Watercourse – Obstruction – Nuisance – Respondents constructing irrigation pools along line of watercourse – Appellant authority issuing abatement notices requiring removal of waste and reinstatement of land to former condition – Respondents successfully challenging convictions for failure to comply with notices – Appellant appealing – Whether requirement to reinstate land to former condition within powers conferred by section 24 of Land Drainage Act 1991 – Appeal allowed
In 2013, three irrigation pools were constructed on land at Witley Park Farm, Great Witley, Worcestershire.
The pools were constructed along the line of a watercourse flowing across the farm and forming part of a tributary of the Shrawley Brook.
They were created by the importation on to the farm and the depositing thereon of tens of thousands of tonnes of waste. The appellant was the Local Lead Flood Authority for Worcestershire and was the relevant drainage board for the purposes of the Land Drainage Act 1991 Act.
The respondents were persons by whom those works were done and/or having power to remove the pools.
The appellant considered that the works to create the pools over the ordinary watercourse had been carried out without consent under section 23 of the 1991 Act and constituted a nuisance.
It issued the respondents with notices purportedly served pursuant to its powers under section 24 of the 1991 Act which set out the steps required to abate the nuisance. The final requirement was for the respondents to reinstate the land to its former condition.
The respondents were subsequently convicted of the offence of failing to comply with notices served under section 24 but appealed successfully to the Crown Court.
The court held that the requirement to “reinstate land to former condition” was outside the powers conferred by section 24 and it was not severable so that the notices were entirely invalid.
The appellant appealed by way of case stated.
Held: The appeal was allowed.
(1) Section 23 of the 1991 Act was directed at actions which obstructed or affected the flow of a watercourse while section 24 empowered a drainage board to compel the removal of the interference with the flow to maintain the flow of water.
The focus was on interference with the water flow. That was also shown by the reserve power in section 24(4) for the drainage board to take action “to remedy the effect of the contravention”.
Similarly, in section 25 the emphasis was on maintaining the “proper flow of water”. The power in section 24 was to require the removal of structures which obstructed the watercourse.
It was then necessary to analyse the nature of the structure, which was the obstruction of the watercourse, in light of the purpose of the provisions.
It could readily be understood that if the obstruction was a mill, dam, or weir then the power would extend to removal of the structure as a whole. That was because, save in exceptional circumstances, it would be artificial to see the parts of those structures which happened not to be in the watercourse as distinct from those parts which were.
However, where the obstruction was an “other like obstruction” then one had to take care to identify what in fact constituted the obstruction.
That would be a matter of fact but in most cases only that part of a structure which obstructed the flow of a watercourse would be an “other like obstruction” for those purposes.
(2) The effect of section 24 was that it was the erection of the obstruction or the erection or alteration of a culvert which constituted the nuisance.
The power to require abatement of that nuisance necessarily included the power to require reinstatement of the relevant watercourse or culvert to its previous condition.
Such a power in so far as it was not comprised in the power to require abatement of the nuisance was either “incidental to or consequential upon” that power or “conducive to incidental to” the discharge of the section 24 power.
The disputed requirement in the present case was to be read realistically and in the context of the notices as a whole; of the works being required; and of the preceding steps.
If the intention had been for the requirement to refer to the area of the pools as a whole, the requirement could have been to reinstate “the pool” which would have been a reference to the pools successively.
The fact that this was not done indicated that something different was intended.
(3) The interpretation of the final requirement adopted by the Crown Court made the earlier requirements redundant because all the works set out there would be elements in reinstatement of the pools as a whole.
It would be illogical and artificial for the final part of the last required step to be interpreted as requiring more works to be done than in the earlier steps or as referring to works which would include those already done.
The more natural reading was to see the last requirement as building on the preceding steps and requiring reinstatement of the land affected by those steps or requirements. The steps and requirements were the measures needed to achieve the restoration of the watercourse.
The first three steps required the removal of sufficient waste in respect of each pool to expose the original culvert or watercourse at that location. That was a clear and natural reading of those steps.
The fourth step and the final requirement were read more naturally as being the continuation of works focused on the watercourse itself. No one factor was conclusive. However, the proper interpretation was clear.
When the words “reinstate land to former condition” were read realistically and in context, the requirement was for reinstatement of the area of land which had been the subject matter of the preceding requirements of the notices, namely the watercourse itself. That was the land which was to be reinstated.
The notices set out a staged series of works each part of which related to the watercourse and none of which extended beyond that.
(4) The court’s provisional view that the correct interpretation was clear when the notices were read realistically and in context precluded a finding that they were unlawful for lack of clarity, where a natural reading could be adopted and the works to be performed were clear on that reading.
It followed that the Crown Court was wrong to find that the final requirement was outside the appellant’s powers under section 24.
John Hunter and Elana Kaymer (instructed by Clarke Willmott) appeared for the appellant; Richard Kimblin KC (instructed by Lodders Solicitors LLP) appeared for the first respondent; Scott Stemp (instructed by Irwin Mitchell solicitors) appeared for the second and third respondents.
Eileen O’Grady, barrister
Read a transcript of Worcestershire County Council v Pain and others
