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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1915
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE RICHARDS)
Thursday, 31st October 2002
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE LAWS
|MWH & H WARD ESTATES LIMITED||Claimant/Appellant|
|MONMOUTHSHIRE COUNTY COUNCIL|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR G JONES (instructed by TLT Solicitors, Bush House, 72 Prince Street, Bristol BS99 7JZ) appeared on behalf of the Appellant.
MR J FINDLAY (instructed by Sharpe Pritchard, Elizabeth's House, Fulwood Place, London WC1V 6HG) appeared on behalf of the Respondent.
Crown Copyright ©
Thursday, 31st October 2002
"1. ... The notice, expressed to be given under s.64 of the Land Drainage Act 1991, was a notice of intended entry on the claimant's land for the purpose of enabling the council to carry out land drainage works. The land in question ... comprises approximately half an acre of agricultural land between Watery Lane, Monmouth and land formerly owned by the claimant but now owned by Robert Hitchins Limited ... It was proposed in essence to construct a drainage channel linking the Hitchins land (where drainage was being constructed in the context of residential development) with a stream running along Watery Lane. The purpose was to alleviate a long standing flooding problem relating to residential properties adjacent to Watery Lane.
2. The claimant objected to the proposed works and challenged the lawfulness of the notice. It made a prompt application for permission to apply for judicial review and for an injunction. An interim injunction was granted by Silber J on 26 October, restraining the council from entering the claimant's land pending an oral hearing of the permission application. On 14 November there was an oral hearing before Scott Baker J, who granted permission but discharged the injunction. The works have since been carried out.
3. The question remains whether the notice was lawful and, therefore, whether the council's entry on the claimant's land was authorised by statute or was a trespass. There are two main issues: (1) whether the council had power under s.64 to enter the claimant's land for the construction of new drainage works and (2) whether the council's action was a disproportionate interference with the claimant's property rights."
It is convenient to go at once to the legislation.
(1) Subject to ... subsection (4) and section 17 below-
(a) every drainage board acting within the internal drainage district for which they are the drainage board; and(b) every local authority action either-(i) for the purpose of carrying out works in pursuance of a scheme under section 18 below; or(ii) so far as may be necessary for the purpose of preventing flooding or mitigating any damage caused by flooding in their area,shall have the powers specified in subsection (2) below.
(2) The powers mentioned in subsection (1) above are the powers, otherwise than in connection with a main river or the banks of such a river-
(a) to maintain existing works, that is to say, to cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or drainage work;(b) to improve any existing works, that is to say, to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work;
(c) to construct new works, that is to say, to make any new watercourse or drainage work or erect any machinery or do any other act (other than an act referred to in paragraph (a) or (b) above) required for the drainage of any land.
(3) Subject to section 11 above and subsection (4) and section 17 below, an internal drainage board or local authority that desire, otherwise than in connection with a main river or the banks of such a river, to carry out any drainage works for the benefit of their district or area in lands outside that district or area shall have the same powers for that purpose as are conferred by this Act on persons interested in land which is capable of being drained or improved and desiring to carry out drainage works for that purpose.
(4) Nothing in this section-
(a) authorises any person to enter on the land of any person except for the purpose of maintaining existing works; or(b) authorises [an English county] council to exercise any power except in accordance with section 16 below.
(5) Where injury is sustained by any person by reason of the exercise by a drainage board or local authority of any of their powers under this section, the board or authority shall be liable to make full compensation to the injured person.
(6) In case of dispute, the amount of the compensation payable under subsection (5) above shall be determined by the Lands Tribunal."
Section 17 provides:
"(1) A local authority shall not carry out or maintain any drainage works authorised by sections 14 to 16 above in connection with any watercourse except with the consent of, and in accordance with any reasonable conditions imposed by the [Agency]."
Section 18 provides:
(1) Where-(a) the [Agency] is of the opinion that any land is capable of improvement by drainage works but that the constitution for that purpose of an internal drainage district would not be practicable; or(b) a local authority other than a district council is of that opinion in relation to any land in their area,the [Agency] or, as the case may be, that local authority may, in accordance with the provisions of a scheme made by it or them under this section, enter on the land and carry out such drainage works as appear to it or them desirable."
