Beaumont v Herefordshire Council & Anor

A consent under Part 3 of the Water Resources Act 1991 does not, merely because it exists or is complied with, necessarily bar a common-law nuisance claim. Section 100 preserves civil rights and remedies and prevents a consent operating per se as a defence, or compliance alone establishing statutory authority. Where this point is raised for the first time at trial, permission to appeal may properly be granted if the applicant shows a clear arguable case of legal error and that an adjournment would have enabled a response. The court granted permission here. It did not finally determine nuisance liability or whether the consent contained an implied dilution condition.

The claimant, a riparian landowner, alleged that odorous effluent from a small sewage works caused nuisance in a watercourse adjoining his property. The first defendant held a discharge consent under the Water Resources Act 1991; the claimant alleged that, after the land was transferred to the second defendant, that defendant adopted the nuisance.

At Worcester County Court, His Honour Judge Geddes decided a preliminary issue. He held that the consent contained no implied requirement for dilution and that the consent provided an absolute defence even if stagnant, odorous effluent caused nuisance. The claimant sought permission to appeal, arguing that the statutory-consent point had been raised only at the hearing and should have been adjourned. The central issues were whether he could have answered the point and whether the consent legally prevented a nuisance claim.

Application allowed. Lord Justice Kay held that the claimant had a clear arguable case that the County Court judge had erred in law and that an adjournment would have enabled him to meet the newly raised argument. Permission to appeal was therefore granted. The merits of the nuisance claim were not finally determined.

1. The County Court’s preliminary ruling treated compliance with the discharge consent as making an action in nuisance impossible. The Court of Appeal considered that proposition clearly arguable as an error of law.
2. Section 100 of Part 3 of the Water Resources Act 1991 preserves civil rights of action and remedies. On the court’s reading, a consent granted under Part 3 cannot operate per se as a defence to a civil nuisance claim. Compliance with the consent does not, of itself, establish a defence based on statutory authority.
3. The question whether the consent carried an implied condition requiring artificial or natural dilution remained open for the appeal. The court also made no final finding on whether nuisance was established or on either defendant’s ultimate liability.
4. The court observed that the defendants’ interests appeared exactly coincidental, so separate representation was unnecessary and might expose them to an adverse costs consequence.

1. Court of Appeal (Civil Division) — On 18 June 2001, the application for permission to appeal was allowed.
2. Worcester County Court — His Honour Judge Geddes dismissed the nuisance claim on 8 January 2001, holding that there was no implied dilution condition and that the statutory consent was an absolute defence.