Environment agency – Water Resources Act 1991 – Powers of entry – Environment Agency obtaining planning permission for works affecting appellants’ land in connection with flood alleviation scheme – Appellants refusing access to land — Environment Agency obtaining warrant for entry – Magistrates Court refusing appellants’ request to state a case – High Court dismissing application for judicial review – Appellants appealing — Whether, in case of new works involving entry onto land or premises without consent, Environment Agency confined to powers of compulsory purchase or compulsory works orders or entitled to exercise powers of entry – Appeal dismissed
The appellants owned a farm near Chelmsford, together with 365 acres of agricultural land on which 1,400 sheep and cattle grazed. In 2013, the city council granted planning permission to the interested party Environment Agency for works to be carried out to implement the Chelmsford Flood Alleviation Scheme (CFAS). Those works included significant works on the appellants’ land and the rerouting of a river, prone to flooding, which would deprive the appellants of three hectares of their land. The appellants’ application for judicial review of the decision to grant planning permission was dismissed. When they refused to allow the interested party entry to their land to carry out the proposed works, it applied to the magistrates’ court for a warrant to secure entry. The district judge held that he was satisfied that there were reasonable grounds for the interested party to exercise its power of entry under section 172 of the Water Resources Act 1991 and granted the warrant sought.
The appellants applied to the judge to state a case, including the question whether, when seeking to exercise its power to carry out flood defence works under section 165 of the 1991 Act, it was reasonable for the interested party to rely on the general power of entry under section 172 rather than a compulsory purchase order (CPO) under section 154 or a compulsory works order (CWO) under section 168. The district judge concluded that the application was frivolous and refused to state a case.
The appellants’ application for judicial review of that decision was refused: [2015] EWHC 3957 (Admin). The appellants appealed. The only substantive issue was whether, in the case of new works involving entry onto land or premises, absent consent from the landowner, the Environment Agency was confined by section 165(6) of the 1991 Act to its powers of compulsory purchase under section 154 or compulsory works orders under section 168, or whether it was entitled to exercise the powers of entry conferred by section 172. Section 165(6) restricted entry onto land for purpose of maintaining existing works.
Held: The appeal was dismissed.
Underlying the question of statutory construction was a broader concern as to the balance to be struck between individual rights of property and the interests of society in general, neatly encapsulated by Bean J in Pattinson v Finningley Internal Drainage Board [1970] 2 Q.B 33 concerning the powers of the Drainage Board. Striking the right balance in that area was important and not necessarily straightforward. Interference with private rights of property plainly required careful justification.
In the present case, the court was not persuaded that the permissive language in sections 154 and 168, referring to powers rather than duties, was to be converted into obligatory language requiring the Environment Agency to use its CPO or CWO powers in the case of new works. That did not render the CPO or CWO otiose as they were available for use, in a proper case, when the Environment Agency decided to deploy them. Moreover, the appellants’ case meant that any new works (no matter how minor), provided only that they deprived landowners of the smallest parcel of land, would oblige the Environment Agency to proceed by way of its CPO or CWO powers. Such an outcome appeared improbable and cast further doubt on the appellants’ proposed construction. Furthermore, the natural construction of section 172 was that it conferred an independent and general power of entry.
Accordingly, in the case of new works involving entry onto land or premises, absent consent from the landowner, the interested party was not confined by section 165(6) to its CPO or CWO powers under sections 154 or 168; instead it was entitled to exercise the powers of entry conferred by section 172. Although that conclusion constrained the ability of those affected to challenge the merits, as distinct from the legality, of the Environment Agency’s proposals and process, the court was satisfied that that was the balance struck by the legislature. In any event, there remained the opportunity for challenge on public law grounds, albeit not an open-ended challenge on the merits.
Martin Edwards and Jack Parker (instructed by Holmes & Hills LLP, of Braintree) appeared for the appellant; the respondent did not appear and was not represented; Daniel Kolinsky QC and Gwion Lewis (instructed by the Environment Agency) appeared for the interested party.
Eileen O’Grady, barrister
