LEWES CROWN COURT
A950251
The Law Courts, Lewes
13th January 1997
Before: HIS HONOUR JUDGE HAYWARD and Justices
In the matter of the Appeal of: RICHARD DEREK CHEVALLEY DE RIVAZ
(Computer-Aided transcript of the stenograph notes of Hibbit & Sanders, Wishdown,
Wadhurst, East Sussex. TNS 6HN)
MR. N. NARDECCHIA appeared on behalf of the Respondents
MR. M. BLACKETT-ORD appeared on behalf of the Appellant
APPEAL DECISION AND DISCUSSION RE: COSTS
1
DECISION
On 1st March 1995 the Respondents, the Wealden District Council, served a ~notice on the Appellant, Mr. Richard De Rivaz, under the provisions of section 25 of the Land Drainage Act 1991.
The Notice required Mr. De Rivaz to carry out certain works to three watercourses on
his land identified on the plan that we have been using, as watercourses 1, 2 and 3.
The schedule to the Notice required Mr. De Rivaz to do the following works, and I
summarise the works:
“To remove and cut back vegetation in watercourses 1, 2 and 3, to remove silt gravel
and other debris from those watercourses; to replace the 225mm diameter pipe under
the footpath to Pepper Alley with a 450mm pipe and to install a 450mm pipe under the
footpath in watercourse 2”
Mr. De Rivaz appealed against this Notice to the Lewes Magistrates Court.
At that hearing he represented himself The Council were represented by counsel and
they called an expert, who produced a detailed report at the Magistrates’ hearing. The
Magistrates dismissed Mr. De Rivaz’s appeal, save for allowing him some further time
to carry out the work, and he now appeals to this court.
There are three grounds to the appeal; firstly, that the three watercourses are not in
fact watercourses, because no water flows through them.
Secondly, to the extent that any water may dribble through them, it is not impeded
within the meaning of section 25, either by vegetation or silt, and
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thirdly, that the replacement and installation of 450mm diameter pipes, as required in
paragraphs 3 and 4 of the schedule, is an improvement, and that falls outside the
scope of section 25.
A fourth point has also been argued during this appeal, namely that the works
required by the Notice are unreasonable in character or extent and/or are
unnecessary.
That is a defence available under section 27(1c) of the Act, and indeed, the appeal
has very substantially turned upon this point.
Mr. De Rivaz’s property is known as Little Bridge House, Danehill in East Sussex. He
and his wife purchased it in 1979. The property lies in a valley to the East of School
Lane in Danehill. The land, which is heavily wooded, falls steeply from the road down
towards a stream which flows in the bottom of the valley and through Mr. De Rivaz’s
property.
Watercourse No.1 runs along the Southern boundary of Mr. De Rivaz’s property and
watercourses 2 and 3 are closeby and parallel and run each side of a public footpath.
All the watercourses run into a stream except the top part of watercourse No.2.
The adjoining property to the South of Mr. De Rivaz’s property is known as
PepperAlley and that is owned by Mr. and Mrs. Day. They bought it also in 1979. The
house at Pepper Alley is low lying, situated almost at the bottom of the valley and
close to the stream which flows from Mr. De Rivaz’s property and into Pepper Alley.
Watercourse No.1, as I have indicated, runs along the boundary between these two
properties.
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There is a public footpath which runs from point A of the plan we have and down
through the Southern part of Mr. De Rivaz’s property. It crosses the stream I have
mentioned by way of a footbridge just to the South of Mr. De Rivaz’s garage Access to
both properties is by a driveway from School Lane.
The driveway is on Mr. De Rivaz’s property and the Day’s enjoy a right of way along it.
I should mention that on 8th October, the second day of this appeal, the court had a
view of the watercourses and the surrounding area and the court found this of
invaluable help in considering this appeal.
I should also mention to you further matters, which are not immediately relevant to the
issues in this appeal, but which have been referred to in the evidence and do have
some bearing on the course of events.
Firstly, from time to time over the years, the stream I have referred to has flooded in
the area where it passes from Mr. De Rivaz’s property into Pepper Alley. This has
caused ill-feeling between the De Rivaz’s and the Days and has been the subject of
litigation. The courts have not, however, made any finding as to the cause of that
flooding. We are satisfied, however, on the evidence which we have heard, that the
condition of the three watercourses with which we are concerned has not been the
cause of and has had no bearing upon that flooding.
Secondly, we have heard evidence of a considerable amount of ill-feeling between the
De Rivaz’s and the Days. Since they bought their respective properties in 1979 there
have
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been no less than three separate County Court actions.
The first related to the Day’s disputed use of some land owned by Mr. De Rivaz, close
to the Southern boundary; the second involved, inter alia, an allegation that a blocked
culvert at point H on the plan had caused flooding into Pepper Alley.
This was an action which in fact was resolved and Mr. De Rivaz was held liable for the
fact that the culvert was blocked and there was flooding, and the third action involved
cross-allegations as to the cause of the flooding of the stream in 1993, although we
have not seen the pleadings in that action.
