Thames Water Authority v Elmbridge Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date10 December 1982
Judgment citation (vLex)[1982] EWCA Civ J1210-1
Date10 December 1982
Docket Number82/0490

[1982] EWCA Civ J1210-1







Royal Courts of Justice


Lord Justice Stephenson

Lord Justice Dunn


Lord Justice Dillon


In The Matter of The Local Government Act 1972 and The Water Act 1973


In The Matter of An Arbitration Regarding The Ownership of Land Known as The Former New Haw Sewage Treatment Works Oyster Lane Byfleet

Thames Water Authority
Claimants (Respondents)
Elmbridge Borough Council
Respondents (Appellants)

MR. KARL SCHIEMANN QC and MR. ALAN FLETCHER (instructed by Mr. D.J. Jenkins, Solicitor to the Elmbridge Borough Council, Walton-on-Thames KT12 1PS) appeared on behalf of the Respondents (Appellants)

MR. P. MOTTERSHEAD QC and MR. GUY SEWARD QC (instructed by Mr. E.A.R. Gray, Solicitor to the Authority, London SW1H ODB) appeared on behalf of the Claimants (Respondents)


I ask Lord Justice Dunn to give the first judgment.


The principal question raised by this appeal is as to the effect of two resolutions, dated respectively 7th November 1972 and 17th July 1973, passed by the former Walton and WeyBridge Urban District Council, who were the predecessors of the Elmbridge Borough Council, the appellants.


The facts are agreed; I take them from the agreed statement. Down to 1st April 1974, when the local government reorganisation took place, the Walton and Weybridge Urban District Council (which I shall call "The Urban District Council") were the owners of land at Byfleet consisting of 1.87 hectares, edged pink on the plan (which I shall call "the pink land") and land 2.785 hectares in extent, edged blue on the plan (which I shall call "the blue land"). That land was used for sewage disposal purposes.


In about April 1971 the Urban District Council started to construct a new sewage treatment works at Weybridge, with the intention that the previous works should cease to operate when the new works came into operation. On 7th November 1972 the Urban District Council adopted a recommendation of their policy committee and approved by their finance committee, in the following terms:—

"In respect of the land known as New Haw Sewage Treatment Works, Oyster Lane, Byfleet, and in accordance with the provisions of Section 163 of the Local Government Act 1933, as amended by Section 23 of the Town and Country Planning Act 1959.

(i) the Council do now appropriate the area of land not currently used in connection with the Sewage Treatment Works, as shown edged pink on plan no. 611/ 0S/4 from sewerage to planning purposes within the meaning of Section 112(1) of the Town and Country Planning Act 1971 and (ii) on cessation of its current use, the remaining area of land, shown edged blue on plan no. 611/ 0S/4, be similarly appropriated for planning purposes".


On 7th November 1972 none of the pink land was in fact used for sewage or sewerage disposal purposes. On 17th July 1973 the Urban District Council adopted a recommendation of their Finance Committee in these terms:

"It be formally recorded that the use for sewerage purposes of the area of land at New Haw Sewage Treatment Works, Oyster Lane, Byfleet, shown edged blue on plan no. 611/ 0S/4 has now ceased and, in accordance with the Council's previous decision, is appropriated by resolution for planning purposes".


On 17th July 1973 the New Haw Sewage Treatment Works had ceased to operate and no part of the blue land was used for sewage or sewerage disposal purposes, save that a pumping station had been constructed on the land, 0.0298 hectares in extent, shown edged green on the plan (which I shall call "the green land") as part of the Seven Arches Sewage Treatment Works scheme at Weyhill, and that pumping station had been in operation since 29th June 1973. The access to the pumping station from Oyster Lane was along a roadway edged with a broken green line on the plan.


Since 1st April 1974 and following the local government reorganisation, the green land, including the pumping station, has been occupied by the Thames Water Authority, the respondents to the appeal (whom I shall call "The Water Authority"); and the Elmbridge Borough Council (whom I shall call "The Borough Council") formally admitted that that land was transferred to the water authority by reason of article 8 of the Local Authorities (England) (Property etc.,) Order 1973, Statutory Instrument No. 1861, and that the water authority have a right of access, with or without vehicles, over the roadway edged with broken green lines.


