High Court: Water undertaker did not breach any legitimate expectation in efforts to repair broken pipe

The High Court has dismissed a claim for judicial review of a notice of entry served by Essex & Suffolk Water (“ESW”) on the owner of one of the largest cattle farms in England: R (Gary Sharp and another) v Northumbrian Water Ltd (t/a Essex & Suffolk Water)[2020] EWHC 84 (Admin). Section 159 of the Water Industry Act 1991 grants statutory water undertakers, such as ESW, the power to repair broken water pipes. An undertaker may “enter any premises” to exercise this power (s. 168(1), (2)(b), (5)), provided 7 days’ notice of the intended entry is given to the occupier (save in an emergency): Schedule 6, para. 6(1), (2)(b). In this case, the claimant challenged the notice of entry that ESW had served on him in order to fix a burst water main on his cattle farm. The claimant submitted that the extensive correspondence between him and ESW about the burst main, predating the notice of entry, had generated a legitimate expectation on his part that ESW would not enter his land before both parties had agreed on a “method of working” that “minimised disruption” to his livestock. Mr Roger ter Haar QC, sitting as a Deputy High Court Judge, dismissed the claim. The judge agreed with ESW that its references in correspondence to “minimising disruption” were “no more than a statement of what ESW hoped to achieve, and does not amount to a legitimate expectation enforceable in public law” [53]. Moreover: “55. […] at no time did ESW fetter its powers by leading the Claimants to expect that it would agree an appropriate method of working with the Claimants. What it did, entirely reasonably, was to attempt to reach agreement in the light of an ever lengthening list of difficulties being raised. The final straw appears to have been when the Claimants appeared to be taking the position that they would not permit ESW onto their land until compensation had been agreed.” The judge also rejected the claimant’s submission that the notice of entry breached his right under Article 1 of the First Protocol to the ECHR (“A1P1”) to the peaceful enjoyment of his possessions because it was predicated on a method statement that would not ensure “as little disruption… as possible”. The judge agreed with ESW that there was no test of ‘strict necessity’ under A1P1, only a requirement for a fair balance in the form of “a reasonable relationship of proportionality between the means employed and the aims pursued”: see National & Provincial Building Society v UK (1997) 25 EHRR 127. The judge was satisfied that there was no breach of A1P1 on the facts. Gwion Lewis appeared for the successful defendant, Essex & Suffolk Water.

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