Daymond v South West Water Authority; Daymond v Plymouth City Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Diplock,Lord Kilbrandon,Lord Edmund-Davies |
| Judgment Date | 03 December 1975 |
| Judgment citation (vLex) | [1975] UKHL J1203-1 |
| Date | 03 December 1975 |
| Court | House of Lords |
[1975] UKHL J1203-1
Lord Wilberforce
Viscount Dilhorne
Lord Diplock
Lord Kilbrandon
Lord Edmund-Davies
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Daymond against South West Water Authority, That the Committee had heard Counsel, as well on Monday the 20th, as on Tuesday the 21st and Wednesday the 22d days of October last, upon the Petition and Appeal of the South West Water Authority of 3/5 Barnfield Road, Exeter in the County of Devon, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of the Queen's Bench Division of Her Majesty's High Court of Justice of the 5th of May 1975, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of Philip Arthur John Daymond lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of the Queen's Bench Division of Her Majesty's High Court of Justice of the 5th day of May 1975, complained of in the said Appeal, be and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The question which we have to decide is whether an occupier of a hereditament not connected to a public sewer can be charged by a water authority for sewerage and sewage disposal services. Mr. Daymond is the owner and occupier of such a hereditament, namely a dwellinghouse at Plymstock, Devon, within the area of the South West Water Authority. His house is 400 yards from the nearest public sewer and is not connectcd to it. But the Authority has demanded from him as a "general services charge" £2.45 payable on 26 April 1974 and £2.44 payable on 26 July 1974. It is accepted that about 95 per cent of these sums represents charges for sewerage and sewage disposal, the remainder for pollution prevention, fisheries and recreation.
There are a great number of hereditaments in the country which are not connected to public sewers, so that this case is of general importance. We were informed that the amounts claimed add up to some £30 million in a year. And the consequence must be, if Mr. Daymond's contention is right, that this sum must be collected from other persons in each area, including occupiers of connected hereditaments, in addition to the charges which have already been demanded of them.
The Act which now deals with sewerage and sewage disposal is the Water Act 1973. This is a comprehensive piece of legislation which brings together in one statute a number of subjects previously dealt with separately, and which sets up new water authorities with comprehensive powers in relation to all these subjects. Thus the Act deals with water supply, water resources, land drainage, prevention of pollution, fisheries, recreation and, of course, sewerage and sewage disposal. The new water authorities took over powers previously vested in river authorities, and local authorities: as regards sewerage and sewage disposal, they took over powers previously vested in local authorities, and certain other bodies. Some of the previous legislation remains in force but it is not necessary to enter into greater detail.
Totally new powers of making charges were introduced. Under the pre-existing legislation there were various methods. Charges in respect of sewerage and sewage disposal were made through the general rate, or in the case of trade effluents, through trade effluent charges. Charges in respect of the other matters were made either through a special rate, e.g., water rates for domestic supply, or by the use of water meters for commercial and industrial premises, or by direct charges or licence fees, e.g., for abstraction, or fishing or recreation, or by precepts on local authorities which then recovered them through the rates.
In replacement of these complicated provisions the Water Act 1973 conferred upon the new water authorities a general power expressed in general words:
"30.—(1) Subject to the provisions of this Act, a water authority shall have power to fix, and to demand, take and recover such charges for the services performed, facilities provided or rights made available by them (including separate charges for separate services, facilities or rights or combined charges for a number of services, facilities or rights) as they think fit."
I shall deal with the rest of this section later, but it is necessary at once to appreciate that this provision was clearly meant to be a flexible one capable of adaptation to the various subjects dealt with by the Act, and of use in different ways. The first assumption one would make about its ambit was that it was intended to make permissible all or any of the methods of charging previously used, and conversely that it was not intended to prohibit well known and well tried methods of charging available in the past, at least in the absence of some clear indication.
The actual charge on Mr. Daymond appears to have been made under a statutory instrument ( S.I. 1974, No. 448) made on 13 March 1974 and coming into operation on 27 March 1974 which purports to have been made under a complicated chain of provisions adapted from the Local Government Act 1972 (Local Government Act 1972, section 254(1)(a), as applied by the Water Act 1973, section 34(1) and Schedule 6, paragraph 5(2)(c)). This order enabled the water authority to issue a general services notice to the Plymouth City Council, as a rating authority within the water authority's area, requiring the Council to collect the amount of the general services on behalf of the water authority. The general services charge was to cover all services provided other than the supply of water. It was to be collected in the form of a poundage on the rateable value of each hereditament in the rating area from every person liable to pay the general rate, i.e., from the occupier, and no exemption or reduction was allowable on account of the fact that the hereditament concerned might not be connected to a public sewer. This order only applied to the year commencing on 1 April 1974.
It is interesting to note in a fresh statutory instrument made in respect of the year beginning 1 April 1975 ( S.I. 1975, No. 396), provision was made for a remission of 50 per cent in favour of hereditaments not drained into a public sewer. This has, however, no bearing on the present appeal.
The present proceedings took the form of an action by Mr. Daymond in the Queen's Bench Division for a declaration that there is no power lawfully to demand the sums in question or any sums by way of a "sewerage, etc. charge". This was tried by Phillips J. who on 28 May 1975 granted the declaration asked. The parties then made use of the Administration of Justice Act 1969, section 12, so as to bring the appeal directly to this House. The Plymouth City Council, being merely agents for the Water Authority, has not taken any part in the appeal.
I must comment on one other matter, which has caused some difficulty. When the case was before Phillips J. it seems to have been agreed between the parties that the principal section in the Water Act 1913—section 30— under which charges may be made for services performed, required that the person to be charged should be actually in receipt of the services. The learned judge accepted this, and in his judgment expressed the opinion that it was correct. From that it seemed to him to follow that the demands could not be justified under section 30, presumably on the ground that Mr. Daymond was not in receipt of the services. He then considered an alternative submission based on the 1974 statutory instrument ( S.I. 1974, No. 448) which on the face of it clearly authorises the demand. But in a careful and closely reasoned judgment he held that this statutory instrument was ultra vires. The appellants in the first instance appealed against this decision, but at a later stage they challenged the original assumption that the charge could not be made under section 30, and indeed the main weight of their argument was based on this section. This House, taking the view that it was the duty of the House to state the true meaning of an Act of Parliament, especially one which affects many other people, whatever the parties may have agreed, allowed this course to be taken. I have to draw attention to the difficulties which may be caused, especially in cases intended to be handled under the Administration of Justice Act 1969, through premature agreement as to points of law.
I now come to the substance of the appeal which, in the first instance, relates to the question whether these charges may be made under the Water Act 1973, section 30. I set out the most material subsections (1—6):
"30.—(1) Subject to the provisions of this Act, a water authority shall have power to fix, and to demand, take and recover such charges for the services performed, facilities provide or rights made available by them (including separate charges for separate services, facilities or rights or combined charges for a number of services, facilities or rights) as they think fit.
(2) A water authority may fix any of their charges by means of a scheme under section 31 below...
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...was a valid exercise of the law-maker's limited power. 27The modern English authority to which I attach most significance is Daymond v. South-West Water Authority [1976] A.C. 609, where severability was not in issue, but where it appears to have been taken for granted without question that......