England and Wales High Court (Administrative Court) Decisions

The notice

“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, W.R.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 W.R.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."

An attached drawing shows the works in more detail, identifying the “area required to construct permanent works and for future maintenance”.

Statutory framework

“(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 acting 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.

….

(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; ….

(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.”

“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 … 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.

There are detailed provisions as to the making of such a scheme. There is an upper limit, currently £50 per hectare, on the estimated expenses of the carrying out of the works. Expenses incurred by a local authority up to that amount shall be recoverable by the authority from the several owners of the land to which the scheme relates.

“(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 … 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 ….

(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.”

First issue

“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.”

“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 documented 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.

“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 1930 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 s.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, do 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.”

i) That is the natural construction of the section. It states in terms that “[a]ny person authorised by … [a] local authority … may at all reasonable times … enter any land for the purpose of exercising any functions under this Act of that authority”. On the ordinary meaning of the words used, they convey a power of entry for the stated purpose, rather than qualifying or facilitating the exercise of powers of entry conferred by other provisions. The right of entry is expressed "in plain terms" (see Grove v. Eastern Gas Board, above).

ii) That the section is intended to confer an independent power of entry rather than to qualify rights of entry conferred by other provisions is supported by subs.(8), which provides that the sanction is to be "without prejudice to any other enactment conferring powers of entry".

iii) Such a construction is consistent with s.14(4)(a) and does not render that provision otiose. By virtue of s.14(4)(a), s.14 is to be read as conferring a power of entry for the purpose of maintaining existing works but not for any other purpose. Any power of entry that might otherwise have been implied for the purpose of improving existing works or constructing new works is excluded. For the limited purpose of maintenance, therefore, reliance can be placed on the power of entry under s.14 itself, which imposes no requirement as to notice. So, for example, a council employee clearing the ditches along a road is empowered, without giving notice or establishing urgency, to enter an adjacent field in order to clear a culvert draining into that ditch. In my view that gives the provision a perfectly intelligible and sensible purpose. In relation to improvement and construction works, however, the council has to rely on its power of entry under s.64 and to comply with the additional conditions there laid down. Again that is intelligible and sensible.

iv) Nor does the construction render otiose the other powers conferred on the council under the Act. Section 18 is a provision directed specifically to land considered to be “capable of improvement” by drainage works. It requires a statutory scheme and it provides for the apportionment of expenses between, and their recovery from, the owners of the lands to which the scheme relates. The very fact that expenses are recoverable from the land owners gives it an obvious practical utility in circumstances falling within its scope. The existence of a general power of entry under s.64 to carry out works under s.14 cannot possibly be said to deprive it of all purpose. So too the power of compulsory purchase under s.62 would have advantages in some circumstances, as for example in the case of major works where the council wishes to exercise full control over the land. There is no substance in the submission that a power of compulsory purchase would be pointless if councils were empowered by s.64 to enter private land to carry out works under s.14.

v) The statutory history supports my preferred construction of s.64. For example, it seems clear that the powers under s.43 of the 1930 Act to enter and survey land and to take copies of documents were independent powers rather than in some way qualifying the exercise of powers conferred by other provisions. The same must still apply to those powers where they appear in s.64(1)(b) and (c). The power of entry in s.64(1)(a) cannot sensibly be read as having an altogether different character.

vi) That the predecessor of s.64(1)(a) conferred an independent right of entry is established by Pattinson. I reject the claimant’s contention that the reasoning in that case was based upon a doctrine of implied statutory repeal and that the decision was therefore undermined by the retention, in the 1976 consolidating Act, of the equivalents of both s.34(4) of the 1930 Act and s.40(1) of the 1961 Act. The decision was based on the proper construction of the two provisions, in particular giving to s.40(1) its natural meaning as conferring a wide general power of entry on local authorities. The fact that Parliament, after the decision in Pattinson, retained equivalent provisions in the consolidating legislation of 1976 and 1991 is a strong indication that the provisions are intended still to be construed in the same way as they were in Pattinson.

