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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Beaumont v Herefordshire Council & Anor [2001] EWCA Civ 1167 (18 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1167.html Cite as: [2001] EWCA Civ 1167

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
(His Honour Judge Geddes)

		Royal Courts of Justice Strand London WC2 Monday, 18th June 2001

Monday, 18th June 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal the decision of His Honour Judge Geddes dated 8th January 2001, dismissing a claim for nuisance against the first and second defendants on the basis that, even if the nuisance could be proved, it occurred as a result of a statutory consent which is an absolute defence.
2. The facts are that the claimant is a riparian land owner who claimed a nuisance in the form of odorous effluent waste in a water course which runs along a short stretch of the boundary of his property. His claim was that nuisance had been caused by the first defendant and that, when they transferred the land to the second defendant, the second defendant adopted that nuisance.
3. The claimant claimed that the nuisance arose from the discharge of effluent from a small sewerage works which handles the sewage of a small number of houses built on the second defendant's land. The first defendant had been granted a consent dated 15th May 1992 under the Water Resources Act 1991 ("the 1991 Act"), allowing it to discharge biologically treated sewerage effluent into a tributary of the Wye. Certain conditions attached to the manner of discharge. In the judgment the judge suggested that it was not in dispute that those conditions were properly complied with. Consents can be transferred under schedule 22, paragraph 183 of the 1991 Act. Although there is no mention in the judgment of there being such a transfer, almost certainly that is what occurred. The claimant claimed that odour from the effluent was at its worst when there was insufficient water flow in the water coals so that effluent simply stood in stagnant pools.
4. The proceedings before His Honour Judge Geddes were decided on a preliminary issue of whether, under a consent issued under the 1991 Act, an implied duty arose on the defendants to ensure dilution of the effluent passing into the ditch, either by adding water or waiting to discharge until there was sufficient natural flow in the stream to ensure that effluent was carried away. That preliminary issue only came to the fore at the hearing and at the instigation of the judge, because the parties had not turned their mind to the particular question previously. An expert instructed jointly by the parties, Mr Mackay, gave evidence that there could be no implied condition in the consent requiring the effluent to be diluted either artificially or naturally. The judge held that there was (1) no implicit condition in the consent that the effluent should be diluted; and (2) even if odorous, stagnant pools of effluent existed in the adjoining water, this could not be a nuisance because the defendants had permission under their consent so to do.
5. The claimant's ground of appeal can be summarised in this way: that the issue of consent rendering a nuisance impossible was only promulgated at the hearing without previous notice, and that therefore the judge should have allowed an adjournment to allow the claimant to consider the point. Obviously, even if that ground can be made out, it would not in effect merit the allowing of the appeal unless it could be shown that, if an adjournment had been granted, the claimant would have been able to counter the points that were being made and which were found against him.
6. I am satisfied that there is a clear, arguable case that he would have been able to counter those arguments and that the learned judge erred on a point of law when he held that a consent under the 1991 Act rendered an action in nuisance impossible. Part 3 of the 1991 Act deals, amongst other things, with the procedure for making applications for consent. Section 100 of the Act provides:

"Except insofar as this part expressly or otherwise provides and subject to the provisions of section 18 of the Interpretation Act 1978 which relates to offences under two or more laws, nothing in this part

(a) can be omitted,

(b) derogates from any right of action or other remedy whether civil or criminal in proceedings instituted otherwise than under the part."

7. Section 100, it would seem, has the effect that consent of any nature given under Part 3 and in compliance with it cannot operate per se as a defence to a civil action, and compliance with a consent does not of itself give rise to a basis for a defence of statutory authority. That position is fully set out in Halsbury's Laws, Volume 49, paragraph 2, at paragraph 627 and note 3.
8. For those reasons, it seems to me clearly arguable that the judge was not right when he held that the claimant was precluded from bringing a claim in common law nuisance due to the fact that the defendants possessed consent to create a nuisance. In those circumstances it seems clearly right that the matter should proceed to a hearing of this appeal, and I grant permission.
9. I have set out the matter that the court will need to consider in a little detail, because no doubt the defendants will want to consider their position and consider whether the point is one that they can meet well in advance of the hearing of any appeal.
10. I also make clear that the two defendants were separately represented at the hearing before the County Court judge. It seems to me that there really is no need at all for separate representation in a case of this kind where their interests are exactly coincidental, and they ought to consider, if they are resisting this appeal, whether they should not be jointly represented, otherwise there is a risk that they might be penalised in costs.
Order: Application allowed.