This action was compromised by an agreed Minutes of Order, dated 28th March 1996.
By that Order, the parties respective claims in respect of flooding, overflow, water
damage and trespass, or nuisance by water, were dismissed and the parties gave
respective undertakings and acknowledged that they have no complaint or cause of
action against the other in respect of flooding, overflowor water damage or trespass or
nuisance by water.
In addition, we see from the correspondence in the bundle that we have, that Mr. De
Rivaz objected to the Day’s application for planning permission in respect of a building
known as the Lambing Pen, near to the boundary between the two properties, and
there is also reference in the papers to an occasion when Mr. Day is alleged to have
threatened Mr De Rivaz with an air rifle when Mr. De Rivaz was doing some work on
his property.
Mr. De Rivaz said in evidence that he believed the Days were behind the Council’s
decision to serve this section 25 Notice and we are satisfied that it
5
was this belief which has caused Mr. De Rivaz to take such very strong objection to
carrying out what on any view amounts to a very limited amount of work in three small
ditches, but there it is.
It is also clear from the correspondence we have seen that the Council has effectively
been pulled into the disputes between the De Rivaz’s and the Days and that Mr. De
Rivaz and the Council had a somewhat difficult relationship, and indeed Mr. De Rivaz
has made certainly one, and I think two complaints, to the Ombudsman about the
conduct of the Council; so not a happy situation
The first question we address is whether the three watercourses are ordinary
watercourses within the meaning of section 25.
An ordinary watercourse is defined by section 72 of the Act and is defined as meaning
“a watercourse that does not form part of a main river” and a watercourse is defined
as “including all rivers and streams and/or ditches, drains, cuts, culverts, dykes,
sluices, sewers, other than public sewers, and passages through which water flows.”
There has been a conflict in the evidence as to whether water ever flows in these
watercourses and Mr. Blackett-Ord has contended on behalf of Mr. De Rivaz,
particularly in respect of watercourses 2 and 3, that water does not flow in them and
that so far as watercourse No.1 is concerned, any flow is of such a minimal amount
that it really cannot be said to flow at all.
Mr. De Rivaz said in evidence that he had never seen water flowing in the
watercourses, and Mrs. De Rivaz
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supported this.
Mr. and Mrs. Church, who walk the footpath near these watercourses, also said that
they had never seen water flowing in these ditches, and Mr. Burwood, who also walks
the footpath, said he could not recall seeing water flowing in watercourses 2 and 3
Mr. Kean, an assistant engineer employed by the Respondent Council, and the officer
most involved in this matter, visited the properties in January 1994, and again in
December 1994, and he also visited on a number of occasions, he told us in January
and February 1995, immediately before the Notice was served, and he took some
photographs on 3rd March 1995, two days after the service of the Notice. In his
evidence he said that in December 1994 he noticed water running off the access drive
into watercourses 2 and 3 and that water was ponding in watercourse No.1 because
of the blocked culvert at point I on the plan. The photographs taken on 3rd March
show vegetation growing in the watercourses but do not, we note, show any water in
them.
Mr. and Mrs Day said they had seen water flowing in the three ditches.
Mrs. Day has taken some photographs over the years; they may be somewhat
selective but at exhibit KPD/2, photographs 2 and 3, taken in January 1996 certainly
show water in watercourse No.2. We do not think that the water shown in photograph
1 of KPD/2 is evidence of water flowing in watercourse No.1, it is water below the
culvert at point I, which was then blocked, but it is therefore likely that this water had
either backed up from the stream, which had previously flooded up, or it was simply
collected rainfall
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in the uneven bottom of watercourse No.1 On 19th November, which was in the
middle of this appeal and after a night of torrential rain, a video was taken by Mr. De
Rivaz, and some photographs were taken by Mrs. De Rivaz, of watercourse No.1.
This video showed water pouring from the drainage pipes at point A and at point M but
showed no water flowing in watercourse No.1. There were no photographs taken, it
would appear, of watercourses 2 and 3 on that occasion. We have considered all this
evidence and counsel’s submissions.
We agree with Mr. Nardecchia that for a ditch or a channel to be a watercourse as
defined by the Act, it is not necessary for there to be water flowing in it, or indeed any
water in it all the time. Indeed, some watercourses may be dry for most of the year,
but if at some time or other on a regular basis water does gather and flow, then it
becomes a watercourse within the meaning of the Act.
We are satisfied on the evidence that we have heard, and having regard to the
position of these three watercourses, that they are watercourses within the meaning of
section 25 and section 72. of the Act. We believe that both Mr. and Mrs. De Rivaz and
the Days have rather a selective memory about the water in these ditches and we are
satisfied that from time to time water does fall into these three watercourses and
move, albeit slowly, towards the stream, although we consider that certainly in recent
years, having regard to the low rainfall in recent years, the amount of any such water
in recent years has been very limited, and I
8
will return to that point later.
