Compulsory purchase order for purposes of new sewage treatment works – Objections to confirmation of order by Secretary of State – Whether fresh evidence to be adduced – Whether sewage treatment works in breach of EC directive – Application for judicial review refused – Appeal dismissed
South West Water Services Ltd (SWWS), the second respondent, made a CPO, under section 155 of the Water Industry Act 1991 and section 23 of the Acquisition of Land Act 1981, to acquire land at Cornborough, Devon, for the purposes of constructing and operating a new sewage treatment works with a 0.5km outfall (the Cornborough STW). The purpose of the Cornborough STW was to improve sewage facilities in the locality and to meet the requirements of EC legislation. The Environment Agency had consented to the scheme in November 1996 and SWWS subsequently applied to the Secretary of State for confirmation of the order.
The Secretary of State appointed an inspector to hold an inquiry and submit a report on the application. The appellants argued that the proposed scheme would pollute bathing waters and damage the natural beauty of the area, and they put forward alternatives that they considered less harmful and less costly. The inspector concluded in favour of the CPO. The Secretary of State, after considering the inspector’s report and the evidence presented to the inquiry, confirmed the CPO by a letter of May 1998.
The appellants applied for the Secretary of State’s decision to be quashed. At the hearing, they applied to submit new information relating to the results of samples of bathing water taken near a sewage treatment works in Wales. The judge rejected that application on the ground that the evidence had not been considered or analysed by the Secretary of State or Welsh Water, and he dismissed the appellants’ challenge. The appellants appealed.
They submitted that the judge had erred in not allowing the evidence to be admitted, and a further application was made to admit further fresh evidence, consisting of a review carried out on enteroviruses in connection with the Bathing Water Directive (76/160/EEC) implemented by the Bathing Waters (Classification) Regulations 1991 (SI 1991 1597). The appellants also submitted that the inspector had erred in not concluding that the Cornborough STW amounted unconditionally to a breach of the obligation imposed by para 5 of Part 1 of Schedule 3 to the Urban Waste Water Treatment Directive (91/271/EEC), implemented by the Urban Waste Water Treatment (England and Wales) Regulations 1994 (SI 1994 2841). The regulations stated: “The points of discharge of urban waste water shall be chosen, as far as possible, so as to minimise the effect on receiving waters.”
Held: The appeal was dismissed.
1. There was nothing in European law that required fresh evidence to be admitted simply because it raised the question of whether the Environment Agency, in granting consent, was in breach of the mandatory requirements that it was required by statute to enforce. Any attack on the Environment Agency could and should have been made by the appellants before the inspector, where the matter could have been fully dealt with, with the assistance of experts. Moreover, the fresh evidence would require extensive explanation by way of evidence from both lay and scientific witnesses, and no such evidence had been put before the court. Accordingly, the judge had been right not to admit the fresh evidence. The further application to adduce fresh evidence was refused.
2. It could not be concluded that the Cornborough SWT would inevitably be in breach of para 5 of Part 1 of Schedule 3 to the Urban Waste Water Treatment Directive. It was clear from the directive itself that the underlying purpose was to protect the environment as a whole. The point of discharge had been chosen, as far as possible, so as to minimise the effects on receiving waters. The words “as far as possible” clearly envisaged that other matters, such as the effect on the environment as a whole, the feasibility of alternatives, a comparison with other possible outfalls, the effect upon all the waters that could properly be described as the receiving waters, and the effect on fish other wildlife, had to be considered. The “receiving waters” clearly went wider than the point of discharge alone.
Robert McCracken (instructed by Toller Beattie, of Barnstaple) appeared for the applicants; Richard Drabble QC (instructed by the Treasury Solicitor) appeared for the first respondent; Robert Fookes (instructed by the Pennon Group) appeared for the second respondent.
Thomas Elliott, barrister
