Moase & Anor v Secretary Of State For The Environment, Transport and The Regions & Anor [2000] EWCA Civ 193 (16 June 2000)

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Case No: QBCOF/1999/1140C; FC3 2000/5551/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(CROWN OFFICE AND DIVISIONAL COURT)
(Mr Justice Owen )
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 16 June 2000

...
Notes
...
2. Samples must be taken in relation to this parameter when there are grounds for suspecting that there has been a deterioration in the quality of the waters or the substance is likely to be present in the waters."
On 3 May 1992, the Secretary of State applied the designation BWI to the bathing waters at Westward Ho! and the nearby beach of Instow. He did not apply this classification to Northam or Abbotsham (which is the shore next to the waters into which the Cornborough outfall would discharge). On the same date, the Secretary of State directed the National Rivers Authority, now the Environment Agency ("EA"), to sample and test water in accordance with the BW regulations.
In 1994, the Urban Waste Water Treatment Directive (91/271/EEC) was implemented in England and Wales by the Urban Waste Water Treatment (England and Wales) Regulations 1994 "the UWWT Regulations"). They impose an obligation to provide secondary treatment for discharges from an agglomeration of more than 15,000 people (such as Northam) by 31 December 2000 (or such later date as the European Commission might agree). This means that if the Northam 4.5km outfall were pursued there would necessarily have to be secondary treatment of the discharge. UWWT Regulation 6(1) requires that a discharge from an urban waste water treatment plant for a population the size of Northam should satisfy the relevant requirements of Schedule 3, part 1. These include:-
"5. The points of discharge of urban waste water shall be chosen, as far as possible, so as to minimise the effect on receiving waters"

Reference below to the Directives are to the Bathing Water Directive and the UWWT Directive.
Consent of the Environment Agency
The consent of the EA is required to any sewerage discharge into the sea (see Water Resources Act 1991, Part III). On 11 November 1996, the EA gave its consent to the proposed discharge at Cornborough (specifying the precise National Grid Reference). No judicial challenge has been made to the consent.
The EA's policy on discharges was published after the date of the consent in July 1997. It starts by explaining that previous guidance had focused on the achievement of the mandatory standards in relation to faecal coliforms and total coliforms and not specifically addressed the achievement of the enterovirus standard. It added:-
"substantial reductions in enteroviruses could be assumed as a consequence of achieving the mandatory bacterial standard."
It is possible that the policy was issued with this opening explanation in response to an observation made by Harrison J in R v. National Rivers Authority, ex parte Moreton [1996] Env LR 234,245 that on the evidence before him in that case (in which the United Kingdom Government was not represented) "it would appear that they [the UK Government] are not implementing the mandatory virus standard as required by the Directive".
The Policy continued (in material part):-
" Bacteria and enteroviruses respond differently to different methods and types of treatment. In particular, Secondary Treatment is considered to be about 10 times more effective in reducing the numbers of bacteria than it is in reducing the numbers of enteroviruses.
There is an absence of adequate information relating to the fate of potentially pathogenic organisms released into the environment. In addition there is considerable variability in the quantities of potentially pathogenic organisms found in sewage. As regards parameters specified in the Bathing Waters Directive, there are uncertainties about the prevalence and variability of enteroviruses and salmonella in sewage, the impact of treatment on their numbers, and on their persistence in the sea. Whilst this lack of knowledge may be rectified through R&D, it is currently difficult to design schemes to meet enterovirus standards directly, and impossible to design schemes that will ensure with absolute certainty that the enterovirus and salmonella standards will be met in all cases.
A discharge which is remote from the Bathing Water is preferred by the Agency to one made direct to or close to the Bathing Water. Wherever a discharge is located, the needs of the environment and the users of that location will be fully considered. A remote location for the discharge can be expected to minimise the numbers of sewage derived micro-organisms in Bathing Water, including those that are potentially pathogenic. The closer the outfall, the greater the risk of contamination of the Bathing Water if the treatment technique fails.
...
DISCHARGE CONSENTING POLICY FOR BATHING WATERS SCHEMES
In this section key policy statements are in BOLD, and explanatory text is in normal type.
1. The fundamental assumption for the basis of this policy is that for a preliminary treated effluent discharged through a long sea outfall, achieving the Mandatory faecal coliform Standard of 2000 per 100ml in 95% of samples at the Bathing Water provides adequate dilution and dispersion of potentially pathogenic organisms as indicated by enterovirus and salmonellae. Pending the successful completion of R&D, this assumption provides the basis for the policy now proposed for schemes involving a combination of land based treatment and shorter outfalls.
...
3. For Primary, secondary or disinfection schemes the discharger must demonstrate, in the consent application, that the expected degree of protection of the Bathing Water will be at least equivalent to that gained by locating the discharge at the point required if only Preliminary Treatment were given in order to meet the bacterial Mandatory Standards ...
...
5. Schemes using Secondary Treatment and an outfall shorter than would be required with Primary Treatment will be subject to the following considerations. The Agency believes that Secondary Treatment is about 10 times more efficient in reducing the concentrations of bacteria than in reducing concentrations of enteroviruses. As a precaution, the Agency will assume that this difference is bigger than the difference in the rate of degradation of viruses and bacteria in the sea - a factor that is particularly relevant in the performance of long outfalls.
Therefore, in order to aim to achieve equivalence to a long sea outfall, and as a precaution in the face of limited scientific knowledge, the Agency will require the discharger to demonstrate in the application for Consent that a Secondary Treatment scheme is expected to deliver compliance with the Mandatory Standards and Guideline Standards for faecal coliforms and total coliforms in all Bathing Seasons.
6. The existing policy for disinfected discharges continues, (see the Consents Manual, Chapter 7). This requires demonstration that schemes providing disinfection, not only ensure achievement of the mandatory standards for faecal and total coliforms but also give equivalent protection to that provided by a remote disposal scheme. In this context the reduction factor for target organisms, (including enteroviruses and salmonellae,) achieved through the siting and design of a discharge, together with on-land treatment (including disinfection) should amount in total to at least 25,000.
...
10. The Environment Agency does not consider that any significant improvements in achievement of Mandatory Standards could currently be achieved by imposing more stringent requirements on dischargers. ..."
There was correspondence between the EA and Mr L J Dunn, one of the objectors to the Cornborough STW, before the inquiry took place. In this correspondence, the EA accepted that no amount of UV treatment would remove all pathogens from the discharge. It added:-
"The objective is to reduce the concentrations in accordance with our policy, which is that the protection against pathogenic organisms offered by the short sea outfall/UV combination should be at least equivalent to the protection which would have been afforded by a remote disposal scheme. The consent standards applied at Cornborough will ensure this objective is met."
(letter 10 June 1997)
In answer to concerns expressed by Mr Dunn about bathing at Abbotsham, the EA expressed the view that, since if the Cornborough STW were constructed an existing crude discharge by means of a short sea outfall at Rock Nose between Abbotsham and Northam would cease, water quality at Abbotsham would improve. The EA made it clear that its role was to assess proposals made by SW Water not to direct SW Water to a particular option. These points were also made in a letter dated 11 August 1997.
We are told that earlier this year the EA varied the terms of the discharge consent in one respect. Formerly UV treatment was required only between May and September but the discharge consent as varied now requires the discharge to receive UV treatment throughout the year.
In December 1994, SWWS produced an Environmental Assessment Statement for the Cornborough STW. This made no reference to the mandatory enterovirus standard. Nor did it consider whether the point of discharge from the Northam option would have less effect on the receiving waters.
