SEFTON METROPOLITAN BOROUGH COUNCIL v UNITED UTILITIES WATER LTD [2001] EWCA Civ 1284

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (HIS HONOUR JUDGE
HOWARTH)
[2001] EWCA Civ 1284Case No Case No: A3/2000/2800Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 31st July 2001
Between
SEFTON METROPOLITAN BOROUGH COUNCILAppellantUNITED UTILITIES WATER LTDRespondent
Before
Lord Justice HenryLord Justice Robert WalkerLord Justice RixMr G Laurence QC and Mr F Nance (instructed by Legal Director, Sefton MBC for the appellant)Mr G Wingate-Saul QC and Mr R Bradley (instructed by Mr D P Hosker for the respondent)Date 31 July 2001

LORD JUSTICE ROBERT WALKER:

Introduction

[1]Until after the second world war Maghull and Lydiate were small settlements to the north of Liverpool, surrounded by agricultural and horticultural land. The industrial revolution had reached these settlements in the second half of the 18 th century with the construction (under an Act of Parliament enacted in 1770) of the Leeds and Liverpool Canal, which runs roughly north and south through Maghull. But large-scale residential building in Maghull did not come until the 1950's.[2]The proprietors of the canal were under a statutory duty "to make … arches, tunnels, drains or other passages over, under or into the said cut or canal … to convey the water from the lands adjoining or lying near to the said cut or canal … ". One such arch or tunnel was constructed in order to carry the canal over a watercourse called Maghull Brook, in a position between what is now the Southport Road on the east side of the canal and Greenbank Avenue on the west side.[3]Maghull Brook was, and for part of its length undoubtedly still is, a natural watercourse which flows roughly from east to west, joining the river Alt a short distance to the west of Maghull and then flowing into the sea between Formby and Crosby. It was the parish boundary between Maghull and Lydiate. However the part of the watercourse (or what was the watercourse) which passes under the now densely populated centre of Maghull is now enclosed in a culvert, constructed between 1958 and 1959, which receives surface water drainage (and some unintended contamination from foul water) from many houses and other buildings in the area. It also receives flows from permeable, undeveloped land in its catchment area, from land drains and highway drains. For most of its length the culvert is a 45 inch (or 1100mm) concrete pipe. The catchment area is about 166 hectares of which only 46 remain undeveloped.[4]The issue on this appeal is whether these events have had the legal effect of causing the culverted watercourse to become a sewer at some time before 1 April 1974, when extensive changes took place in the organisation of local government. Before that date the local authority with responsibility for the area was the West Lancashire Rural District Council ("West Lancashire") which was also the sewerage authority for the area under Part II of the Public Health Act 1936. The effect of the Local Government Act 1972 and the Water Act 1973 was that Sefton Metropolitan Borough Council ("Sefton") became West Lancashire's successor as local authority, but the North West Water Authority ("NWWA") took over responsibility for sewerage, and West Lancashire's assets, rights and liabilities as sewerage authority vested in NWWA. United Utilities Water Ltd ("Water") is in turn the successor of NWWA.[5]Which body took over responsibility for the culvert (as I will call it, to avoid having to repeat "watercourse or sewer") is of particular importance because of a deed dated 24 November 1961 ("the 1961 deed") made between the British Transport Commission (as successor of the Leeds and Liverpool Canal Company) and West Lancashire. Although the canal proprietors had originally been responsible for constructing and maintaining canal crossings (and in particular, the arch and channel which carried Maghull Brook under the canal) the 1961 deed embodied a bargain under which West Lancashire accepted responsibility for half the cost of "repairing maintaining and renewing" the existing arch and channel under the canal (which is referred to in the 1961 deed as "the said culvert", but I will call it "the tunnel" in order to distinguish it from the culverting works carried out between 1958 and 1959).[6]On 1 October 1994, after heavy rainfall, there was a serious collapse in the tunnel. The real economic issue is whether it is Sefton or Water which must share the cost of repair (which is substantial) with the British Waterways Board, the successor of the British Transport Commission. An arbitration between the British Waterways Board and Water has been stayed pending these proceedings.