Rowe v Vale of White Horse District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lightman,MR JUSTICE LIGHTMAN |
| Judgment Date | 07 March 2003 |
| Neutral Citation | [2003] EWHC 388 (Admin) |
| Docket Number | Case No: CO/1598/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2003 |
The Honourable Mr Justice Lightman
Case No: CO/1598/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Murray Hunt (instructed by Leigh, Day & Co, Priory House, 25 St John's Lane, London EC1M 4LB) for the Claimant
Mr Richard Harwood (instructed by the Legal Department, The Vale of White Horse District Council, Abbey House, Abingdon, Oxfordshire, OX14 3JE) for the Defendant
INTRODUCTION
This is an application made by the Claimant ("Mr Rowe") with the permission of Burton J for judicial review of the decision dated the 3 rd January 2003 of the Defendant the Vale of White Horse District Council ("the Council") to demand payment of retrospective charges for sewerage services over the preceding six year period. In the course of the hearing it became apparent that the real issue before the court was not a question of public law (the legality of the decision of the Council to demand payment) but a question of private law (whether the Council is entitled to the payments demanded). In the circumstances the just and convenient course is to treat the proceedings before me as the trial of the private law issue and give my judgment on that issue. When I told counsel that I intended to adopt this course, they expressed their concurrence.
The issue of private law raised is whether a claimant can recover payment for the supply of services under the principles of restitution where over the thirteen years that he made supplies to the defendant he never gave any intimation that he intended to make any charge for the supplies and in the circumstances the defendant reasonably believed that in obtaining such supplies he incurred no liability to the claimant or anyone else in respect of them. The issue is of some practical importance and merits anxious consideration.
FACTS
The Council as local housing authority built and operated a sewage treatment works and two pumping stations to provide for the disposal of sewage from its council houses in Letcombe Bassett and charged the costs of operating and maintaining the sewerage service to its Housing Revenue Account. The Council did not separately charge its tenants for the cost of the provision to them of the sewerage services, but (notionally at least) included the cost as part of the rents payable to the Council.
In 1982 the Council's tenants began exercising their statutory rights to buy their homes. In the case of some of the conveyances to such tenants the Council exercised its statutory right under section 139 and Schedule 6 para 5 of the Housing Act 1985 to include covenants for payment of charges for the continuing provision of such services. No such provision was included in the conveyance to Mr Row's predecessor in title who sold on to Mr Rowe in 1988. The Council entered into private contracts with the owners of certain properties which never belonged to the Council to provide sewerage services in return for payment for such services. No such contract was ever entered into between the Council and Mr Rowe or his predecessor in title. From 1982 until 2001, whilst the Council recovered payment from those who entered into contracts for payment for such services, the Council made no claim for any payment for sewerage services from any of the owners of properties which it had sold, least of all Mr Rowe. The reason for this lack of action during the period 1982–1995 was (according to the Council) an administrative oversight. The reason for the lack of action after 1995 related to the transfer in that year by the Council of its housing stock to Vale Housing Association. This transfer gave rise to an uncertainty in the mind of the Council whether the Council after making the transfer of the housing stock had the statutory power to retain and continue to operate the sewerage works and pumping stations. This uncertainty continued for some five years until October 2000 when the Council obtained the advice of leading Counsel that it did have the power.
Over the whole period from 1982 until the 26 th March 2001 the Council gave no intimation to any house owner or occupier to whom it was providing sewerage services other than those with whom it had entered into contracts that there was any question of any charge being made for them. The explanation for the adoption of the deliberate policy to this effect adopted in 1995 is given in a statement by Mr Nigel Gifford whose responsibilities included the management of the sewerage facilities:
"My view and the view of the Council's most senior lawyer was that it would not have been right to have notified residents when the legal position was so uncertain. That position did not become clearer until October 2000 when Leading Counsel's opinion was received…. Vague and ambiguous comments by the Council about the possibility of charging at an earlier time might well have caused unnecessary anxiety to residents, when the position might subsequently have changed and in any event it would not have been within the Council's power to bring the matter to a speedy conclusion."
The decision to adopt this policy in order to spare the residents anxiety was short-sighted and calculated to create a false sense of security, for it was at the cost of the shock and distress occasioned when on the 26 th March 2001 the Council wrote to the residents notifying them that a charge was to be made for use of the services over the last six years since April 1995. The letter (so far as material) stated as follows:
"The purpose of this letter is to inform you that every property will now be charged for the reception, treatment and disposal of sewage waste and the maintenance of the system. Since 1995, you have received the sewage treatment service without payment but you will appreciate that there has been cost to the Council in providing the service. You will be aware that the majority of sewage treatment plants across the County of Oxfordshire, and beyond, are operated and maintained by Thames Water Utilities and the residents benefiting from these plants are and always have been charged for the service as part of their water bill.
The Council now proposes to issue invoices to cover the cost of the service that has been provided over the period from April 1995 to the present.
The charges per property will be based on the actual costs of operating the individual works up to March 2001, and a proposed fixed annual charge of £250 for the year 2001/02. The charges will either be comparable to or less than the charges Thames Water Utilities would have made for similar services over the same period.
Recognising that six years worth of charges will be onerous for most owners, the Council will offer a facility to pay over two years (or longer by agreement) to clear the outstanding amounts, interest free."
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