Authority finds it's not so good to talk

THE POWER of anti-pollution authorities to wage war on polluters has taken a knock as a result of a High Court ruling in the case of R v Falmouth and Truro Port Health Authority ex parte South West Water.

Lawyers who acted in the case say Mr Justice Harrison's ruling will curb authorities' powers to police pollution.

But Peter Scott, of Barnstaple-based firm Toller Beattie, which acted for Truro Port Health Authority, believes the ruling also sets a precedent over consultation. He says it means future litigants may now have cause to expect consultation in situations where none previously existed and will render some activities of pollution agencies susceptible to judicial review on the basis of non-consultation. The implications, says Scott, are "mind-blowing".

South West Water succeeded in quashing an abatement notice that was served on it by the Health Authority under section 80 of the Environmental Protection Act 1990. The notice related to discharge of fine-screened sewage from a sewerage outfall into the Fal estuary at Carrick Roads, Falmouth.

The outfall was provided by South West Water as an interim phase of a scheme to replace outfalls at Middle Point and Pennance Point, which were allegedly affecting the water quality at three nearby beaches. The beaches were designated as having bathing waters under the European Commission's Bathing Waters Directive.

However, in quashing the notices the judge said the water authority had not been afforded the consultation it was entitled to expect in the circumstances. He also held that the abatement notice was invalid because it failed to specify the work necessary to abate the nuisance and because Carrick Roads was not a "watercourse" within the terms defined by the Public Health Act 1936.

Scott says: "An important point is that the judge has restricted the rights of port health and other authorities who have rivers and estuaries in their areas to take action to restrict nuisance."

He says the ruling effectively prevents such bodies exercising public health powers to control the quality of rivers and estuaries, except where one is a danger to health because it has silted up.

"It is a totally bizarre situation," he says.

But Scott says a more far-reaching aspect of Mr Justice Harrison's ruling is the decision on consultation. The port health authority had ap-proached South West Water to determine what steps it was prepared to take to resolve the dispute, even though it was under no obligation to consult. Scott says the judge took the view that this created an expectation of consultation and if such consultation was not carried out then moves such as the issue of the abatement notice were rendered susceptible to judicial review.

"The logical consequence is that a local authority that wants to avoid the possibility of judicial review is not, in the light of this decision, going to approach any person against whom it is minded to make an abatement notice," he says.

"This will affect many other bodies as well as port health authorities. We could be talking about moves to prevent things such as noise and smell nuisance for instance.

"Frankly, it is mind-blowing. If there is no duty to consult you can create one if you approach a body in a bid to sort things out. This judgment will discourage dialogue.

"The whole point about public health enforcement is that there has to be immediate action available to the public health authority. This is a landmark decision."