Moase & Anor v Secretary Of State For The Environment, Transport and The Regions & Anor

In a challenge to a compulsory purchase order, the reviewing court is not required to investigate alleged illegality or non-compliance with environmental directives where the issue was not raised before the inquiry and depends on evidence that the decision-maker and affected authority had no opportunity to address.

An exception may arise where domestic illegality is so plain that the court should take the point of its own motion. That exception did not apply where the challenge depended on disputed scientific inferences and fresh evidence.

An authority may rely on an environmental regulator’s consent unless the regulator’s approach is shown to be clearly wrong or incapable of securing compliance. The phrase “as far as possible” in the requirement to minimise effects on receiving waters requires consideration of wider environmental and practical factors.

South West Water Services Ltd made a compulsory purchase order to acquire land for a sewerage treatment works at Cornborough, Devon. The Secretary of State confirmed the order after a public inquiry. Owen J dismissed the appellants’ challenge under section 23 of the Acquisition of Land Act 1981 and refused to admit fresh evidence.

The appellants appealed, alleging that the proposed scheme could not comply with the Bathing Water Directive and the Urban Waste Water Treatment Directive, that nearby Abbotsham waters were bathing waters, and that the point of discharge failed to minimise effects on receiving waters. They also sought to introduce further scientific evidence concerning enteroviruses.

1. Appeal dismissed. The application to adduce fresh evidence was refused. The ordinary judicial review principles in Powis, derived from Ashbridge, permit fresh evidence principally to establish what material was before the decision-maker, jurisdictional facts or procedural error, or misconduct. The proposed evidence would instead require a fresh scientific investigation of the merits.
2. Community law did not require the court to entertain the new challenges merely because they concerned directives. The United Kingdom had implemented the directives, the Environment Agency had statutory responsibility for enforcement, and mechanisms existed to challenge or vary its consent. The objectors had not put the alleged failures to the Inspector or challenged the consent directly.
3. The Inspector was entitled to assume that the Environment Agency’s policy and consent were intended to secure compliance, unless the objectors established a case that the Agency was unable or unwilling to enforce the mandatory requirements. There was no such evidential case. The Inspector was therefore entitled to conclude that the scheme complied with the directives.
4. Domestic law may exceptionally require a reviewing court to raise an obvious illegality of its own motion. This was not such a case, because the alleged failure depended on contested scientific evidence and adverse inferences against the Environment Agency without giving it a proper opportunity to respond.
5. Abbotsham and Cornborough were not bathing waters under Article 1.2 of the Bathing Water Directive. There was no evidence that bathing was traditionally practised there by a large number of bathers. The absence of access, sanitary and changing facilities, parking, lifeguards, shops and other infrastructure supported that conclusion.
6. The challenge under paragraph 5 of Annex 1 to the Urban Waste Water Treatment Directive was also unavailable because it had not been raised or evidenced at the inquiry. In any event, “as far as possible” required consideration of the environment as a whole, feasible alternatives, other receiving waters, fisheries and wildlife. The material before the court could not establish an unconditional breach.

The challenge to the compulsory purchase order and the order of Owen J was dismissed. The appellants were ordered to pay the respondents’ costs, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): The appeal from Owen J was dismissed. The appellants’ challenge under section 23 of the Acquisition of Land Act 1981 failed, and the compulsory purchase order remained confirmed.
• Queen’s Bench Division, Crown Office and Divisional Court: Owen J dismissed the challenge on 30 September 1999 and refused the application to admit fresh evidence.