Worcestershire County Council v Alan Roy Pain
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Eyre |
| Judgment Date | 23 April 2024 |
| Neutral Citation | [2024] EWHC 913 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-BHM-000141 |
[2024] EWHC 913 (Admin)
Mr Justice Eyre
Case No: AC-2023-BHM-000141
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Centre
33 Bull Street,
Birmingham, B4 6DS
John Hunter and Elana Kaymer (instructed by Clarke Willmott) for the Appellant
Richard Kimblin KC (instructed by Lodders Solicitors) for Alan Roy Pain
Scott Stemp (instructed by Irwin Mitchell) for Pencroft Limited and Oliver Richard Rogers
Hearing dates: 19 th March 2024
Approved Judgment
This judgment was handed down remotely at 10.00 am on 23 rd April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction .
This is a prosecution appeal by way of case stated against the decision of HH Judge Cole sitting with two magistrates in the Crown Court at Worcester on 27 th July 2022. By that decision the Crown Court allowed the Respondents' appeal against their conviction pursuant to section 24 of the Land Drainage Act 1991 (“the LDA”) of an offence of failing to comply with notices served under that section.
The case arises out of the construction, beginning in 2013, of three irrigation pools on land at Witley Park Farm, Great Witley, Worcestershire. The pools were constructed along the line of a watercourse flowing across that farm and forming part of a tributary of the Shrawley Brook. The pools were created by the importation on to the farm and the depositing thereon of tens of thousands of tonnes of waste. The Appellant (“the Council”) is the Local Lead Flood Authority for Worcestershire and as such is the relevant drainage board for the purposes of the LDA. It is not disputed that the Respondents are persons by whom those works were done and/or persons having power to remove the pools.
On 29 th December 2015 the Council served on the Respondents notices (“the Notices”) in the terms I will consider below. The Notices purported to be served pursuant to powers under section 24 of the LDA and to require sundry actions to be taken.
The Respondents were prosecuted pursuant to informations laid on 14 th June 2019 for alleged failures to comply with the Notices. There followed a six-day trial in the Magistrates' Court where the main issue was whether the watercourse was a watercourse within the meaning of the LDA. The Respondents were convicted on 7 th September 2020 and sentenced in November 2020.
The Respondents appealed successfully to the Crown Court. There was a hearing in the Crown Court to consider various preliminary issues, one of which was the lawfulness of the Notices. The outcome in the Crown Court turned on the interpretation of the final requirement in the Notices that the Respondents “reinstate land to former condition”; on the lawfulness of that requirement; and on the question of whether that requirement, if unlawful, was severable from the other parts of the Notices. The Crown Court held that the requirement was unlawful and that it was not severable with the consequence that the Notices were entirely invalid.
The Council applied for the statement of a case in August 2022 and this resulted in the Case Stated dated 21 st June 2023 (and amended on 28 th February 2024). The Case Stated posed two questions:
(1) “Were we right to find that the final requirement in the notices, “to reinstate the land to former condition,” was outside the powers conferred by section 24?
(2) If so, were we right to find that the requirement could not be severed and that, as a result, the notices were entirely invalid?”
Addressing the first question involves consideration of two issues: the proper interpretation of the requirement and the lawfulness of the requirement as so interpreted. The question of severability will fall to be considered after the determination of those matters.
The appeal was filed in the District Registry of the King's Bench Division on 30 th June 2023 (and so within the required 10 day period from the date of the Case Stated). It was returned to the Council on 11 th July 2023 on the basis that it should have been filed with the Administrative Court and was filed there on 17 th July 2023. The parties were agreed that even if the filing was out of time (which the Council says it was not) an extension of time should be granted. That is clearly the appropriate course and to the extent that it is necessary I grant an extension of time.
The Legislative Framework .