I interpolate, the procedure relating to section 18 involves a public inquiry: see Schedule 4 to the Act.
"The exercise of [the powers] conferred on [local authorities] by sections 14 to 17 above and section 66 below shall be included in the purposes for which the council of any district or London borough [or Welsh county or county borough] or the Common Council of the City of London may be authorised by the Secretary of State to purchase land compulsorily..."
"(1) Any person authorised by an internal drainage board or local authority, after producing (if so required) a duly authenticated document showing his authority, may at all reasonable times-
(a) enter any land for the purpose of exercising any functions of the board or, as the case may be, any functions under this Act of that authority;(b) without prejudice to paragraph (a) above, enter and survey any land (including the interior of any mill through which water passes or in connection with which water is impounded) and take levels of the land and inspect the condition of any drainage work on it; and(c) inspect and take copies of any Acts of Parliament, awards or other documents which-(i) are in the possession of any internal drainage board, local authority or navigation authority;(ii) relate to the drainage of land; and(iii) confer any powers or impose any duties on that board or authority.
(2) A person entitled under this section to enter any land-
(a) may take with him such other persons and such equipment as may be necessary; and(b) if the land is unoccupied, shall, on leaving it, leave it as effectually secured against trespassers as he found it.
(3) Except in an emergency, admission to any land shall not be demanded as of right under this section, unless notice of the intended entry-
(a) has been given to the occupier; and(b) if the land is used for residential purposes or the demand is for admission with heavy equipment, has been given not less than seven days before the demand is made.
(4) Where injury is sustained by any person by reason of the exercise by an internal drainage board or local authority of any of their powers under this section, the board or authority shall be liable to make full compensation to the injured person.
(5) In case of dispute, the amount of the compensation payable under subsection (4) above shall be determined by the Lands Tribunal.
(6) If any person intentionally obstructs or impedes any person exercising a power conferred by this section, he shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
(8) This section shall be without prejudice to any other enactment conferring powers of entry."
"17. Section 34 of the Land Drainage Act 1930 gave drainage boards powers to maintain, improve and construct drainage works in terms corresponding to those now in s.14 of the 1991 Act. It also included in s.34(4) the equivalent of s.14(4)(a) of the 1991 Act:
`It is hereby declared that nothing in this section authorises any person to enter on the land of any person except for the purpose of maintaining existing works.'
18. Section 43 of the 1930 Act conferred powers on drainage boards corresponding to those in s.64(1)(b) and (c) of the 1991 Act, whereby any person authorised by a drainage board was empowered to enter and survey land etc and to inspect and to take copies of any Acts of Parliament and other documents in the possession of a drainage board or navigation authority. Section 51 of the 1930 Act conferred on councils of counties and county boroughs the power to authorise any person to enter on and inspect land for the purpose of the exercise of any of their functions under the Act. In ss.59 and 45 respectively of the 1930 Act there were equivalents of s.18 (drainage schemes) and s.62 (compulsory purchase) of the 1991 Act.
19. The Land Drainage Act 1961 extended the powers under the 1930 Act. Section 34 of the 1961 Act gave local authorities all the powers (subject to the same restrictions and liabilities) conferred on drainage boards by s.34 of the 1930 Act, thus empowering local authorities to maintain, improve and construct drainage works. Section 40(1) of the 1961 Act conferred a power of entry, the precursor of section 64(1)(a) of the 1991 Act, in these terms:
`Without prejudice to any other enactment conferring powers of entry, a person authorised by a drainage board may, after producing, if so required, some duly authenticated document showing his authority, enter any land at all reasonable times for the purpose of exercising any function of the board under the Act of 1930.'
Section 40 of the 1961 Act also contained additional provisions, including a notice requirement in subs.(3) and a compensation requirement in subs.(4), corresponding to those in s.64 of the 1991 Act.
20. The legislation was consolidated in the Land Drainage Act 1976, which contained in ss.17 and 39 respectively ... provisions equivalent to ss.14 and 64 of the 1991 Act."