The next question is whether,when the section 25 Notice was served, the
watercourses were in such a condition that the proper flow of water was impeded.
Mr. Kean told us, and we accept, that when he visited the property in January and
February 1995, the ditches were overgrown with vegetation and the culvert at point I
was blocked. Accordingly, we find that the watercourses were in a condition that if
water had been entering the watercourses at that time then the proper flow of that
water would have been impeded by the then condition of the ditches.
The Council of course have a discretion as to whether or not to serve a Notice, and
before any such Notice is served we consider that the Council should have considered
carefully the drainage function that these ditches performed. Mr. De Rivaz contends
that paragraphs 3 and 4 of the schedule of works calls for works which amount to an
improvement to the watercourses and go beyond mere clearance and the work is
outside the scope of section 25.
Paragraph 3 of the schedule requires the removal of the 225mm culvert and its
replacement with a 450mm culvert.
Paragraph 4 calls for the installation of a culvert of 450 mm in watercourse No.2
where at the moment no such culvert exists.
Mr. Blackett-Ord makes the point that sections 28 and 30 of the Act make provision for
the restoration or improvement of ditches and watercourses, and that was the
appropriate remedy in this case if it was felt the two pipes were inadequate.
9
We think there is force in this point but we do not in fact need to decide it in view of
our findings as to whether the works in the schedule are reasonable in extent, or
necessary, and I now turn to that issue, issue in this appeal.
which is the third Mr. Nardecchia submitted that the word “unnecessary” in section
27(1c) means unnecessary to achieve a proper flow of water in the watercourse itself.
We consider that construction much too narrow.
We consider that the word means unnecessary having regard to the drainage function
which the watercourse performs.
We consider that before a Council serves a section 25 Notice requiring a property
owner to carry out work on his own property and at his own expense, it should ask
itself:
Is this work necessary, having regard to the drainage function the watercourses
perform or are likely to perform?
As to the function, I have already given findings as to the evidence of Mr. De Rivaz
and the Days, as to the amount of water which does enter, or is likely to enter these
ditches.
We also have to consider the evidence given by the expert witnesses, called by the
appellant and the respondent.
Mr. Noble and Mr. Gregory gave evidence for the Appellant, and Mr. Hammond gave
evidence for the Respondents.
Mr. Hammond, of course, gave evidence in the Magistrates Court and his first report
was before the Magistrates and clearly the Magistrates were influenced by that report.
In that report, Mr. Hammond states that the catchment area which serves the
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watercourses extends to an area of some 100,000 square meters. The plan annexed
to this report shows this area extending well to the West of School Lane. All
conclusions and calculations really flow from his view as to the size of the catchment
area, and indeed, he reaches one conclusion that there was a potential flow in
watercourse number 1 of 125 litres of water per second
We are satisfied that Mr. Hammond’s conclusions in this first report are very seriously
flawed.
We accept Mr. Noble’s evidence that on a generous calculation catchment area which
serves these watercourses is only some 1,000 square metres, and having regard to
the evidence we have heard from Mr. Hammond and Mr. Noble,
we reject Mr. Hammond’s view that watercourse No.1 should be so constructed as to
be able to cope with a one in twenty-five year flood event and we prefer Mr. Noble’s
view that one in six years is appropriate.
In fairness to Mr. Hammond, he did re-consider his first report, and he prepared a
supplementary report, in which he divided his very large catchment area into a
number of sub-catchment areas, and concluded that what he called the direct
catchment area for watercourse No.1 was in fact the area which he has marked with a
, 3 , on appendix D to his second report, a tiny area compared to his former catchment
area.
We are satisfied that Mr. Noble is correct as to the catchment area.
We also accept Mr. Noble’s conclusion that watercourses 2 and 3 do not have any
drainage function at all, and indeed, in cross-examination Mr. Hammond accepted
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that watercourses 2 and 3 could be filled in without affecting the drainage to this area,
apart from perhaps the footpath being rather wetter than it is at the moment when it
rains.
Mr. Gregory’s opinion was that all three watercourses had no drainage function. We
do not accept that so far as watercourse No.1 is concerned.
Quite apart from Mr. Noble’s expert opinion, we are satisfied, having visited the area,
that most of the surface water flowing to the North and West of watercourse No.4,
flows either down School Lane and away, or is channelled into the ravine, or ends up
in watercourse No. 4 and is taken away to the stream.
Further, we are satisfied that such water as flows down the boundary ditch marked on
the plan from point A down towards point F does not reach watercourse No.1 at all
having regard to the present condition of that watercourse, but flows into field 8082,
and there is evidence of marsh grass below point C on the plan, indicating that indeed
water does enter the field at that point.
We accept the evidence that between points F and G the boundary ditch in fact flows
uphill, preventing any flow of water into watercourse No.1.
