British Railways Board (Plaintiffs v Tonbridge & Malling District Council (Defendants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE OLIVER |
| Judgment Date | 03 April 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0403-1 |
| Date | 03 April 1981 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0127 |
[1981] EWCA Civ J0403-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HIS HONOUR JUDGE FINLAY Q.C.)
Royal Courts of Justice,
Lord Justice Lawton
Lord Justice Donaldson
(not present when judgment delivered)
and
Lord Justice Oliver
81/0127
1977 B No. 454
MR. A.F.B. SCRIVENER Q.C. and MR. NICHOLAS WARREN (instructed by The Chief Solicitor and Legal Adviser to British Railways Board, London NW1 6JU) appeared on behalf of the Plaintiffs (Appellants).
MR. E.G. NUGEE Q.C. and MR. B.A. PAYTON (instructed by The Chief Solicitor, Tonbridge & Mailing District Council, West Mailing, ME19 6LZ) appeared on behalf of the Defendants (Respondents).
The judgment which Lord Justice Oliver is about to read is the judgment of the court. The text has been seen and approved by Lord Justice Donaldson, who is unfortunately indisposed.
This is an appeal from an order of His Honour Judge Finlay Q.C., sitting as a judge of the Chancery Division, by which he dismissed with costs the plaintiffs' action for a declaration that a certain culvert situate beneath the plaintiffs' railway line between Redhill and Tonbridge is a sewer within the meaning of the Public Health Act 1936.
The reason for the plaintiffs' anxiety to establish the cloacal status of this small and otherwise uninteresting feature of their property may not be superficially obvious. It has not, as might be supposed, anything to do with a public-spirited desire on the part of the plaintiffs to contribute to the amenities of the neighbourhood by the voluntary assumption of a responsibility for draining the surrounding land. The clue lies in section 17 of the Public Health Act 1936 which, in subsection (1), enables a local authority, after serving notice on the owner of a sewer within its district, to declare that the sewer is vested in that local authority, but subject to an aggrieved owner's right of appeal to the Secretary of State. Subsection (3) of the same section enables the owner of a sewer which could be made the subject of a declaration under subsection (1) to apply to the local authority requesting it to make a declaration, and there is a similar right of appeal to the Secretary of State if the local authority refuses. On such an appeal the Secretary of State may make the declaration sought and if he does so, the sewer then becomes a public sewer under section 20 of the Act and the local authority becomes responsible for its maintenance under section 23.
In respect of the culvert the subject-matter of this appeal, the plaintiffs, as the successors of the former South Eastern Railway Company, are responsible under the enabling statute for the repair and upkeep of the culvert, and in 1973 they sought to avail themselves of the privilege conferred by section 17(3) of the Public Health Act by requesting the defendants, the local authority for the district, to make a declaration vesting the culvert in themselves. The defendants declined to do so and they justified their refusal on the simple ground that, since the culvert was not and is not a sewer, the section did not apply to it. An appeal to the Secretary of State was rejected on the same ground.
The plaintiffs accordingly commenced proceedings against the defendants for the declaration now sought as a preliminary step to making a further request. We have been told that, although of course each case depends on its own facts, there are thought to be many culverts up and down the country in respect of which it may be desired to make similar requests with a view to shifting the burden of upkeep from the plaintiffs to the relevant local authorities. This case is, therefore, to some extent a test case.
The particular culvert with which this appeal is concerned is known as culvert 89 and it is situate in a stretch of the railway line which, after leaving the town of Tonbridge, travels in a westerly direction to the south of the River Medway until the river turns south and the line crosses it over a series of bridges. The slope of the surrounding land is from south to north and the purpose of the culvert is to permit water from a catchment area to the south of the railway embankment to pass under the embankment and find its way down to the Medway. The catchment area was originally 188 1/2 hectares in extent, but that has been artificially increased in recent years by the building of a motorway which bisects the area running from east to west, and it now comprises 192 hectares. It is common ground that, at the date when the railway was built and the culvert was constructed, the catchment area consisted of agricultural land which was drained by three ancient natural channels or watercourses running from south to north roughly parallel to one another. The railway was built by the plaintiffs' predecessors in 1840 under the statutory powers conferred by an Act of 1836 (6 William IV Cap. 75) section 77 of which, so far as material, was in these terms: "The said company shall and they are hereby required, from time to time, at their own expense, to make such arches, tunnels, culverts, drains or other passages over, under, or by the side of the said railway and the fences on the sides thereof respectively of such breadth, depth, and dimensions as shall be sufficient at all times to convey the water as clearly from the lands adjoining or lying near to the said railway as before making the said railway, without obstructing or impounding the same water to the prejudice of any of the said lands…and all such arches, tunnels, culverts, watercourses, drains, and other passages shall from time to time be supported, maintained, cleansed and kept in good and sufficient repair by the said company".
The way in which the plaintiffs' predecessors complied with that statutory obligation as regards the catchment area was this. They constructed culvert 89 under the embankment at a point just to the east of the point where it was joined by the most westerly of the three watercourses and they created a new channel along the southern side of the embankment which received the flow from all three channels so that they all discharged through the same culvert. Thus the drainage water for the entire catchment area was led through the one culvert and thence northwards down to the Medway.
In the hundred and forty years which have elapsed since the railway was first built there have been extensive changes in the north-eastern and central parts of the catchment area. Between 1898 and 1909 there was a relatively small amount of urban development in the north- east corner of the area, the surface drainage of which was piped into the eastern channel. Thereafter the position remained static until 1938. Between 1938 and 1972, there took place a substantial and progressive housing development so that today a substantial acreage in the central part of the catchment area consists of residential buildings and streets the surface drainage of which has been made to flow into one or other of the two westerly channels. Nevertheless the basic system of land drainage remains the same as it was originally, the surface water from the whole area being carried off by the three original watercourses down as far as the embankment and then through the culvert to the north. So far as the most westerly channel is concerned, it started well to the south of the built up area and it has been modified to this extent that it is now carried under the motorway in a pipe emerging into the open again on the north side of the motorway, whence it runs down the edge of the road which skirts the western side of the housing development.
Surface drainage from the houses and roads in the western part of the housing development is led into it by some half-dozen outfalls. So far as the central channel is concerned, this again starts to the south of the housing development and appears to have been made to communicate with the main piped surface drainage system of the development, emerging on the north side of it in an outfall into the original channel which runs in a straight line towards the railway embankment. A short distance from the embankment, however, the course of the channel has been altered. At some stage in the course of the building development the combined drainage system of the eastern part of it was led by pipes converging to a point in...
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