vii) The claimant’s contention that this construction of s.64 would enable the council to enter private land to carry out works without paying compensation is also without substance. 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. It is consistent with the judgments in Marriage v. East Norfolk Rivers Catchment Board, though I do not think those judgments take the matter much further. It also seems to me to be consistent with the approach that would be adopted if powers of compulsory purchase were exercised. In written submissions after the hearing, Mr Jones drew my attention to the commentary on s.34 of the 1930 Act at page 50 of A.S. Wisdom's work on Land Drainage, and to Oakes v. Mersey River Board (1961) 9 P&CR 268. Mr Findlay's response added Glazebrook v. Gwynedd River Board (1963) 15 P&CR and an extract from Bates on Water and Drainage Law to the material before the court. I have considered all that material but it does not alter the conclusion I had provisionally reached, as set out above, and I do not think it necessary to examine it in any further detail here. 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.

viii) In relation to the last point I should mention one particular theme in the submissions for the claimant, which was that my preferred construction of s.64 would effectively deprive the claimant, as land owner, of the right it would otherwise have to negotiate the grant of an interest in the land or an easement over the land for the purposes of construction of the drainage channel. In the present case, it is said, the negotiation would include a ransom element in relation to the development of the Hitchins land, since it is necessary for the purposes of the residential development on the Hitchins land that drainage is provided across the claimant’s land. It seems to me that, in so far as any such “right” (or opportunity) was reflected in the value of the land prior to the works, the carrying out of the works and the consequent loss of the “right” will have resulted in a diminution in the value of the land which should be reflected in any compensation payable under s.14(4); and that in so far as the “right” was not reflected in the value of the land, its loss is not a matter of great substance. In any event the point does not have the persuasive force that Mr Jones sought to attach to it in relation to the proper construction of s.64.

Second issue

“I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge”

“The Court would, however, underline that in striking the required balance, States must have regard to the whole range of material considerations. Further, in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others …. [The Court] considers that States are required to minimise, as far as possible, the interference with these rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should precede the relevant project.”

Conclusion

MR JUSTICE RICHARDS: I am handing down judgment in this case. The case concerns the powers of entry of a local authority under the Land Drainage Act. I have held that the local authority had the relevant power of entry and that its exercise of the power in the circumstances did not involve a breach of the claimants' rights under the European Convention on Human Rights. PRIVATE 

Accordingly, and for the detailed reasons given in the judgment, I dismiss the application for judicial review.

MISS SKERRETT: My Lord, I appear on behalf of Monmouthshire County Council. On the basis of your judgment, my Lord, we will be applying for our costs in this matter, subject to detailed assessment. The reason for that being you have found conclusively in favour of the defendant, both on the statutory construction point and the human rights issue. On that basis we are seeking our costs, my Lord.

MR JUSTICE RICHARDS: Thank you.

MR JONES: My Lord, I do not resist the principle of costs, save only one limited respect. Your Lordship will have seen in the bundle that there was an oral permission hearing....

MR JUSTICE RICHARDS: Yes.

MR JONES: ....before Scott Baker J, and that was also the return date of the interim injunction granted by Silber J.

MR JUSTICE RICHARDS: He discharged the injunction.

MR JONES: He discharged the injunction. There were two issues before Scott Baker J: one whether permission should be granted and Mr Findley appeared for the local authority to argue that there was no arguable case; and the second issue was whether the injunction should remain in place. The result, as your Lordship no doubt appreciates, was the injunction was discharged but permission was granted. My Lord, I simply say this: your Lordship has discretion now to look at that hearing because the council asked for those costs to be reserved and for it specifically not to be costs in the case. Your Lordship, in my submission, should look and see there were two main issues. One the county won on and one it lost on, and in those circumstances the appropriate order in respect of just the costs of the permission hearing would be to let each side bear its own costs.

MR JUSTICE RICHARDS: It lost in the sense that permission was granted?

MR JONES: Permission was granted, but the county turned up to oppose permission and argue that permission should not be granted. The county did not turn up and say, "Look, we do not contest whether it is arguable, but we are just here to deal with the return date of the injunction." It was a full oral hearing on both matters.

MR JUSTICE RICHARDS: I see.

I will order the claimants to pay the defendant's costs, to be subject to detailed assessment if not agreed. I make no exception from that in relation to the costs of the permission hearing. It seems to me that given that although permission was granted, the defendant succeeded in resisting the continuation of interim injunction at that hearing, and that in the event the claim for judicial review has been lost, there is no sufficient basis for depriving the defendant of any part of its costs in relation to that hearing.

