Worcestershire County Council v Alan Roy Pain & Ors

A notice under section 24 of the Land Drainage Act 1991 must be read objectively, as a whole and in context. It must state requirements clearly enough for the recipient to know what must be done. A power to require abatement of an obstruction includes the power to require reinstatement of the relevant watercourse, together with adjoining land where necessary to achieve that result. It does not ordinarily extend to removing material too remote from the watercourse to obstruct its flow. If a notice contains lawful and unlawful requirements, severance depends on textual and substantial severability.

The Council appealed by way of case stated against the Crown Court at Worcester’s decision of 27 July 2022 allowing the respondents’ appeal against convictions under section 24 of the Land Drainage Act 1991. The Crown Court held that a requirement to remove unconsented culverts, remediate the watercourse and reinstate the land to its former condition required removal of all waste from three irrigation pools. It concluded that the requirement exceeded section 24 powers and was not severable from the remainder of the notices.

The appeal concerned the interpretation and lawfulness of that requirement and, if necessary, its severability. The central issue was whether the requirement applied to the whole pool areas or to the watercourse and land affected by the preceding works.

1. Interpretation. The notices had to be read objectively, as a whole and in their factual context. Criminal consequences did not justify adopting a narrower interpretation where two readings were equally tenable. In that event, lack of sufficient clarity would make the notice invalid.
2. The natural interpretation of “reinstate land to former condition” was that it required reinstatement of the land affected by the preceding requirements, namely the watercourse and such adjoining land as was necessary to restore it. It did not require removal of all waste from the three pool areas.
3. Lawfulness. Section 24 empowered the Council to require reinstatement of the relevant watercourse or culvert to its previous condition. That power was incidental or consequential to the power to abate the nuisance. The notices were therefore within the Council’s statutory powers and were sufficiently clear on their natural reading.
4. Alternative interpretation. If the notices had required removal of all waste from the whole pool areas, they would have been unlawful unless that removal were necessary to end the obstruction of the flow of water. Sections 23 and 24 focused on interference with the flow of the watercourse.
5. Severability. The applicable test was that in DPP v Hutchinson, rather than the narrower formulation attributed to Dunkley v Evans. Textual severance requires the remaining text to be grammatical and coherent. Substantial severance requires the remaining provision to retain essentially the same purpose, operation and effect. On the alternative interpretation, severance would fail.
6. The first question in the Case Stated was answered in the negative. The second question did not arise. The appeal was allowed.

1. High Court (Administrative Court) — Appeal by case stated allowed. The Crown Court’s answer that the final requirement was outside section 24 powers was overturned.
2. Crown Court at Worcester — On 27 July 2022, allowed the respondents’ appeals against conviction and held the notices invalid.
3. Magistrates’ Court — Convicted the respondents on 7 September 2020 and sentenced them in November 2020.