the Council's general duty in terms of section 5 of the 1974 Act. The Council were not obliged in terms of section 11 to grant the application. They required to consider the application of new on its merits and in doing so to consider, in particular, the question of whether and to what extent there was any interference with public rights of navigation or other public rights.

[25] Accordingly, I agree with the submissions of both the petitioners and the Council that the mere fact that the pipe line has been constructed on a line outwith the limits permitted under the first licence, was not of itself a bar to a further application for power to maintain the pipe line as constructed as a licensed tidal work. Furthermore, the grant of the second application could not constitute the issue of a retrospective licence, not least because the terms and conditions upon which it might be granted would not necessarily be the same as those on which the first licence was granted and it only took effect from the date of issue. In the context of the 1974 Act and its particular purposes and provisions, I do not find references to the very different provisions of the town and country planning legislation concerning retrospective consent to development, to be of assistance. I am therefore satisfied that the Council was acting within its powers in entertaining the petitioners' application for a licence to maintain the tidal works already constructed by them and in granting such application in terms of section 11 of the 1974 Act.

[26] For the above reasons, I shall repel the first and second pleas-in-law for the first respondents and for completeness the first plea-in-law for the third respondents. No argument was addressed to the third plea-in-law for the first respondents or the corresponding plea-in-law for the third respondents. These pleas-in-law will also be repelled. I shall accordingly sustain the first plea-in-law for each of the petitioners and the Council as second respondents. In the light of my opinion that the Council acted within the powers granted by the 1974 Act, I do not find it necessary to consider further the second plea-in-law for either the petitioners or the second respondents. Parties were agreed that in these circumstances while the decision of the first respondents fell to be reduced, the matter of the third respondents' appeal under section 13 of the 1974 Act should be remitted back to the Scottish Ministers for consideration of the remaining grounds of appeal stated by the third respondents and for determination of the appeal thereon. I shall so order .