Dredging — Byelaws — Defence — Respondents dredging river without consent of appellant agency — Whether such consent required when drainage system not harmed — Byelaws 2(a) and 26 of South West Water Drainage Byelaws 1986 — Appeal allowed
The appellant agency sought to prosecute the respondents for dredging a main river without its consent, contrary to byelaw 26 of the South West Water Drainage Byelaws 1986. The purpose of those byelaws was to “secure the efficient working of the drainage system& and for securing the proper defence against the sea at tidal waters”. The respondents argued that they had a complete defence in byelaw 2(a), which provided that “nothing in these byelaws shall: (a) authorise the [agency] to require any person to do any act& which is not necessary for securing the efficient working of the drainage system& or to refrain from doing any act& which does not affect the efficient working of the drainage system”. The magistrates found that: (i) there was a conjunction between byelaws 2(a) and 26; (ii) those byelaws were ambiguous; and (iii) as a result, they were obliged to adopt a construction that was favourable to the respondents. The agency appealed.
Although accepting that the respondents’ activities had not harmed the drainage system, the agency contended that byelaw 2(a) could have no application to byelaw 26, since the latter imposed a simple prohibition, and was not dependent upon any act of authorisation or requirement on the part of the agency. It submitted that byelaw 2(a) could provide a defence only in relation to byelaws that permitted it to demand that a landowner take positive action or refrain from certain actions in relation to property.
Held: The appeal was allowed.
The byelaws contained no ambiguity. On the contrary, they provided a straightforward set of rules for achieving the stated purpose of securing the efficient working of the drainage system. The consent provisions were intended to enable the agency to determine, in advance of any dredging works, whether those works would have an adverse effect upon drainage. That purpose would be frustrated if the respondents’ construction of the byelaws were correct, and if it were left to hindsight to assess whether damage had in fact been done. There was no question of byelaw 2(a) conflicting with byelaw 26. The former applied only in the case of a requirement imposed by the relevant authority. The latter did not constitute such a requirement, and, therefore byelaw 2(a) did not apply to it.
Geoffrey Stephenson (instructed by the solicitor to the Environment Agency) appeared for the appellant; John Bates (instructed by Stones, of Exeter) appeared for the respondents.
Sally Dobson, barrister
