William Moase and Giles John Eyre Lomas v Secretary of State for the Environment, Transport and the Regions (First Respondent) South West Water Ltd (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OWEN |
| Judgment Date | 30 September 1999 |
| Judgment citation (vLex) | [1999] EWHC J0930-9 |
| Date | 30 September 1999 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3017/98 |
[1999] EWHC J0930-9
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
The Strand
Mr Justice Owen
CO/3017/98
MR R McCRACKEN (MR M LEWIS) (instructed by Toller Beattie of Barnstaple, Devon, EX31 1DE) appeared on behalf of the Applicants
MR R DRABBLE QC (instructed by The Treasury Solicitors) appeared on behalf of the First Respondents
MR R FOOKES (instructed by Thomas Eggar Church Adams, Devon) appeared on behalf of the Second Respondents
The Notice of Motion was received in the Crown Office in August 1998. The time estimate was 1 1/2 to 2 days. The application was made before me on the 30th June, 1st July and Friday 2nd July. I was given three files containing 606 pages of documents, presumably believed to be relevant, a file of authorities, an original Applicants' Skeleton Argument of 13 pages, a revised Applicants' Skeleton Argument of 20 pages, a two page Note on behalf of The Secretary of State, a 6 page Skeleton Argument on his behalf and an 11 page Skeleton Argument from the Second Respondent. It was impossible to give an immediate judgment. Thereafter I was sitting in the Court of Appeal with no chance to draft a considered judgment. Now in the vacation I am able to undertake this task. I have done my best to consider, directly or indirectly, all the arguments but am very conscious that in doing so I have felt obliged to repeat certain matters which I have regarded as important.
I hope that I will not be making myself a hostage to fortune by saying that in my judgment:
1. The Secretary of State was empowered to confirm the C.P.O.
2. If he had not been so empowered the Applicants would have suffered substantial prejudice. Even so the remedy to quash, under s.24 of the Acquisition of Land Act 1981, being discretionary I would not have exercised that discretion in favour of the Applicants. My reasons are that there is an urgent need for a new sewage disposal system and there having been no identification of a more environmentally favourable position the greater good of the local community must require the existing scheme to be put into operation.
3. The mandatory obligations under the Directives and the transposed U.K. law are clear. The Environment Agency, accepting those standards, has approved the scheme and the Secretary of State and the Water Company, accepting those standards, are entitled to rely on the Environment Agency approval and accordingly the Secretary of State was entitled to confirm the C.P.O.
4. The Water Company and the Environment Agency know that the mandatory standards remain mandatory.
It is common ground that a new sewage system is needed; the objectors said "desperately needed", for the Southern Taw—Torridge catchment area in Devon. There seems to have been little agreement as to where this should be.
For five days in November 1997 an Inspector appointed by the First Respondent, the Secretary of State for the Environment, Transport and the Regions, heard objections to a proposed compulsory purchase order of land in the parish of Abbotsham in North Devon. That order was proposed by the Second Respondent, the Water Company, which had been unable to acquire the land by negotiation. The order was proposed in order to provide the necessary new sewage disposal system for the South Taw — Torridge catchment area which is a holiday area, having a population equivalent in excess of 15,000. The Inspector concluded that the main grounds of objection at the inquiry were concerned with "the harmful effects of the proposed sewage treatment works, especially in terms of the pollution of bathing waters and damage to the natural beauty of the area; and with alternatives which the objectors consider to be less harmful and less costly."
As far back as 1972 the Water Company had in mind a new sewage disposal system. To this end, in 1992, they then wished to construct a remote or long-sea outfall to which superficially treated sewage would be pumped for release. The long-sea outfall or outlet (in fact there were two, A and B considered at the inquiry but I shall not go into such detail) was intended to be about 4.5 kilometres from Northam and Westward Ho. It was this scheme which the objectors supported at the inquiry and with some alterations still support.
