Robinson, R (on the application of) v Torridge District Council [2006] EWHC 877 (Admin)

Case No CO/6288/05[2006] EWHC 877 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 27 th April 2006
Before
MR JUSTICE HODGE
Between
THE QUEEN on the application ofClaimantJOHN RICHARD ROBINSONClaimantTORRIDGE DISTRICT COUNCILDefendantDEVON COUNTY COUNCIL Interested Party
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
James Pereira (instructed by Toller Beattie) for ClaimantPhilip Coppel (instructed by Devon County Council) for Interested Party
Judgment
[1]Can a bridge choke a watercourse? More particularly, does Taddiport Bridge choke the river Torridge in Devon? This is what the claimant wishes to establish. If a bridge can choke a watercourse, and Taddiport Bridge does choke the river Torridge and flooding occurs then, says the claimant, that causes a statutory nuisance which must be abated by those responsible.

Background

[2]The claimant has for many years lived in Buckingham House, Taddiport. He is elderly and infirm. His house is subject to flooding from the river Torridge. He is unable now to obtain insurance against flood damage. He regards the effects of flooding as so severe that he is confined to living in the upstairs rooms of his home. He says the cause of the flooding is Taddiport Bridge, since the arches and plinths of the bridge restrict the flow of water under it.[3]Taddiport Bridge carries a highway over the river. Devon County Council as the Highway Authority is responsible for the bridge. There has been a bridge on the site since the thirteenth century. The present bridge was constructed in the seventeenth or early eighteenth century. It is a triple arch masonry bridge and is a grade II listed structure. Repairs to the foundation of the bridge were carried out in 1959 and strengthening of the arches was carried out in 1969. There are 8 properties, including that of the claimant, that have been constructed in the flood plain immediately upstream of the bridge. Since 1960, the chronology suggests there have been 7 flood events. The evidence suggests the claimant’s property has been flooded to various depths over the years, including in one instance, practically to the underside of the joists supporting the first floor. The claimant has been making representations about the situation for approximately 25 years. He regards the interested party as responsible for such flooding as has occurred. Devon County Council does not accept responsibility. Over the last 5 years, the claimant has been engaged in efforts to persuade the defendant, his local District Council, to serve an abatement notice under the Environmental Health Act 1990 on the interested party, his County Council. He wants remedial works to be undertaken by the County Council to prevent or minimise the risk of future flooding to his home.[4]Section 259(1)(b) Public Health Act 1936 provides that a statutory nuisance exists for the purposes of the Environmental Protection Act 1990 where:
“Any part of a watercourse ….. is so choked or silted up as to obstruct or impede the proper flow of water and thereby cause a nuisance.”
The claimants say that the plinths and arches of Taddiport Bridge choke the river Torridge; this causes flooding and a nuisance and so the section applies. The defendant, as the authority responsible for abating statutory nuisances under the 1990 Act, investigated the facts and law in relation to the claim. In a resolution of 3 March 2004, the defendant’s Environmental and Leisure Services Committee passed a resolution authorising the service of an abatement notice upon the interested party. Thereafter the defendant received further advice suggesting that resolution was wrong in law. On 25 May 2005, the Committee resolved not to serve the abatement notice authorised by its resolution of 3 March 2004.

