Robinson, R (on the application of) v Torridge District Council

For the purposes of section 259(1)(b) of the Public Health Act 1936, a watercourse may be “choked” by an artificial obstruction, including the piers or other works of a bridge. The provision is not confined to obstruction caused by weeds, undergrowth or silting, nor to a continuously existing state. It may address an intermittent state or series of events. Whether the obstruction impedes the proper flow of water and causes a statutory nuisance remains fact-sensitive. The Administrative Court should not grant a declaration that merely answers a hypothetical or academic question, or gives an advisory opinion detached from the contested rights of the parties. The declaration sought was therefore refused.

The claimant’s home was liable to flooding from the River Torridge, which he attributed to Taddiport Bridge. He sought judicial review of Torridge District Council’s decision not to serve an abatement notice on Devon County Council, the highway authority responsible for the bridge, together with a declaration concerning the meaning of “choked” in section 259(1)(b) of the Public Health Act 1936.

After permission was granted, the Council served the abatement notice. The claimant’s first two remedies consequently no longer required determination, while Devon County Council appealed the notice to the magistrates’ court. The remaining issue was whether the Administrative Court should grant the requested declaration or otherwise determine the statutory meaning of “choked”.

1. The application to quash the Council’s later decision and the application for a mandatory order were no longer operative because the abatement notice had been served. No order or mandatory order was appropriate.
2. A declaration must concern contested legal rights, subsisting or future, of parties represented in the litigation. The court does not declare the law generally or provide advisory opinions. The proposed declaration, considered independently of the factual dispute over Taddiport Bridge, was hypothetical and academic. The principles stated in Gouriet v Union of Post Office Workers [1978] AC 435, MacNaughton v MacNaughton’s Trustees [1953] SC 387 and R (Rusbridger) v Attorney General [2004] 1 AC supported rejection of such relief.
3. On the statutory interpretation issue, an obstruction or artificial obstruction in a watercourse may cause the watercourse to be “choked” within section 259(1)(b) of the Public Health Act 1936. The phrase is not limited to a permanently existing condition. It can address an intermittent state or series of events, since the proper flow of water is not constant.
4. The bridge’s piers and associated works were capable in law of being artificial obstructions. Whether Taddiport Bridge actually obstructed or impeded the proper flow of the River Torridge, and whether that caused a statutory nuisance, were factual questions not determined in the judicial review proceedings.
5. The application for the declaration was refused.

First instance judicial review proceedings. The judgment records that an abatement notice had been appealed to the North Devon Magistrates’ Court, but this was not an appeal from the present judgment.