The Summary of Environmental Studies (169A–170A) dated the 24th December 1992 indicated that for the Northam 4.5 kilometres outfall the likelihood of treated waste water entrainment onto the beaches and into the estuary can be regarded as minimal. This appears to have been the measure against which the various schemes were considered. The Cornborough 0.5 kilometre outfall, as then proposed, was considered in the same survey and summary. The conclusion was not reassuring. "The data demonstrate that on each flood tide dilute treated waste water would be transported into the bathing water area at Westward Ho. Given the considerably reduced dilution for a treated waste water discharge at Cornborough and the tendency to affect bathing waters at Westward Ho, it would be necessary to provide a higher level of inland treatment to achieve the equivalent environmental standards of the 4.5 kilometre Northam outfall….. Whilst the secondary treatment and U.V. disinfection at Cornborough would produce a higher quality of treated waste water even this level of treatment cannot remove all bacteria and other micro organisms" (170).
The short-sea outfall (the Cornborough scheme), which was the Water Company's choice at the inquiry, involves discharging treated sewage some 500 metres from the Abbotsham — Cornborough shore at high water. This discharge point is close to the Westward Ho bathing beach.
In October 1997, Mr. Prentice, a project manager employed by the Water Company, concluded [p.169]:
"9.1. There is a clear need for the scheme to ensure that the Company complies with its obligations under the Bathing Waters Directive and the Urban Waste Water Treatment Directive, and to generally improve water quality throughout Bideford Bay and the Taw—Torridge estuary:
9.2. The scheme will significantly improve the quality of the waters in the estuary and the bay by removing continuous preliminary treated discharges from Bideford and Rock Nose (Westward Ho) and continuous primary treated discharges from Yelland and Westleigh.
9.3. The scheme will consist of a modern sewage treatment works providing a high level of secondary treatment within a minimum area.
9.4. Evaluation of potential sites has shown that the only feasible locations are at Cornborough or Northam. Of these I consider that Cornborough is the more suitable location because:
A. It is the most economic solution for both capital, operational, and whole life costs;
B. Planning approval has been granted in principle whereas for Northam applications have been refused three times;
C. There are lower construction and operational risks with the shorter length of outfall;
D. The Cornborough site provides the best and most environmentally sensitive solution.
It is clear that Mr. Prentice and the environment agency had in mind the requirements, as they saw them, of the E.E.U. Directives and also had in mind the very proper public concern about the quality of bathing waters in the area. On the 7th January 1997 (p.180) Sean McKay, Senior Scientist (Discharge Consenting) to the Environment Agency, indicated that in principle the environment agency preference for the disputed Taw — Torridge location would be for a discharge removed further from the bathing water. "However", he added, "the system proposed by South West Water should ensure bathing water compliance at Westward Ho and we therefore do not object to this scheme".
The Environment Agency was again involved in June 1997 (p.184). This letter, which is criticised by the Applicants, deals with the Directive's requirements. The letter was before the Inspector. It states:
"I would like to point out that no amount of U.V. will remove all pathogens from the discharge. The objective is to reduce the concentrations in accordance with our policy, which is that the protection against pathogenic organisms offered by the short-sea outfall/U.V. combination should be at least equivalent to the protection which would have been afforded by a remote disposal scheme. The consent standards applied at Cornborough will ensure this objective is met."
This conclusion was repeated in the letter from the Environment Agency dated the 11th August 1997 (p.186) Mr. Babbedge, Senior Scientist (Scheme Development) stating that the Cornborough Scheme "will reduce the concentrations in accordance with the policy adopted by the Environment Agency to meet the requirements of the E.C. Bathing Waters Directive". The conclusion is then reflected in the Environment Agency Policy Statement for Consent for Sewage Effluent Discharges affecting Bathing Waters (p.187). Paragraphs 1 and 2 of this Statement recognise the mandatory nature of the water quality standards transposed from the Directive to the bathing waters regulations and also the necessity to use its powers under the relevant statutory provisions of the Environment Act 1995, Water Resources Act 1991 and secondary legislation to ensure compliance with the mandatory standards. The Statement recognises that "Enteroviruses pose the most difficult questions in terms of ensuring effective control methodologies, and it is considered likely that the treatment and disposal options ultimately chosen for enterovirus purposes will also be more than sufficient to ensure...
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