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 EHLR 12, Administrative Court - John Bates
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There was no connection between byelaw 2(a) and byelaw 26 of the South West Water Drainage Byelaws 1986, which were not ambiguous, and the intention of the provisions requiring prior written consent before works could be undertaken was to enable the authority to judge the probable effect of those works.
Appeal by way of case stated from the decision of Devon justices dated 18 June 2002 to find the respondent ('D') not guilty of two charges of permitting the River Exe to be dredged without prior written consent of the appellant Environment Agency ('EA') contrary to byelaw number 26 of the South West Water Drainage Byelaws 1986. The justices accepted that the works done by D did not adversely affect the efficient working of the drainage system of the area, and reached the conclusion that there was a connection between byelaw 2(a) and byelaw 26 of the 1986 Byelaws, and that there was an ambiguity in the byelaws, which they were bound to resolve in D's favour. The questions for the opinion of this court were as follows: (i) whether the justices were correct to decided that there was a conjunction between Byelaw 2(a) and Byelaw 26; (ii) whether the justices were correct to decide that the Byelaws were ambiguous; and (iii) whether the justices were correct in deciding that they should adopt a construction favourable to the defence. EA argued that the provisions were not ambiguous and that byelaw 26 prohibited certain acts without prior written consent such that it was not a matter of the authority requiring D to do something or to refrain from doing something, simply that nothing could be done without consent, and that therefore there was nothing for byelaw 2(a) to bite on. D argued as follows: (i) given that it was agreed that the work that was done did not effect the efficient working of the drainage system, byelaw 2(a) provided a defence; (ii) the consent provisions had to be read in light of byelaw 2(a), and only applied if the efficient working of the drainage system was affected; (iii) it could not have been the intention of the byelaws to require a landowner to obtain consent for works other than major works; and (iv) the ambiguity had to be resolved in D's favour.
HELD: (1) There was no ambiguity. The intention of the consent provisions was to enable the authority to consent to works before they were undertaken in order to judge the probable effect of those works. That purpose would be frustrated if a landowner could do works without prior assessment by the authority. (2) There was no question of a conflict between byelaws 2(a) and 26. Byelaw 26 was not caught by byelaw 2(a). If the need for prior written consent amounted to a requirement by the authority within the terms of byelaw 2(a), its purpose would be clear; the requirement would be necessary to secure the efficient working of the drainage system. Far from being contrary to byelaw 2(a), such a requirement would be in accordance with it.