Hounslow London Borough Council v Thames Water Utilities Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pitchford,Lord Justice Scott Baker,LORD JUSTICE SCOTT BAKER,MR JUSTICE PITCHFORD |
| Judgment Date | 23 May 2003 |
| Neutral Citation | [2003] EWHC 1197 (Admin) |
| Docket Number | Case No: CO/5648/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2003 |
[2003] EWHC 1197 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Scott Baker
Mr Justice Pitchford
Case No: CO/5648/2002
Mr Stephen Tromans (instructed by LB of Hounslow Legal Department) for the Appellant
Mr Gordon Wignall (instructed by Marie de Viell, Thames Water Utilities Ltd) for the Respondent
1. On 19 July 2001 London Borough of Hounslow served on Thames Water Utilities Ltd an abatement notice pursuant to its powers under section 80 Environmental Protection Act 1990 which in its material parts read as follows:
“Take notice that under the provisions of the Environmental Protection Act 1990 Section 79(1)(d), the Council of the London Borough of Hounslow is satisfied that odour amounting to a nuisance has occurred and is likely to recur at the premises known as
Mogden Sewage Treatment Works, Mogden Lane, Isleworth, Middlesex TW7 7LP
Arising from the release of malodorous gases detectable outside the process boundary including Hydrogen Sulphide, mercaptans and all other gases associated with, and as a by-product of, the processing and treatment of sewage.
Now therefore, the Council requires you as the owner, occupier and person responsible for the nuisance within 60 days from the service of this notice, to abate the nuisance and prevent the recurrence of the nuisance.”
2. Thames Water appealed against the notice to the Magistrates' Court on several grounds provided by Regulation 2(2) Statutory Nuisance Appeals Regulations 1995, including (a) that the abatement notice was not “justified” by section 80 of the 1990 Act.
3. Thames Water took the preliminary point that Mogden Sewage Treatment Works of which they were the undoubted occupiers did not constitute premises within the meaning of section 79(1)(d) of the 1990 Act.
4. The preliminary hearing took place before District Judge Day sitting at Hounslow on 13 and 14 May 2002. He accepted the submissions made on behalf of Thames Water and quashed the notice. In so doing the District Judge adopted the reasoning of District Judge Abelson who, in a similar appeal heard at Liverpool City Magistrates Court, reached the same conclusion.
5. London Borough of Hounslow now appeals the District Judge's order by way of case stated. The question posed for the determination of this court is whether the District Judge was right to hold that sewage works were excluded from the operation of section 79(1)(d) of the Act.
6. The long title to the 1990 Act expresses the legislative purpose to be, among many other things, “…to restate the law defining statutory nuisances and to improve the summary procedures for dealing with them”.
7. Section 79 defines, subject to specified exceptions, statutory nuisances. Section 79(1) reads as follows:
“Subject to subsections [(1A)] to [(6A)] below, the following matters constitute “statutory nuisances” for the purposes of the Part, that is to say—-
(a) any premises in such a state as to be prejudicial to health or a nuisance;
(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
(c) fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
(d) any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
(e) any accumulation or deposit which is prejudicial to health or a nuisance;
(f) any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
(g) noise emitted from premises so as to be prejudicial to health or a nuisance;
[(ga) noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street [or in Scotland, road];]
(h) any other matter declared by any enactment to be a statutory nuisance; and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisance which ought to be dealt with under section 80 [and 80A] below and, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint.”
The existence of a statutory nuisance triggers the enforcement powers contained in section 80. By regulation 2(2) Statutory Nuisance (Appeals) Regulations 1995, the person served may appeal the notice on several grounds including “(c) that the authority have refused unreasonably to accept compliance with alternative requirements, or that the requirements of the abatement notice are otherwise unreasonable in character or extent, or are unnecessary”. Should summary proceedings alleging breach of the abatement notice follow, by section 80(4) a reasonable excuse constitutes a defence and, by section 80(7), “…it shall be a defence to prove that the best practicable means were used to prevent, or to counteract the effects of, the nuisance”.
