R v Carrick District Council, ex parte Shelley
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CARNWATH |
| Judgment Date | 03 April 1996 |
| Judgment citation (vLex) | [1996] EWHC J0403-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CASE NO: CO/3484/95 |
| Date | 03 April 1996 |
[1996] EWHC J0403-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2
Mr Justice Carnwath
CASE NO: CO/3484/95
MR D PANNICK QC and MR M FORDHAM (instructed by Messrs Leigh & Co, London, WC1) appeared on behalf of the Applicant.
MR R PRICE LEWIS and MR R LANGHAM (instructed by The Legal Dept for the District Council) appeared on behalf of the Respondent.
MR D LLOYD JONES (intructed by The Solicitor and Legal Advisor for the Company) appeared for South West Water Services Ltd.
MR T WARD (instructed by Regional Solicitor for the Authority) appeared for the National Rivers Authority.
Wednesday, 3 rd April 1996
This is an application for judicial review of a decision of the Carrick District Council, made by the Environmental and Community Services Committee on 20th June 1995 whereby they declined to serve an abatement notice under s.80 of the Environmental Protection Act 1990 ("the Act") in respect of the beach at Porthtowan. Porthtowan in a small village on the north Cornish coast, popular among locals and visitors because of an attractive bay and sandy beach which are apparently good for surfing. Above the high water mark it is owned by the District Council. Between high and low water it is owned by the Duchy of Cornwall and leased to the National Trust.
There have, for some years, been complaints of sewage-related debris finding its way on to the beach. There are two outfalls in the vicinity, both owned by the South West Water Authority, the closest being Portreath, which serves the town of Redruth, and North Cliffs which serves Camborne. Portreath was screened in 1991. A two year survey by the National Rivers Authority in 1990 to 1991, which was a survey of beaches in the south west, put beaches into four categories depending on the degree of "aesthetic contamination" by sewage-related debris. Porthtowan was included in the worst group with some "70 countable items per 100 metres". There has apparently been no survey since the screening of the Portreath outfall; so one is not clear as to how those figures will have changed. The beach is cleaned every day between May and September by a contractor employed by the Parish Council at the expense of the District Council under s.89 of the Environmental Protection Act.
Records have been kept of debris over the last two years. During 1995 an average of about one kilogramme per day, that being the wet weight, of sewage-related material was collected. The collectors estimate (that is without any claim to scientific accuracy and disputed by the Water Authority) that about 79 per cent consisted of sanitary towels, 11 per cent of condoms and 10 per cent of weed. Those are percentages of the one kilogramme of sewage related material, which itself forms in bulk only a very small part of the 20 to 40 bags of litter that are collected each day. However, even though a small part, it is obviously offensive when found by people using the beach, particularly children. I should note that in spite of these problems between 1992 and 1995 sampling by the National Rivers Authority of the quality of the bathing water has classified it as "excellent" under the European Union classification. That is the background.
In October 1991 the District Council wrote to the Water Authority referring to members' concerns about the sewage related debris on Carrick's beaches, and in particular the two outfalls, which they said were probably responsible for the majority of sewage pollution on the north coast of Carrick. They also wrote to the Secretary of State for the Environment. He in reply referred to the Government's commitment, embodied in the European Directive on Urban Waste Water Treatment, for securing, over a defined period, treatment for all significant sewage discharges into the sea. He referred to the work which was in train for establishing priorities and a programme in accordance with the Directive. The District Council also sought support from the Association of District Councils. A minute of their meeting on 3rd June 1992 records that the District Council had given information regarding the increasing problems and costs involved with cleaning up sewage pollution from the beaches and maintaining bathing water quality.
In March 1992, the National Rivers Authority announced an intention to review discharges operating under so-called deemed consents and to introduce new conditions requiring screening. The outfalls are subject to a requirement for consent from the NRA under the Water Resources Act 1991. A consent was granted on 7th November 1992 for North Cliffs, including a condition requiring screening with apertures not more than three millimetres. That requirement was not, in fact, implemented because the Water Authority appealed to the Secretary of State and the matter was held in abeyance pending the appeal I shall need to come back to that appeal in a moment.
Locally, however, pressure has continued led apparently by a body called Surfers Against Sewage ("SAS"), for action, including action by the District Council under the Act. Mr Hibbett, who is the Senior Principal Environmental Health Officer with the district, wrote to representatives of SAS on 24th June 1993 referring to some of the legal problems I have a Council briefing note in July 1993 referring to the pressure for action and also to the problems caused by the division of responsibility between the District Council and the NRA. They were apparently seeking counsel's advice on what was described as "a very complicated and potentially both costly and damaging matter". There was a public meeting in 1994 at which the Water Authority presented their proposals for improving sea discharges in line with the European Directives, but not apparently including any immediate action at the Porthtowan discharges.
In 1995 Mr Hibbett began to assemble evidence for submission to the Committee on the condition of the beach at Porthtowan. Amongst the material he received was a detailed letter from the Water Authority, in March, which revealed differences between their information and that of the Council. On 20th June he submitted to the relevant Committee a report with a view to the consideration of action under the statutory nuisance produce I will need to look at that in more detail later.
The Committee resolved not to take any action under the Act, but to continue monitoring the situation and to write to the Secretary of State asking him to give urgent consideration to rejecting the appeal against the NRA's requirements for screening. They wrote on 13th July to the Secretary of State. The Secretary of State's reply, on 1st August said that the matter was affected by the review of consents made by the NRA and the Department were hopeful of resolution before too long. Following that, monitoring has continued (including some experiments with oranges) to assess movements in the sea water from the two outfalls. Mr Hibbett's intention, as I understand it, is to put the matter back to the Committee at some stage in the light of further evidence.
Going back for a moment to the Water Authority's appeal against the NRA condition, I have been provided with some information about that by the Water Authority and the NRA. It appears that the appeal was lodged by the Water Authority in March 1993. There was a chasing letter from the Authority on 29th December 1993. The Secretary of State replied on 5th January 1994 saying that the relevant information had been received from the parties and they would be advised if further information was needed. On 31st October 1994 the Water Authority sent another chasing letter and drew attention to the risk of prosecution for breach of the consent unless something was done quickly. On 9th March 1995 there was a further chaser, but no apparent response until the letter of 1st August 1995 to the District Council, to which I have referred. There the matter appears to rest to this day. Mr Ward, for the NRA told me on instructions that there was some form of process of collective bargaining going on between the NRA and the water authority association and that this particular appeal is one of a large number which are having be to be looked at on a general basis. Although there has been some agreement on certain aspects, such as the form of screening, there are, he said, many unresolved issues; so certainly he was not able to indicate any specific timetable for the appeals affecting Carrick.
I turn then to the statutes. The two statutes in play are the Water Resources Act 1991, which governs the jurisdiction of the National Rivers Authority, and the Environmental Protection Act 1990, which deals with the District Council's powers. Under the Water Resources Act, there is provision in Schedule 10 for the grant of discharge consents. By s.88, compliance with the consent is a defence to prosecution for polluting controlled waters, but not, of course, if the conditions on a consent are not complied with. There is a provision for an appeal to the Secretary of State against conditions, but there is no specific provision, as I understand it, for suspending the condition pending appeal, so one understands the Water Authority's anxiety to get a decision on the appeal, since pending a decision they are at risk of prosecution.
The Act of 1990 is directly relevant to the matters before me. S.79 defines what are known as "statutory nuisances" in terms which are broadly taken from the Public Health Act 1936. S.79(1)(e) includes this: "any accumulation or deposit which is prejudicial...
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