This application

[5]The claimant then commenced judicial review proceedings. He wished this Court to quash the resolution of the Environmental and Leisure Services Committee of the defendant dated 25 May 2005, and he sought two other remedies. “…ii) a mandatory order that the defendant do serve the abatement notice resolved on 3 March 2004… iii) a declaration that the word ‘choked’ under S.259 of the Public Health Act 1936 is capable in law of including an obstruction to the proper flow of a river by a bridge constructed in and over it, or such other formulation as the Court considers appropriate on the facts of this case.”[6]Permission to apply for judicial review was granted by a Deputy High Court Judge on 4 October 2005. On 9 November 2005, the defendant served the interested party with the abatement notice authorised by the resolution of 3 March 2004. On 25 November 2005, that party served a notice of appeal against the abatement notice, pursuant to section 80(3) of the Environmental Protection Act 1990 on the defendant and on the North Devon Magistrates’ Court. In that litigation, the interested party is seeking an order that the abatement notice be quashed. Hence the first and second remedies sought by the claimant in these proceedings have been achieved. The abatement notice has been served, and in effect the decision not to serve it taken on 25 May 2005 has been overridden. Only the third remedy, the declaration asked for, remains before this Court.[7]The interested party does not accept the interpretation of the word “choked” contended for in the declaration sought by the claimant. It declined to sign a consent order and, unsurprisingly in the circumstances, applied to this Court for directions on whether there was any matter that properly remains to be decided in the proceedings, given the abatement notice has now been served. On 24 February 2006, the matter came before Burton J, when he refused the application. He is said to have commented that the issue of law involved, the meaning of “choked”, was far better suited for decision in the Administrative Court rather than the Magistrates’ Court.[8]Hence the claimant has proceeded with his application for a declaration. It is common ground that he is not and cannot be a party to the appeal against the abatement notice to the Magistrates’ Court. It is said on his behalf that a declaration in the terms contended for will assist the Magistrates’ Court and incidentally his own contentions.[9]A preliminary issue was raised as to whether, in the circumstances, the declaration sought in the judicial review proceedings could properly made given that the abatement notice had now been served. I concluded it was right to hear the application substantively before concluding whether in the circumstances there was any power to make the declaration contended for.[10]Subsequent to the decision of Burton J, and very shortly before this hearing, the interested party filed a witness statement by Mr SJ Webster, a Principal Civil Engineer, acting as a consultant to the interested party. The statement was said by counsel for the interested party to give factual evidence about the flow of water under Taddiport Bridge over a period of some 46 years. The claimant’s counsel objected to its admission at so late a stage, at best some 5 days before the hearing. The witness was said to be giving expert evidence without deposing to any of the formalities required of an expert. The statement was far from merely factual and contained a number of matters of opinion. The evidence could have been available months before the hearing date.[11]I concluded the statement should not be admitted. It was late. It contained a number of matters of opinion. It was in reality expert evidence and could not have been made by anybody other than a person with expertise in matters referred to in it.

The claimant’s case

[12]James Pereirafor the claimant referred to the considerable legislative history prior to the Public Health Act 1936. It is not necessary to repeat that here. But the 1936 Act imposed on local authorities a duty to inspect their districts for statutory nuisances (section 91). It defined statutory nuisances in section 92. Where the local authority was satisfied that a statutory nuisance existed, it had to serve an abatement notice (section 93). Enforcement powers were given to the local authority via summary proceedings (section 94). There were provisions for appeals against abatement notices.[13]This regime is largely continued under Part III Environmental Protection Act 1990.

(h) :

“any other matter declared by any enactment to be a statutory nuisance”
. The relevant enactment for these purposes is section 259, Public Health Act 1936, which as indicated above for the purposes of this litigation defines as a statutory nuisance “any part of a watercourse… which is so choked or silted up as to obstruct or impede the proper flow of water and thereby to cause a nuisance, or give rise as to conditions prejudicial to health” (s.259(1)(b)). This subsection focuses on the consequences of the proper flow of water in the watercourse being “choked or silted up”.[14]There appears to be no existing authority on the meaning of “choked” in section 259(1)(b). The leading textbooks take conflicting views. There is support for the claimant’s position in Glen’s Public Health Act 1936 (16th ed., 1952 at page 405) and in the Encyclopaedia of Environmental Health (p.1230, paragraph 1 - 436).[15]In Glen’s, it is said:
“The choking or silting may be natural, eg., owing to weeds, or caused by an artificial obstruction; …”
In the Encyclopaedia, it is said:
“A distinction exists between the two limbs of subs. (1). Subsects. (1)(a) relates to a watercourse which is in such a state as to be a statutory nuisance for the purposes of Part 3 of the Environmental Protection Act 1990. This provision is therefore concerned with the state of the watercourse itself. Subs. (1)(b) however, is concerned with a watercourse which is in such a state as to cause a nuisance beyond its own limits. Thus, for example, where flooding occurs from a watercourse due to the presence of an obstruction in the watercourse, a statutory nuisance is thereby occurred.” “A distinction exists between the two limbs of subs. (1). Subsects. (1)(a) relates to a watercourse which is in such a state as to be a statutory nuisance for the purposes of Part 3 of the Environmental Protection Act 1990. This provision is therefore concerned with the state of the watercourse itself. Subs. (1)(b) however, is concerned with a watercourse which is in such a state as to cause a nuisance beyond its own limits. Thus, for example, where flooding occurs from a watercourse due to the presence of an obstruction in the watercourse, a statutory nuisance is thereby occurred.”
[16]On the other hand, the editors of Lumley’s Public Health (12 ed., vol.

