Protection of sites — “Owner and occupier of land” — Notification of designated site to owners and occupiers of land — Whether “occupier” includes stranger coming on to land to perform proscribed operations — Divisional court holding that no recourse against persons entering on land to perform proscribed operation — House of Lords upholding decision
Under the Wildlife and Countryside Act 1981 protection was afforded to sites of special scientific interest (SSSIs). Under section 28 the control of protection of such sites was in the hands of the Nature Conservancy Council (NCC). When it considered an area of land to be an SSSI it notified the fact to, among others, “every owner and occupier of that land”. After notification it was an offence for the owner or occupier of the SSSI to carry out any operation which appeared to the NCC to be likely to cause damage to it. In November 1982 the NCC notified an area of land in the Isle of Wight as an SSSI. The site included a strip of land known as Hill Heath Ditch. Among those to whom notification was given under section 28 were two farmers who owned land on either side of the ditch and also the Southern Water Authority (SWA), which owned a parcel of land elsewhere on the site. In 1987 the farmers asked the SWA to dredge the ditch to mitigate flooding. The SWA subsequently enlarged and reshaped the ditch and deposited spoil on the land to one side, over a length of 350m. Those were operations falling within the scope of the notification and resulted in grave damage to the material features of the ditch which the notification had been designed to protect.
The NCC decided to launch a prosecution under section 28(7). The natural targets would have been the farmers, on the ground that they had caused or permitted the performance of the offending operations but that was not considered expedient. Therefore, the NCC laid informations against the SWA, which knew that the site was an SSSI and that certain operations were proscribed. It had also been informally notified of the fact in its own right. The SWA argued that there was no case to answer because, among other things, they were not and had never been the owners or occupiers of the ditch and accordingly fell outside the scope of section 28. The justices rejected that argument finding as a fact that the SWA were occupiers of the site during the weeks when the work was carried out. They convicted the SWA and imposed heavy fines. The SWA appealed to the Divisional Court. The NCC there argued that since the SWA were the owners of part of the site, albeit not the part in question, they fell within the scope of “the owner … of any land which had been notified …” in section 28(5) and hence were prohibited from carrying out the notified operations anywhere on the site. The Divisional Court rejected all the NCC’s arguments and quashed the convictions. The NCC then appealed to the House of Lords.
Held The appeal was dismissed.
1. The principal category of occupier covered by section 28 consisted of those who were occupiers at the time of the notification and had themselves been recipients of the notification. Section 28(5) enlarged the category to include those who had subsequently come into occupation of notified land. However, it did not comprise those who had no connection with the land until the proscribed operations commenced and whose occupation was created only by the fact that they were the persons who carried out those operations.
2. Section 28 contemplated that the elaborate machinery of notices, waiting periods, agreements etc would be set in motion by a notification under section 28(1) to an owner or occupier. The juxtaposition with “owner” showed that the occupier was someone who, although lacking the title of owner, nevertheless stood in such a comprehensive and stable relationship with the land as to be, in company with the actual owner, someone to whom the mechanisms could simply be made to apply. A stranger who entered the land for a few weeks solely to do some work on it did not fall within that category.
3. The water authority were not prohibited from working in the ditch by virtue of the mere coincidence that they happened to be owners of another part of the site and had in that capacity been addressees of the notification. Just as the original notification was sent to the current owner of part of the land in his character as owner of that part, so also was the prohibition imposed on the person who, at the time when operations on part of the land were performed, was the owner of that part.
4. Accordingly, section 28 did not permit recourse against persons whose only connection with the part of the land in question was that they had entered upon it to perform a proscribed operation.
Nigel Pleming QC (instructed by the Treasury Solicitor) appeared for the NCC; R Camden Pratt (instructed by the solicitor to the National Rivers Authority) appeared for the SWA.