8. Section 79(1A)-(6A) excludes from the definition of statutory nuisance various specific types and sources of pollution. By subsection (1A) land in a contaminated state is excluded. By subsection (2) premises occupied on behalf of the Crown for the purposes of the armed services or the Secretary of State for Defence, or by a visiting force are excluded from the operation of subsection (1)(b) and (g). Subsection (3) creates exceptions in the case of smoke emission for the purpose of subsection (1)(b). By subsection (4) premises other than private dwellings are excluded from subsection (1)(c). Subsection (5) excludes smoke from railway locomotives from the operation of subsection (1)(d). Subsection (1)(g), by subsection (6), does not apply to noise caused by aircraft other than model aircraft. By subsection (6A), subsection (1)(ga) does not include noise generated by traffic, by the armed forces or by a public demonstration.
9. Returning to subsection (1)(d), by subsection (7):
“…premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing”.
10. Produced to the District Judge was a booklet issued by the Respondent describing the process carried out at Mogden Sewage Treatment Works. It informs the reader that every day an average of 500 million litres of waste water, a mixture of domestic and industrial waste and rain, is treated at Mogden in a continuous cycle. The raw sewage arrives at the works through sewers. It is made up of 99% water, the rest being grit and organic matter. The booklet describes seven stages of the process, screening, grit removal, settlement, aeration, sludge treatment and discharge to the river Thames. Thus the business, now privatised, of Thames Water is the collection and treatment of a noxious product for profit.
11. The local authority's case is that the abatement notice was justified by the escape from the sewage treatment works of malodorous gases amounting to a nuisance. Applying ordinary English usage to section 79(1)(d) and (7) it would appear beyond question that the Respondents were carrying on an industrial process on premises. On the face of it the Respondents qualified for the service of an abatement notice.
12. However, the Respondent's case is that section 79 does not apply to sewage treatment works because we are bound to or should follow The Queen v Parlby and others [1889] 22 Q.B. 520, a decision upon the construction of the 1875 predecessor of section 79(1)(a) of the 1990 Act. There is, we have been told, no subsequent decision directly upon the proper construction of section 79(1)(d) or its predecessors. There has been some disagreement among practitioners in the field of environmental protection as to the effect of Parlby and at least one leading commentator considers section 79 does not in general apply to sewage treatment works.
13. Both Mr Tromans, counsel for the Appellant, and Mr Wignall, counsel for the Respondent, have taken us to the legislative history.
14. For a summary of the statutory origin of section 79 I borrow the description by Lord Hoffmann in Birmingham City Council v Oakley [2001] 1 ALL ER 385 at 395:
“Section 79(1)(a) can be traced back to temporary emergency legislation rushed through Parliament in August of the unusually hot summer of 1846, when rumours of cholera and typhoid were rife. The long title of the 1846 Act (9 &10 Vict c 96) said that it was to make provision for ‘the more speedy Removal of certain Nuisances’. It gave power to magistrates upon complaint to make abatement orders if two medical practitioners certified the ‘filthy and unwholesome Condition of any Dwelling House or other Building, or … the Accumulation of any offensive or noxious Matter, Refuse, Dung, or Offal, or …. the Existence of any foul or offensive Drain, Privy, or Cesspool’ and that the same was ‘likely to be prejudicial to the Health of the Occupiers, or of the Persons whose Habitations are in the Neighbourhood’. The 1846 Act was renewed by the Nuisance Removal and Diseases Prevention Act 1848 (11 & 12 Vict c 123) and consolidated with amendments by the Nuisances Removal Act 1855 (18 & 19 Vict c 121). The 1855 Act, by s 8 defined ‘nuisance’ as, among other things. ‘Any Premises in such a State as to be a Nuisance or injurious to Health’. This is substantially the same as the current definition in s 79(1)(a) of the 1990 Act, the precise language of which dates back to the consolidation effected by the Public Health Act 1936.”
15. The House, in Oakley, was also concerned with section 79(1)(a). The question...
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