R Falmouth and Truro Port Health Authority, ex parte South West Water Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE PILL,LADY JUSTICE HALE |
| Judgment Date | 12 April 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0330-10 |
| Docket Number | Case No: PTA 2000/5533/C |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 2000 |
[2000] EWCA Civ J0330-10
Lord Justice Simon Brown
Lord Justice Pill and
Lady Justice Hale
Case No: PTA 2000/5533/C
QBCOF 1999/0505/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE HARRISON
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R. Gordon QC & Mr M.J.C.Diggins (instructed by Toller Beattie of Queens House, Queens Street, Barnstaple, Devon, solicitors) for the Appellant
Mr P. Havers QC & Mr D. Hart (instructed by The Pennon Group, Peninsula House, Rydon Lane, Exeter EX2 7HR, solicitors) for the Respondent
Introduction
This is an appeal by Falmouth and Truro Port Health Authority (the Health Authority) against the order of Harrison J made on 23 April 1999 quashing their decision to serve an abatement notice on South West Water Limited (the Water Undertaker) on 8 July 1998 requiring them within three months to cease discharging sewage into a part of the Fal estuary known as the Carrick Roads at a point north of Black Rock, Falmouth in Cornwall.
The decisions were quashed on three independent grounds. It was held first, that the Water Undertaker was given a legitimate expectation of consultation which in the event was unfairly denied it; second, that the abatement notice was invalid for failing to specify the works required to abate the nuisance; and third, that the Carrick Roads are not a "watercourse" within the meaning of s.259(1)(a) of the Public Health Act 1936 and so, whatever their state, are not capable of constituting a public nuisance.
All three of these holdings raised difficult and important questions. So too does the judge's further ruling that all these issues could properly be determined in judicial review proceedings rather than the Water Undertaker being confined to its statutory right of appeal to the magistrates' court.
The Health Authority appeal to this court on each of those four issues; the Water Undertaker by respondent's notice contend that even if it was not given a legitimate expectation of consultation, fairness nevertheless required that it be consulted.
The transcript of the judgment below extends to sixty-three pages. It is a masterpiece of organisation and clarity. In large measure I gratefully take the facts from it.
The Facts
Pursuant to s.94 of the Water Industry Act 1991 the Water Undertaker is charged with the statutory duty of effectually dealing with the contents of sewers within it area, the south-west of England. The sewerage outfall north of Black Rock was provided by it pursuant to that duty and as an interim phase of a larger scheme. The purpose of the interim phase was to replace outfalls at Middle Point and Pennance Point which were affecting the quality of the bathing waters at three nearby beaches, all of which are designated as bathing waters pursuant to the EC Bathing Waters Directive. In particular, the outfall at Middle Point discharged unscreened sewage into the Carrick Roads. The purpose of the interim phase, therefore, was to enable compliance with the United Kingdom's obligations under the Directive. It involved the laying of a pipe 760 metres off-shore to the outfall point to the north of Black Rock where the sewage having been fine screened was to be discharged at specific times in the tidal cycle with the object of being taken out to sea on the strong ebb tide, thereby eliminating continous discharges from the outfalls at Middle Point and Pennance Point.
Phase 2 of the scheme, which will include the addition of biological treatment of the sewage at the outfall in order to comply with the UK's obligations under the EC Urban Waste Water Treatment Directive, was scheduled to be completed by 31 December 2000 although it now appears likely to be completed sooner.
The Black Rock outfall required a discharge consent from the Environment Agency under Part III of the Water Resources Act 1991. Despite objections to the application, the Environment Agency eventually on 31 March 1998 granted such a consent, subject to a number of conditions including the discharge operating times relating to the tides.
On 14 April 1998 the Water Undertaker commenced operation of the discharge. During that month the Environment Agency carried out commissioning surveys involving sampling at various states of the tide, and the Health Authority also obtained some samples immediately above the outfall.