The Inquiry
In November, 1997, the Inspector held a Public Inquiry in to the application by SW Water for confirmation of the compulsory purchase order. As stated in paragraph 3 of the Inspector's Report, referred to below as the "I.R.", the main grounds of objection were "concerned with the harmful effects of the proposed sewage treatment works, especially in terms of pollution of bathing waters and damage to the natural beauty of the area; and with alternatives which the objectors considered to be less harmful and less costly." The objectors supported the building of the plant near Northam. The key features of that scheme were that it involved a long sea outfall of some 4.5 km. It did not involve treatment with UV.
The principal witnes for SW Water was Mr. R.H. Prentice, Project Manager for SWWS. SWWS supported the building of the treatment plant at Cornborough. Previously they had been in favour of the Northam Scheme as had the Environment Agency, but planning consent had been refused more than once. The change of mind of SWWL may have been partly cost driven in that while they were hoping to build Northam, legislation did not require secondary treatment of sewage. Once that changed SWWL's case was that Cornborough became more cost effective despite the fact that UV would be necessary at Cornborough in order to add further treatment to the effluent. It was not part of anyone's case that UV would be necessary if the Northam Scheme were adopted.
There was a lengthy witness statement by Mr. Prentice. His evidence disclosed, amongst other matters, that less than half of the discharge would receive UV treatment at peak flows. The EA did not give evidence at the inquiry.
The material parts of the I.R. report are as follows:

"CONCLUSIONS
(Note: references in superscript brackets relates to preceding paragraphs in my report)
Legal submissions
....
Main considerations
144. The need for a comprehensive sewage treatment scheme to serve the southern Taw-Torridge area is not disputed, and on the basis of the Authority's submissions I accept the strength of that need^[37-43]. The Cornborough proposals constitute a key element of the scheme^[18].
145. I am also conscious that the Cornborough proposals are explicitly envisaged in policy H12 of the adopted Local Plan and its reasoned justification, albeit without the support of a specific allocation of land^[24]. Moreover they are the subject of a resolution by the relevant planning authority to grant planning permission on terms that would appear capable of being met should the Compulsory Purchase Order be confirmed^[27,56].
146. These are all matters to which I attach considerable weight. In view of the objections to the Order I believe that the main consideration is whether this momentum is outweighed by both the shortcomings of the Cornborough proposals, and the existence of opportunities to make more economical and environmentally acceptable alternative provision for sewage treatment in Northam in conjunction with a long sea outfall.
147. In considering the alternatives I concentrate on the 2 Northam sites suggested by the objectors ....
The Cornborough scheme: effect on bathing waters
148. Abbotsham beach is a significant resource for various kinds of recreation. Some activities, notably bathing and surfing, involve contact with sea water. At times they are likely to be close to the locations of the proposed diffusers. The discharge from diffusers would be several times greater than the present discharge into the Bay at Rock Nose^{[89, 91, 92]}.
149. In view of the proximity, degree of dilution and probable movement of the discharged effluent in certain wind and tide conditions it is understandable that there is concern about the implications for human health at Abbotsham and other nearby beaches; and not least the very popular beach and designated bathing water at Westward Ho! Apart from the effect on local recreation users, account should be taken of the effect on visitors and local tourism-dependent businesses of increased pollution of the natural resources upon which they depend^{[89-93, 99, 102]}.
150. On the other hand the Environment Agency has granted consent for the proposed discharge, having concluded that it would not only meet the mandatory standards but also the Agency's guideline standards. From the Environment Agency letters there is clearly an expectation that water quality conditions for bathers, surfers and others at Abbotsham beach would be improved as a result of the Cornborough scheme, owing to the high level of treatment and to the cessation of the continuous crude discharge at Rock Nose^{[46, 47,
101]}.
151. It is generally accepted that UV treatment is not capable of removing all micro-organisms from sewage effluent. In particular, viruses can survive and be caught during participation in water contact sports. Some can be harmful to health. There is very little information on their comparative incidence in the proposed discharge and the existing Rock Nose discharge. They are difficult to count and there is a shortage of knowledge about their behaviour, their length of survival in seawater, and fully effective means of dealing with them^{[52, 98-100]}.
152. Nevertheless I conclude from the Environment Agency documents that the proposed UV treatment would reduce micro-organism (including virus) concentrations to acceptable levels. Considering the whole range of pathogenic organisms and other noxious substances there is no convincing evidence that there would be any greater risk to human health in any bathing water as a result of the Cornborough scheme^[45-48].
153. Clearly there are risks associated with the unpredictability of viruses and the possibility of process failure or abnormal conditions^[96]. However, the Environment Agency's policy for consents for sewage effluent discharges affecting bathing waters does incorporate a precautionary approach, resulting in consented schemes often exceeding minimum design requirements^[46-48]. In this case there are few details of the degree of risk involved but I have no cause to doubt that it has not been adequately taken into account by both the Authority and the Environment Agency.
154. It may well be the case that discharge standards for viruses are tightened at some stage in the future but in this event, and bearing in mind the current research and development on the subject, I have no good reason to suppose that the proposed treatment plant and processes could not be modified or extended to meet such standards^{[95, 130]}.
155. The Environment Agency's policy is dated some months after the discharge consent^[95]. It does not follow from this that the discharge consent would fail to meet present policy requirements. Correspondence from the Agency provides some assurance that the consent is consistent with the policy^[50]. No conflict with the policy was demonstrated at the inquiry. Nor was the policy itself found to be deficient in terms of the prevailing legislation.
156. Conditions in the estuary are unlikely to be the same and so I would not necessarily expect the proposed discharge at Cornborough to meet the initial dilution requirements of the 1991 Estuary Management Plan^[98].
157. I am satisfied from other correspondence between the Agency and the objectors that the implications of the possible mixing of the Cornborough discharge with the storm discharge from Rock Nose have been adequately taken into consideration^[45]. I do not give much weight to experiences in Jersey or other localities since it is not clear that local conditions are sufficiently comparable^[98].
158. The objectors are critical of the discharge consent requirement for suspended solids. Having studied their argument and evidence it is by no means clear to me that the requirement falls short of the necessary standard to ensure the efficacy of the specified UV treatment^{[51, 97]}.
159. It is understandable that some objectors, including surfers and others involved in water-contact recreation outside the summer period, should be concerned about the seasonal limitation of the UV treatment^{[52, 100,
139]}. The discharge consent does require some monitoring of enteroviruses^[47] and it appears that this condition, as with others, is capable of adjustment if at some stage it were found wanting^[95]. This matter is not so fundamental as to materially affect the balance of considerations for the Cornborough scheme as a whole.
160. The Environment Agency's preference for a long sea outfalls does not mean that one should be provided in this case, or even that it would be significantly more effective in dealing with the sewage effluent. Much would depend on comparative levels of treatment. The Agency maintains that the Cornborough discharge consent affords at least the same degree of protection for bathing waters, and it is clear from its policy statement that it would not seek to promote expenditure that is disproportionate to the expected degree of improvement^{[48, 49]}. A long sea outfall at Cornborough would be a substantial additional expense^{[49, 69. 122]}.
161. Similarly, in relation to the 1972 inquiry I do not take the Inspector's findings to be inimical to the present Cornborough scheme: both the nature of the scheme and the circumstances are quite different to those that pertained in 1972^{[62-64, 132]}.
162. In considering the effect on bathing waters it should not be forgotten that the scheme would end the continuous crude discharges into the estuary^{[18, 38]}. This would improve the water quality of a sensitive and well used area and would be an important step towards the achievement of the pressing objective of complying with the required standard for Instow bathing water. It would also be beneficial for the area's tourism industry^{[38-43, 89]}.
163. In conclusion, the case against the Cornborough scheme on the grounds that it would be harmful to, or provide insufficient protection of, the quality of bathing waters has not been substantiated.
...
The Northam options: environmental merits
...