"29 It is helpful ... first to consider the history of the matter. Mr Parsons, head of traffic and development at the council's environment directorate, states in his witness statement that to his knowledge the area of land adjoining Watery Lane, including the highway and adjacent residential properties, has been subject to repeated flooding since 1992. When a consortium of landowners, including the claimant, was formulating proposals for residential development on the nearby land, it employed an independent land drainage consultant to investigate and promote solutions to the land drainage constraints. In 1993, after discussions with the National Rivers Authority, the consultant submitted proposals for measures that `will not only mitigate the effect of the development in respect of surfaced water run off, they also provide a comprehensive flood alleviation scheme to the majority of the problem reaches of the Watery Lane stream'. The proposal included a flood relief channel across the claimant's land. The proposal was amended in late 1994 but the flood relief channel was retained. It appears that if matters had proceeded smoothly the proposal would have been implemented in pursuance of planning obligations to be entered into by the consortium. But differences of view emerged between the members of the consortium and the planning side became fragmented. It is unnecessary to delve into the complications of the planning position. So far as material, however, the position in mid-2001 was that the claimant had sold, or entered into an agreement for sale of, the Hitchins land to developers and planning permission had been granted to enable the development to proceed. One of the conditions was that no development should take place until the drainage channel had ben constructed, but the developers were complaining to the council that they were unable to complete the channel owing to the claimant's refusal to allow them entry on to the claimant's land. This comes back to the `ransom' point that I have already mentioned in the context of the compensation provision in s.14(5).
30. The planning issues and the relations between the claimant and the developers are important by way of background, but the central point that emerges is that the flood relief channel carried out pursuant to the council's s 64 notice was substantially the same as that previously investigated and proposed by the claimant's consortium.
31. Moreover the evidence of Dr Parsons is that the works will bring about a significant benefit to the local community, as envisaged in the discussions that took place in relation to the original proposal. Without the works it was highly likely that existing properties would continue to suffer flooding. At the time of the s.64 notice the works were urgent because the winter recharge period had commenced and the Watery Lane watercourse had already caused local flooding during the season. The urgency was also said to be affected by the need to complete the work before the restricted season in respect of an adjacent badgers' sett, but that has given rise to a separate dispute in the evidence which I do not need to consider for present purposes.
32. In the light of that history and the evidence of Dr Parsons, I reject the submission that the council should have done more by way of analysis of the extent of risk of flooding and alternative means of dealing with it. It is plain that the proposal was the result of detailed consideration dating back many years and in my judgment there was a perfectly sound basis for carrying out the works."
I should say that this account is not entirely accepted on its face by Mr Jones on behalf of the appellant, but there is no essential dispute as to the thrust of it.
"I GIVE YOU NOTICE in accordance with section 64 of the Land Drainage Act 1964 (`the Act') that, after the expiration of seven days from service of this Notice, WR Parsons - Head of Traffic and Development (being the person duly authorised in writing by Monmouthshire County Council ... (`the Council')) will enter upon the land at Land off Watery Lane, Monmouth, shown hatched blue on the attached plan, marked `site plan', all of which is owned and occupied by you, for the purpose of enabling the Council to carry out the land drainage works more particularly shown on the drawing accompanying this notice and referred to below.
AND FURTHER TAKE NOTICE that WR Parsons will take with him on that land such other persons, including the duly appointed contractors of the Council and its workmen and such plant, machinery and other equipment as may be necessary for that purpose and that the entry will continue until that purpose is satisfied."
The issues on the appeal are essentially the same as they were below.
" ... Counsel for the plaintiffs acknowledges that on the interpretation of s 40 that he seeks, a landowner could refuse entry to a drainage board for purposes other than maintenance, however acute the emergency, until the board had gone through the procedure envisaged by s 59 of the 1939 Act, in short, the public inquiry procedure. In my judgment, s 34(4) of the 1930 Act now has to be read in the light of the wording of the 1961 Act and, in particular, s 40 thereof. Subsection (1) of this latter section, I think, gives the right to the drainage board's officers to enter any land for the purpose of exercising any function under the 1930 Act, and not merely for the purpose of maintenance. It is difficult to give any useful meaning to s 40(3) of the 1961 Act if this is not the true construction of section 40(1). It is argued strenuously on behalf of the plaintiffs that no one can come on their land without their permission, just by the defendant board writing a letter and saying that one of its officials is coming. I am afraid that that is exactly what the defendant board can do. It is another example of the inroad often made into individual rights in the interests of the wider community. In a modern civilised society, there must always be a delicate balance between the right of the individual and the need of the community at large. Authorities who act on behalf of the community are often given powers which, so long as they exercise them reasonably, so entitle the authority to encroach, usually with compensation to be paid, on the rights of the individual. In my judgment, the drainage boards are given such a power by s 40 of the 1961 Act."