Complaints were received by the Health Authority about the effect of the operation of the outfall. As a result, their deputy port health officer wrote to the Water Undertaker on 29 April 1998 in these terms:
"I write to confirm that complaints have been received alleging that the so-called interim sewage scheme in Falmouth is both prejudicial to health and a public nuisance to users of the water course in the vicinity of the outfall north of Black Rock.
We are the statutory body responsible for investigating such matters and are presently trying to satisfy ourselves whether or not the complaints are justified. Early indications would suggest that the allegations referred to in my opening paragraph are not without foundation. If you have any observations to make regarding this matter please do not hesitate to contact us."
The Water Undertaker replied to that letter on 11 May 1998:
"Thank you for your letter of 29 April 1998 regarding the Falmouth Interim Sewage Treatment Scheme. You will be aware that South West Water is operating the new outfall in accordance with the discharge consent issued by the Environment Agency. The discharge is subject to high natural dispersion and dilution and the company does not accept that it is causing any kind of nuisance. I should of course be grateful of the opportunity to view any evidence of a medical or scientific nature which you have in your possession."
That letter was never answered.
By coincidence, on the same day, 11 May 1998, there was a meeting of the Health Authority at which the Falmouth interim sewage scheme was considered. It was resolved that, subject to a favourable opinion being obtained from counsel as to whether the Carrick Roads are a watercourse, an abatement notice would be served.
Prior to the meeting of 11 May, the Health Authority on 8 May had been given an initial batch of the Environment Agency's water quality sampling results and had been informed that the Agency was preparing a report which would present all the bacterial results of the survey carried out to date, a report which would be ready very soon and sent to the Health Authority when available. In fact that report, which was described as a preliminary assessment of the water quality before and during commissioning of the interim scheme, was sent to both the Health Authority and the Water Undertaker on 18 May.
On 16 June 1998 the Health Authority received a report from Professor Kay, a professor of environmental science at the Environment Centre of Leeds University, assessing whether there was a risk to the health of recreational water users arising from the discharge of sewage from the Black Rock outfall.
On 24 June 1998 the Health Authority sought advice from Environment Agency as to how long it might take to make changes to the interim scheme. The Agency suggested that the Health Authority should discuss that with the Water Undertaker. No such discussion took place before the abatement notice was served.
On 26 June 1998 the Health Authority commenced their own water quality sampling in a wider area than immediately over the outfall. On 1 July 1998 the results of the sampling became available to the Health Authority and they decided that an abatement notice should be served.
On 8 July 1998 the Health Authority served an abatement notice on the Water Undertaker under s.80 of the Environmental Protection Act 1990. The notice stated that the Health Authority were satisfied that a statutory nuisance existed under s.79(h) of the Act, namely a nuisance under s.259(1)(a) of the Public Health Act 1936. The notice specified the statutory nuisance as being that the watercourse known colloquially as the Carrick Roads was so foul or in such a state as to be prejudicial to health or a nuisance as a result of the discharge of sewage from the Black Rock outfall. It required the cessation of the discharge of sewage from that outfall within three months from the service of the notice. The notice also contained a statement in accordance with regulation 3(3)(b) of the Statutory Nuisance (Appeals) Regulations 1995 to the effect that the notice would not be suspended pending any appeal to the magistrates' court because the nuisance to which it related was injurious to health.
On 20 July 1998 the Water Undertaker appealed to the magistrates court against the abatement notice. On the basis, however, that there was no real prospect of the appeal being heard within three months, that compliance with the notice would necessarily involve making alternative provision for the discharge of the sewage which would take many months to implement, and that expenditure in attempted compliance would be unnecessary and uncompensatable if the appeal were eventually successful, the Water Undertaker in addition sought leave to apply for judicial review.
On 30 July 1998, following a contested hearing, Collins J granted both leave to apply for judicial review and also a stay of the abatement notice and of the Water Undertaker's appeal to the magistrates court pending the determination of the substantive application.
Statutory Provisions
The Water Undertaker has a statutory duty under s.94(1) of the Water...
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