HM Attorney-General at the Relation of Peter Herry Bray (Plaintiff Respondent) The Urban District Council of Wellingborough (Defendant Appellant)

JurisdictionEngland & Wales
JudgeLord Justice STAMP
Judgment Date27 March 1974
Judgment citation (vLex)[1974] EWCA Civ J0327-2
CourtCourt of Appeal (Civil Division)
Date27 March 1974

[1974] EWCA Civ J0327-2

In The Supreme Court of Judicature

Court of Appeal

Revised

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Stamp and

Lord Justice Roskill.

Between
Her Majesty's Attorney-General at the Relation of Peter Herry Bray
Plaintiff Respondent
and
The Urban District Council of Wellingborough
Defendant Appellant

Miss MONIQUE VINER (instructed by Messrs. Sharpe Pritchard & Co., agents for Mr. W.G. Palmer of Wellingborough) appeared on behalf of the Appellant Defendant.

Mr. W.J. GLOVER, Q.C., and Mr. GERALD MORIARTY (instructed by Messrs. Stanleys & Simpson North) appeared on behalf of the Respondent Plaintiff.

1

THE MASTER OF THE BOLLS: Next Monday, 1st April, 1974, is an important day for local government. It is transformed. In this case we are concerned with sewage. Up till 1st April 1974 it is the responsibility of the old district councils. On 1st April 1974 the responsibility is to be transferred to the water authorities. This has repercussions on property rights, as this case shows.

2

Wellingborough in Northamptonshire is a town of some 37,000 people; but it is rapidly increasing. It is planned to take some over the overspill from London. Its population is expected to be doubled in the next few years.

3

For the last 80 or 90 years the local council — the urban district council — have treated the sewage at a sewage farm owned by the council at Irthlingborough Grange Farm. It covers 240 acres. It is satisfactory for the present population and produces a good effluent, but it does give off some smell which is a source of nuisance.

4

During the past 10 years or more the council have planned to build a new modern sewage treatment works. This was to meet the needs of the increasing population of Wellingborough and to serve nearby districts as well. In 1970 there was a public inquiry into the proposals. The Inspector reported in favour, saying "There is an urgent need for an up-to-date sewage treatment system of adequate capacity to serve Wellingborough's growing requirements." The council went ahead. They got permission to borrow the money for it. They acquired the land at Ditchford Lane, Irthlingborough. They looked ahead to the time when the new sewage works could be in use. The old sewage farm of 240 acres would no longer be needed in July 1972 for sewage disposal. They thought it should be developed for housing. So in July 1972, the urban district council decided to appropriate the old sewage farms, the 240 acres, for housing development. That appropriation was premature. Noappropriation could properly be made until the old sewage farm was "not required". Those are the words of section 133 of the Local Government Act 1933. The appropriation could not be effective in law until the old sewage farm was no longer required.

5

Meanwhile, however, the urban district council got on with the new sewage works. They let out a contract on 4th September 1972 for the new works to be constructed at a cost of £3 ½m. The work was to be completed by 2nd June 1974. Note the date — 2nd June 1974 — it is very important in this case.

6

The contract, as I said, was placed on 4th September 1972. It was well known that eventually the water authorities were to take over the sewage plants. But no one knew the date on which the transfer was to take place.

7

Then in November 1973 there was a bombshell. The Minister announced that the transfer was to take place on 1st April 1974. By Article 8(3) of The Local Authorities (England) (Property etc.) Order 1973 No. 1861, it was enacted that:

"Any other public sewer or any sewage disposal works vested in a local authority by virtue of the Public Health Act 1936 shall be transferred to and vest in the water authority within whose area for sewerage and sewage disposal purposes the sewer is or the sewage disposal works are situated."

8

The effect of that Order was that on 1st April 1974 any public sewer or any sewage disposal works which were vested in the urban district council on that date would vest in the new water authority. This caused alarm to the Wellingborough Urban District Council. Because if the old sewage farm of 240 acres was still in use on 1st April 1974, it would vest in the water authorities. They would lose those 240 acres and would not be able to use them for housing.

9

To avoid this result, the Wellingborough Urban DistrictCouncil determined to race ahead with the new sewage works. They asked the contractors to accelerate the timetable. They wanted to get the new works completed in March 1974 and to give up the old sewage farm at that time. They thought that if only they could get the now sewage works into use before 1st April and give up the old at that time, then the position would be this: The new works would be transferred to the Anglian Water Authority. But the Urban District Council or their successors would be able to keep the old sewage farm. They could then use it for housing development as they had long planned.

10

So the Council hurried on the contractors. They did the best they could, but they could not complete the new sewage works by March 1974. Here we are today, Wednesday, 27th March. The transfer is to take place next Monday, 1st April. Still the new sewage works are not completed.

11

It has been obvious since the beginning of March that the new works could not be completed by 1st April. But the Wellingborough Council thought on a way out of the difficulty. They thought that the new sewage works, although incomplete, could be put into use on 1st April 1974 and the old sewage farm out of use on that day: and by that means they could avoid the transfer. They said to themselves; "We will switch over the sewage into the new works before the 1st April. We will pour the effluent into the river through the new works before the 1st April." The Anglian Water Authority got to know of this plan. They sought to stop it. They issued a writ and moved the Court for an injunction. They said that this proposal by the Urban District Council was a breach of section 7(1) of the Rivers (Prevention of Pollution) Act of 1951, as amended by the 1961 Act. That section says:

"Subject to this section no person shall without the consent of the river board (which consent shall not be unreasonably withheld) bring into use any new or altered outlet for the discharge of trade or sewage effluent to a stream or begin; to make any new discharge of trade or sewage effluent to a stream."

12

The section goes on to prescribe the procedure for obtaining the consent of the river board. In the case of these new sewage works, a consent had been given on 13th January 1969 by the Welland and Nene River Authority. It was amended by a letter of 2nd May 1972. Consent was given for "fully treated sewage effluent being discharged into the River Nene at a specified point provided that it contained not more than a specified figure of milligrams per litre of suspended solids.

13

The Anglia Water Authority said that, if the new sewage works were put into operation on or before 1st April 1974 (as the Wellingborough Council proposed to do) then it would not comply with the conditions in which the consent had been given. It would not be "fully treated sewage effluent" because that was defined as sewage effluent discharged "after treatment in the sedimentation tanks, percolation filters, humus tanks and on the land irrigation area. Those works would not be completed by 1st April and so the effluent would not have been treated in the way required. Furthermore the effluent would not comply with the prescribed condition, because it would exceed the specified figure of milligrams per litre of suspended solids.

14

Now the experts agreed that if the new sewage works were put into use on or before 1st April 1974, the effluent would not comply with those conditions of the consent. It appears that, whenever a new sewage plant is brought into operation, there is a running-inperiod of two or three weeks when the effluent will have an excessive quantity of suspended solids. The expert for the Urban District Council, Mr. Haseldine, acknowledged that this was so. But he said that the effluent during that running-in period would not cause any nuisance or annoyance. No one would ever dream of prosecuting an authority for a breach of section 7 in the first few weeks. And once the new plant was properly run in, there would be no trouble. The conditions would be fulfilled.

15

Miss Viner, who put the case very well for the Urban District Council, referred us to authorities on this subject, such as Earl of Ripon v. Hobart (1834) 3 Mylne & Keen 169; and Haines v. Taylor (1846) 10 Beavan 75. She urged that, since their own expert adviser — a man of the highest qualifications — said it was perfectly safe to start the new works before 1st April, the Council should be allowed to do so. But Mr. Glover, Q.C., answered it completely. When a...

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