Health authority receiving complaints about respondent’s sewage scheme – Health authority serving abatement notice – Application for judicial review of health authority’s decision to serve notice – Whether abatement notice valid – Application allowed – Health authority’s appeal dismissed
Pursuant to section 94 of the Water Industry Act 1991, the respondent, a water undertaker, was charged with the statutory duty of effectually dealing with the contents of sewers within its area, the South West of England. In order to enable compliance with the UK’s obligations under the EC Bathing Waters Directive, the respondent proposed the creation of a new outfall into a part of the Fal estuary known as the Carrick Roads, at a point north of Black Rock, Falmouth, Cornwall, by laying a pipe 760m off-shore. Sewage was to be discharged from the pipe at specific times in the tidal cycle so that it was taken out to sea on the strong ebb tide. In March 1998 the Environment Agency granted the respondent the discharge consent required by Part III of the Water Resources Act 1991, subject to a number of conditions. In April 1998 the respondent commenced discharging sewage from the new outfall.
Subsequently, complaints were received by the appellant health authority about the effects of the operation of the new outfall. In July 1998 the authority served an abatement notice on the respondent under section 80 of the Environmental Protection Act 1990 requiring it, within three months, to cease discharging sewage from the outfall. The notice stated that the authority was satisfied that a statutory nuisance under section 79(h) of the Act, namely a nuisance under section 259(1)(a) of the Public Health Act 1936, was being caused in that the watercourse at Carrick Roads was so foul as a result of the discharge of sewage from the outfall as to be prejudicial to health or a nuisance.
In July 1998 the respondent was granted leave to apply for judicial review and a stay of the abatement notice. At the hearing ([1999] PLSCS 106), the judge ruled that despite the respondent’s statutory right of appeal against the notice, all the issues could properly be determined by way of judicial review. The judge then quashed the authority’s decision to serve the abatement notice, holding that: (i) the respondent had been given a legitimate expectation of a genuine consultation exercise prior to the service of the notice, which it had been unfairly denied; (ii) the notice was invalid for failing to specify the works required to abate the nuisance; and (iii) the outfall was not a “watercourse” within the meaning of section 259(1)(a) of the 1936 Act, and so, whatever its state, was not capable of constituting a public nuisance. The authority appealed.
Held: The appeal was dismissed.
1. The authority had not been under a general duty to consult the respondent, as the alleged perpetrator of a nuisance, either by reason of the statutory scheme under the 1990 Act or common law, in order to achieve fairness before serving the enforcement notice. On that basis, only the clearest of assurances could give rise to a legitimate expectation (see R v Inland Revenue Commissioners, ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545), and the authority’s correspondence with the respondent had not amounted to such an assurance. Accordingly, the fact that no genuine or adequate consultation process had taken place became immaterial. It could not be concluded that there were other grounds upon which it could be held that the authority was, in law, bound to consult the respondent before serving the notice.
2. The notice served was not invalid for failing to specify the works required to abate the nuisance. In all cases, a local authority could, if it wished, leave the choice of means of abatement to the perpetrator of the nuisance: Kirklees Metropolitan Council v Field [1998] Env LR 337; [1997] PLSCS 287 overruled. If, however, the means of abatement were required by the local authority, then they were to be specified. There had been compelling reasons for leaving the respondent to decide how the nuisance should be abated, since it carried the statutory responsibility for discharging sewage, and any substitute discharge required compliance with the Environment Agency’s discharge consent.
3. The outfall was not a “watercourse” within the meaning of section 259(1)(a) of the 1936 Act, and, accordingly, the authority had had no power to issue the notice. It could have not have been contemplated in 1936 that the authority would be able to take action under the Act against local health authorities that were responsible for the old outfalls, since, in many places, the responsible authorities would be one and the same. It was not possible to hold that the meaning of the term was now broader that it had been in 1936. Accordingly, the appeal was to be dismissed on that ground only.
4. Where an applicant had a statutory right of appeal, the grant of permission to apply for judicial review would only exceptionally be given, and permission would be rarer in cases concerning public safety. It was inappropriate to grant a stay on so wide-ranging a basis. It was imperative that any judicial review challenge was dealt with expeditiously and the stay kept as short as possible. The issues of consultation and legitimate expectation were not suitable for decision by judicial review, given the volume of evidence required for their determination. However, an expedited judicial review hearing would have been appropriate for the issues of specification of abatement works and the meaning of “watercourse”, since the determination of those issues required no evidence: R v Devon County Council, ex parte Baker [1995] 1 All ER 73 distinguished; R v Birmingham City Council, ex parte Ferrero [1993] 1 All ER 530 considered.
Richard Gordon QC and Martin Diggins (instructed by Toller Beattie, of Barnstaple) appeared for the claimant; Philip Havers QC and David Hart (instructed by The Pennon Group, of Exeter) appeared for the respondent.
Thomas Elliott, barrister