We are also impressed by Mr. Noble’s evidence and observation that because of the
heavy woodland on the slope down from School Lane there is much humous and
vegetation on the ground, which makes for rapid absorption of water, and he also
noted that the soil in this area was sandy, which again makes for a good absorption of
the rainfall that falls.
We accept, of course, that some rainfall will fall on the
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public footpath and in the area between watercourse 1 and watercourse 4, which will
make its way down towards watercourse No.1. We also accept that some rainwater
will pass along the access drive, and may make its way through the gap in the kerbs
tones which allows walkers along the public footpath to walk across the access road
without being interrupted; some water will pass through that gap towards
watercourses 2 and 3.
We find that the works carried out to the driveway by Mr. De Rivaz in 1991 greatly
improved the drainage of that driveway and the immediate surrounding area, a fact
acknowledged by an internal memo from the Local Authority which is in the papers
before us.
We also accept Mr. Noble’s view that having regard to the amount of water likely to be
flowing at any time into watercourse No.1 that the 220mm culvert at point I is perfectly
adequate, provided of course it is kept clear.
When Mr. Kean recommended that the Council should serve a section 25 Notice, we
are satisfied on the evidence we have heard that firstly he accepted too readily what
he may have been told by Mr. or Mrs. Day about the drainage problems in the area;
secondly, that he over-estimated the drainage function performed by these
watercourses; thirdly that he was over-influenced by the fact that at point H, Mr. De
Rivaz had installed a larger culvert following the second action between himself and
the Days.
In that action, there had been, because of some work being done by the Waterboard
a very substantial flood of water down the hill and down the public footpath, the former
culvert at point H had been
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225mm, it was blocked at the time and therefore water flood into Pepper Alley and Mr.
De Rivaz was held liable for that flood.
Mr. De Rivaz told us, and we accept, that although he was not required to replace the
225mm culvert with a larger one, he did so out of an excess of caution, and we accept
that evidence.
Fourthly, we consider that Mr. Kean too readily adopted the Environment Agency’s
recommendation that culverts should be 450mm, without considering whether it was in
fact necessary in this case for there to be such a large culvert and we think he was
over-influenced by the fact that there was a larger culvert upstream at point H, again
without giving sufficient thought to the flow that actually was likely to occur through
that culvert. We bear in mind that Mr. Kean admitted in cross-examination that most of
the land drainage pipes and culverts in the County are 225mm.
Hammond’s opinion, that a 450mm pipe was necessary at point I was, of course,
influenced by his original views as to the catchment area and the potential flow of
water in watercourse 1, which evidence we reject.
In arriving at this conclusion, we have also taken into account the evidence we have
heard from Mr. Day.
He said that he thought that the 225rnrn culvert was inadequate but he accepted that
in sixteen years of litigation and dispute this culvert had never featured before, and we
accept Mr. De Rivaz’s evidence that the Days have never complained to him about the
culvert at point I in watercourse No.1.
Some of the evidence we have heard concerned the position
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of watercourses 2 and 3 before 1991 when Mr. De Rivaz’s contractors, who had been
doing the work on the access drive, dug out watercourses 2 and 3. It was the
Respondent’s case, and Mr. and Mrs. Day gave evidence in support, that before 1991
there were shallow depressions each side of the public footpath which served some
drainage function, and indeed, Mr. Day said in evidence, although he did not mention
it in his witness statement, that he used to clear out a culvert in watercourse No.2.
In view of our findings as to the necessity of the works in the schedule, do not need to
analyse this evidence in any detail, but we are not satisfied on the evidence that there
was any watercourse at points 2 and 3 that we have been referring to which
performed any drainage function, and we do not accept Mr. Day’s evidence that he
used to clear out a culvert in watercourse No.2
Having regard to our findings as to the amount of water which flows, or is likely to flow
ever into watercourses 2 and 3 and our findings as to their drainage function, we are
satisfied that the works specified in paragraphs 3 and 4 of the schedule were
unreasonable in extent and/or were unnecessary.
As to paragraphs 1 and 2, again, having regard to our findings, we find the works as
specified in those paragraphs as unreasonable in extent and/or unnecessary, save for
the clearing out of watercourse No.1 and the culvert at point I.
The schedule will therefore be amended to require Mr. De Rivaz to remove and cut
back the vegetation in watercourse No.1 and to remove silt and other
15
debris from it and to clear the culvert at point I on the plan.
The appeal is therefore allowed to that extent
We will now hear argument on the knotty problem of the enormous costs that have
been spent in this case.
MR. BLACKETT-ORD:
This court has overturned the Notices, save as to the extent of the obligation on my
client to clear out the culvert pipe itself at point I, and I think that your Honour heard
evidence from Mr. De Rivaz, and certainly submissions from me, that had the Notice
simply specified that that culvert should be cleared out, it would have been a good
Notice, and that was the effect of Mr. De Rivaz’s own evidence, that he always
accepted responsibility for keeping the ditch clear.
JUDGE HAYWARD:
Yes, but he did not clear it out, did he, until after the Magistrates Court hearing.