[7]On 26 July 2000 His Honour Judge Howarth, sitting as a judge of the High Court of Justice, Chancery Division, held (in proceedings commenced in 1997 by NWWA) that Sefton was liable for the obligation which West Lancashire had undertaken by the 1961 deed. Sefton appeals to this court with the permission of the judge, limited to questions of law and inferences of fact derived from the judge's findings of primary fact.[8]The judge gave a lengthy ex tempore judgment in which he considered the facts in detail, largely by reference to minutes of West Lancashire's Health Committee, before coming on to the issues of law. For the purposes of this appeal I think it may be more helpful to take matters the other way round, in order to see what it is that one is looking for in the factual findings. Statutory provisions[9]The statutory powers and duties of local authorities and other statutory bodies in relation to drains and sewers, and in relation to watercourses, go back far into the 19 th century. But for present purposes it is sufficient to start with the Public Health Act 1936 ("the 1936 Act") now largely but not wholly repealed. Mr George Laurence QC (appearing in this court with Mr Francis Nance for Sefton) has pointed out that the 1936 Act was a consolidating Act, with amendments, which drew material from many sources (including the Public Health Acts of 1875 and 1925), and that it does not achieve complete consistency in its drafting.[10]Part II of the 1936 Act (headed 'sanitation and buildings') has – as regards sewerage and sewerage disposal – been repealed and replaced, first by provisions of the Water Act 1973 and the Water Act 1989, and then by comprehensive legislation enacted in 1991. But when the culvert was constructed it was in force and it applied to West Lancashire as a sewerage authority. In Part II section 14 imposed on a local authority a general duty to provide public sewers for the drainage of their district. Section 15 gave a local authority power to construct public sewers (which meant sewers vested in a local authority under s.20). Sections 17 and 18 provided for the adoption by a local authority of sewers owned or constructed by others.[11]Part XI of the 1936 Act (headed 'miscellaneous') covered a variety of matters including watercourses, ditches and ponds. A local authority could (under s.262) require the culverting of a watercourse where building operations were in prospect and could (under s.265) pay or contribute to the cost of such works. I must set out the precise terms of s.262(1) and s.265. Section 262(1) provides :
"If a local authority consider that any watercourse or ditch, situate upon land laid out for building, or on which any land laid out for building abuts, should be wholly or partially filled up or covered over, they may by notice require the owner of the land laid out for building, before any building operations are begun or while any such operations are in progress, wholly or partially to fill up the watercourse or ditch, or to substitute therefor a pipe, drain or culvert with all necessary gullies and other means of conveying surface water into and through it."
Section 265 provides:
"A local authority may, if they think fit, contribute the whole or a part of the expenses of the execution of works for any of the purposes mentioned in the foregoing provisions of this Part of this Act, or may by agreement with any owner or occupier themselves execute any such works which he may be required, or is entitled, to execute."
[12]It is also necessary to refer to the definitions in s.343(1) of the 1936 Act. A layman (or indeed a lawyer with no specialised knowledge of public health legislation) might suppose that a drain is for the drainage of surface water, and that a sewer is for the drainage of foul sewage. But that is not the correct distinction. A drain is defined as being for the drainage of a single building, or of buildings and yards in the same curtilage; and a sewer is defined as not including a drain within the above definition, "but save as aforesaid includes all sewers and drains used for the drainage of buildings and yards appurtenant to buildings."[13]So a sewer may be a foul sewer or a surface water sewer, or a combined sewer. But it is doubtful whether a system built primarily for the drainage of surface water from roads, or for the drainage of permeable land in its natural state, could be a sewer in the statutory sense. Mr Laurence contended that it could, emphasising that the definition in s.343 uses the expression 'includes'. But drainage of highways is recognised as a separate statutory function and sewerage and highway authorities may co-operate in the discharge of their functions (see s.21 of the 1936 Act and now s.115 of the Water Industry Act 1991).