Law Report: Water authority not liable for ecological vandalism: Southern Water Authority v Nature Conservancy Council - House of Lords (Lord Templeman, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lowry and Lord Mustill), 16 July 1992

A person who performed a proscribed operation on land in a Site of Special Scientific Interest was not thereby the occupier of the land who could be prosecuted under section 28 of the Wildlife and Countryside Act 1981.

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

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Bookkeeper / Office Co-ordinator

£9 per hour: Recruitment Genius: This role is based within a small family run ...

Recruitment Genius: Designer - Print & Digital

£28000 - £32000 per annum: Recruitment Genius: This Design and marketing agenc...

Recruitment Genius: Quantity Surveyor

£46000 per annum: Recruitment Genius: This property investment firm are lookin...

Recruitment Genius: Telesales / Telemarketing Executive - OTE £30k / £35k plus

£18000 - £35000 per annum: Recruitment Genius: This company specialises provid...

Day In a Page

War with Isis: Fears that the looming battle for Mosul will unleash 'a million refugees'

The battle for Mosul will unleash 'a million refugees'

Aid agencies prepare for vast exodus following planned Iraqi offensive against the Isis-held city, reports Patrick Cockburn
Yvette Cooper: We can't lose the election. There's too much on the line

Yvette Cooper: We can't lose the election. There's too much on the line

The shadow Home Secretary on fighting radical Islam, protecting children, and why anyone in Labour who's thinking beyond May must 'sort themselves out'
A bad week for the Greens: Leader Natalie Bennett's 'car crash' radio interview is followed by Brighton council's failure to set a budget due to infighting

It's not easy being Green

After a bad week in which its leader had a public meltdown and its only city council couldn't agree on a budget vote, what next for the alternative party? It's over to Caroline Lucas to find out
Gorillas nearly missed: BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter

Gorillas nearly missed

BBC producers didn't want to broadcast Sir David Attenborough's famed Rwandan encounter
Downton Abbey effect sees impoverished Italian nobles inspired to open their doors to paying guests for up to €650 a night

The Downton Abbey effect

Impoverished Italian nobles are opening their doors to paying guests, inspired by the TV drama
China's wild panda numbers have increased by 17% since 2003, new census reveals

China's wild panda numbers on the up

New census reveals 17% since 2003
Barbara Woodward: Britain's first female ambassador to China intends to forge strong links with the growing economic superpower

Our woman in Beijing builds a new relationship

Britain's first female ambassador to China intends to forge strong links with growing economic power
Courage is rare. True humility is even rarer. But the only British soldier to be awarded the Victoria Cross in Afghanistan has both

Courage is rare. True humility is even rarer

Beware of imitations, but the words of the soldier awarded the Victoria Cross were the real thing, says DJ Taylor
Alexander McQueen: The catwalk was a stage for the designer's astonishing and troubling vision

Alexander McQueen's astonishing vision

Ahead of a major retrospective, Alexander Fury talks to the collaborators who helped create the late designer's notorious spectacle
New BBC series savours half a century of food in Britain, from Vesta curries to nouvelle cuisine

Dinner through the decades

A new BBC series challenged Brandon Robshaw and his family to eat their way from the 1950s to the 1990s
Philippa Perry interview: The psychotherapist on McDonald's, fancy specs and meeting Grayson Perry on an evening course

Philippa Perry interview

The psychotherapist on McDonald's, fancy specs and meeting Grayson Perry on an evening course
Bill Granger recipes: Our chef recreates the exoticism of the Indonesian stir-fry

Bill Granger's Indonesian stir-fry recipes

Our chef was inspired by the south-east Asian cuisine he encountered as a teenager
Chelsea vs Tottenham: Harry Kane was at Wembley to see Spurs beat the Blues and win the Capital One Cup - now he's their great hope

Harry Kane interview

The striker was at Wembley to see Spurs beat the Blues and win the Capital One Cup - now he's their great hope
The Last Word: For the good of the game: why on earth don’t we leave Fifa?

Michael Calvin's Last Word

For the good of the game: why on earth don’t we leave Fifa?
HIV pill: Scientists hail discovery of 'game-changer' that cuts the risk of infection among gay men by 86%

Scientists hail daily pill that protects against HIV infection

Breakthrough in battle against global scourge – but will the NHS pay for it?