Thank you very much. No further application.

MR JONES: My Lord, there are just two matters. I have raised this with my learned friend. Your Lordship will have seen that there was an undertaking in damages given by the claimant in respect of the short period during which the interim injunction applied.

In the circumstances, I understand there is no application before you by the county, no claim to any additional damages having been caused by that period. Your Lordship may recall in any event at the last hearing it was confirmed that I think Robert Hitchins actually paid for the costs of the drainable works in any event.

MR JUSTICE RICHARDS: There was simply a short delay in the carrying out of the drainage works, but they were then carried out before the winter.

MR JONES: That is correct.

MR JUSTICE RICHARDS: And before the flooding that might otherwise have occurred.

MR JONES: That is correct, my Lord. In those circumstances, I would just ask for the undertaking to be formally discharged.

MISS SKERRETT: My Lord, in response to that. We have not made an application for damages because clearly we were awaiting the outcome of these proceedings and at this stage we do not have instructions about whether or not we are going to be making such an application. We are not saying we are going to, we just do not have instructions at this point. So we would submit the best way to deal with it, my Lord, is simply liberty to apply rather than discharging that undertaking.

MR JUSTICE RICHARDS: Yes.

MR JONES: My Lord, in respect of that, in my submission it is not open to the county to come here and say, "We did not know the outcome of the judgment." There was clearly two results: one I would be successful and the other the county would be successful. Since the undertaking was given there has been plenty of time for the county to make an assessment of its position, in the same way the ordinary procedure, my Lord, would be on a one day hearing in respect of costs that both sides would come with a schedule of costs. Your Lordship will be familiar with the requirements for summary assessment of costs. My Lord, I would have some submissions to make on the principle of the undertaking in damages, not least because Robert Hitchins paid for the works; but secondly, also that the county did not indicate prior to the grant of the injunction that there was any particular need for speed other than they wanted just to get on with it. So there was no mention at all of the need to get on with it before winter----

MR JUSTICE RICHARDS: Those are all points that would be made if there were an application pursuant to the undertaking.

MR JONES: My Lord, that is right.

MR JUSTICE RICHARDS: Do I not have to think about the interests of the third party as well, because the undertaking was for the benefit not just of the council but also for anybody else who might be affected by the delay, including Hitchins.

MR JONES: The undertaking does not extend to third parties.

MR JUSTICE RICHARDS: Does it not?

MR JONES: No, it is only to the defendant. There has been no application from the third party for a variation of that undertaking.

MR JUSTICE RICHARDS: It in terms limited to....

MR JONES: My Lord yes.

MR JUSTICE RICHARDS: ....paying the defendant.

MR JONES: The undertaking as ordered by Silber J is restricted to the defendant. Your Lordship will find the order in the main bundle at page 20. It is the first line of the undertaking, the applicant giving an undertaking to pay the defendant.

MR JUSTICE RICHARDS: Yes. Thank you.

MR JONES: My Lord, the interested party, as your Lordship will see from its letter that it wrote, it has written to the court following the claim and your Lordship will have recalled that from the hearing, has made no indication that it wishes to see that undertaking varied or that it had suffered any damages.

MR JUSTICE RICHARDS: Thank you.

I take the view that if the council had any claim under the cross-undertaking in damages it ought to have been raised today. It seems highly improbable that they would have any claim in all the circumstances. I am going to discharge the undertaking.

MR JONES: My Lord, I have a last application, I can make it very shortly. My Lord I apply for permission to appeal. My Lord, unless your Lordship wants elaboration, I simply rely on the points that I put before your Lordship and which your Lordship found against me on. But nonetheless, in my submission, particularly in respect of two aspects of the human rights, on statutory construction and also on the extent to which, when considering proportionality, the right to an independent appeal process should influence those decisions are matters of importance.

MR JUSTICE RICHARDS: Yes I see. Thank you.

I can deal with the application with similar economy. Permission refused. In my judgment, there is no real prospect of success on an appeal and no other circumstances that would make it appropriate to grant permission. You will have to go to the Court of Appeal to seek it.

MR JONES: My Lord, I am grateful.

MR JUSTICE RICHARDS: Thank you both very much.

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