[14]I would add (at the risk of stating the obvious) that the effect of extensive residential development is different in relation to the need to dispose of surface water (on the one hand) and of effluent which goes into a foul sewer (on the other hand). Surface water is the product of rainfall (and no doubt, to a limited extent, fractured water mains and householders washing their cars) and residential development does not affect rainfall, although the impermeable surfaces of the built environment (in particular roofs, yards and roads) increase the amount of surface water which reaches drainage systems and the speed with which it does so. The effluent from water closets, baths, dishwashers and washing machines, on the other hand, is directly proportional to the extent and density of residential development. Calculations by Mr Paul Cook of NWWA indicated that between 1955 and 1961 the area of roofs and yards in the catchment had risen from 2.4% to 7.6%; that of highways had risen from 4.4% to 11%; and that of permeable areas had fallen from 93% to 81.4%.[15]Maghull Brook undoubtedly began as a natural watercourse, and that is still its character in its small undeveloped catchment area east of Maghull. That is also its character, it seems, for the stretch between the west bank of the canal and its junction with the River Alt. The question is whether the stretch of culvert (very roughly a mile long) which runs through the centre of Maghull has become a sewer. The Authorities[16]No authority was cited to this court but there was considerable citation of authority before the judge and some of the cases call for mention. They indicate that a natural watercourse can become a sewer within the meaning of the 1936 Act (which I will refer to as a statutory sewer) and that whether this has occurred is a question of fact and of degree. The most helpful authority is the decision of this court in British Railways Board v Tonbridge and Malling District Council (1981) 79 LGR 565. That case bore some slight similarity to the present case on its facts (but no close similarity) in that it concerned a culvert built in 1840 to take three natural streams under a newly-constructed railway in Kent. The three streams were put into a single channel parallel to the railway embankment and they passed under it through a single culvert. Originally they drained a catchment of about 190 hectares of agricultural land. At the beginning of the 20 th century there was some residential development in the area, and a great deal more between 1938 and 1972.[17]Oliver LJ (giving the judgment of the court) described the physical changes to the drainage system (at p.570):
"A short distance from the embankment, however, the course of the [central] channel has been altered. At some stage in the course of the building development the combined drainage system of the eastern part of it was led by pipes converging to a point in the north eastern corner of the catchment area whence a 30-inch pipe was laid to discharge into the original central channel. The length of channel between the point at which this discharge took place and the embankment was filled in and a new channel was dug in a north westerly direction as a continuation of the line of the 30-inch pipe. There is thus formed a dog-leg which discharges into the watercourse at the base of the embankment through a culvert just opposite the southern end of the culvert. The introduction into the catchment area of a substantial acreage of housing and impervious roadways collecting surface water through a system of combined drainage has naturally increased the flow of water from the catchment area as a whole. The judge found as a fact that the total flow was increased by 17 per cent as a result of the urban development and that the contribution of the urban development to the total flow of water through the culvert was between 30 per cent and 47 per cent, according to whether one is considering normal or peak flow."
[18]That was the factual material on which this court decided that the system was not a sewer within the natural meaning of that expression, and so could not be a statutory sewer. Oliver LJ said at p.573:
"We have been referred by Mr Scrivener to a plethora of reported decisions with a view to demonstrating – which is really beyond doubt – that a natural watercourse may, in certain circumstances, become a sewer, but, while paying tribute to the industry of counsel, which has left no channel unexplored, we derive little assistance from these cases, all of which turn on their individual facts. What is clear is that something very much more than the mere discharge of sewage into a stream (and, a fortiori, the mere discharge of pure surface water) is required before its status is changed to that of a sewer (see, for instance, Glasgow, Yoker & Clydebank Railway Company v MacIndoe (1896) 24 R (Ct of Sess) 160). Thus, for instance, if circumstances are such that what was originally an agricultural stream comes to carry sewage in such substantial quantities that its character is completely changed (as occurred in Falconar v Corporation of South Shields (1895) 11 TLR 223) it may no doubt become a sewer within the ordinary meaning of the word."
