Sharp & Anor, R (On the Application Of) v North Essex Magistrates Court, Court of Appeal - Civil Division, July 31, 2017, [2017] EWCA Civ 1143,[2017] WLR(D) 538

Issuing Organization:Civil Division
Actores:Sharp & Anor, R (On the Application Of) v North Essex Magistrates Court
Resolution Date:July 31, 2017
 
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Neutral Citation Number: [2017] EWCA Civ 1143

Case No: C1/2016/0651

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Haddon-Cave

[2015] EWHC 3957 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2017

Before :

LADY JUSTICE GLOSTER

VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION

LORD JUSTICE GROSS

and

LORD JUSTICE BRIGGS

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Between :

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Martin Edwards and Jack Parker (instructed by Holmes & Hills LLP) for the Appellant

Daniel Kolinsky QC and Gwion Lewis (instructed by the Environment Agency) for the Respondent

Hearing dates : 29 June, 2017

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Lord Justice Gross :

INTRODUCTION

  1. This is an appeal from the judgment of Haddon-Cave J, dated 20th November, 2015 (``the judgment''), dismissing the (now) Appellants' claim for judicial review. The claim for judicial review was brought against the Respondent - which has played no part in the appeal - in respect of District Judge Woollard's decision, dated 28th January, 2015, refusing to state a case under s.111(5) of the Magistrates' Court Act 1980 (``the MCA 1980''), arising from his decision to grant the Interested Party (``the EA'') a warrant for entry onto the Appellants' property under s.172 of the Water Resources Act 1991 (``the WRA'').

  2. There is only one substantive question in this appeal: in the case of new works involving entry onto land or premises, absent consent from the landowner, is the EA confined by s.165(6) of the WRA to its powers of compulsory purchase (``CPO'') under s.154 or compulsory works orders (``CWO'') under s.168, of the WRA, or is the EA entitled to exercise the powers of entry conferred by s.172 thereof?

  3. The Appellants submit that in such circumstances the EA is confined to its CPO or CWO powers. The EA disagrees and argues that it is entitled to utilise the s.172 powers of entry.

  4. Underlying this question of statutory construction is a broader concern as to the balance to be struck between individual rights of property and the interests of society in general, neatly encapsulated by Bean J in Pattinson v Finningley Internal Drainage Board [1970] 2 QB 33, at p.39, concerning the powers of entry of the Drainage Board:

    `` 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 rights of the individual and the need of the community at large.... ''

  5. Given that compensation is payable whichever route is followed by the EA, the point of the appeal, as submitted by Mr Edwards for the Appellants, was the ability to challenge the merits of the proposal, furnished by way of the inquiry process where CPO or CWO powers are invoked. By contrast and as happened here, where the EA has sought to proceed under s.172, the landowner is confined, in large measure, to challenging the legality of the process. Furthermore, Mr Edwards submitted, there were real concerns as to the structures left behind on the land by the EA.

  6. If that is the landowner's perspective, the EA's concern is that it should not be ``mired'' in the CPO or CWO process in the field of flood risk management works. Mr Kolinsky QC for the EA submitted that the WRA was indeed so designed to permit it to use the general s.172 powers of entry. The EA was entitled but not obliged to proceed by CPO or CWO powers. The purpose of s.165(6) was to permit the EA to maintain existing (flood risk management) works without even the formalities attached to the various notice provisions found in s.172.

  7. In all this, the role of the Court is not to impose its own view of the merits but instead to construe the statutory provisions so as to give effect to the intentions of the legislature.

    THE LEGISLATIVE FRAMEWORK

  8. The EA's CPO powers are dealt with in s.154 of the WRA. By s.154(1), the EA has power to purchase compulsorily any land anywhere in England or Wales, for the purposes of, or in connection with, the carrying out of its functions. Via s. 154 (4) and (5) - the details need not be set out here - provision is made for a ``merits'' challenge to the proposed compulsory purchase by way of a public inquiry.

  9. S.165 is headed ``General powers to carry out works''. Insofar as material, s.165 (1)(a) provides that the EA may:

    `` (a) carry out flood risk management work within subsection (1D) (a) to (f) if Conditions 1 and 2 are satisfied;

    ....

    (1A) Condition 1 is that the ....[EA] considers the work desirable having regard to the national flood and coastal erosion risk management strategies under sections 7 and 8 of the Flood and Water Management Act 2010.

    (1B) Condition 2 is that the purpose of the work is to manage a flood risk .....from:

    ....

    (b) a main river.''

    There was no dispute before us that Conditions 1 and 2 were satisfied.

  10. S.165 (1D), to which s.165 (1)(a) refers, provided as follows:

    `` In this section `flood risk management work' means anything done -

    (a) to maintain existing works (including buildings or structures) including cleansing, repairing or otherwise maintaining the efficiency of an existing watercourse or drainage work;

    (b) to operate existing works (such as sluicegates or pumps);

    (c) to improve existing works (including buildings or structures) including anything done to deepen, widen, straighten or otherwise improve an existing watercourse, to remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve a drainage work;

    (d) to construct or repair new works (including buildings, structures, watercourses, drainage works and machinery);

    (e) for the purpose of maintaining or restoring natural processes;

    (f) to monitor, investigate or survey a location or a natural process;

    .....''

  11. S.165(6) is, as already highlighted, at the heart of this appeal. It is in these terms:

    `` Nothing in subsections (1) to (3) above authorises any person to enter on the land of any person except for the purpose...

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