190. In considering the present and foreseeable future situation it may well be that a long sea outfall is the most effective means of protecting bathing waters against the harmful effects of pathogenic organisms, and especially those that cannot be wholly removed from waste water by current treatment methods. However, I conclude that this is not a good enough reason to reject the Cornborough scheme, which I find to be acceptable in terms of present knowledge and standards^[123].
191. It is not clear exactly how effluent standards will change in future; nor is it clear how far research and development will affect the future ability of treatment processes to adequately disinfect discharges from short sea outfall, Certainly I find no good indication that the Cornborough scheme would prove inadequate to meet future standards or that it would be unduly lacking in terms of adaptability. It might be difficult and very costly to lengthen the outfall once constructed, but there would be opportunities to alter and upgrade treatment processes to meet future discharge requirements. I therefore give limited weight to the perceived advantage that the Northam options, with their greater scope for increasing treatment levels, would be superior in terms of meeting future standards^[130].
192. Before leaving the subject of the long sea outfall I must also record that there is very little evidence to address the concern of the Devon Sea Fisheries Committee about the Northam option: the extent to which they would harm fishing interests remains a further area of uncertainty^[70].
...
Overall conclusions
206. The case against the Cornborough scheme on the grounds that it would be harmful to, or provide insufficient protection of, bathing waters has not been substantiated.
...
210. The Northam options would not offer a clear-cut cost advantage. Although they appear to offer more energy-efficient solutions, it has not been shown that they provide an overall balance of advantage in environmental terms.
211. There can be little confidence that any alternative to Cornborough is capable of expeditious implementation.
212. On the evidence available the Order lands are the most suitable for the purpose: the shortcomings of the proposals and any advantages of alternative schemes are not sufficient to outweigh the benefits of the Cornborough scheme.
213. I conclude that the Order meets the statutory requirements and that there is a compelling case in the public interest for its confirmation."

Accordingly unlike the environmental study in 1992, the Inspector concluded in favour of the Cornborough option.
It is common ground that, as the IR (paragraph 160) indicates, if a long sea outfall is required it would not be cost-effective to locate it at Cornborough because the subsurface of the sea is unsuitable.
Confirmation of the CPO by the Secretary of State
The Secretary of State considered the IR and the evidence presented to the inquiry. He decided to confirm the CPO which he did by letter dated 20 May 1998.
Abbotsham
As stated above, the waters at Abbotsham have not received classification BWI. In addition it is clear that the mandatory enterovirus standard will not be met at Abbotsham. Indeed, in a letter dated 1 July 1996 to Mr P G Scott, one of the objectors to the Cornborough STW scheme, the EA stated:-
"8. Risk to bathers and surfers at the outfall point.
Any persons bathing close to the outfall point may be bathing in waters that do not comply with the requirements of the EC Bathing Waters Directive. As these waters are not recognised as EC Bathing Waters, they are not protected by that Directive."
This point is material because one of the appellants' submissions is that the waters at Abbotsham are or are likely to be "bathing waters" for the purposes of the Bathing Waters Directive and this forms one of the grounds for their challenge to the CPO.
According to the Hartland Heritage Coast draft Management Strategy, which was produced to the Inspector, Abbotsham is one of the main tourist attractions of the area and has a surfing beach. The Inspector also received a written representation from Mr C Hockin of Abbotsham and a member of the Westward Surf Club. In his representation Mr Hockin said that the discharge point for the Cornborough outfall:-
"... is the exact location of the best and one of the only surf breakers that is surfable on this part of the rocky coastline. Due to the high quality of this wave, it is surfed all the year round, particularly in the winter when it is at its best. Because of the quality of this breaker not only do Westward Surf Club surf there, but it also attracts surfers from all over the South West."
The objectors at the inquiry contended that the beach at Abbotsham was also used for swimming, fishing and prawning. There is, however, no finding on this by the Inspector. The ordnance survey map shows the coastline at Abbotsham to be rocky. There is no access to the beach by road. The nearest road stops a short distance away, and thereafter it is necessary to walk. There are no facilities for users of the beach at Abbotsham.
In connection with the interpretation of Article 1.2 of the Bathing Waters Directive, the European Commission gave the following written answer in the European Parliament on 10 September 1985:-
"The Commission is aware that the interpretation of the notion in Article 1 paragraph 2 second alternative of Directive 76/160/EEC, which qualifies a water as bathing water in which bathing is not prohibited and is traditionally practised by a large number of bathers is not easily practicable. The Commission believes that in order to interpret this notion, the requirement of a specific number of bathers can only be one criterion among others. Indeed the number of bathers varies according to the season, the weather, school holidays, working days and so on. Thus the number of bathers counted on a specific day cannot in itself determine the bathing water quality for a specific water. Rather some objective criteria will also have to be taken into account. Such objective criteria are amongst others:
(1) facilities of access to the beach
(2) sanitary equipment
(3) facilities for changing
(4) parking space for cars
(5) life-guards on the beach
(6) first-aid service
(7) kiosks and shops (mobile shops)
(8) Availability of water sport facilities
(boats, surfing, swimming lessons)
Indeed, such measures of infrastructure demonstrate action of local, regional or national administration in order to promote bathing. Therefore the presence of such measures of infrastructure proves that the authorities felt induced by the great number of bathers to provide for measures to ensure safe bathing, safe access to the beach and to the waters and amenities to further increase the number of bathers.
Furthermore, it is not known why persons who are on a beach abstain from bathing; they might do so in some cases also because the water is too polluted. For these reasons the Commission is of the opinion that all circumstances regarding the individual water have to be taken into consideration when assessing whether a specific water qualifies as bathing water under the second alternative of Directive 76/160/EEC Article 1 paragraph 2."
(OJ Annex 2-239 Debates 1985/86, reports of proceedings 9-13 September 1985).
The criteria set out in this written answer are called "the Prag criteria". A further written answer was given by the European Commission to Mr Madron Seligman on this subject on 21 June 1990 (OJ No.C303, 1990, Item 102 (90/C 303/102):
"Where bathing waters are also used for recreational sports other than bathing are not included within the scope of the Directive. Their inclusion would require modification of the Directive by unanimous decision of the Council.
At the moment, the Commission has no plans to make a proposal to modify the bathing water Directive or to propose a new directive to regulate this kind of situation."
New evidence becoming available after the inquiry
Shortly before the hearing before Owen J, the appellant discovered that samples of bathing water near a sewerage treatment works at Criccieth had been collected by Welsh Water. They showed that on two occasions in the 1998 bathing season there had been in excess of 25,000 plaque forming units of enteroviruses per 10 litres (PFU/10) of crude effluent received at the Criccieth STW. There are no figures for the number of PFU/10 following treatment, discharge and dispersion, i.e. in nearby bathing waters. Owen J rejected this evidence on the grounds that the results had not been considered or analysed by the Secretary of State or Welsh Water. Before this court, a further application to admit fresh evidence was made. This new evidence consists of a review carried out by Hyder Environmental on behalf of UK Water Industry Research Ltd ("UKWIR"), the EA and the Department of the Environment, Transport and the Regions ("DETR"). The review was not prepared for use in these proceedings but is the analysis of research into enteroviruses in connection with the BW Directive. This research was sponsored by DETR, EA and the water companies, The report contains an analysis of samples provided by a small number of UK water companies. The report also contains a literature review. This shows that there is published literature showing a range of 0-145,000 pfu/litre of enteroviruses in raw sewage in the UK in the period 1983 to 1998. From this the appellants argue that the EA's policy cannot guarantee compliance with the mandatory enterovirus standard in the BW Directive.