[19]Oliver LJ distinguished (at p.575) the decision of this court in Hutton v Esher UDC 1974 Ch 167 which established " … what is, in any event, tolerably obvious, namely, that a purpose-built sewer for the drainage of buildings does not cease to be a statutory sewer simply because, in addition to drainage from buildings, it carried water also from other sources. Mr Scrivener seeks to derive from that case the precisely converse proposition that a natural stream does become a sewer if, in addition to other waters, it carries water derived from the drainage of buildings. That is a simple non sequitur and we mention it only to emphasise that the decision at which we have arrived ought not to be taken as necessarily involving a dissent from the ground upon which the judge decided the case." The first instance judge had decided the Tonbridge and Malling case by reference to the functional test for a statutory sewer adopted by Stamp J in Blackdown Properties v Ministry of Housing and Local Government [1967] Ch 115 – that is, by reference to the function for which the channel was constructed, rather than the function for which it was currently used. That was a case on rather special facts, where a purpose-built sewer had been constructed and then sealed off.[20]His Honour Judge Howarth referred to all these authorities and to some others. Having done so he in effect looked back to his review of the facts and concluded that "this particular pipe was built as a culverted watercourse and has remained one." The facts[21]In the Tonbridge and Malling case this court did not enquire into the statutory power under which part of the natural watercourse had been put into a 30 inch pipe. But in this case both sides have recognised that the essential issue is whether West Lancashire was exercising powers under Part II, or under Part XI of the 1936 Act in carrying out the work to put a long stretch of Maghull Brook into a culvert. Mr Laurence has submitted that the judge was right, in embarking on that inquiry, to pay particular attention to the Health Committee minutes as the best available evidence; but that the judge erred in what he derived from the minutes. With that in mind I must now go back to the facts, which I have so far only lightly sketched.[22]A plan (no.1865) prepared by Ward Ashcroft & Parkman ("Wards", who are chartered civil engineers in Liverpool and were instructed by the local authority in 1955) shows the development of Maghull at that time: it was largely limited to a double strip of housing along the east side of the canal and a spur leading east along Dodd's Lane to Dodd's Farm and beyond. The Brook was then an open brook with a serpentine course except for some culverting by the Methodist Chapel near the canal (this culverting was incorporated into the later works). There were two substantial tributary drains, one to the north and one to the south and east.[23]The years 1955 to 1961 brought large-scale residential development mainly to the north and the east, including extensive estates to the east of the dual carriageway known as Northway. In anticipation of this development West Lancashire's Health Committee discussed, planned and eventually put into effect two schemes. As Mr Cook of NWWA said in his oral evidence, Wards " were appointed to deal with drainage and they came up with two schemes". These were separate schemes although they were sometimes linked together in the official minutes, and they were eventually made the subject of a single contract.[24]One scheme was what was originally referred to as the surface water drainage scheme, which Wards were instructed to prepare in 1955 as a matter of urgency (as appears from the minutes dated 27 October 1955) "in view of the rapid development taking place on the Maghull/Lydiate boundary". By the same minutes Wards' report and estimates were approved and West Lancashire resolved to apply for loan sanction for £44,119 for "a surface water drainage scheme for Maghull Brook". The minutes referred erroneously to s.269 of the 1936 Act but there is ample material to support the judge's view that West Lancashire believed that it was exercising powers under Part XI of the 1936 Act. Long negotiations then ensued with developers who were asked to contribute to the cost of the works. In consequence the culverting scheme was overtaken by the other scheme.[25]The other scheme is first clearly identifiable in a minute dated 17 January 1957 when another report from Wards was considered and West Lancashire resolved to apply for loan sanction for £56,686 for a proposed scheme for relief sewers. This was linked to an extension of the sewage treatment works (to the west of the canal, and south west of the town) to provide for a target population of 27,000.[26]The two schemes appear as separate items in minutes of 21 February 1957 and 18 April 1957 (in the latter minute both are referred to as sewers; this is the minute recording that they were to be covered by a single contract). In a minute of 21 November 1957 both schemes appear in the same paragraph, but one scheme is described as the culverting of Maghull Brook. Health Committee minute no.207 dated 20 November 1958 was as follows:
"207 MAGHULL CULVERT – DODDS LANE, DEVELOPMENT – The Sefton Building Company had submitted proposals for the development of their land at Dodds Lane through which passed the outer reaches of the Maghull Brook. The Building Company's proposals were that a pipe 39" in diameter should be laid in lieu of the culvert, and this had been agreed by the Council's Consulting Engineers as a suitable size to receive any further water from the remainder of the drainage area of the brook. It was understood that the pipe the Building Company would have required for their own development was 27" and it was understood that the Building Company's Architects were now discussing with the Council's Consulting Engineers the difference in cost between the sewers. The difference in cost would represent the contribution this Council would have to pay to the Building Company for the increased size of the pipe. RESOLVED that the report be received."
This minute was discussed in the oral evidence and the judge referred to it in his judgment but did not attach any particular significance to it.[27]He did make findings of fact that the new culverting resulted for most of its length in a 45 inch concrete pipe buried at a considerable depth (1.5m on average but in places much deeper) and connected to pre-existing tributary systems and to the old culverting by the Methodist Chapel. He found that there was some straightening of the old line of the brook, for good engineering and economic reasons.[28]It is also necessary to see what the judge said about the 1961 deed. By way of introduction I should refer to the Health Committee's minute no.71 dated 21 September 1961 (that is about two months before execution of the deed):
"MAGHULL RELIEF SEWER AND CULVERT Protracted negotiations with the British Transport Commission had now been completed for an easement in connection with the culvert under the Leeds and Liverpool Canal at Maghull. The easement provided for future maintenance of the culvert on a 50% basis between the British Transport Commission and the Council, and called for a payment by the Council of fees, 5 guineas for Commission's Surveyor, 3 guineas Commission's Solicitors and 8 guineas stamp duty on Easement in duplicate. RESOLVED that the proposed Easement be approved and the Council be recommended to affix their Seal thereto."
