Development — Agricultural land — Drainage channel — Council serving notice on claimant of intention to enter on land to carry out land drainage works — Claimant objecting to proposed works and challenging lawfulness of notice — Whether council had power to enter on land to carry out works — Whether council’s action disproportionate interference with claimant’s property rights — Sections 14 and 64 of Land Drainage Act 1991 — Articles 1 and 6 of First Protocol to European Convention on Human Rights — Claim dismissed
Section 14 of the Land Drainage Act 1991 authorised local authorities to enter onto land to maintain, improve and construct drainage works subject to payment of compensation, including compensation for any diminution in the value of the land. The defendant council purported to serve a notice on the claimant under section 64 of the 1991 Act, indicating that they intended to enter onto the claimant’s land to carry out land drainage works. The claimant objected to the proposed works and challenged the lawfulness of the notice. It requested permission to apply for judicial review and for an injunction. An interim injunction was granted, restraining the council from entering onto the claimant’s land pending an oral hearing of the permission application. Permission was subsequently granted. The injunction was discharged and the works were carried out before the substantive hearing.
The question remained as to whether the notice was lawful and whether the council’s entry onto the claimant’s land was authorised by statute or was a trespass. The claimant applied for judicial review of the notice. There were two main issues, namely whether: (i) the council had a power under section 64 to enter onto the claimant’s land for the construction of new drainage works; and (ii) the council’s action was a disproportionate interference with the claimant’s property rights.
Held: The claim was dismissed.
1. Authorities that acted on behalf of the community were often given powers that, so long as they were exercised reasonably, entitled the relevant authority to encroach upon the rights of the individual, and to provide compensation where required. The council were given such a power under section 64 of the 1991 Act, which conferred an independent right of entry on persons authorised by the authority to enter onto land for the purposes of exercising any of the authority’s functions under the Act, including the construction of new drainage works: Pattinson v Finningley Internal Drainage Board [1970] 1 All ER 790 applied; Grove v Eastern Gas Board [1952] 1 KB 77, Marriage v East Norfolk Rivers Catchment Board [1949] 2 All ER 1021 and Weeks v Thames Water Authority 40/1979 [1979] 2 EGLR 181 considered.
2. There was no significant interference with the claimant’s right of enjoyment of its property. The land had been described as agricultural land of no particular consequence, and although the claimant had suggested that it might have development potential, on the evidence it appeared to be no more than a speculative possibility. Moreover, although the drainage channel took up an area of approximately a quarter of an acre (and more was required for the actual carrying out of the works), it did not constitute a major impediment to future development of the land. The evidence showed that compulsory purchase had been considered, but would not have benefited the claimant. It would have involved a greater interference with the claimant’s property rights and would not have led to a significantly different basis of compensation.
3. Bearing in mind that compensation was payable under section 14(4) of the 1991 Act for the injury caused to the claimant by the exercise of the council’s powers under that section, there was no breach of the claimant’s rights under Articles 1 and 6 and of the First Protocol to the European Convention on Human Rights. The need for the works, their effect upon the claimant and upon others, and the possibility of other options had all been significantly considered. A more elaborate appraisal was unnecessary.
Gregory Jones (instructed by TLT Solicitors, of Bristol) appeared for the claimant; James Findlay and Katy Skerrett (instructed by Sharpe Pritchard) appeared for the defendants.
Eileen O’Grady, barrister