(e) ) said:

“these expressions must, it is submitted, apply to choking by weeds or undergrowth and silting up by the action of the stream, and do not apply to mere artificial obstructions, although, of course, they do apply where choking or silting up by natural causes is a consequence of the existence of an artificial obstruction…”
At p.2097(g), the editors state:
“Where a watercourse becomes choked or silted up in consequence of some artificial erection in the bed or on the bank of the watercourse, the person responsible for such erection is the person upon whom the notice is to be served.”
[17]The claimant contends that Glen’s and the Encyclopaedia are both correct. In support, he relies on the definition of “choke” in the Oxford English Dictionary (2nd ed., 1989) which gives as definition 14a of “choke”:
“To obstruct or block up a channel, so as to prevent the natural or proper passage; to congest… said of obstruction”
[18]Section 259(1)(b) also incorporates the word “impede” in relation to the proper flow of water caused by choking. Impede is said to mean a partial obstruction. Hence, it is said a partial restriction on the proper flow of water in the watercourse is capable of falling within the plain words of the provision. Further, the claimant contends:
“neither the meaning of ‘choke’ nor the plain wording of section 259 has anything to say as to the cause of the watercourse being choked. Thus on the plain meaning of the words of the subsection there can be no in principle objection to choking by a bridge”
. Section 259(1)(b) is not concerned, it is said, with what caused the choking of the proper flow of the watercourse. It gives rise to straightforward questions. First, is the proper flow choked? Second, if so, has the choking of the proper flow caused a nuisance or given rise to conditions prejudicial to health? Choking is capable of causing flooding, which is itself a nuisance or could give rise to conditions prejudicial to health within the meaning of the legislation. It is said here that the Taddiport Bridge has choked the proper flow of the river so as to cause a nuisance or conditions prejudicial to health by the flooding.[19]The declaration contended for asked the Court to declare that the word “choked” under section 259 “is capable in law of including an obstruction to the proper flow of a river by a bridge constructed in and over it”. It also invites the Court to give a declaration in “such other formulation as the Court considers appropriate on the facts of this case”. No alternative formulation was put forward for the declaration contended for. However counsel argued that even if a declaration was not regarded as appropriate in this case the Court could give guidance on the meaning of “choked” in the 1936 Act having heard argument on it. It was however accepted that this Court is not in a position to reach conclusions on such facts of this case as remain disputed between the parties.

The interested party’s case

[20]The interested party does not accept that this is a proper case for a declaration. The judicial review proceedings were directed to the service of an abatement notice. That has happened. The matter is to be considered by the Magistrates’ Court in North Devon. The core issue does the Taddiport Bridge choke the river Torridge so as to cause a statutory nuisance by flooding is highly fact-sensitive.[21]Mr Philip Coppel, in his outline argument filed on behalf of the interested party, said at para 26:
“As it is currently drafted, the declaration… (1) would only answer a metaphysical question (i.e. whether a bridge constructed in and over a river is capable of obstructing the proper flow of that river); (2) will not answer the question whether the river Torridge is choked, if so whether that is attributable to Taddiport Bridge, nor whether there is obstructing or impeding of the proper flow of water; (3) will accordingly neither determine the rights or status of any person involved (i.e. the claimant, Torridge DC or Devon CC) nor determine any legal pre-requisite for the determination of the rights or status of any person involved; and (4) will accordingly not dispose of any issue of law.”
[22]In argument, Mr Coppel described the declaration sought as entirely hypothetical and lacking any factual basis. Declarations should be confined to declaring the contested legal rights of parties in litigation before the Court. He relied on Gouriet v Union of Post Office Workers [1978] AC 435 at page 501:
“the jurisdiction of the Court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.” (per Lord Diplock). A declaration as to whether a bridge can choke the flow of a watercourse is not in issue in these proceedings. The key difference between the parties is “does this bridge at Taddiport choke the river Torridge and so cause a statutory nuisance?”
. There are no facts before the Court on which any such decision could be made.[23]Further, in response to the claim that the Court may not wish to give a declaration but might be prepared to offer a view on what “choked” might mean, reliance was placed on MacNaughton v MacNaughton’s Trustees [1953] SC 387, 392 as quoted in R(Rusbridger) v Attorney General [2004] 1 AC at para 35:
“Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor advisory bureau. Just what is a live, practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.”
[24]In so far as the Court might consider giving a view outside the making of a declaration as to the meaning of the word “choked”, it was argued that the word is strong, decisive and emotive. It cannot be that any restriction, however slight, to a watercourse constitutes a choking of the flow. The choking, it was said, has to be a very substantial part of the restriction of the proper flow of the water.[25]It was further argued that section 259(1)(b) of the 1936 Act is not concerned with an event or an occurrence such as a flood. It is concerned with the state of a part of a watercourse. The section does not apply to spasmodic occurrences. Once the state of choking arises, it will continue unless there is a change. Such an interpretation should lead, it was argued, if a declaration were to be made, to the Court declaring that “the river Torridge is not choked within the meaning of section 259(1) of the Public Health Act 1936 by the Taddiport Bridge”. Alternatively, it was said, if section 259(1)(b) is apt to capture events or occurrences, it is not apt to extend to the flooding that occurs at Taddiport which is alleged to be a 1 in 20 year event. It was said to be an abuse of language that a watercourse is “choked” by an object when in any year there is only a 5% chance that that object will limit the flow of water in the watercourse.