MR. BLACKETT-ORD:
It is right that he did not clear it out until after the Magistrates Court hearing, but it
must be emphasised that the Notice did not require him to clear it out, or so it
appeared
JUDGE HAYWARD:
I think if you are asked to clear out a ditch, that means you clear out a culvert in the
ditch, don’t you?
MR. BLACKETT-ORD:
There are two points on that, your Honour
The first is whether it was necessary to clear out the culvert at all.
The second point is-
JUDGE HAYWARD:
Well it was. We have accepted Mr. Kean’s evidence that when he inspected in
February of 1995 it was blocked
MR. BLACKETT-ORD: So be it, your Honour,
16
point.
I move on to the second one.
The way you are served with a Notice requiring you to do extensive greater works, it is
reasonable for you to do nothing at all until the validity of the Notice can have been
established. Anyway, that was the line that he took, and I can say no more upon it.
Your Honour I think will accept that actually these appeals have not been concerned
with that at all. These appeals have been concerned with the validity of the Notice as
to the much wider and more extensive works, and your Honour has been against me
on that small point, but I do submit that that small point is minimal and de minimis
against the background of the appeal as a whole, and such is my submission
JUDGE HAYWARD:
What do you say about the situation, and of course everybody is entitled to exercise
their legal rights but it can of course be an expensive process. We are concerned here
with three piddling ditches, if I can use the expression, and the cost of doing all the
work on the Notice is minimal. I know Mr. De Rivaz had an estimate of £800, but we
consider this work could have been done with a man and a shovel in half a day.
MR. BLACKETT-ORD:
With the new pipes; there are new pipes to come in, big pipes to come in, but your
Honour yes, it was not large.
JUDGE HAYWARD:
face it. New pipes on the Notice, but minimal work, let’s
He has chosen, as is his right, to incur all these legal expenses to challenge this very
limited amount of work. Is that not a factor we are entitled to take into
17
account as to where all the costs of this should fall?
MR. BLACKETT-ORD:
I would be most ill-advised to say that anything is matter that you should not take into
account. My submission on costs, and I am going to enlarge this slightly, is really that
is to look at the matter the wrong way round. The fact is that the Council served a
Notice requiring my client to do, yes, just a few hundred pounds worth of work, that is
all; but the Council served that Notice, the Council began all this and for the Council to
say: I’Well, we have defended our Notice through two very expensive hearings and we
have lost, but at the end of the day Mr. De Rivaz should not have been so trivial as to
take the point”, the short answer is if the Council serves Notices on people requiring
them to do even only a few hundred pounds worth of work and are shown to be
wrong–
JUDGE HAYWARD:
There is a letter we notice, it is a without prejudice letter, but we can refer to that now
we are talking about costs, in which Mr. De Rivaz did propose some settlement after
the Magistrates Court hearing and I note the Council’s reaction was:
Yes, it would be a sensible settlement, to settle you can withdraw all your appeal and
do all the work.
MR. BLACKETT-ORD:
Your Honour, yes. I am not going to refer to those. What I am going to refer to on
costs, I am afraid, is the conduct of the Council, granted the fact, and I will accept this,
that Mr. Kean at the very beginning bona fides thought that these works were
required. I do not challenge his good faith at all, but I do complain about what he did
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As your Honour knows, and has just summarised in the judgment, the Court feels that
Mr. Kean was too influenced by what I might describe as non-drainage, non-
engineering matters. He was influenced by what he had heard from the Days and
what he saw when he saw the big pipe further up at point H, and he took the view
therefore, I am sure bona fides, that these extensive works were required. The Notice
was then served by the Council, without the Council obtaining any report from any
outsider at all.
It was said on behalf of the Council:
Oh well, these works were so trivial it was not worth getting an outsider to give advice;
but, hang on, it is not the business of the Council to start serving Notices in respect of
trivial works at all.
JUDGE HAYWARD:
Had they got a report from Mr. Hammond before service, had they done so, they
would have been encouraged in their Notice to say the least.
MR. BLACKETT-ORD:
Well, we wonder, your Honour, whether really if Hammond had been brought in at the
beginning, rather than to produce a report for litigation as it were, Mr. Hammond might
have tried a bit harder to get the answer right.
First of all, to deal with the chronology, to remind your Honour what happened, Mr.
Kean serves the Notice. My client appeals it, intending to not invoke great massive
legal procedures but to take it in person to the Magistrates Court. At the Magistrates
Court the Council brings up all the majesty of solicitors and counsel and Mr.
Hammond’s own report, which is not disclosed in advance.
JUDGE HAYWARD:
I was going to ask you about that.
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MR. BLACKETT-ORD:
And I am going to come to that in a little more detail. The result is my client and Mr.
Gregory were pretty well fighting this blind before the ~magistrates without my client
having any legal experience of pesonally conducting a case.
