Southern Water Authority v Nature Conservancy Council
| Jurisdiction | England & Wales |
| Judge | Lord Lowry,Lord Mustill,Lord Jauncey of Tullichettle |
| Judgment Date | 16 July 1992 |
| Date | 16 July 1992 |
| Court | House of Lords |
[1992] EWHC J0716-1
Lord Templeman
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Lowry
Lord Mustill
House of Lords
My Lords,
For the reasons given by my noble and learned friend Lord Mustill I would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend Lord Mustill I would dismiss this appeal.
My Lords,
For the reasons given by my noble and learned friend Lord Mustill I too would dismiss this appeal.
My Lords,
I have had the opportunity of reading in draft the speech of my noble and learned friend, Lord Mustill. I agree with it and, for the reasons given by my noble and learned friend, I too would dismiss the appeal.
My Lords,
For many years there has been in force a statutory regime for the protection of what is now called the environment. This appeal concerns a time when the governing statute was the Wildlife and Countryside Act 1981 (hereafter "the Act") as amended in immaterial respects by the Wildlife and Countryside (Amendment) Act 1985 and the Wildlife and Countryside (Service of Notices Act) 1985. The body charged with the administration of the regime was the Nature Conservancy Council.
The Act contains numerous provisions designed to safeguard the countryside and its plants, wildlife and topography. Most of these have no bearing on the present appeal. We are concerned here only with that species of protection which is conferred by designating areas of land as sites of special scientific interest (hereafter "SSSI"). These are of two kinds. The first are sites which in the opinion of the council are of special interest by reason of any of their flora, fauna, or geological or physiographical features (Section 28(1) of the Act). The second are sites on which in the opinion of the Secretary of State for the Environment potentially damaging operations should be prevented, in order to secure the survival in Great Britain of specified animals and plants, or to conserve the flora, fauna, or geological or physiographical features of the land. In the latter case the Secretary of State must be satisfied that by reason of its flora etc. the land is not only of special interest but is also of national importance. (Section 29(1) and (2)). Plainly these requirements are much more stringent than those of section 28. Of the 5600 SSSI's in England and Wales for which, until administrative changes were introduced by the Environmental Protection Act 1990, the council was responsible only some 30 were the subject of orders under section 29.
The mechanisms for securing the protection of the two categories of site are not the same. Under section 28 the control is in the hands of the council. When it considers an area of land to be a site of special scientific interest it notifies the fact to the local authority, to the Secretary of State for the Environment and "to every owner and occupier of any of that land." The notification identifies the flora etc. which cause the land to be of special scientific interest, and specifies the operations which appear to the council to be likely to cause damage to them. By virtue of section 28(11) the notification is a local land charge. After notification it is an offence for the owner or occupier of the SSSI to carry out any of these operations, unless one of the following situations exists:
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1. The owner or occupier has given the council written notice of a proposal to carry out the operation, and the council has given its written consent, or an agreement has been made under the National Parks and Access to the Countryside Act 1949, or the Countryside Act 1968. (Section 28(5); section 28(6)( a) and ( b)). Or,
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2. The owner or occupier has given written notice of the proposal, and four months have elapsed since he did so. (Section 28(5); section 28(6)( c)). Or,
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3. The owner or occupier has a reasonable excuse for the contravention, as defined in section 28(8).
When one turns to the special protection of selected SSSI's conferred by an order of the Secretary of State under section 29 the position is in some respects the same as under section 28. But there are three important differences —
First, section 29(3) stipulates that "… no person" shall carry out on the land a proscribed operation, rather than (as in section 28(5)) that "the owner or occupier" shall not do so.
Second, under section 29(8) offences are triable summarily or on indictment, and not summarily alone, as under section 28(7).
Third, the waiting period before the operation can lawfully be carried out is enlarged to twelve months if the council offers to enter into an agreement "for the acquisition of the interest of the person who gave the notice." (Section 29(6)). This period is further enlarged if an order is made for the compulsory acquisition by the council of the interest of the person who gave the notice. (Section 29(7)). In the event of acquisition by the council, compensation under section 30(3) is payable to any person having an interest in land to which the notice containing the proposal to execute the works relates.
It needs only a moment to see that this regime is toothless, for it demands no more from the owner or occupier of an SSSI than a little patience. Unless the council can convince the Secretary of State that the site is of sufficient national importance to justify an order under section 29 — as we have seen, a task rarely accomplished — the owner will within months be free to disregard the notification and carry out the proscribed operations, no matter what the cost to the flora etc. on the site. In truth the Act does no more in the great majority of cases than give the council a breathing space within which to apply moral pressure, with a view to persuading the owner or occupier to make a voluntary agreement.
None of this is in dispute. What the present appeal does disclose is that the statutory scheme is flawed in another respect. The facts of the case show why. During November 1982 the council notified an area of land in the Isle of Wight as an SSSI. The site included a strip of land known as Hill Heath Ditch. Amongst those to whom notification was given under section 28 were two farmers who owned land on either side of the ditch, and also the Southern Water Authority, the present respondents, who owned a parcel of land elsewhere on the site. The notification annexed a list of operations likely to damage flora or fauna. During 1987 one or both of the farmers asked the respondents to dredge the ditch in order to mitigate flooding. Discussions then took place between the council and the respondents about this proposal, but these did not lead to an agreement. Nor did the farmers or the respondents give the council written notice of their proposal as required by section 28(5)( a). On 5 January 1989 the respondents, through their workmen or contractors, purporting to act under powers conferred by section 17 of the Land Drainage Act 1976, entered the ditch and remained there continuously until 1 February 1989, making use of a heavy hydraulic excavator to enlarge and re-shape the ditch, and to deposit spoil on the land to one side, over a length of 350 metres. There is no doubt that these were operations falling within the scope of the notification. The result was to cause grave damage to those natural features of the ditch which the notification had been designed to protect.
Faced with this act of ecological vandalism the council decided to launch a prosecution under section 28(7). The natural targets would have been the farmers, on the ground that they had caused or permitted the performance of the operations, but for sufficient personal reasons which we need not describe this was considered inexpedient. There remained however the respondents themselves, who not only knew that the site was an SSSI and that certain operations were proscribed, but had been formally notified of the fact in their own right. Accordingly the council laid eight informations against the respondents, reflecting each category of operation performed. At the hearing before the justices for the Isle of Wight the respondents did not contest the facts which I have summarised, or call evidence on their own behalf, but argued on several grounds that they had no case to answer. Of these, we need notice only one, namely that they were not and had never been the owners or occupiers of the ditch, and accordingly fell outside the scope of section 28. The justices rejected this argument, finding as a fact that the respondents were the occupiers of the site during the weeks when the work was carried out. They convicted the respondents on all charges and imposed heavy fines.
The respondents appealed by case stated to the Divisional Court. The previous arguments were repeated, together with a new contention by the council that since the respondents were the owners of part of the site, albeit not the part in question, they fell within the scope of the expression "The owner …. of any land which has been notified …." in section 28(5) and hence were prohibited from carrying out the notified operations anywhere on the site. The Divisional Court rejected both versions of the council's argument, and with evident reluctance quashed the convictions. The council now appeals to this House.
I must now set out the provisions which I have summarised.
"28 Areas of special scientific interest
(1) Where the Nature Conservancy Council are of the opinion that any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features, it shall be the duty of the Council to notify that fact—
( a) to the local planning authority in whose area the land is situated;
( b) to every owner...
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