Ian Caldwell & Anor v The Secretary of State for Levelling-Up, Housing and Communities & Anor
[2023] EWHC 2053 (Admin)
Worcestershire County Council v Alan Roy Pain & Ors
23 April 2024
[2024] EWHC 913 (Admin)
High Court
A council issued a notice to remove illegally built pools that blocked a waterway. A lower court threw out the notice, saying one part was unclear and couldn't be separated from the rest. The High Court disagreed, saying the unclear part only applied to the area immediately around the waterway, so the entire notice was valid.
Key Facts
- •Worcestershire County Council (Council) appealed a Crown Court decision quashing convictions under section 24 of the Land Drainage Act 1991 (LDA).
- •The convictions stemmed from the Respondents' failure to comply with notices requiring the abatement of a nuisance caused by the construction of three irrigation pools on land at Witley Park Farm.
- •The pools were built using tens of thousands of tonnes of imported waste, obstructing a watercourse.
- •The Crown Court held that the notice's requirement to "reinstate land to former condition" was unlawful and unseverable, invalidating the entire notice.
- •The Council appealed, arguing the requirement was lawful and/or severable.
Legal Principles
Interpretation of statutory notices: Notices must be read objectively as a whole, considering the factual context but not extraneous material. The recipient is entitled to understand the requirements solely from the notice, subject to their expected knowledge of the site.
Case Law
Severability of statutory notices: The test for severability is whether the valid text is unaffected by, and independent of, the invalid, maintaining the legislator's original purpose, operation, and effect. The test from *DPP v Jones* applies to notices imposing positive obligations as well as prohibitions, though it may be harder to sever positive actions.
*DPP v Jones* [2002] EWHC 110 (Admin); *DPP v Hutchinson* [1990] 2 AC 783
Scope of section 24 LDA: Section 24 empowers a drainage board to abate nuisances caused by obstructions to watercourses. The power extends to reinstating the watercourse to its previous condition, including a reasonable degree of 'curtilage', but does not extend to areas significantly removed from the watercourse where the waste doesn't directly obstruct the flow.
Land Drainage Act 1991, sections 23, 24; *R(Ashbrook) v East Sussex CC* [2002] EWCA Civ 1701
Outcomes
Appeal allowed.
The Court interpreted the "reinstate land to former condition" requirement as applying only to the watercourse and immediately adjacent land affected by the preceding steps, a lawful requirement under section 24. Even if interpreted to require removal of all waste, the Court found the requirement unlawful only if such removal was unnecessary to end the obstruction. Severability was not considered necessary.
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