[29]This minute suggests a degree of confusion on the part of the minute-taker. The relief sewer properly so called crossed the canal at a different point well to the south and was the subject of the grant of an entirely new easement: see for instance minute no.184 dated 21 November 1957 and minute no.382 dated 16 April 1959. That grant, dated 10 April 1958, was before the judge but was not before this court.[30]This confusion appears to be reflected in the drafting of the 1961 deed. Its recitals refer to West Lancashire having constructed the Maghull Relief Sewer "for the drainage of surface water from and within the catchment area formerly served by the Maghull Brook which is replaced by the sewer". The operative part of the deed continues to refer to the culvert as "the sewer".[31]The judge said of this point, "The deed itself has caused, it seems to me, understandable confusion in this case since it refers to the pipe as a relief sewer. Where that expression came from one cannot know for certain, but it is not unreasonable to infer that it comes from the minutes themselves, and perhaps someone within the Town Clerk's Department of the Rural District Council has taken that title as an abbreviated title from the later minutes which refer to the relief sewer and the culvert under one heading. That is an inference. It does not, in my judgment, affect the result in this case. It seems to me that the deed could have just as easily been caused to come into existence as a result of section 333 and as a result of the provisions in Part XI, in particular section 266(2)." (Although this comes from the approved transcript the context suggest that "just as easily … as a result of s.333 and as a result of … s.266(2)" was intended to mean "just as easily … under s.333 as under … s.266(2).")[32]Section 266(2) of the 1936 Act contains a saving (limited to the powers in Part XI) for the rights of (among others) canal proprietors. Section 333 of the 1936 Act is to similar effect, but it applies generally and contains provisions for arbitration on disputes. Whether these provisions were precisely in point or not, they were certainly a basis for argument that West Lancashire could not substantially increase the flow of surface water through the tunnel without the consent of the British Transport Commission. That would be consistent with the 'protracted negotiations' referred to in the minutes. The arguments in this court[33]Before the judge leading counsel then acting for Sefton relied heavily on the 1961 deed and its reference to the new 45 inch pipe as a sewer. He argued that the deed was right in its implied suggestion that in building the culvert West Lancashire was acting under Part II of the 1936 Act (and in particular ss.14 and 23) and that the minutes were wrong in referring to Part XI. Otherwise, he submitted, West Lancashire would have been acting ultra vires in entering into the 1961 deed. He further submitted that the 45 inch pipe, buried underground and serviced by numerous manholes, could not have continued to be a watercourse.[34]In this court the appellant's notice set out three grounds of appeal. The first ground of appeal is that the judge failed to consider under what statutory authority West Lancashire entered into the 1961 deed. The second ground of appeal is that the judge did not take the 1961 deed into account in considering the authority under which the culverting scheme was carried out. In the judge's view it was clear from the minutes what authority West Lancashire thought it was exercising: that is powers conferred by Part XI of the 1936 Act, which does in s.262 expressly refer to substituting "a pipe, drain or culvert" for a watercourse. Then he referred to the confusion in the 1961 deed and did not in terms come back to whether West Lancashire were right in their belief, except inferentially when he decided that the culvert was still a watercourse.[35]The third ground of appeal is that the judge was wrong in law, or alternatively in mixed fact and law, in holding that the culvert had not by the date of the 1961 deed, or alternatively by 1 April 1974, changed its character from a watercourse to a public sewer. Mr Laurence abandoned this third ground at the start of his oral submissions. That had the effect of making academic the point raised in the respondent's notice (as to the absence of any formal process of adoption under s.17 of the 1936 Act).[36]In developing his submissions on the two remaining grounds of appeal Mr Laurence produced a fuller bundle of minutes than had originally been included in the appeal bundle, and he subjected these minutes to very close analysis. He submitted that neither of the express references to Part XI powers was quite what it seemed. The reference in the minutes of 27 October 1955 to s.269 might have to be read as a reference to s.265, but even so it was qualified by the passage at the end of the paragraph: " … for the recovery of appropriate contributions from the developers in respect of the work which would have been carried out by them in the absence of the full scheme now prepared by [Wards]" (Mr Laurence's emphasis). Similarly the minutes of 27 September 1956 referred to the negotiations with developers having been 'based on' s.262.