Conclusions

[26]Section 82, Environmental Protection Act 1990 provides a procedure by which a person aggrieved by a statutory nuisance can themselves make a complaint to a magistrates’ court. That court can order the nuisance to be abated. This is exactly the result that may be achieved in the proceedings that are currently underway in the North Devon Magistrates’ Court as a result of the service of the abatement notice that followed on from this litigation commencing. The claimant has not himself issued such proceedings as he could have done. Perhaps this is because it is thought the wider public interest requires the full involvement of the District Council. Perhaps this is for reasons of cost. I had no evidence on this matter.[27]The witness statement filed in support of the claim shows the appellant had been pressing for some years to have his District Council serve an abatement notice on his County Council. He says and continues to say that the Taddiport Bridge causes a statutory nuisance by flooding. It adversely affects him. I am satisfied that the main purpose of the claimant commencing these judicial review proceedings was to ensure that the defendant Torridge District Council would issue abatement proceedings against Devon County Council.[28]So in my judgment, the application for a declaration is wholly dependent on, and subsidiary to the application for the mandatory order to require the defendant district council to issue the abatement notice which it had previously resolved to serve.[29]I have considered whether a court might make the declaration asked for in “stand alone” proceedings. It is difficult to conceive of a claimant being advised, still less of a court being prepared to grant a declaration, that “the word ‘choked’ in section 259(1)(b) Public Health Act 1936 is capable in law of including an obstruction to the proper flow of water by a bridge constructed in or over it”. Who would be the defendant to such a claim? Such an application is academic and hypothetical. It seeks an advisory opinion from the Court. The authorities Gouriet, MacNaughton and Rusbridger quoted above establish that such an application should be rejected.[30]There are some facts about the particular bridge available in the papers. But the whole issue of whether Taddiport Bridge so chokes the river Torridge as to constitute a statutory nuisance is fact-sensitive. This is not a case where it is proper to make a declaration in the terms asked for or in any alternative terms which might relate to the particular circumstances that the claimant finds himself in.[31]The meaning of the word “choked” in the 1936 Act has however been fully argued before me. Burton J allowed the matter to continue on the basis that the Administrative Court might assist on the issue of law involved. It appears to be a “live practical question” in the litigation in the Magistrates’ Court.[32]In my judgment, the interpretation in Glen’s Public Health Act 1936 and in the Encyclopaedia of Environmental Health referred to above are correct. Where there is an obstruction or an artificial obstruction in a watercourse causing a statutory nuisance, that watercourse can be said to be “choked” within the meaning of the section. Nor do I accept that the phrase “so choked” is confined to a state as contended for by the interested party such that the statutory nuisance caused by the choking has to be ever present and continuous. The subsection must be capable of addressing an intermittent state or a series of events or occurrences. By its nature, the “proper flow of water” in a watercourse is not itself a constant.[33]The piers of a bridge and perhaps other works associated with those piers or other parts of the bridge are, in my judgment, capable of being “artificial” obstructions in a watercourse or river. Whatever may be the “proper flow of water” in the river Torridge and under Taddiport Bridge, and whether this bridge itself obstructs or impedes that proper flow are very much factual issues which are not before this Court in this application for judicial review.

Decision

[34]No order is or can be made on the application to quash the decision of the Environmental and Leisure Services Committee of the defendant District Council dated 25 May 2005. The District Council has itself superseded that decision. Nor, as the abatement notice has been served, is any mandatory order appropriate requiring the defendant to serve the notice. For the reasons given, the application for a declaration as to the meaning of the word “choked” in section 259(1)(b) Public Health Act 1936 is refused.