The Council stands by Mr. Hammond’s report, notwithstanding certain doubts were
cast at it even before the Magistrates, they win, we appeal to this court, and again, it
was I think one working day before this hearing that we got Mr. Hammond’s revised
report.
the background to the litigation. That is
JUDGE HAYWARD:
Is it right that apart from not disclosing the report, the council opposed Mr. De Rivaz’s
application for disclosure of the report at the initial Magistrates hearing?
MR. BLACKETT-ORD:
I am going to come to that very shortly. May I hand up the jurisdiction on costs. I had
some doubt about what the jurisdiction was of this court, since we are a quasi criminal
court, to deal with costs, but I have dug up something called the Crown Court Rules
1982 and on the first page, paragraph 12: “Jurisdiction to order costs. Subject to the
provisions of section 109 of the Magistrates’ Courts Act 1980 {power of Magistrates’
Court to award costs on abandonment of appeals from Magistrates’ Courts} and
sections 22(4) …of the Licensing Act 1964 …no party shall be entitled to recover any
costs of any proceedings in the Crown Court from any other party to the proceedings
except under an order of the Court.
(2) Subject to section 4 of the Costs in Criminal Cases Act 1973 and to the following
provisions of this Rule, the Crown Court may make
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such order for costs as it thinks fit.”
JUDGE HAYWARD:
That is pretty wide, is it not.
MR. BLACKETT-ORD:
I think so. I was relieved to see that. All the other provisions do not matter. Going on,
rule 13 is important: “Where an appeal is brought to the Crown Court from the decision
of a Magistrates’ Court or a tribunal and the appeal is successful, the Crown Court may
make any order as to the costs of the proceedings in the Magistrates’ Court or tribunal
which that Court or Tribunal had power to make.” So we ask for the costs order in the
Magistrates’ Court to be reversed and then there is a provision for taxation where in
effect, if as I ask and this court makes an order for costs, there is provsion for taxation.
Your Honour, I say that something has gone very wrong as a matter of Local Authority
Administration and I ask that my client be entitled to all his costs, here and below, not
simply on the standard basis but on an indemnity basis, because I say that this is a case
where there is oppressive behaviour by a public authority, for which costs ought to be
ordered on an indemnity basis. They served a Notice they should not have done and
they defended that Notice through thick and thin, regardless of expense, and I mention
six very short points of fact.
JUDGE HAYWARD:
Can you tell me when Mr. Noble`s report was served on the Council?
MR. BLACKETT-ORD:
We had been calling for exchange and it was exchanged at much the same time as theirs.
My friend says
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it was one working day before the hearing, and it was about then because certainly we
had been calling for exchange and so they knew it existed, but we were not going to
hand it to them until we got their supplementary report and that was the situation
JUDGE HAYWARD:
So did you know a supplementary report was coming?
MR. BLACKETT-ORD:
We did not know that they were going to rely upon their original report, as it were; we
assumed that there would be a new report but whether it would be an up-date on the
old one or a replacement we did not know.
I would like to make six short points.
The first point is this:
All these works are for the benefit of the Days and there is no justification for the
District Council effectively being hijacked by the Days into this litigation, and how this
court put it in the judgment was to say that it was unfortunate that the Council had
become involved, so to speak, or had been brought in.
JUDGE HAYWARD:
Pulled in.
MR. BLACKETT-ORD:
Pulled in.
your Honour’s judgment. Can I disupte that one word in The Council was not pulled in,
the Council chose to involve itself in some litigation and when Mr. Kean knew that he
was entering into the difficult field of disputes between Mr. Day and Mr. De Rivaz he
should have been ten times more cautious.
JUDGE HAYWARD:
I think he realises that now. I think he very frankly said he would not do it again.
MR. BLACKETT-ORD:
I think that is right.
22
But really, before the Council starts elbowing in in private litigation, the Council ought
to be very cautious. That is the first point
The second point is this:
The issue of drainage was being argued, as your Honour has mentioned, in the
County Court in the early part of April/May 1996, and compromised, as your Honour
knows. Does your Honour remember that when the experts first appeared at that
hearing, the learned Judge very sensibly told the experts to go away and try and
agree things, and indeed they did agree things. Mr. Kean was asked to come to that
meeting. It was that meeting which led to the agreement between the Days and the
De Rivaz’s experts that the catchment area was only 1,000 square meters and not
100,000 square meters, and Mr. Kean was told by the Council not to attend. Can I just
give you chapter and verse on that.
If your Honour has got the bundles, at tab E, which is the correspondence bundle,
El13 has your Honour got a letter of 20th March 1996 from Mr. De Rivaz to the
Council?
JUDGE HAYWARD:
Yes.
MR. BLACKETT-ORD:
After the County Court action had begun. “Your Council have released privileged
information into the hands of Mr. and Mrs. Day. This information has been deposited
in the Hove County Court and is to be admitted as evidence. As a result, the Judge
has ordered that all the experts attend here this afternoon at 2 p.m. I have invited your
Mr. Kean to attend and he agreed. I have just received a Fax from Mr. Crone stating
that Mr. Kean will not attend. Leaving aside the serious issues raised by the release of
23
this information and your refusal to attend, it is clearly regrettable that your officers
continue to act in a manner which will prolong these disputes. We therefore reserve
the right to subpoena those concerned should the need arise.”