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
For my part, I would accept that it is possible to read section 64 in the manner contended for by Mr Jones. So the question is whether the ordinary domestic construction which I have explained is incompatible with the Convention rights. This is how it is put in in Mr Jones skeleton argument:
"16. The interpretation favoured by the learned judge in the present case violates the ECHR in two ways. It allows the effective compulsory acquisition of easement rights over a person's land without either:
a. a right to challenge the merits of the need for the scheme proposed, and/or
b. full compensation."
The first of these formulations asserts a potential violation of Article 6(1) of the Convention; the second of Article 1 of the First Protocol. As is well-known, Article 6(1) provides in part that in the determination of his civil rights and obligations:
" ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Article 1 of the First Protocol provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
"I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd."
"Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the purpose of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the term loosely), and the second instance appeal is in the nature of a judicial review."
That case concerned the statutory scheme relating to provision to be made for homeless persons, in which there was a two-tier system of appeal. But it seems to me, if I may say so, that the distinction being made there is generally one that may apply where only judicial review is available. This is a case where what is generally or systematically required is the application of judgment or the exercise of discretion. In those circumstances, the instruction of section 64, which I favour, would involve no violation of the landowner's rights arising under Article 6(1) of the Convention.
"vii) ... Section 14(4) gives a clear entitlement to compensation for any `injury' sustained by the claimant by reason of the council's exercise of powers under s.14 to construct new drainage works. That is not limited to compensation for physical damage to the land, but includes compensation for diminution in the value of the land. The Lands Tribunal (Sir Douglas Frank QC) in Weeks and Weeks, a case under s.34 of the 1930 Act, considered that `the traditional method of assessment should be applied, namely, the difference in value of the property before and after the execution of the works'. I see no reason to disagree with that approach. ... I should, however, add that if there were any doubt as to the construction of the compensation provision in s.14(4), then I accept Mr Findlay's submission that a construction favourable to the land owner is to be preferred in order to ensure compliance with the Convention in circumstances where the carrying out of the works involves an interference with the land owner's rights under article 1 of the first protocol. I do not, however, have to decide the precise scope of the compensation provision in relation to the facts of the present case. It suffices that I do not accept that my preferred construction of s.64 has the Draconian effect contended for by the claimant."
"33 In the claimant's earlier evidence the need for the works appeared to be conceded, but in a witness statement filed a week before the hearing it was disputed that the works would prevent the recurrence of flooding or that this was the only way of doing so. This late attempt to cast doubt on the appropriateness of the drainage channel lacks conviction and merit. Further, Mr Parsons responds to it by additional evidence to the effect that possible alternative methods were considered prior to seeking the consent of the Environment Agency to the proposed works, but it was felt that the only way to ensure certainty of outcome was to follow the method adopted; and that he and the Environment Agency are satisfied that the works will alleviate and mitigate the occurrence of flooding to the designed standard.
34 As to the extent of interference with the claimant's right of enjoyment of its property, in my judgment it is not great. The effect of the drainage channel on the claimant's land is no different from that contemplated under the consortium's proposal. Mr Parsons describes this as agricultural land of no particular consequence; and although the suggestion is made by the claimant that it might have development potential, on the evidence this would appear to be no more than a speculative possibility. ...
35 A further aspect of the claimant's case is that the council should have considered alternative options in order to effect the works. Those originally identified in the claimant's evidence were compulsory purchase of the land, a drainage scheme under s 18 and enforcement of the condition in the final planning permission. ...
