Dodson v Environment Agency

A public authority’s statutory power to advise does not ordinarily create a common-law duty to advise individuals about private economic risks. A duty may arise where the authority’s acts, relationships or assumed responsibilities satisfy the ordinary requirements of foreseeability, proximity, and fairness. Environmental improvement undertaken pursuant to statutory functions does not, without more, create a duty to identify and protect every private interest potentially affected. The court must consider whether the authority caused a materially foreseeable risk, whether there was sufficient proximity, and whether imposing the duty would conflict with the statutory scheme or impose disproportionate burdens. Publicly disseminated information may also be sufficient to discharge any plausible duty to provide general warning.

The claimant owned a fishery beside the River Cegin. He alleged that the Environment Agency’s environmental project, including the construction of two otter holts, increased otter numbers and caused the loss of his fish stock. He claimed damages and alleged that the Agency owed him statutory and common-law duties to warn him about the risk of otter predation and protective measures.

The court tried preliminary issues concerning the existence and breach of those duties. The claimant no longer relied on an actionable statutory duty, and the court was not required to determine whether otters caused the loss. The central issues were whether the Agency’s conduct gave rise to a common-law duty to advise and, if so, whether that duty had been breached.

1. Statutory duties. The duties imposed by the Environment Act 1995 were public duties. Parliament had not intended their breach to be actionable by an individual. Section 13 concerned advisory committees advising the Agency, not advice to members of the public.
2. Statutory power to advise. The claim could not be founded merely on the Agency’s failure to exercise its power under section 37(3). Under Stovin v Wise [1996] A.C. 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, the statutory scheme and the nature of the alleged omission did not support such a duty. The failure to advise this particular landowner was not irrational in the public-law sense, and the statutory policy was directed to public environmental welfare rather than private economic interests.
3. Acts performed under statutory functions. The fact that a public authority acts under statutory powers does not necessarily exclude a common-law duty where it has actually done acts, entered relationships, or assumed responsibilities capable of grounding one. The ordinary common-law principles therefore applied.
4. Application of Caparo Industries Plc v Dickman [1990] 2 A.C. 605. The claim failed. The Agency had not constructed, supervised, or advised on the construction of the otter holts. In any event, the evidence did not show that the holts could foreseeably and materially increase the risk of otter predation. There was no sufficient proximity: the claimant had not sought or received personal advice, and the relationship arose only from the Agency’s statutory functions.
5. It would not be fair, just, or reasonable to impose the proposed duty. The statutory scheme did not require individual advice, the duty could conflict with environmental conservation functions and create onerous resource implications, and the claimant could reasonably inform himself of the risks. The Agency had published adequate general information about otter predation.
6. The first preliminary issue was determined against the claimant. The breach issue therefore did not arise. The claim was to be dismissed. The court added that, if a duty to advise about the specific works had existed, it would have been breached, but that observation was unnecessary to the decision.

This was a first-instance trial of preliminary issues. On 5 April 2012, H.H. Judge Seys Llewellyn Q.C. ordered the preliminary issues concerning duty and breach to be tried.