That meeting, as you will see from the date, was sadly not attended by Mr. Kean and
led to the agreement which is at D52, which inter alia contains in paragraphs 1 and 2
agreement that the catchment is only 1,000 sqare meters and a 225mm diameter pipe
is quite sufficient.
The attitude of the Council in refusing any sort of a meeting between the experts –if
Mr. Kean had attended that meeting between those experts, surely the Council would
not have proceeded to oppose the present appeal.
There is no explanation of it at all.
The attitude of the Council has been a completely dogged one, determined to defeat
this appeal.
JUDGE HAYWARD:
Was a copy of this agreed statement sent to the Council after the meeting?
MR. BLACKETT-ORD:
I am happy to say that at page El15 there is a covering letter setting out the provisions
of the agreement.
JUDGE HAYWARD:
The Council are not in any way bound to accept an agreement reached between
experts privately instructed if they take a different view.
MR. BLACKETT-ORD:
That is right.
JUDGE HAYWARD:
But you say that that should at least have made them pause to think about it.
MR. BLACKETT-ORD:
I really do say so, your Honour.
24
The next point, which I have already touched on, is that the Council, before serving
Notices ought to get sufficient expert advice that they are confident that the Notices
are justified, and I say again, and your Honour teased me rather on the matter, if Mr.
Hammond had been instructed earlier rather than later we very much hope that these
Notices would not have been served.
The next point, which again I have touched upon, is as to the conduct of the Council:
Why did not they have ordinary exchange of expert witness statements before the
Magistrates’ hearing, or why did the Council oppose such a thing?
The evidence on that I must briefly take you to is in two places.
First of all, Mr. De Rivaz at tab C, page 11, his paragraph 31:
“A hearing took place in the Lewes Magistrates’ Court in July 1995 at which, in order
to minimise costs, I acted for myself. Whilst I had obtained legal advice prior to the
hearing, I relied heavily on the knowledge of the Court Clerk at the hearing itself. As
the appellant/complainant, I was required to prosecute the matter without prior
knowledge as to the full reasons for the enforcement action. I had requested full
disclosure at a preliminary hearing in April 1995, but this was opposed by the solicitor
then representing the Council. The Magistrates did not consider themselves
empowered to order disclosure. ”
JUDGE HAYWARD:
I think that is probably right, is it not.
I do not think the Magistrates do have power to order disclosure.
MR. BLACKETT-ORD:
Probably so, but of course what was being
25
sought was a normal procedural thing, the exchange of experts reports, but the fact
that the Council were refusing it is what I really complain about. I need not take your
Honour to it, suffice it to say that we have the Court Clerk’s notes here and I know my
friend will not dispute Mr. De Rivaz’s summary of that.
So before the Magistrates the Hammond report was produced one day before the
hearing; the supplemental report, and for all we knew on our side, that was the
Council’s factual case as regards the drainage situation on the land until this date my
friend and I have agreed, one working day before this hearing, where for the first time
Mr. Hammond produces his supplemental areas and so forth, and it appeared to us he
was then going to resile from his 100,000 square meter area for something less, but in
cross-exarnination he said that he did not.
The final point is that the Council takes the view that we should have done this work
and not made a fuss and therefore all the legal expense would have been spared, to
which we say:
Why on earth should my client be put to the expense of even some hundreds of
pounds? No doubt if he knew it was going to cost him thousands or tens of thousands
to bring it here, he would have done it like a shot, but when one gets a Notice from the
Council which is patently nonsense, particularly this doubling of something, it is
rubbish.
When one gets a Notice like that, and it says on the bottom:
“You have power to appeal to the Magistrates,” it is really not for the Council to throw
the weight of the employment of professional’s advice and so forth to fight it
26
in this way.
They must pay the costs in my submission, and I say that it is oppressive behaviour
by them. There are many other aspects of this that I could go into about the
disclosure, and so forth, and you will remember at the very beginning of the hearing I
complained at the lack of disclosure and I did not press that because it seemed to me
it was not going to take the matter much further.
JUDGE HAYWARD:
The Council cannot say they were taken by surprise by Mr. De Rivaz’s attitude to
these things because there had been some abrasive correspondence throughout
1994.
MR. BLACKETT-ORD:
There certainly had, and your Honour saw that I put before the court in cross-
examination the remarkable fact that this Notice was served at the same time that the
Council was under investigation from the Ombudsman, and an investigation which
succeeded –there were one or two that did not succeed, but that one did succeed —
and I rather naughtily suggested, to see how far I could go in cross-examination
JUDGE HAYWARD:
I do not think that is a good point, Mr. Blackett-Ord.