There is no evidence from the respondents in response to this report but we have been shown a note prepared by the EA. This takes the geometric mean concentration of enteroviruses in raw sewage on the basis of the water companies' samples. It seeks to show that in the case of 95% of the samples, the concentration was 20,000 pfu per 10 litres. On this basis the EA states that its policy would result in a far greater reduction in enteroviruses than the BW Directive requires, even without the further reduction that is due to such matters as tidal conditions. The EA accordingly does not consider that the results of the research to date call for any review of its policy on enteroviruses.
Legislative framework
The compulsory purchase order in the present case was authorised under section 155(1) of the Water Industry Act 1991:-
"A relevant undertaker may be authorised by the Secretary of State to purchase compulsorily any land anywhere in England and Wales which is required by the undertaker for the purposes of, or in connection with, the carrying out of its functions."
SW Water's functions include a duty to provide a sewerage system (Water Industry Act 1991, section 94).
The present application is made under section 23 of the 1981 Act:-
"(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, he may make an application to the High Court.
(2) If any person aggrieved by --
(a) a compulsory order
(b) ...
desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order ... he may make an application to the High Court.
(3) In subsection (2) above, `relevant requirement' means --
(a) any requirement of this Act, or of any regulation under section 7(2) above ..."
Section 24 of the 1981 Act provides:
"(2) If on the application the Court is satisfied --
(a) the authorisation granted by the compulsory purchase order is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of this Act, or
(b) the interest of the Applicant have been substantial prejudiced by any relevant requirement (as defined in section 23(3) above) not having been complied with,
the Court may quash the compulsory purchase order."

The Inspector was appointed under section 13(2) of the 1981 Act to hold a public local inquiry into the objections raised by the appellants:-
"If any objection duly made as aforesaid is not withdrawn, the confirming authority shall, before confirming the order, either cause a public local inquiry to be held or afford to any person by whom any objection has been duly made as aforesaid and not withdrawn an opportunity of appearing before and being heard by a person appointed by the confirming authority for the purpose ..."
Judgment of Owen J
In his judgment, given on 30 September 1999, Owen J rejected the appellants' application to quash the Secretary of State's decision to approve the CPO. As we explain below he also rejected the appellants' application for the admission of fresh evidence. Owen J held that the waters at Abbotsham and Cornborough were not "bathing waters" for the purposes of the BW Directive. He held that the inspector was satisfied that the terms of the EA's consent would ensure that the mandatory enterovirus standard would be met. He records that prior to the hearing before him the objectors had not taken the point that the policy was deficient in terms of the prevailing legislation, and held that it was too late for such a challenge to be made. Owen J pointed out that this did not mean that there was no obligation on SW Water and the EA to ensure compliance with the Directives.
As respects the Secretary of State, Owen J held that he could not confirm a CPO unless he was satisfied that there was sufficient justification on the merits for the product for which the CPO was made (R v Secretary of State for the Environment ex parte de Rothschild [1989] 1 AER 933). He further accepted that the Secretary of State could not properly so conclude if the CPO would create a project which would be incompatible with the achievement of an EC Directive. The Secretary of State could however rely on the consent of the EA and did not have to investigate afresh the matters assigned to the EA, unless the EA was clearly wrong or there was a reasonable suspicion that the EA was wrong. This was one of the reasons which the judge then gave for rejecting the argument that the court had to strike down the CPO because it was inconsistent with EC law. However, at a later stage in his judgment the judge accepted that if there would be an irremediable breach of EC law as a result of confirmation of the CPO, the Secretary of State would be obliged to exercise his powers to revoke the EA's consent.
The objectors also argued before Owen J that the point of discharge under the Cornborough scheme did not comply with the UWWT regulations. Owen J observed that the inspector did not deal with this point because he was not asked to do so. The judge accepted that if there was a flagrant breach of the obligations under the UWWT Directive the point could be taken but not in the present proceedings. He considered that the EA would have considered whether the consent would comply with the requirement imposed with respect to the point of discharge. Owen J held that the Secretary of State had set out clearly his approach to the compatibility of the scheme with the Directives. He also rejected an argument that the inspector's reasoning in respect of the duties imposed by the Directives was unintelligible.
Owen J also held that the remedy sought was discretionary and that he would not in any event have exercised his judgment in favour of the appellants because there was an urgent need for the STW and "there having been no identification of a more environmentally favourable position the greater good of the local community must require the existing scheme to be put into operation".
The issues for determination
The following issues arise for determination:-
(1) The fresh evidence issues
(i) Was Owen J in error in rejecting the fresh evidence?
(ii) Should this court accede to the application to adduce fresh evidence?
(2) The Directive issues:
Was the Inspector in error in his approach to the Bathing Water Regulations or the UWWT Regulations so far as concerns:
(i) the effect of the obligation imposed by schedule 3, part 1, paragraph 5 of the UWWT Regulations
(ii) whether Abbotsham should be treated as a "bathing water" for the purposes of the Bathing Water Regulations?
We summarise the parties' submissions and analyze the objectors' case and then set out our conclusions on the above issues.
It is common ground that SW Water is to be treated as an emanation of the State for the purposes of the Directives (see generally Foster v. British Gas plc [1990] ECR 1-3313).
The parties' Submissions
1. The appellants
The appellants' submissions may be summarised as follows:
(i) Property should not be expropriated if the expropriation would not achieve compliance with the Directives.
(ii) The Inspector at the Inquiry should have satisfied himself that the CPO would achieve compliance with the Directives. The court should not reject the challenge to the CPO unless it was similarly satisfied. In this respect, the Inspector and the court should, despite the EA's consent, investigate the issue of compliance if there was reason to believe that the EA's approach would not ensure compliance. The EA's policy on its face was defective because it contemplated reduction rather than the elimination of the enteroviruses. The new evidence supported the submission that the EA's policy would not be effective to eliminate enteroviruses in all cases as required by the Bathing Water Directive. As regards the UWWT Directive, having found as he did in the first sentence of paragraph 190 of his report (set out above), the Inspector should have concluded that Schedule 3, Part 2, paragraph 5 of the UWWT Directive was likewise not satisfied. For the purposes of this Directive, the "receiving waters" are Bideford Bay. The EA's preference in their policy for a long sea outfall supported the appellants' case on this point, as did the fact that the waters at Abbotsham would be improved if there was a long sea outfall
(iii) The surfing waters at Abbotsham could not properly be disregarded for the purposes of the BW Directive and should be treated as a "bathing water" even though they were not officially designated as such. The Bathing Water Directive should be construed purposively: unlike windsurfers or sailors, surfers spent most or all of their time in the seawater.
(iv) Non-compliance with the Directives cannot be justified on the grounds that SW Water's application for planning permission at Northam has been rejected. If necessary the Secretary of State could call in the application and give consent himself.
(v) Likewise, non-compliance with the Directive cannot be justified on the grounds that the Northam option would involve additional expenditure.
(vi) The new evidence was determinative of the issue of discretion.
(vii) It would be too late for the appellants now to apply for judicial review of the EA's consent.
(viii) The reasons given by the Inspector do not clearly show the basis for the conclusion that there will be compliance with the Directives.
(ix) It would be inappropriate to wait to see whether the enterovirus standard was met in practice.
Counsel accepted that, if the Secretary of State had no reason to believe that the EA was not carrying out its functions under the Directive, he could rely on the EA's consent.
At the inquiry, the thrust of the appellants' case was that the Cornborough scheme would have an unacceptable environmental impact and that there were better alternatives, particularly at Northam. The appellants also took the point that Abbotsham was a "bathing water" for the purposes of the BW Directives. There was expert evidence about enteroviruses at the inquiry, in particular from Dr Hunt, a medical practitioner in Abbotsham. However, the appellants did not assert before the Inspector the EA's discharge consent did not comply with the Bathing Water Directive as respects designated bathing waters of Westward Ho! and Instow, save for a journal article analysing research at St Aubin's Bay, Jersey, which the Inspector found unhelpful. Nor did they adduce evidence on this point. Nor did the appellants assert in terms before the Inspector that the proposed discharge did not comply with the UWWT Directive as respects the point of discharge.
