The House of Lords dismissed an appeal by the Nature Conservancy Council from the Queen's Bench Divisional Court's decision quashing the water authority's convictions under section 28(7) of the 1981 Act.
Section 28(5) provides: 'The owner or occupier of any land which has been notified . . . shall not . . . carry out, or cause or permit to be carried out, on that land any operation specified in the notification . . .'
In 1982, the council notified an area of land, including land known as Hill Heath ditch, in the Isle of Wight as a Site of Special Scientific Interest under section 28. The two farmers who owned land on either side of the ditch and the water authority, which owned land elsewhere on the site, were notified. The notification annexed a list of operations likely to damage flora or fauna.
After notification it is an offence for the owner or occupier of any of that land to carry out any of those operations unless the council consented or the owner or occupier had given written notice of the proposed operation and four months had elapsed since he did so.
In 1987, the farmers asked the water authority to dredge the ditch to mitigate flooding. Discussions took place between the council and the water authority but the council was not given written notice of the proposal.
On 5 January 1989, the water authority entered the ditch and remained there continuously until 1 February, making use of a heavy hydraulic excavator to enlarge and reshape the ditch. The operation fell within the scope of the notification. Grave damage was caused to the natural features of the ditch which the notification had been designed to protect.
Faced with that act of ecological vandalism, the council decided to prosecute the water authority under section 28. It was considered inexpedient to prosecute the farmers. The water authority argued that it had no case to answer on the ground that it was not and had never been the owners of occupiers of the ditch and therefore fell outside the scope of section 28. The Isle of Wight justices rejected that argument, convicted the authority and imposed heavy fines.
On appeal, the Divisional Court quashed the convictions.
Nigel Pleming QC (Treasury Solicitor) for the council; Richard Camden Pratt (solicitor, National Rivers Authority, Southern region) for the water authority.
LORD MUSTILL said that the regime by which land designated by the council under section 28 as a Site of Special Scientific Interest by reason of their flora, fauna or geological or physiological interest was protected from operations which were likely to damage their flora etc, was toothless. The owner or occupier was within months free to disregard the notification. The Act did no more than give the council a breathing space within which to apply moral pressure, with a view to persuading the owner or occupier to make a voluntary agreement.
The present appeal disclosed that the statutory scheme was flawed in another respect. The first issue was whether during the few weeks when the water authority was carrying out the proscribed works in the ditch it was for the time being the occupier of it. The council argued that those who had no connection with the land until the proscribed operations commenced, and whose occupation was created only by the fact that they were the persons who carried out those operations were occupiers. That argument could not be accepted.
Section 28 contemplated that the elaborate machinery of notices, waiting periods and so forth would be set in motion by a notification under section 28 to an owner or occupier. The juxtoposition with 'owner' showed that the occupier was someone who, although lacking the title of an owner, nevertheless stood in such a comprehensive and stable relationship with the land as to be, in company with the actual owner, someone to whom the mechanism could sensibly be made to apply. A stranger who entered the land for a few weeks solely to do some work on it did not fall into that category.
Even if it were possible to force on the statute the interpretation advanced by the council, it would be insufficient to penalise the 'fly- tipper', a notorious threat to the countryside, whose methods involved a hasty and furtive dumping of rubbish in circumstances which could not make him an occupier.
The council also argued that the water authority was prohibited from working in the ditch by the mere coincidence that it happened to be owner of another portion of the site, and had in that capacity been addressees of the notification. That argument seemed untenable.
Just as the notification was sent to the current owner of a part of the land in his character as owner of that part, so also was the prohibition imposed on the person who at the time when the operations on part of the land were performed was the owner of that part. The accidental feature that the person who came to one part of the land to perform proscribed operations was himself the owner of a different part could not make him the owner of 'that land' for the purposes of section 28(5).
Section 28 did not permit recourse against persons whose only connection with the part of the land in question was that they had entered on it to perform a proscribed operation.
LORD TEMPLEMAN, LORD GOFF, LORD JAUNCEY and LORD LOWRY agreed.
Ying Hui Tan, Barrister