High Court sets limit on local authority’s power to order clean up of watercourse

A local authority can only require an actual blockage to a watercourse to be removed, and cannot order the removal of related material from a wider area, the High Court has said.

Mr Justice Eyre heard a prosecution appeal by way of case stated by Worcestershire County Council against a Worcester Crown Court decision that allowed an appeal by defendants Alan Roy Pain, Pencroft Limited and Oliver Richard Rogers against their conviction pursuant to section 24 of the Land Drainage Act 1991 for failing to comply with notices.

Three irrigation pools were built on land at Witley Park Farm, Great Witley, along the line of a watercourse forming part of a tributary of the Shrawley Brook.

The pools were created by the three defendants depositing tens of thousands of tonnes of waste.

Worcestershire served notices and the three were prosecuted for alleged failures to comply.

They were convicted by magistrates but won an appeal in the crown court, where the case turned on the interpretation of the requirement to “reinstate land to former condition”; on the lawfulness of that requirement; and on whether that requirement, if unlawful, was severable from the rest of the notices.

The crown court held that the requirement was unlawful and that it was not severable with the consequence that the notices were entirely invalid.

Two questions were put in the case stated:

“Were we right to find that the final requirement in the notices, ‘to reinstate the land to former condition’, was outside the powers conferred by section 24;

“If so, were we right to find that the requirement could not be severed and that, as a result, the notices were entirely invalid?"

Worcestershire argued that the requirement to `reinstate the land to former condition' applies to land within the site affected by compliance with the other steps/requirements of the notices; and this is within the powers conferred by section 24 Land Drainage Act 1991 and even if the requirement is outside the powers conferred by section 24, it is clearly severable;

Eyre J said the focus of the law was on interference with the flow of water, so the power is to require the removal of structures which obstruct the watercourse.

Unlike an obstruction was something obvious like a mill or a dam “it is necessary to take care to identify what in fact constitutes the obstruction”

The pools were created by depositing waste over an extensive area and while that part covering the watercourse was clearly an obstruction. “it is artificial to see waste deposited some distance away from the watercourse as being an obstruction of it”.

He said the watercourse was about one metre wide whereas the pools covered an area 100 metres or more wide.

Eyre J said: “In the absence of clear evidence it cannot realistically be said that waste deposited any significant distance away from the one metre wide strip of the watercourse operated as an obstruction of that watercourse.”

Unless Worcestershire established that removal of all the waste was necessary to end the obstruction of the watercourse, it had no power under section 24 to require the removal of all the waste from the whole area of the pools.

Eyre J said his conclusion meant the issue of severability had become academic.

Mark Smulian