MWH & H Ward Estates Limited v Monmouthshire County Council

Land Drainage Act 1991, s.64 confers an independent power to enter land for the purpose of exercising a local authority’s functions under the Act. It is not confined by s.14(4)(a) to entry for maintenance of existing works. A statutory power of entry must be expressed in plain terms, and s.64 satisfies that requirement.

Where the authority’s decision involves judgment and discretion, judicial review may satisfy the landowner’s Article 6 requirements. Compensation under the Act may provide adequate protection under Article 1 of Protocol 1. Proportionality does not require a local authority to establish a pressing social need or to provide a merits appeal. The court assesses whether the authority properly considered relevant alternatives and whether the chosen course was proportionate.

The claimant challenged a notice issued by Monmouthshire County Council under s.64 of the Land Drainage Act 1991. The notice authorised entry onto agricultural land to construct a drainage channel intended to alleviate flooding affecting nearby residential properties.

Richards J dismissed the claim for judicial review in the Administrative Court on 20 February 2002. The claimant appealed, arguing that s.64 created no free-standing power of entry for new drainage works, and that the notice disproportionately interfered with its property rights under Article 6 and Article 1 of Protocol 1 of the Convention.

The appeal was dismissed. Laws LJ gave the leading judgment, with Clarke LJ agreeing and Auld LJ agreeing for the reasons given while adding separate observations.

1. Construction of s.64. The statutory right of entry was expressed in plain terms. Section 64(1)(a) authorised an authorised person to enter land for the purpose of exercising any functions of the local authority under the Act. That power was independent of s.14. Section 14(4)(a) remained effective because it concerned the distinct power of entry for maintaining existing works, including entry without the notice required by s.64. Section 64(8), preserving other enactments conferring powers of entry, supported that construction.
2. The statutory history, including Pattinson v Finningley Internal Drainage Board [1970] 1 All ER 790, supported the conclusion. The consolidating nature of the later legislation did not restore the narrower construction suggested by the claimant.
3. Convention rights. Issuing a s.64 notice was an administrative act involving judgment and discretion. Judicial review was sufficient to satisfy Article 6(1), having regard to Daly [2001] 2 AC 532 and London Borough of Tower Hamlets v Runa Begum [2002] 1 WLR 2491. The court assumed that Article 1 of Protocol 1 might be engaged, but held that the statutory compensation provisions were sufficient. It was unnecessary to decide whether compensation extended to lost or hoped-for development value.
4. Proportionality. The authority had considered the relevant alternatives, including compulsory purchase and a scheme under s.18. The drainage works were limited, beneficial, and supported by a sound evidential basis. There was no sufficient basis for the Court of Appeal to reopen the first-instance factual findings. The availability of a public inquiry did not make an alternative course proportionate, and the expression pressing social need was not a useful test in this context.

Permission to appeal to the House of Lords was refused. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): Appeal from the decision of Richards J, given in the Administrative Court on 20 February 2002. Appeal dismissed.