A dispute arose between the water authority and the borough council as to the effect of the two resolutions of 7th November 1972 and 17th July 1973, which was referred to arbitration pursuant to article 39 of the 1973 Statutory Instrument. At the arbitration the rival contentions, so far as they are material to this appeal, were as follows: the water authority contended that the land the subject of the two resolutions should be transferred to the authority under the provisions of the 1973 Statutory Instrument, as those resolutions did not validly appropriate the land for planning purposes in that, in relation to the blue land the resolution of 17th July 1973 was passed at a time when part of the land, namely the green land, was still used for sewerage purposes. The borough council contended that, except for the green land, the land which was the subject of the resolutions was transferred to them under the Order, because the green land was severable from the rest of the land and the resolution was effective to appropriate all the land used, except the green land.


The arbitrator, Mr. Peter Boydell QC, held in favour of the borough council that the resolution of 17th July 1973 could be severed, so that it constituted a valid appropriation of the blue land, excluding the green land. A Case was stated for the opinion of the High Court, which was heard by Sir Douglas Franks sitting as a Deputy High Court Judge, and he gave his decision on 20th May 1980. He disagreed with the arbitrator; he held that the resolution could not be severed so as to exclude the green land, and that consequently the whole resolution was invalid and all the blue land passed to the authority on 1st April 1974. The borough council now appeals against that decision.


The power of appropriation is contained in section 163 of the Local Government Act 1933 and, so far as is material, subsection (1) of that section provides that "any land belonging to a local authority and not required for the purposes for which it was acquired, or has since been appropriated, may be appropriated for any other purpose approved by the Minister for which the local authority are authorised to acquire land". That section was amended by s.23 of the Town and Country Planning Act 1959 to provide that the approval of the Minister was not necessary, but otherwise the section remains in the terms which I have read.


It follows from that section that on 17th July 1973 the urban district council had no power to appropriate the green land because it was still required for the purposes for which it was acquired, namely, use for sewage disposal. Equally, the urban district council would have had power to appropriate the remainder of the blue land, since that land was not required for such purposes. The question on this appeal is whether the whole resolution of 17th July 1973 is bad, or only that part of it which related to the green land, leaving the remainder of the resolution effective.


On 1st April 1974 and pursuant to articles 8 and 9 of the Local Authority (England) Property etc., Order 1973, Statutory Instrument No. 1861, all sewage disposal works vested in local authorities and all their functions exercisable for the purposes of sewerage and sewage disposal, were transferred to, and vested in, the local water authorities. If, therefore, the water authority are right in their contention that the appropriation on 17th July 1973 was invalid, on 1st April 1974 the whole of the blue land vested by operation of law in the water authority.


The reasons for the learned judge's decision are set out at p.5 of the judgment and are in the following terms:

"Of course the difficulty I am in is that nearly all cases on severance relate to restraint of trade. The planning cases do not help at all. There is no authority, I think, which assists me save that one must apply some test of reasonableness and commonsense. I think I would stop short in practice of saying that an appropriation fails because a council have accidentally included a bit of land which they should not, when that can simply be deleted by taking a tracing and drawing on the boundary. I think that if the matter stopped there then I would agree with Mr. Fletcher"—counsel for the borough council. "However the matter is more complex than that. It is complex in two ways, albeit related. The first is that in severing one can only sever if at the same time one is implementing the intention of the party responsible for the document—implementing it as far as it validly can be implemented. But in this case the intention of the council was, as Mr. Fletcher says, expressed in the resolution of 1972, that is to say, that the blue land should not be appropriated until the cessation of its current use. Then I find, as I have said, that it was formally recorded that that use had ceased in July 1973, whereas it had not, and so the appropriation went ahead on a false basis of fact. Therefore it cannot be said that by severing one is then implementing the declared...

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