Clacton council should have connected up the chalets at Jaywick Sands to main drainage and supplied them with water, and the Secretary of State was wrong in absolving the council from responsibility on formal complaint made by the owners–Nevertheless these matters have since been handed over to the new water authorities constituted under the Water Act 1973, so that it would not be right to grant an order requiring determination of the owners’ complaint according to law
This was an
application by Jaywick Sands Freeholders’ Association Ltd, of Clacton, Essex,
for an order of certiorari to quash a decision of the respondent, the Secretary
of State for the Environment, given on April 30 1974, holding that Clacton
Urban District Council were not in default under section 13 (1) of the Water
Act 1945 and section 322 (1) of the Public Health Act 1936 in declining to
provide mains drainage and water supply to the applicants’ holiday chalets at
Jaywick Sands. The applicants also sought an order of mandamus directing the
Secretary of State to determine their complaint against the council according
to law.
Mr G Dobry QC
and Mr F A Amies (instructed by Ellison & Co, of Colchester) appeared for
the applicants, and Mr H K Woolf (instructed by the Treasury Solicitor)
represented the respondent.
Giving
judgment, LORD WIDGERY said that the case concerned a colony of holiday chalets
not far from Clacton. Two areas known as Brooklands and Grasslands, containing
773 chalets, were directly involved. The chalets were built before the second
world war, and were not equipped with mains drainage or piped water. They had
chemical closet toilets, and water was drawn from taps set up at the roadside.
Over the past 20 years the applicants had tried to persuade Clacton Urban
District Council to supply sewers and mains water. A stalemate had developed,
with the two sides entrenched. The council wanted the two areas to be redeveloped
and said it was therefore pointless to supply drains and water. In 1971 the
council made orders for the compulsory acquisition of Grasslands and
Brooklands, claiming that the absence of drains and water supply made the
chalets unfit for human habitation. The council declared their intention of
demolishing the chalets. The applicants objected, and made a formal complaint
to the Secretary of State that the council were in default for not providing
the facilities in question. The Secretary of State ordered a public inquiry
which was held at Clacton in September and October 1972. It was an exhaustive
inquiry, and the inspector did not put in his report until August 8 1973. The
Secretary of State did not give his decision until April 30 1974.
At the inquiry
the real issue was whether the two areas were going to be redeveloped or not.
If they were going to be redeveloped, there was no reason to spend money on
water and sewerage facilities. If the areas were not going to be redeveloped
the council had no answer to the charge of default. The inspector found in
favour of the applicants. He recommended that the compulsory purchase orders
should not be confirmed, and he also expressed the view that there was no
practical obstacle to the provision of mains sewerage and piped water. The
Secretary of State adopted the inspector’s view with regard to the compulsory
purchase orders, therefore accepting that demolition was not necessary or the
right solution. He took the view that the whole matter should be
as the complaint against the local authority was concerned, he accepted that
local authorities had a discretion in carrying out their duties with regard to
the provision of services such as those now under consideration, and in the
circumstances of the case he had reached the conclusion that the council were
not in default of their obligations under the statutes concerned.
He (Lord
Widgery) did not quarrel with the view that, in deciding whether sewers and
water were necessary, one had to consider the matter from a practical
standpoint. The Secretary of State had however expressed the opinion that the
test was whether the council, in reaching its decision not to supply these
services to the applicants’ properties, had acted ‘unreasonably.’ He (the Secretary of State) did not think the
council had acted unreasonably, and therefore thought that they had not failed
in their duty. He (his Lordship) thought that in making the question of whether
the council had acted unreasonably the touchstone of liability, the Secretary
of State had adopted far too general an approach. The Public Health Act 1936
said that a local authority had a duty to provide mains sewers and piped water.
In approaching their duty the council had to decide when sewers and piped water
were ‘necessary.’ In the present case,
the council would have had great difficulty in saying that it was not necessary
for the 773 chalets to have those services. The answer to the question whether
sewers and piped water were necessary must be yes. Of course, this did not mean
that the local authority was required on a particular day to throw all its
resources into putting in the facilities, but a delay of 20 years was not
justifiable.
The Secretary
of State might well have concluded, therefore, that there was a failure of duty
by the council if he had considered the case on the basis of the council’s
mandatory duty. He (the Lord Chief Justice) thought that there would
accordingly have been grounds, in ordinary circumstances, for allowing the
application and sending the matter back to the Secretary of State for
reconsideration in the light of the court’s decision. This course was not in
fact possible, however, because of the reorganisation of local government which
took place between the local inquiry and the Secretary of State’s decision. New
legislation, the Water Act 1973, came into force in April 1974. This Act
established the duty of providing mains water supply and mains sewerage on the
new water authorities, and local authorities were no longer concerned. Counsel
for the applicants had tried to persuade the court that if the order of
mandamus would have been justified against Clacton Urban District Council it
would be justified against the new Anglian Water Authority. But he (his
Lordship) was left with the clear impression that it was not open to the
Secretary of State for the Environment to direct the urban district council to
do the work, first because the council no longer existed, and secondly because
the power to do the work was now vested in the water authority. Similarly the
Secretary of State could not have the power to direct the water authority to do
the work, because it was not the defaulting party in the first place. The
change in local government had overtaken events, so that the Secretary of State
was not in a position to make the order the applicants sought. Although,
therefore, he went a long way with the applicants in thinking that the
Secretary of State’s decision was reached on an incorrect basis, he (Lord
Widgery) did not think the court could do anything about it with an order.
CROOM-JOHNSON
and STOCKER JJ agreed, and the application was accordingly refused. No order
was made as to costs.
