A High Court decision could discourage public bodies from starting dialogue with polluters, according to lawyers.
Peter Scott, of Toller Beattie, said that the “mind-blowing” verdict of Harrison J in R v Falmouth and Truro Port Health Authority, ex parte South West Water Services Ltd is likely to have major implications for anti-pollution agencies.
The judge quashed an abatement notice served on South West Water by Falmouth and Truro Port Health Authority under section 80 of the Environmental Protection Act 1990. The notice related to the discharge of fine screened sewage into the Fal estuary at Carrick Roads, north of Black Rock, Falmouth.
The port health authority had approached South West Water, even though it was under no obligation to consult, in order to ascertain the steps that it was prepared to take in the light of complaints.
Scott says the judge took the view that, once such a step was taken, an expectation of on-going consultation was created. If this consultation was not carried through, it could render moves such as the issue of the abatement notice susceptible to judicial review.
According to Scott: “The logical consequence is that a local authority that wants to avoid the possibility of judicial review is not, in the light of this decision, going to approach any person against whom it is minded to make an abatement notice.”
He added that although the decision involved river pollution, the concepts it established in respect of consultation could have broader implications.
The court also found that the abatement notices were invalid because:
- they failed to specify the necessary remedial works
- Carrick Roads is not a “watercourse” within the meaning of the Public Health Act 1936.
R v Falmouth and Truro Port Health Authority, ex parte South West Water Services Ltd, Queen’s Bench Division (Harrision J) 23 April 1999.
Philip Havers QC and David Hart (instructed by the solicitor to South West Water Services Ltd) appeared for the applicant; Richard Gordon QC and Martin Diggins (instructed by Toller Beattie, of Barnstaple) appeared for the respondent.
PLS News 26/4/99
