The Manchester Ship Canal Company Ltd v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 19 December 2022 |
| Neutral Citation | [2022] EWHC 3282 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/123/2022 |
[2022] EWHC 3282 (Admin)
THE HONOURABLE Mrs Justice Thornton DBE
Case No: CO/123/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Morgan and Nicholas Ostrowski (instructed by BDB Pitmans LLP) for the Claimant
Guy Williams (instructed by the Government Legal Department) for the First Defendant
James Strachan KC and Jonathan Darby (instructed by Pinsent Masons) for the Second Defendant
Hearing dates: 19 th and 20 th October 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to the National Archives. The date and time for hand-down is deemed to be 4:30pm on Monday 19 th December 2022 .
The Hon.
Introduction
The Manchester Ship Canal Company (“MSCC”), the owner, statutory undertaker and navigation authority for the Manchester Ship Canal, challenges the decision of the Secretary of State to confirm the United Utilities Water Limited (Eccles Wastewater Treatment Works) Compulsory Purchase Order 2016 (“CPO”). The CPO authorises the sewerage undertaker for the North West of England, United Utilities (“UU”), to compulsorily discharge water, soil and effluent from its sewers into the Manchester Ship Canal. The challenge is brought pursuant to section 23 Acquisition of Land Act 1981, which provides that a person aggrieved by a compulsory purchase order can apply to the court to question the validity of the order on the ground that there was no power to make it, or a relevant requirement has not been complied with.
The need for the CPO arises because UU is responsible for the public sewerage system in the North West of England which serves circa 7 million customers and 200,000 businesses. To meet its sewerage obligations, UU operates a Wastewater Treatment Works at Eccles, which currently discharges treated wastewater into Salteye Brook, a tributary of the Manchester Ship Canal. The brook also receives the outflow from a combined sewer outfall at the inlet of the treatment works. In order to satisfy regulatory standards, set by the Environment Agency for the brook, and having considered various alternative options, UU proposes to discharge treated wastewater and storm overflows directly into the Canal via a new outfall, rather than into the brook. A gravity outfall pipe, approximately 1.16km long will be constructed, to carry the final effluent from its treatment works to the new outfall, which will sit within the canal bank.
Whilst UU has a statutory right, pursuant to section 159 of the Water Industry Act (“WIA”), to lay its pipes across land without the need for landowner consent, the new right to discharge into the Canal must be acquired either by agreement, or, failing that, by compulsory acquisition under section 155 WIA.
Having failed to secure MSCC's agreement to the scheme, UU proceeded by way of compulsory purchase order which led to the convening of a public local inquiry by the Secretary of State, conducted by an Inspector, to consider objections to the CPO, primarily those of MSCC. The inquiry sat for 29 days.
For the majority of the inquiry, MSCC advanced an ‘in-principle’ objection to the Order; that is to say, its case was that the Order should not be confirmed at all. Shortly before the close of the inquiry, MSCC withdrew its principled objection. Accordingly, by the close of the inquiry, and to date, MSCC accepts that there is a ‘compelling public interest’ for UU to discharge into its Canal. However, before the Inspector, MSCC challenged the width of the order, describing it as ‘an unfettered private law right for UU to discharge effluent in perpetuity in the Canal.’
At the end of the inquiry, the Inspector produced a 235 page report concluding that there was a compelling case in the public interest for authorising UU to discharge effluent into the Canal. The Secretary of State agreed and confirmed the CPO by decision letter dated 14 October 2021.
The Court was told that the CPO is the first made pursuant to section 155 of the WIA, so as to provide an express grant of authority to discharge water, soil and effluent for the benefit of a sewerage undertaker. MSCC says that the right of discharge into its Canal is the only one nationwide without specific statutory protection for the landowner. This is because the vast majority of discharges are implicitly authorised by the 1991 Act, subject to protection for the landowner via sections 117, 183 and Schedule 12 of the Act. It is these provisions that MSCC sought, unsuccessfully, at the public inquiry to include within the terms of the CPO. The Inspector recommended that the order be confirmed without the inclusion of the protective provisions (report dated 20 February 2020) and the Secretary of State agreed (decision letter dated 3 December 2020).