There was a submission made that the Secretary of State should have designated the part of Bideford Bay receiving the discharge as "a sensitive area" in accordance with a further provision in the UWWT Directive but counsel stated that he did not intend to pursue this submission.
2. The Secretary of State
Counsel for the Secretary of State's submissions may be summarised as follows:
(i) The court should only interfere with the decision of the Secretary of State if he had made an error: see Ashbridge Investment Ltd v. Minister of Housing and Local Government [1965] 1 WLR 1320, 1326 per Lord Denning MR:
"The court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come: or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law"
(ii) The points now made on the Directives were not put to the Inspector.
(iii) Abbotsham is not a "bathing water" for the purposes of the BW Directive. The appellants would have to apply for judicial review of the Secretary of State's failure to apply the classification BWI to Abbotsham.
(iv) The principles on which new evidence should be admitted are laid down in Ashbridge case above, 1327, as applied in the subsequent case of R v. Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584, 595-7. In the Ashbridge case the Minister's decision to confirm a CPO of premises which were alleged not to be a "house" as required by the relevant legislation. Lord Denning MR held:-
"Fresh evidence should not be admitted save in exceptional circumstances. It is not correct for the courts to approach the case absolutely de novo as though the court was sitting to decide the matter in the first instance. The court can receive evidence to show what material was before the Minister; but it cannot receive evidence of the kind which was indicated in the present case so as to decide the whole matter afresh."
In the latter case of ex parte Powis, the Court of Appeal held that fresh evidence should only be adduced in judicial review proceedings:
(a) to show what material was before the Minister or inferior tribunal;
(b) where the jurisdiction of the Minister or inferior tribunal depended on a question of fact, or where the question was whether essential procedural requirements were observed; or
(c) where the proceedings were tainted by misconduct on the part of the Minister or a member of the inferior tribunal or the parties before it.
(v) If the appellants' application to adduce new evidence succeeded, the Secretary of State would wish to file substantial evidence from the EA in reply. As noted above, the court was given a note of the EA's response to the review by Hyder International.
(vi) It was reasonable for the Inspector to take the view that the scheme would comply with the mandatory enterovirus standard.
(vii) The EA's policy had necessarily to be based on an assumption, and the assumption made in paragraph 1 of the policy was necessary and proper to achieve compliance with the mandatory enterovirus standard in the light of available knowledge. It should be read as if it had stated that this assumption was being made in order to meet the mandatory enterovirus standard. Moreover, the policy did not simply make an assumption. It also required that SW Water model the actual behaviour of the sewage following discharge. There was no evidence that the European Commission were concerned about the assumption in paragraph 1 or the enterovirus standard generally or that any other EU Member State applied any other approach to meet the mandatory enterovirus standard.
(viii) The obligation in the UWWT Regulations, schedule 3, part 1, paragraph 5 was qualified by the words "as soon as possible". The expression "receiving waters" could have several interpretations. For instance it could be limited to those in the immediate vicinity of the discharge pipe (this was not the Secretary of State's case). It could also refer to the clutch of interests affected, including fisheries: on this see paragraph 192 of the Inspector's report (set out above). However that may be, this particular requirement was only one of a number of requirements and it could not of itself control the location of the point of discharge.
(ix) The appellants were given notice by the EA that they had a right to require that the discharge consent should be determined by the Secretary of State under the Water Resources Act 1991, section 88 and schedule 10. They had not pursued that course. We observe, however, that this notice was given to Mr Dunn, who is not one of the appellants.
(x) It was not too late to apply for judicial review of the EA's consent. The appellants could invite the EA to revoke or vary its consent in the light of the evidence and, if it refused to do so, apply for judicial review of its decision. For this purpose, the appellants would have standing.
(xi) The EA's consent could be modified to ensure that the entire flow was subject to UV treatment.
(xii) If there was a failure to give reasons, the Secretary of State's decision should be quashed only if there was a danger that the decision would disclose an error of law.
(xiv) The Inspector accepted the Agency's conclusion that the Cornborough discharge afforded at least the same degree of protection as the long sea outfall (paragraph 160). Accordingly, it cannot be said that the scheme did not comply with Schedule 3, part 1, paragraph 5 of the UWWT Regulations.
Counsel accepted that the Secretary of State would not support the Inspector's decision if evidence came to light thereafter which showed that the operation of the Cornborough STW would, or would probably, involve a breach of the law.
3. SW Water
The submissions made on behalf of SW Water may be summarised as follows:
(i) The Inquiry was into objections to the CPO. The court also should consider only such objections (see R v Secretary of State for Transport ex parte Rothschild [1989] 1 AER 933; Sharkey v. Secretary of State for the Environment (1991) 63 P&CR 332).
(ii) If a point, including a point on illegality, was not taken before the Inspector it was too late for it to be taken later: see Hobday v. Secretary of State for the Environment 61 P&CR 225; Leslie Gwillim v. Secretary of State for the Environment (1988) JPL 263; Tower Hamlets v. Secretary of State for the Environment (1995) 71 P&CR 419; London Parachuting Ltd v. Secretary of State [1986] JPL 428; Woolhead v. Secretary of State for the Environment [1995] 71 P&CR 419.
(iii) Section 24 of the 1981 Act required the appellants to show substantial prejudice which they had not done.
(iv) The Inspector had to weigh a range of factors, not simply compliance with the Directives.
(v) The decision of Owen J on discretion could not be reviewed on appeal as it was not perverse.
(vi) If the STW could not comply with the discharge consent at any time (and thus the STW became "a white elephant") the land to be acquired would have to be offered back to the appellants under principles applied by public bodies following the Crichel Down inquiry.
In their notice of motion the objectors claimed:-
"that the First Respondent exceeded his powers and failed to comply with the requirements of Rule 18(1) of the Compulsory Purchase by Non Ministerial Acquiring Authorities (Inquiries Procedure) Rule 1990 to state his reasons in divers respects, particularly in that:
1. He accepted the conclusions and recommendations of his Inspector, GC Cundale who held an inquiry on 12-14 and 18-19 November 1997 set out in a report dated 12 January 1998 ("IR") (see Decision Letter paragraph 4 "DL4")
2. He misdirected himself in law, alternatively failed to state his approach, towards the legal obligations on the first and second Respondents as emanations of State under the Bathing Water Directive 76/160/EEC in particular to act so as to achieve a zero level of enteroviruses at designated Bathing beaches (see IR paragraphs 149, 151, 152 and 153).
3. He failed to have regard to, alternatively failed to state his approach towards, the legal obligations on the First and Second Respondents as emanations of the State under the Urban Waste Water Treatment Directive 91/271/EEC in particular articles 4, 5 and 12 and Annex 1B 4 and 5 and Annex II Ac."
