R v Falmouth and Truro Port Health Authority, Ex p South West Water Ltd

A large tidal estuary adjoining the open sea is not a “watercourse” for the purposes of section 259(1)(a) of the Public Health Act 1936. An abatement notice founded on the contrary construction is therefore outside the authority’s powers.

Under section 80(1) of the Environmental Protection Act 1990, an authority may require simple abatement while leaving the means to the recipient. Works need be specified only if the authority itself requires their execution. Before serving a notice, an authority has no general duty to consult the alleged perpetrator. An invitation to comment creates a legitimate expectation of consultation only if it contains a clear assurance.

The port health authority served South West Water Ltd with an abatement notice under section 80 of the Environmental Protection Act 1990. The notice required the company to cease discharging sewage through an outfall into Carrick Roads within three months. It characterised Carrick Roads as a watercourse constituting a statutory nuisance under section 259(1)(a) of the Public Health Act 1936.

Harrison J quashed the notice because consultation had been unfairly denied, the notice failed to specify necessary works, and Carrick Roads was not a watercourse. He also held that judicial review was available despite the company's statutory appeal to the magistrates’ court.

The authority appealed on all four issues. The central dispositive question was whether the large tidal estuary of Carrick Roads fell within “watercourse” in section 259(1)(a).

1. Disposition. The appeal was dismissed unanimously. Carrick Roads was not a “watercourse” within section 259(1)(a) of the Public Health Act 1936. The abatement notice was therefore beyond the port health authority’s powers. Simon Brown and Pill LJJ agreed with Hale LJ’s analysis.
2. Meaning of watercourse. Per Hale LJ, the expression was capable of different meanings according to statutory context. Its history showed that the predecessor provision addressed ponds, ditches, gutters and comparable places in which foul matter might accumulate. Although the 1936 wording was broader, neither its language nor subsequent social developments justified extending it to a substantial tidal estuary adjoining the open sea. The existence and territorial jurisdiction of a port health authority did not require a different construction.
3. Consultation. Per Simon Brown LJ, with whom Pill LJ and Hale LJ agreed, neither the statutory scheme nor common-law fairness imposed a general duty to consult an alleged perpetrator before serving an abatement notice. An enforcing authority may consult where useful, but must retain its independent judgment and may act without consultation. The authority’s invitation to submit observations contained no sufficiently clear assurance of a consultation process and therefore created no legitimate expectation.
4. Specification of works. Section 80(1) of the Environmental Protection Act 1990 gives an authority a choice. It may require abatement alone and leave the means to the recipient. If it chooses to require particular works or steps, those requirements must be specified. The contrary rule in Kirklees Metropolitan Council v Field [1998] Env LR 337 was overruled. The present notice was not invalid merely because some works would be needed before the discharge could cease.
5. Alternative remedy. Permission for judicial review should be exceptional where Parliament has provided a statutory appeal, and rarer still where public health or safety is involved. Relevant considerations include comparative speed, expense and finality, the need for fact-finding, the desirability of an authoritative ruling of law and the apparent strength of the challenge. A limited, expedited challenge on the specification and watercourse issues was permissible here, but the wide-ranging consultation challenge should not have been allowed to delay the statutory process.

The appeal was dismissed with no order as to costs in either court. Permission to appeal to the House of Lords was refused.

• Court of Appeal: Dismissed the port health authority’s appeal because Carrick Roads was not a watercourse within section 259(1)(a) of the Public Health Act 1936. It reversed the judge’s conclusions on consultation and specification of works.
• High Court: Harrison J quashed the abatement notice on three independent grounds: failure to honour a legitimate expectation of consultation, failure to specify necessary works, and absence of statutory power because Carrick Roads was not a watercourse. He permitted judicial review despite the statutory appeal.
• Permission stage: Collins J granted permission to seek judicial review and stayed both the notice and the pending appeal to the magistrates’ court.