The grounds of challenge are as follows:
1. The Secretary of State and/or the Inspector misdirected themselves as to the proper legal and procedural context in which to evaluate and determine the inclusion of the protective provisions sought by MSCC, by concluding that the correct test was whether they were necessary.
2. The Secretary of State and/or the Inspector erred in law in their determination that the purposes for which the Order was made sufficiently justified the interference with MSCC's rights under Article 1 of the First Protocol to the European Convention on Human Rights. There were no countervailing considerations advanced by UU to those relied upon by MSCC and a fair balance required the inclusion of the protective provisions.
Except where expressly stated or apparent, references in the judgment below to the Inspector are to be read as also referring to the Secretary of State who agreed with the recommendation of the Inspector.
Background
The terms of the CPO
As confirmed, relevant extracts from the CPO provide that UU is authorised
‘… under section 155(1) and section 155(2)(a) of the Water Industry Act 1991 … to purchase compulsorily the land and the new rights over land, each described in paragraph 2 …. for the purposes of and in connection with the carrying out of its functions as a sewerage undertaker namely to lay and use a new pipeline for the benefit of the acquiring authority's undertaking generally and its land at Eccles Wastewater Treatment Works, for the discharge of water and effluent to the Manchester Ship Canal……’
The right under scrutiny is set out in a schedule, in relation to land referred to as Plots 6D, 6E and 6H, as follows:
‘The right… to discharge water, soil and effluent from the sewers and outfall and groundwater into the Manchester Ship Canal…’
The protective provisions sought by MSCC
MSCC proposed protective provisions to be inserted into the terms of the CPO by way of an amendment to terms of the CPO, as follows:
‘…. the rights hereby granted shall be subject to the provisions of Schedule 1 in order to protect the statutory undertaking of the Manchester Ship Canal Company Limited (MSCCL).’
Schedule 1 provides in material part:
‘3. Any right to discharge “water soil and effluent” under this Order shall be subject to the following provisions of the Water Industry Act 1991 (or any re-enactment, replacement or amendment of those provisions), which shall apply as conditions to which the right to discharge is subject in the like manner as if the right arose impliedly under section 116 of the Water Industry Act 1991:
a. Section 117(5)(a) and (b)
b. Section 117(6)
c. Section 186(1), (3), (6) and (7)
d. Schedule 12 paragraph 4
(the ‘discharge proviso’).’
Before the Inspector, MSCC referred to the collection of provisions as the ‘discharge proviso’.
The legal framework
Compulsory purchase
Section 155 of the WIA provides as follows:
‘155.—Compulsory purchase.
(1) A relevant undertaker may be authorised by the Secretary of State to purchase compulsorily any land anywhere in England and Wales which is required by the undertaker for the purposes of, or in connection with, the carrying out of its functions.
(2) The power of the Secretary of State under subsection (1) above shall include power—
(a) to authorise the acquisition of interests in and rights over land by the creation of new interests and rights.’
Section 154(4) WIA provides that the statutory procedure set out in the Acquisition of Land Act 1981 applies to a CPO under section 155. This includes a test of serious detriment for acquisition of a right over a statutory undertaker's land (paragraph 3 in Part II of Schedule 3 to the 1981 Act).
Government guidance on compulsory purchase provides as follows at paragraphs 12 and 13:
‘ 12 How does an acquiring authority justify a compulsory purchase order?
There are certain fundamental principles that a confirming minister should consider when deciding whether or not to confirm a compulsory purchase order
……
A compulsory purchase order should only be made where there is a compelling case in the public interest.
An acquiring authority should be sure that the purposes for which the compulsory purchase order is made justify interfering with the human rights of those with an interest in the land affected. Particular consideration should be given to the provisions of Article 1 of the First Protocol to the European Convention on Human Rights
……
13. How will the confirming minister consider the acquiring authority's justification for a compulsory purchase order?
The minister confirming the order has to be able to take a balanced view between the intentions of the acquiring authority and the concerns of those with...
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