Owen J. held in relation to the Bathing Water Directive, first, that the argument that Abbotsham/Cornborough Waters were "bathing waters" had not been raised before the Inspector (J11 C-D) but he also decided that they were not bathing waters. (We should add they were not on any view "designated" bathing waters to which the Notice of Motion refers). He further held that "it is inconceivable that the inspector did not have in mind the mandatory requirements of the directive, and indeed United Kingdom Law" (14A). He found that the EA were responsible for enforcing the mandatory requirements, and had an obligation to do so whatever the Inspector decided. He held that the Inspector had found that the EA's policy was founded on the mandatory requirements and the assumption that those requirements were capable of being achieved. He pointed out that the Inspector had also found that the policy had not been found to be deficient in terms of the prevailing legislation (IR 155; J15). He found that prior to the hearing before him that that conclusion of the Inspector had not been challenged but that there was an attempt to challenge it before him. That attempt was made by reference to findings by the Inspector, and further evidence that Mr McCracken for the objectors sought to put in. That further evidence consisted of a table relating to some tests performed by EA Wales (page 130 in our bundle) by reference to which Mr McCracken sought to submit to the judge and to us (without, it should be said, any expert guidance as to precisely how the table should be interpreted) that the terms of the consent would not effectively reduce enteroviruses to the mandatory requirement as provided for by the relevant regulations, ie to "nil" at the bathing beaches. He submitted the table showed that even following secondary and UV treatment the reduction factor required by the consent of 25,000 in pathogens, had to be applied to a figure of 123,000, and would result in there still being 5 in every 10 litres, and not "nil". We would comment that that would appear to be at the point of discharge and take no account of any dilution between that point and a bathing beach. The judge in relation to that evidence said as follows:-
"The counter comment is that this information was not before the Inspector nor was it before the Secretary of State and it was not even revealed to the opposing parties until the last moment. Although I accept that there may be occasions when justice demands the late reception of new evidence such a procedure must be rarely necessary or used and certainly cannot be used in connection with such a basic question in this case at this time. Whilst it is true that there must be an obligation on the Water Company, the Environment Agency and the Ministry to consider new information about the effects of disinfection in other parts of the country and possibly in other parts of the world, the Welsh water results have not been considered and analyzed by the Water Company or the Ministry and these proceedings are proceedings between named parties with claims for costs dependent upon them. Such proceedings must be decided on evidence properly presented. In any event, the Water Company will be under a continuing obligation not to breach those requirements of U.K. law which re-state the requirements of European law no matter what the cost."
In relation to the late challenge he said:-
"Before this hearing this conclusion by the Inspector had not been challenged but the Applicants do now (and since their First Skeleton Argument) make this challenge. I agree with the Secretary of State that this challenge cannot be made in this manner in these proceedings at this time. It is far too late. That, however, does not mean that there is no continuing obligation on the Water Company and the Environment Agency. Their task is to ensure compliance with the Directives. It is worth re-stating that mandatory requirements must be met."
In relation to the Urban Waste Water Treatment Directive, which required points of discharge to be chosen as far as possible so as to minimize the effects on receiving waters, transposed by the Urban Waste Water Treatment (England and Wales) Regulations 1994, he said the machinery for enforcement was much the same and he summarised the position as follows:-
"In general terms the machinery for ensuring compliance with the two Directives is that the Environment Agency (the successor to the National Rivers Authority) is under an obligation to exercise its powers to grant discharge consents so as to achieve the necessary quality objectives. Regulation 6 of the Waste Water Treatment Regulations 1994 requires the Environment Agency to exercise its functions under chapter II of Part III of the 1991 Act to secure that the requirements of Schedule III of the Regulations are satisfied. Paragraph 5 of Schedule III includes a requirement that "the points of discharge of urban waste water shall be chosen, so far as possible, so as to minimize the effects on receiving waters."
Thus the judge was holding that before the Inspector the policy of the EA was not under attack as being incapable of producing compliance with the mandatory requirements and the consent was not under attack as being unable to produce compliance with the mandatory requirements. He was further holding that it was not appropriate to make those attacks now in the proceedings before him, and in particular it was inappropriate to attempt to put in fresh evidence to attempt to make the point.
On this appeal, Mr McCracken submits he can demonstrate that (a) on the findings of the Inspector it is probable that despite the Consent granted by the EA, the mandatory requirements of "nil" enteroviruses at the bathing beaches at Westwood Ho will be breached, and he submits that fact is confirmed by the evidence which the judge should have admitted at first instance, and which by further evidence that he now wishes to adduce in the Court of Appeal, he would submit that SWWL have (contrary to the judge's view) studied; (b) on the findings of the Inspector confirmed by the fresh evidence that there has been a failure to locate the outlet "so as to minimize as far as possible the effect on receiving waters"; and (c) that on the findings of the Inspector the beaches at Abbotsham/Cornborough are bathing beaches within the relevant regulations and that the mandatory requirements cannot be met so far as those waters are concerned on the consent conditions of the EA.
More refined it seems to us that his submissions are in reality aimed at the three different levels of hearing as follows. He submits
1. That the Inspector should have examined the policy and the Consent and inquired as to whether the mandatory requirements could have been achieved even if the objectors did not themselves raise the point, and should also have taken the point that the point of discharge contravened the regulations because it was not chosen so far as possible to minimize the effects on receiving water;
2. That the points should have been examined by the judge either because the Inspector had the duty as per ground 1, or in any event because the court had an independent duty under the principles of European law to inquire into the question whether the mandatory requirements could be complied with, or whether the discharge point had been chosen in breach of the regulations;
3. That fresh evidence should have been admitted by the judge relevant to the inquiry as to whether the regulations would be complied with; and
4. That this court should hold that the judge was wrong as per grounds 2 and 3, but in addition had an independent duty to inquire as to whether the mandatory requirements would be complied with and in that regard should receive not only the fresh evidence tendered before the judge but yet further fresh evidence.
The submissions thus raise critical points as to the proper approach to the admission of fresh evidence and the taking of new points in the reviewing court in the context of Regulations which bring into force Directives under Community law, and the proper approach to the admission of fresh evidence in that context in the Court of Appeal. It is convenient to start with the fresh evidence issue because, if we reject the application to adduce further evidence that may be substantially determinative of other issues that arise on this appeal.
Fresh evidence issues
The basic position in judicial review cases is as summarised by Dunn LJ in Regina v Secretary of State for the Environment ex parte Powis [above] at 595G to 596A as follows:-
"What are the principles on which fresh evidence should be admitted on judicial review? They are (1) that the court can receive evidence to show what material was before the minister or inferior tribunal: Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, 1327, per Lord Denning M.R.; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error: see de Smith's Judicial Review of Administrative Action, 4th ed. (1980), at pp. 140, 141 and cases there cited: and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged: see Reg. v. West Sussex Quarter Sessions, Ex Parte Albert and Maud Johnson Trust Ltd. [1974] Q.B. 24, 39, 43 per Orr and Lawton L.JJ."
That statement does not deal at least expressly with illegality, and does not address the question as to whether Community law might not impose some obligation on a supervisory court in a member state.
It is useful to start from the Community law standpoint. In Kraaijveld v Zuid-Holland (Case C-72/95) the position was that Holland implemented a Directive relating to canalisation and flood relief works but excluded dykes of a certain size which effectively excluded all river dykes projects. The Directive required that consent for public and private projects which were likely to have a significant effect on the environment should be granted only after prior assessment of the likely significant environmental effects, and by Article 2 required Member States to adopt measures necessary to achieve such an assessment before consents were given. Because the dyke in question was excluded by the size criteria, consent had been given without an environmental assessment. The European Court by its answer to the first three of four questions held the works on the dykes covered by the consent were within "canalisation and flood relief works" and thus within the scope of the Directive, and that Holland had by establishing criteria the result of which was that projects which would have an environmental impact were not subject to an environmental impact statement had acted contrary to Article 2 of the Directive.
In answer to question four the court held firstly that in the result Article 2 had a direct effect. In relation to the question as to how the court of the Member State should act the court said as follows:-
"First of all it should be recalled that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the E.C. Treaty and by the directive itself (see Case 51/76 Verbond van Nederlandse Ondernemingen [1977] E.C.R. 113, para. 22, and Case 152/84 Marshall [1986] ECR 723, para. 48). That duty to take all appropriate measures, whether general or particular, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see Case C-106/89 Marleasing [1990] ECR I-4135, para. 8).
