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An alternative to compulsory purchase? The Environment Agency’s powers under s172 of the Water Resources Act 1991: breadth and scope for challenge

This post was originally published as an article in the November/December issue of UKELA's e-law magazine.

At a glance

  • Summarises and explores the decision of the Court of Appeal in R (Sharp) v North Essex Magistrates’ Court [2017] 1 WLR 3789, which confirms breadth of Environment Agency (“EA”) powers to enter land for purpose of constructing flood defences as an alternative to using compulsorily purchase powers.

  • Suggests that judicial review of the magistrates’ may increasingly form a key tool for keeping the EA’s use of those powers in check, and that use of HRA 1998 jurisprudence may have a role in future caselaw.

Statutory background

Under Part VII of the Water Resources Act 1991 (“WRA 1991”) the EA has extensive powers to take, enter and carry out works to land. In the realm of flood defence, it may have recourse not only to its general power to compulsorily purchase land for the purposes of carrying out its statutory function (s.154) but also a specific set of powers to carry out flood defence and drainage works (s.165-167A), to seek a compulsory works order with accompanying compulsory powers from the Minister (s.168), and a general power of entry (s.172).

Situations may often arise where the EA has a choice of power on which to rely; a choice which can have significant consequences for the procedural remedies available to affected parties. In particular, a decision to exercise compulsory purchase powers gives rise to an opportunity for third parties to substantively challenge the decision on its merits; whereas a decision to exercise powers of entry under s.172 is only constrained by the requirement on the EA to seek a warrant from the magistrates which will be granted if they are satisfied that there are reasonable grounds for exercising that power.

The facts

Mr and Mrs Sharp owned a 365-acre pastoral farm near Chelmsford, Essex, on which they grazed some 1400 sheep and cattle. In 2013, the EA obtained planning permission for a scheme of flood alleviation works which included significant works on the Sharps’ land, including the construction of:

  • a 500m long, 5.5m high earth embankment; and

  • a concrete control structure with two sluice gates and ancillary features.

These works formed part of a wider scheme aimed at alleviating flooding from the River Wid, which involved rerouting parts of that river. As a result, they fell within the powers available to the EA under s.165(1) to carry out flood risk management works including the construction of new works or improvement of existing. The Sharps, it goes without saying, opposed the proposals which they said would cause substantial disturbance to their use of the farm and for which they might not obtain proper compensation.

Following an unsuccessful judicial review brought by the Sharps against the planning permission, the EA attempted to negotiate access to the land but, when that failed, served notices of intended entry under s.172 of the WRA 1991 on the basis that they proposed to carry out works under s.165 of the WRA 1991. When these were opposed the EA applied to Chelmsford Magistrates’ Court for a warrant under Schedule 20 to the WRA 1991.

Decision of the Court of Appeal and judgments below

The primary issue which arose at each stage of the litigation (magistrates, High Court on judicial review of failure to state case, and Court of Appeal) was whether the EA was entitled to rely on their powers under s.165 and s.172 in a context where compulsory purchase powers could also be relied upon.

This submission founded on ss. 165(6) which purported to restrict the scope of s.165 by providing that “Nothing in subsections (1) to (3) above authorises any person to enter on the land or any person except for the purpose of maintaining existing works”. The Sharps argued that the effect of s.165(6) must be to remove the power to enter land for the purpose of constructing new works and, that power having been removed from s.165, it could not be replaced by the general s.172 as this would render s.165(6) otiose. The Sharps also argued before the magistrates and High Court that the EA had not established that there were no reasonable grounds for granting the warrant.

The Sharps lost at each stage. In the Court of Appeal, Gross LJ concluded that the statutory language was such that he had no real hesitation in concluding that the EA did in fact have the wide statutory powers which they argued for and was entitled to exercise powers of entry under s.172 in preference to s.154 or s.168 when seeking to enter onto land for the purpose of carrying out new works.

Comment

This provides useful clarification to a confusing legislative scheme but two further points are also worth drawing out which may be of particular relevance to future cases.

  • First, it is worth noting the EA’s concession (following comment by Haddon-Cave J in the High Court) that the correct basis for compensation in a case such as this was pursuant to Schedule 21 to the WRA 1991. This was a point which had previously given rise to some uncertainty and the clarification will make it easier for advisers to anticipate the heads of compensation which may be realised.

  • Second, and perhaps most interestingly, Gross LJ expressed concern with the result of the case. At paragraph 32 he acknowledged that: 

    Moreover, questions of policy could be invoked to lend support to this argument. It is one thing to enter onto private land for the purpose of maintaining existing works; it is quite another to do so for the purpose (inter alia) of constructing new works, without the safeguards contained in the CPO and CWO regimes – and moreover leaving open questions of some nicety as to the structures subsequently left on the landowners’ land. Still further, I would not, for my part, be dismissive of the concern highlighted by Mr Edward’s submissions as to the tension between individual rights of property and the interests of society in general; striking the right balance in that area is important and not necessarily straightforward. Interference with private rights of property plainly requires careful justification.” 

  • He then went on to raise the problem that “the formalities attached to such notice provisions as are contained in section 172 are hardly onerous and thus provide but a weak foundation for the suggested purpose underlying section 165(6)”, before concluding that the statutory language was sufficiently clear to permit no other interpretation. 

In the author’s view, Gross LJ’s concern as to the weakness of the procedural steps and his allusion to tensions created by the existence of an equally extensive but less safeguarded set of powers alongside the CPO and CWO regimes is worth noting. The statutory regime may be (tolerably) clear but it is surprising that the EA is able to circumvent important procedural protections in this way and the unease of the Court of Appeal points to the difficulties which might have arisen for the EA in a less straightforward case on the merits; and perhaps even to the possibility that use of s.172 in this way might give rise to issues under Article 8 or Article 1 of the First Protocol to the European Convention on Human Rights.

Of course, whether we will see any further litigation on this theme depends substantially on the approach which the EA takes and particularly whether it tries to exploit this feature of the WRA 1991, which it may do with an eye to both the costs and risks associated with more onerous compulsory regimes. If it does, then we may well see landowners seeking to judicial review magistrates’ decisions if, as seems likely, they feel that their concerns have not been given sufficient airing at first instance and particularly if they can make a good case that the interference with their property rights (and/or homes) is not proportionate to the public interest which the EA seeks to protect.