Section 72(1) of the LDA defined “culvert” and “watercourse” as:
“ culvert' means a covered channel or pipe which prevents the obstruction of a watercourse or drainage path by an artificial construction;”
“ watercourse” includes all rivers and streams and all ditches, drains, cuts, culverts, dikes, sluices, sewers (other than public sewers within the meaning of the Water Industry Act 1991) and passages, through which water flows”
By section 23(1) the LDA prohibited the obstruction of watercourses in the following terms:
“No person shall—
(a) erect any mill dam, weir or other like obstruction to the flow of any ordinary watercourse or raise or otherwise alter any such obstruction; or
(b) erect a culvert in an ordinary watercourse, or
(c) alter a culvert in a manner that would be likely to affect the flow of an ordinary watercourse, without the consent in writing of the drainage board concerned.”
Section 24 addressed the consequences of an unauthorised obstruction thus:
“(1) If any obstruction is erected or raised or otherwise altered, or any culvert is erected or altered, in contravention of section above, it shall constitute a nuisance in respect of which the drainage board concerned may serve upon such person as is specified in subsection (2) below a notice requiring him to abate the nuisance within a period to be specified in the notice.”
(2) The person upon whom a notice may be served under subsection (1) above is—
(a) in a case where the person by whom the obstruction has been erected or raised or otherwise altered has, at the time when the notice is served, power to remove the obstruction, that person; and
(b) in any other case, any person having power to remove the obstruction.
(3) If any person acts in contravention of, or fails to comply with, any notice served under subsection (1) above he shall be guilty of an offence and liable, on summary conviction—
(a) to a fine not exceeding level 5 on the standard scale; and
(b) if the contravention or failure is continued after conviction, to a further fine not exceeding £40 for every day on which the contravention or failure is so continued.
(4) If any person acts in contravention of, or fails to comply with, any notice served under subsection (1) above, the drainage board concerned may, without prejudice to any proceedings under subsection (3) above—
(a) take such action as may be necessary to remedy the effect of the contravention or failure; and
(b) recover the expenses reasonably incurred by them in doing so from the person in default.”
Section 25 of the LDA gave the drainage board power to serve a notice where the proper flow of water in an ordinary watercourse was impeded but, by way of contrast to the position in respect of section 24 notices, section 27 gave the recipient of such a notice a right of appeal to the magistrates' court.
The Notices .
The Notices served on 29 th December 2015 were in identical terms. Before I turn to the terms of the Notices it is to be noted that there is no prescribed form for a notice under section 24(1) of the LDA. In addition, the parties were agreed that it would have been open to the Council to serve notices simply identifying the matters said to constitute a nuisance for the purpose of section 24(1) and requiring the recipients to abate that nuisance. However, as the Crown Court correctly put it in the Case Stated, if the Council chose to specify on a notice the steps which were to be taken then those steps had to be “clear and lawful”.
The Notices consisted of a “Preamble to Notification”, a “Notice to Abate/Remove Obstruction” which was followed by notes, a schedule of “Steps required to abate the Nuisance” (“the Schedule”), a copy of the terms of section 24; and a plan entitled “Witley Park Farm Pool Map” (“the Plan”). It is common ground that all are to be read together. A copy of the Plan appears at Annex 1 below.
The Preamble provided in part as follows:
“Works to create three irrigation lakes over an Ordinary Watercourse at Witley Park Farm have been carried out without consent under s.23; Land Drainage Act 1991. Un-consented structures have been erected in on and over the watercourse that flows from the Washing Pool, through a Local Wildlife Site and discharges into the Shrawley Brook system downstream of the site …
The works carried out consist of un-consented lengths of culvert in the watercourse to enable waste/fill material to be imported, deposited and profiled over the existing and new culvert structures in the watercourse to form the three irrigation lakes.
…
The LLFA is issuing this notice to require you to restore the watercourse to its condition prior to the works such as to abate the nuisance.
…”
The “Notice to Abate/Remove Obstruction” invoked section 24 and then said:
“The LLFA considers that:
• an obstruction has been raised in an ordinary watercourse, namely an un-named tributary of Shrawley Brook at Witley Park Farm, Great Witley, Worcestershire
AND
• a new culvert has been erected and existing culverts altered in a manner likely to affect the flow of an ordinary watercourse, namely, an un-named tributary of Shrawley Brook at Witley Park Farm, Great Witley, Worcestershire.
Without the consent, in writing, of the LLFA in contravention of ...
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