As regards the right of an individual to invoke a directive and of the national court to take it into consideration, the Court has already held that it would be incompatible with the binding effect attributed to a directive by Article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of Community law in order to rule whether the national legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set out in the directive (Verond van Nederlandse Ondernemingen, paras 22-24).
Secondly, where, by virtue of national law, courts or tribunals must, of their own motion, raise points of law based on binding domestic rules which have not been raised by the parties, such an obligation also exists where binding Community rules are concerned (see, in particular, Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v. SPF [1995] ECR I-4705, para. 13).
The position is the same if national law confers on courts and tribunals a discretion to apply of their own motion binding rules of law. Indeed, pursuant to the principle of co-operation laid down in Article 5 of the Treaty, it is for national courts to ensure the legal protection which persons derive from the direct effect of provisions of Community law (see, in particular, Case C-213/89 Factortame [1990] ECR I-2433, para. 19, and Van Schijndel and Van Veen v. SPF, cited above, para. 14).
The fact that in this case the Member States have a discretion under Articles 2(1) and 4(2) of the directive does not preclude judicial review of the question whether the national authorities exceeded their discretion (see, in particular, Verbond van Nederlandse Ondernemingen, paras 27-29).
Consequently where, pursuant to national law, a court must or may raise of its own motion pleas in law based on a binding national rule which were not put forward by the parties, it must, for matters within its jurisdiction, examine of its own motion whether the legislative or administrative authorities of the Member State remained within the limits of their discretion under Articles 2(1) and 4(2) of the directive, and take account thereof when examining the action for annulment."
It is possible to make the following points from the above paragraphs drawing a distinction between the circumstances in that case as compared with the circumstances of the present case.
First, as Mr Fookes has demonstrated in tabulated form in his skeleton argument, and in relation to which there was no challenge from Mr McCracken, the United Kingdom has adopted in full both of the directives relied on by Mr McCracken. There is no question thus of suggesting that direct effect should be given to the directives.
Second, under the regulations and statutes giving effect to the directives, there has been set up a body, the EA, for the purpose of seeing that there is compliance with the regulations giving effect to the directives.
Third, if the EA were to fail in its task there has been set up a procedure under which the consents for example can be challenged. Indeed the objectors were given the opportunity of challenging the consent, and would in fact have the opportunity of challenging the consent on a future occasion if they could produce a scientific case to demonstrate that the terms of the consent should be altered to achieve the mandatory requirements and the EA refused to alter the same.
The instant case is not a case where the objectors are able to argue either that in relying on the consent there has been a direct infringement of some right they had under domestic law, nor any infringement of a direct right under Community law. Furthermore, this is not a case where the question whether the EA were performing their statutory duty was directly (or even indirectly) in issue before the Inspector. That issue is sought to be raised for the first time before a reviewing court, and in circumstances where the issue has not been fully canvassed between the appropriate parties before the Inspector. Plainly if that issue had been raised evidence would have to be called in relation to it.
What on analysis the objectors sought to make their case before the judge and for the first time, was that despite the role of the EA to enforce compliance with the mandatory obligations, the EA is in fact not so doing either unintentionally or intentionally. It is in this regard that Mr McCracken made an attack before the judge and before us on the policy of the EA submitting that such policy itself would produce non-compliance with the mandatory requirements of the regulations.
We accept that if the objectors had before the Inspector established that the EA was not enforcing compliance with the mandatory requirements and either was intent on so failing or was bound to fail in the context of the scheme at Cornborough, that would have been a highly material fact for the Inspector to consider when deciding whether a CPO should be confirmed. But we do not accept that there was any onus on the respondents to call the EA to establish what their consents would achieve until the objectors had made out at least some case that the above was so; nor was there any obligation on the Inspector to "cast about" to find ways in which the objectors might succeed which have not been suggested to him by or on behalf of the appellants (see Glidewell LJ in Hobday v Environment Secretary and Rochester CC 61 P & CR 225 at 229).
The Inspector was entitled to assume, as he did, that the EA's policy and the setting of the terms of the consent were to produce compliance with the mandatory requirements until the contrary was established, and in the context of considering whether a CPO should be confirmed the onus would be on the objectors to establish that fact. In considering whether to confirm a CPO it was certainly not incumbent on the Inspector to question whether the EA's policy could achieve the mandatory requirements it was designed to achieve. We have emphasised that the Inspector was considering whether to confirm a CPO, because the position might well be different in proceedings in which the consent was being challenged directly.
Thus there does not seem to us to be any concept of European law that demands that the points now sought to be made on behalf of the objectors must be allowed to be taken for the first time before a court of review or in the Court of Appeal however strong or weak the points are simply because they question whether the consents granted will achieve the mandatory requirements. Indeed it would be quite unfair for the position to be, as at one stage we thought Mr McCracken was submitting, that because at this stage on the submission of counsel alone some doubt could be cast on whether with the present consent the mandatory requirements will be complied with, the decision of the Secretary of State confirming the CPO must be reversed. That would give an objector, who did not raise a matter before the Inspector thus allowing the matter to be properly considered and argued out, an advantage over the objector who raised a prima facie case before the Inspector but failed to establish the point because there was an answer to it.
We return then to domestic law. In Woolhead v Secretary of State for the Environment and Epping Forest District Council 71 P&CR 419, Mr Jeremy Sullivan QC sitting as a deputy High Court Judge approved the following statement of Mr Christopher Lockhart-Mummery QC also sitting as a deputy high Court Judge.
"There [were] no submissions in the context of H11 as to the Convention and the potential of it operating in a discriminatory manner. Therefore, there was no evidence as to the actual potential of H11 [that was the policy under challenge] "to unduly discriminate against gypsies as opposed to any other class." As a matter of general principle this Court is unwilling to entertain points of a legal/quasi legal nature which could or should have been raised at the inquiry and which are now raised for the first time in this Court. See West Cheshire Caravans v. Ellesmere Port (1976) EGLR 143. My recollection and understanding is that this case is not the only authority for this proposition and there are other examples where the Court has followed this principle. This principle is not one merely of theory but is based on pragmatic reasons. For example, in this case we do not know the actual and factual tendency of Policy H11 to unduly discriminate against gypsies generally and that is not a matter appropriate to consider in this Court."
He then continued:-
"I respectfully agree with that approach. Applying it to this case, before one could begin to decide whether there would be a breach of Article 8, the issue would have to be fully argued on the facts. The place to do that was before the Inspector so that he could report the arguments, the detailed evidence, and his conclusions in respect of that evidence to the Secretary of State. Accordingly. I do not think it right that the court should give leave to entertain such an argument at this very late stage. I refuse leave to amend the notice of motion to include this ground."
That is a view which we would share.
We would enter one caveat that of course there may be circumstances in which an illegality even as a matter of domestic law is so plain that the reviewing court will have an obligation to take the point of its own motion. That might well be established by fresh evidence. Since the court should take the point, it will take it if it is raised by a party although it was not raised before the Inspector. But that is not this case. The objectors through Mr McCracken seek to ask the court to draw inferences from findings of fact of the inspector that the EA will not enforce the mandatory requirements even though it is their statutory duty to do so and although that is not a case which the EA have had an opportunity of meeting before the Inspector. The objectors sought before the judge to put in a table at the last moment without any expert explanation from which again it was suggested that an adverse inference against the EA should be drawn although the EA had had no opportunity to deal with it. They sought to put in further evidence before this court again suggesting an adverse inference should be drawn against the EA, and what is more they seek to persuade the court that a further adverse inference should be drawn from the fact that the EA has not sought to put in evidence to deal with the fresh evidence. In fact, as explained above, from a note from the EA we are aware of the points which would be made by the EA, but the more important point is that on no view could it be said that even prior to receipt of that note that one was in the area of a case where illegality was established to a degree where the court of its own motion should take the point, and if that attack was going to be made on the EA, it could and should have been made by the objectors before the Inspector where it could have been fully dealt with, with the assistance of experts.