[37]In these submissions Mr Laurence was inviting the conclusion that West Lancashire was carrying out a major sewerage scheme under its Part II powers, but at the same time was seeking to recover part of the cost (as it appears, only a relatively trivial part of the total cost) from developers on the ground that it might have been exercising its Part XI powers. In short he submitted that s.265 of the 1936 Act was not engaged and that there was not sufficient evidence from which to infer that West Lancashire had made agreements with developers under that section.[38]Mr Laurence accepted that the judge had been right in his view that a number of other features were neutral as between the exercise of Part II and Part XI powers. These included the fact that the culvert did not follow the exact course of the brook; the fact that it was buried underground so that its course was discernable on the surface only from manholes; and the fact that loan sanction was obtained (under s.195(c) of the Local Government Act 1933).[39]In responding to the appeal Mr Giles Wingate-Saul QC (appearing with Mr Richard Bradley for Water) put in the forefront of his relatively brief oral submissions what he referred to as the 'big picture'. That was, he said, of two quite distinct schemes being carried out more or less concurrently: the relief sewer scheme which carried foul sewage to the extended sewage works by a quite different route and canal crossing; and the culverting of Maghull Brook which was sometimes referred to as a surface water drainage scheme. The purpose of the latter scheme was to put a natural watercourse into an underground culvert, with some straightening of its course and some adjustment of the junctions by which tributary flows (some surface-water sewers and some land drains) ran into it. The purpose was not to construct a new public sewer, nor was that the effect.[40]Mr Wingate-Saul submitted that the 1961 deed was clearly mistaken in referring to the Maghull relief sewer. But it was correct in referring to the culvert's purpose being "for the drainage of surface water from and within the catchment area". He pointed out that 46 hectares of the catchment area remain undeveloped. Conclusions[41]It was Mr Wingate-Saul's 'big picture' that the judge accepted when he came to his conclusion that he was concerned with a watercourse which had been culverted under Part XI, and not with a sewer constructed under Part II. Neither side suggested (either below or in this court) that West Lancashire might have been exercising powers under both Part II and Part XI simultaneously. (It is not obvious to me why a pipe substituted for a watercourse under s.262(1) might not in some circumstances be a statutory surface-water sewer from the time of its construction, if at that time the watercourse was already receiving flows from other surface-water drains and sewers, and might not be a public sewer if constructed by a sewerage authority. But that line of argument was not adopted by experienced counsel on either side).[42]The argument in this court has not followed the same lines as the argument below, and the judge did not deal with some of Mr Laurence's points because they had not been raised before him. Nevertheless I am not persuaded that the judge was wrong in his conclusion. Indeed the more closely Mr Laurence analysed the Health Committee minutes, the more firmly I became inclined to the view that West Lancashire was for well over a year negotiating, and finally concluded, s.265 agreements with developers, while realistically accepting that in a culverting scheme of this size and difficulty it was itself going to have to bear the lion's share of the cost.[43]The evidence is not all one way. The culvert was occasionally referred to in the minutes as a sewer, as well as being obviously misdescribed as the relief sewer in the 1961 deed. On the other hand a plan prepared by Sefton as recently as 1992 clearly describes the underground culvert as a watercourse. The references in the minutes to s.262 and (presumably) s.265 are unclear, but I think that Mr Laurence's explanation of them is, with respect, over-ingenious. The weight of the evidence points to culverting work under Part XI.[44]The judge said at the beginning of his lengthy ex tempore judgment that he hoped its "inelegancies will not be seized on by whoever is dissatisfied with the judgment as an indication that the judge did not understand the arguments that were being put before him; I am doing my best to deal with them." In my judgment the judge did understand the arguments put before him, and reached the right conclusion on them. In this court some new arguments have been deployed (or at any rate some new emphasis has been put on the arguments below). But I have not been persuaded that the judge was wrong. I would dismiss this appeal. LORD JUSTICE RIX:[45]I agree.

LORD JUSTICE HENRY:

[46]I also agree.

ORDER

Appeal dismissed. Appellants to pay costs summarily assessed in the sum of £19,795. Payment of that sum within 28 days. Permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)

Cited in 1 later judgment