Statutory nuisance — River — Bridge allegedly obstructing and “choking” river — Claimant seeking remedial works — Council serving abatement notice Whether court entitled to define “choking” in stand alone proceedings — Claim dismissed
The claimant’s house was subject to flooding from the river. He argued that this was caused by the arches and plinths of the bridge that carried a highway over the river restricting the flow of water under it.
He regarded the flooding as a statutory nuisance under section 259(1)(b) of the Public Health Act 1936, which provided that such a nuisance existed where: “Any part of a water course… is so choked or silted up as to obstruct or impede the proper flow of water and thereby cause a nuisance”. He believed that the county council (the interested party) was responsible for the flooding and asked his local district council (the defendants), as the authority responsible for abating statutory nuisances, to serve an abatement notice on the interested party under the Environmental Health Act 1990. He wanted them to undertake remedial work to prevent or minimise the risk of future flooding and argued that the plinths and arches of the bridge choked the river, causing flooding and a nuisance to which section 259 of the 1936 Act applied.
In March 2004, the defendants passed a resolution authorising the service of an abatement notice but, following advice that the resolution was wrong, they passed a further resolution in May 2005 not to serve the notice.
The claimant obtained permission to apply for judicial review of that decision. This prompted the defendants to serve the notice. The interested party served a notice of appeal against the abatement notice on the defendants and the magistrates’ court, pursuant to section 80(3) of the 1990 Act. The claimant could not be a party to that appeal. However, he proceeded with his claim for a declaration that the word “choked” under section 259 of the 1936 Act could include an obstruction to the proper flow of a river by a bridge over it, or such other formulation as the court thought appropriate.
Held: The claim was dismissed.
No order could be made on the application to quash the defendants’ decision not to serve the abatement notice since they had superseded that decision. Nor could an appropriate mandatory order be made requiring the defendants to serve the abatement notice since it had already been served.
The application for a declaration as to the meaning of “choked” in section 259 was refused because it depended upon, and was subsidiary to, the application for the mandatory order. The issue of whether the bridge choked the river so as to constitute a statutory nuisance was fact-sensitive and this was not a case where it was proper, in stand-alone proceedings, to make a declaration that might relate to the claimant’s particular circumstances.
Obiter: Where an obstruction or an artificial obstruction occurred in a watercourse causing a statutory nuisance, that watercourse could be said to be “choked” within section 259. The phrase “so choked” was not confined to the instance where the statutory nuisance caused by the choking had to be ever present and continuous. The subsection also had address an intermittent state or series of events or occurrences. The piers of a bridge, and perhaps other associated works, could be “artificial” obstructions in a watercourse or river. However, those were factual issues that were not before the court in an application for judicial review.
James Pereira (instructed by Toller Beattie, of Barnstaple) appeared for the claimant; Philip Coppel (instructed by the legal department of Devon County Council) appeared for the interested party; the defendants did not appear and were not represented.
Eileen O’Grady, barrister
