Sharp & Anor, R (On the Application Of) v North Essex Magistrates Court

The Environment Agency’s general power of entry under section 172 of the Water Resources Act 1991 is independent of the restriction in section 165(6). For new flood-risk management works, the Agency is not confined to compulsory purchase or compulsory works order procedures under sections 154 or 168. Those provisions confer permissive powers, not mandatory routes. Affected landowners may have less opportunity to challenge the merits of the works, but public-law challenges to legality and compensation remain available.

The appellants sought judicial review of a magistrates’ district judge’s refusal to state a case after he granted the Environment Agency a warrant to enter their land under section 172 of the Water Resources Act 1991. The proposed works formed part of a flood alleviation scheme and included a substantial embankment and associated structures.

The High Court dismissed the judicial review claim: [2015] EWHC 3957 (Admin). The appeal concerned whether section 165(6), which limits entry under section 165 to maintaining existing works, confined the Agency to compulsory purchase or compulsory works order powers for new works, or whether section 172 supplied an available general power of entry.

1. Appeal dismissed. The Environment Agency was entitled, absent the landowner’s consent, to exercise the general power of entry under section 172 of the Water Resources Act 1991 for new works falling within section 165.
2. Section 165(6) prohibits entry authorised under subsections (1) to (3) for purposes other than maintaining existing works. It does not restrict the distinct power of entry conferred by section 172. The contrary construction would require different meanings to be given to similar language within section 165 and would leave activities such as operating, improving, monitoring and surveying existing works difficult to accommodate.
3. Sections 154 and 168 are expressed in permissive terms. They give the Agency available compulsory purchase and compulsory works order powers, but do not require it to use those procedures whenever new works involve entry onto private land. Those powers therefore remain available without displacing section 172.
4. The Court recognised that this construction limits the landowner’s ability to challenge the merits of the Agency’s proposals, as distinct from their legality. That was the statutory balance selected by Parliament. Public-law challenges remain available, and compensation is payable under Schedule 21, paragraph 5, for injury caused by the exercise of powers under section 165(1) to (3).
5. Gross LJ added that, although the appeal failed, the district judge ought to have agreed to state a case. Briggs LJ and Gloster LJ agreed with the judgment.

• Court of Appeal (Civil Division): The appeal was dismissed. Gross LJ held that section 172 supplied an independent general power of entry and that sections 154 and 168 did not impose compulsory purchase or compulsory works order procedures. Briggs LJ and Gloster LJ agreed.
• High Court, Administrative Court: Haddon-Cave J dismissed the judicial review claim concerning the district judge’s refusal to state a case: [2015] EWHC 3957 (Admin).
• Magistrates’ court: The district judge granted a warrant under section 172 and refused to state a case under section 111(5) of the Magistrates’ Court Act 1980.