36 Mr Parsons states in his evidence that he decided against use of compulsory purchase powers as the council had no desire or need to own the land and it was unnecessary to deprive the claimant of the land in order to carry out the works. The council does not unnecessarily compulsorily acquire land that would be surplus to that required for use of any permanent infrastructure. Although Mr Parsons is there responding to the case advanced by the claimant, Mr Jones submits for the claimant that the absence of reference to the possibility of acquisition of an interest in or easement over the land, rather than purchase of the freehold, evidences a mistaken understanding of compulsory purchase powers or a failure to consider a relevant option. I do not accept that such an inference can be drawn. In my judgment the council's evidence responds sensibly to the case at that time advanced and shows that the question of compulsory purchase was addressed. In any event I do not see how compulsory purchase could have significantly benefited the claimant. It would have involved a greater interference with the claimant's property rights and, as previously indicated, it would not in my view have led to a significantly different basis of compensation. I do not attach great weight to the fact that it would have brought with it the possibility of an independent inquiry.
37 Mr Parsons also states that he considered the exercise of powers under s.18 of the 1991 Act but in view of the limited nature of the works required and the limited effect of the drainage he did not consider it appropriate. These were not major works. The claimant contends that Mr Parsons has misunderstood the purpose of s.18, in that it is the extent of the land to be benefited and not the extent of works themselves that is relevant under s.18: the section places no limits on the type and degree of works that may be undertaken and is indeed designed for small works. That contention, however, is in my view itself based on a misunderstanding of Mr Parsons's earlier evidence, which is clarified in his final witness statement where he states that what he meant by his reference to these not being major works was that the area of land and properties benefiting from the scheme were limited. In my view the claimant's argument falls away in the light of that evidence.I am satisfied that the possibility of a s.18 scheme was properly considered. Nor do I think that a s.18 scheme, which would have had the additional feature of recovery of expenses from the claimant, would have been significantly better for the claimant even if otherwise appropriate. Again I do not attach much weight to the point that a proposal to carry out a s.18 scheme would have given an opportunity for independent examination of the merits of the proposed works.
38 In the light of those considerations, and bearing in mind that compensation is payable under s.14(5) for the injury caused to the claimant by the exercise of the council's powers under that section, I have reached the clear conclusion that there is no breach of the claimant's rights under article 1 of the first protocol."
"14 The Claimant's submission as to lack of proportion should be assessed in the light of the following factors, bearing in mind that the `intensity of review' in a public law case will depend upon its subject matter."
There is then a reference to Regina (Mahmood) v Secretary of State for the Home Department  1 WLR 840. More important, however, is the endorsement of that position by Lord Steyn and Lord Cooke in their Lordships' House in Daly to which I have already referred. Then the factors listed in the skeleton argument are as follows:
"(i) that the works in question involved less than a day's construction, and
(ii) ran across a fallow agricultural field of no particular value and
(iii) the area taken permanently out of use is about .25 acre and
(iv) did not, upon the Respondent's and the learned Judge's view, deprive the Claimant of any right to compensation, for instance, for loss of any ransom value in the land."
I have already indicated that I distinctly do not decide the length of the right of compensation given by the statute.
"It is submitted that the Appellant is attempting to dispute the merits of the Respondent's decision under the guise of proportionality - which is in this context impermissible, see e.g. analogous approach of Sullivan J in Buckland & Boswell v. S.O.S.E.T.R. & ano.  EWCA Admin 524,  JPL 570 at paragraphs 57-59 ... ."
Then paragraph 18:
"The Respondent submits that not only was the option it chose in this case one that was open to it and could and did properly choose, but that it was clearly the most proportionate option and, as the learned Judge found, there was no real possibility of the Council choosing any other."
These points are then made:
"(i) Unlike the acquisition of a specific right over specific land, the mere construction of the works permitted consideration of future alternatives by the Claimant if the existing course of the channel proved unsatisfactory,
(ii) effectively the same compensation provisions would apply as if there had been compulsory purchase order,
(iii) there was no reason to think that the need for a scheme or the method of dealing with it was contentious (certainly no indication was given that this was the case until well after proceedings were launched),
(iv) a compulsory purchase order would have been far more time consuming and expensive -- an expense that would have to have been born by somebody,
(v) a section 18 scheme permitted recovery of costs from the Claimant, and
(vi) the factors set out at paragraph 14 above."
"so far as may be necessary for the purpose of preventing flooding or mitigating any damage caused by flooding in their area".
The justification and need for works of either kind are reflected in the absence of any requirement of notice, though the section only confers a right of entry for such purposes in respect of works of maintenance.
Order: Appeal dismissed with costs in the sum of £5,409,000, as specified in the schedule. Permission to appeal to the House of Lords refused.