Finally, on this topic, the proposed fresh evidence put before us in documentary form would require extensive explanation by way of evidence, both lay and scientific. No such evidence was put before us.
For all these reasons we refuse the application to adduce fresh evidence, and we conclude that Owen J was right not to admit fresh evidence in the hearing before him.
Directive issues
We turn then to consider Mr McCracken's submissions that the Inspector should have found that the scheme failed to comply with the Directives, or alternatively, that he should himself have ensured that the scheme proposed would comply with the Directives before confirming the CPO. Subject to the question that arises in relation to the Abbotsham waters, there was no evidence before the Inspector that the scheme would fail to comply with the Directives. Mr. McCracken is particularly critical of the Inspector's conclusions in paragraphs 146 and 190 of his report quoted above where he makes reference (paragraph 146) to "the shortcoming of the Cornborough proposals", and "the more economical and environmentally acceptable alternative provision for sewage treatment in Northam in conjunction with a long sea outfall", and (paragraph 190) where he says that he finds the Cornborough scheme "to be acceptable in terms of present knowledge and standards." Mr. McCracken submits that those paragraphs and others demonstrate that the Inspector posed the wrong questions and that in truth, if the correct questions had been posed, it is clear that the requirements of the Directives as to zero entroviruses would not be met. He submits that the Inspector failed to properly direct his mind to the issues raised by the Directives. However, those passages have to be read in the context of the Inspector's Report as a whole, and in the context of the issues that were raised before him and the evidence that was in fact put before him. If one carries out that exercise it is abundantly clear that, overall, and in particular by reference to paragraphs 150, 152, 155 and 206 of the Report, the Inspector concluded that the proposed scheme would meet the mandatory standards. In the absence of any challenge to the Consent given by the EA, the Inspector was, in our judgment, wholly entitled to reach that conclusion on the basis of the terms of the Consent itself, and the policy of the EA as set out above which required compliance with the Directives.
Accordingly, we conclude on this issue that the Inspector on the evidence was entitled to conclude that the scheme complied with both Directives. There was no evidence to the contrary. Furthermore, if in the result SWWL failed to comply with the Regulations, the EA must enforce them.
We turn, then, to consider the question as to whether the Abbotsham and Cornborough waters adjacent to the outfall pipe (as opposed to the Westward Ho waters) are Bathing Waters for the purposes of the BW Directive. The relevant waters are not explicitly authorised as bathing waters with the result that in order to qualify as such under the Regulations they would have to be waters in which bathing is "traditionally practised by a large number of bathers". The Inspector recorded at paragraph 89 of his Report that the case for the objectors in relation to Abbotsham was that: "Abbotsham beach is used throughout the year for various recreational pursuits including swimming, surfing, fishing and prawning, while the adjacent coast path is popular with walkers." We note that in contrast in the same paragraph the objectors' case in relation to Westward Ho was: "The golden sands of Westward Ho beach are well known to holiday makers and provide vital support to the local tourist trade." The Inspector's conclusion at paragraph 148 was: "Abbotsham beach is a significant resource for various kinds of recreation. Some activities, notably bathing and surfing, involve contact with sea water." We have seen photographs which were before the Inspector of the Abbotsham and Cornborough beach which show it to be rocky. There is no car access and access by foot is difficult. Some assistance on this issue can be derived from the Prag criteria. In the case of the Cornborough and Abbotsham waters none of these are fulfilled. So far as the evidence went, there were no facilities for access to the beach, no sanitary equipment, no facilities for changing, no parking space for cars, no lifeguards on the beach, no first aid service, no kiosks or shops, and no availability of water sport facilities. There was no infrastructure to promote bathing. There was no evidence that bathing was traditionally practised by a large number of bathers. Indeed, the evidence was to the contrary, namely that the waters were to some extent used for recreational sports, not only surfing, and that there were some bathers. There was no evidence that required the Inspector to find that these particular waters were Bathing Waters, and, in our judgment, on the limited evidence that was available to us, it is plain that they were not. We do not consider that we are required to refer this point to the European Court of Justice.
Mr. McCracken's next substantive submission is that the siting of the outfall pipe in the Cornborough scheme constitutes a clear breach of requirements of paragraph 5 of Annex 1 of the UWWT Directive which provides that "the points of discharge of urban waste water shall be chosen, as far as possible, so as to minimise the effects on receiving waters." Once again, this point, as such, was not taken or argued before the Inspector and no evidence was laid in relation to the issues that would be involved if the point had been taken. In those circumstances, for the reasons that we have already given, we do not consider that it is open to Mr. McCracken to take the point in this court. The Consent of the EA was given on the basis that the scheme which, of course, includes the outfall, complied with the Directive. Again, neither the Consent nor the policy underlying it was challenged on this issue. Mr. McCracken submits that it is plain on the findings of the Inspector in relation to the Northam scheme with the long outfall as compared to the Cornborough scheme with the short outfall, that there must inevitably be a breach of Paragraph 5 of Annex 1. In our judgment that submission is unsustainable. First, it is clear from the Directive itself that the underlying purpose is to protect the environment as a whole. Second, the point of discharge must be chosen, as far as possible, so as to minimise the effects on receiving waters. The words "as far as possible" clearly envisage that other matters, such as the effect on the environment as a whole, the feasibility of alternatives, a comparison with other possible outfalls, the effect on all the waters that can properly be described as the receiving waters, and the effect on fish and other wild life must be considered. Third, the "receiving waters" to be considered clearly go wider than the point of discharge alone. These, and no doubt other factors, would be considered by the EA when the Consent was given. In our judgment, no point having been taken before him, and no evidence having been given expressly directed at Paragraph 5 of Annex 1, no complaint can be made that he failed to address this issue. On such evidence as is before us it would be impossible to make a finding that the point of discharge selected amounted unconditionally to a breach of Paragraph 5 of Annex 1 of the UWWT Directive. Accordingly, we reject this submission, and, again, do not consider that we are required to make a reference to the European Court of Justice in relation to it.
Mr. McCracken made subsidiary submissions to the effect that the Inspector misunderstood or failed to appreciate the evidence before him, or failed to appreciate the effect of the Cornborough scheme on the receiving waters. We do not accept those submissions. It is clear from his detailed report that the Inspector did indeed have a full grasp of the issues that were placed before him at the inquiry.
For all these reasons the appeal is dismissed.
Order: It is ordered that the Appellant's challenge made under section 23 of the Acquisition of Land Act 1981 to the decision of the First Respondent to confirm the South West Water Services Limited (Cornborough) Compulsory Purchase Order 1997 and to the order of Owen J dated 30^th September 1999 be dismissed;
And it is further ordered that the costs of and incidental to this appeal and in the court below be the subject of a detailed assessment if not agreed and be paid by the Appellants to the (First) Respondents solicitors.
(Order does not form part of the Approved Judgment).

	(I) WILLIAM MOASE (II) GILES JOHN EYRE LOMAS	Appellants/ Applicants
	- and -
	(i) Secretary of State for the Environment, Transport and the Regions (ii) South West Water Limited	Respondents

Parameter	Parametric value	Minimum sampling frequency	Methods of analysis and inspection

Entero viruses	No plaque forming units in 10 litres	(see Note 2)	Concentration (by filtration, flocculation or centrifuging) and confirmation

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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 >> Moase & Anor v Secretary Of State For The Environment, Transport and The Regions & Anor [2000] EWCA Civ 193 (16 June 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/193.html Cite as: [2000] EWCA Civ 193

England and Wales Court of Appeal (Civil Division) Decisions