MR. BLACKETT-ORD:
Your Honour, no.
JUDGE HAYWARD:
Conspiracy theories very rarely turn out to be true
MR. BLACKETT-ORD:
I knew your Honour was going to say that. I do not rely on it. I do simply say the
conduct of the Council throughout this and the expense that my client has been put to
has really been monstrous. My applications are for the costs order at the court
27
below to be reversed and I ask for costs for this hearing, and I ask for them both on an
indemnity basis
JUDGE HAYWARD:
Mr. Nardecchia?
MR. NARDECCHIA:
The court will not be surprised to hear that I strongly resist that application. In my
submission it may be helpful to consider the matter on the basis that there are two
sets of costs to be considered; there are the costs of this court and then there are the
costs in the Magistrates’ Court.
Can I deal first with the costs in this court, then the Magistrates’ Court and the factors
which the Council consider to be important to this issue and then deal with my learned
friend’s six points at the end and his suggestion of oppressive behaviour, and so on.
As regards this court, as your Honour said in the judgment, there are three grounds of
appeal and they are found at page A7 in the bundle, to which a fourth has become
added during the hearing, which, as your Honour remarked, turned out to be very
important.
However, on the three grounds of appeal, the court has in fact found in favour of the
Council on the first two points, namely, first, whether these three ditches are
watercourses, and that was strongly contested and has taken up an amount of court
time and the court has found in the Council’s favour, and secondly whether at the date
of the Notice they were impeded, and the court has found for the Council on that basis
too, accepting Mr. Kean’s evidence.
On the third ground, the question of whether these works
28
are improvements outside the scope of section 25, although the court commented that
it felt there was some force in the argument, the court has not decided the point. As
regards the grounds of appeal, the Council has certainly won on two out of three and
Mr. De Rivaz cannot be said to have won on any of them.
JUDGE HAYWARD:
That is the first point. But as against that, we have said in our decision, and this is
what we feel, that before these Notices are served and costs inevitably are incurred,
Council will have to consider whether the Notice is the necessary, having regard to the
function of the ditches.
MR. NARDECCHIA:
I will, if I may, come on to that. I have certainly not forgotten that point because I
recognise what has been said in the judgment. Perhaps I can approach the matter in
this way:
The schedule of works attached to the section 25 Notice has certainly survived as to
part; in other words, although the appeal has been allowed as to some of these works
it has not been allowed but been dismissed as regards others of these works. There
are three ditches in question, of which by far the biggest and most important in so far
as one can talk of ditches being big in this context at all, is ditch No.1. The work
involved to ditch No.1 is obviously much greater than to ditches 2 and 3, simply
because ditch No.1 is much bigger.
As regards ditch No.1, the court has upheld the schedule as regards cleaning it out,
including the culvert, which is obviously part of the ditch. In my submission, even
allowing for the fact that the court has found against the Council on increasing the
29
size of the culvert at point I, and has found against the Council as regards the works
of watercourses 2 and 3, even though they are watercourses, in my submission it
would be right to say that the Council has certainly upheld the Notice to the extent
of at least one third.
JUDGE HAYWARD:
Except that the works on watercourse 1 include a requirement to increase the size
of the culvert.
MR. NARDECCHIA:
But I say one third on this basis, that because the cleaning out of watercourse 1 is
much more extensive than on watercourse 2 and 3, insofar as it is possible to put any
kind of fraction or percentage upon it, I would submit that even though the court has
found against the Council on increasing the size of the culvert, nevertheless, taking
into account the extent of the works upheld, it would really come to, doing the best I
can, about one-third of the total, because the works to 2 and 3 were so small because
the ditches are so small, and that is the way I would put it. It is obvioulsy a matter for
the court to take a view on as to what percentage or fraction is appropriate, but that
would be my submission.
Simply gping on these two points, it does not appear that this is a case where Mr. De
Rivaz has succeeded, except in part. Accordingly, he should certainly not have all of
his costs. Indeed, in my submission, it is perfectly right that the court should take into
account the fact that Mr.De Rivaz has behaved in a manner which, on behalf of the
Council, I can only categorise as totally unreasonable throughout. He has pursued
this matter, despite the fact
30
that it appeared that he had accepted that he should do the work in paragraphs 1 and
2 of the schedule to all three watercourses –in other words cleaning out –because he
did some work between the Magistrates’ Court hearing and this hearing. He has
nevertheless pursued the matter
JUDGE HAYWARD:
I think that may be a little unfair, Mr. Nardecchia because although that as a fact is
right, he said the work he did was done as part of his normal maintenance, not
because of the Notice.
MR. NARDECCHIA:
Is there really a difference, with great respect, your Honour? All the Council is really
requiring in paragraphs 1 and 2 of the Notice is the kind of normal maintenance that
any land owner should be prepared to carry out with his drainage ditches and Mr. De
Rivaz attempted to tell the Court that he, if I remember correctly, was somebody who
did his annual maintenance every year, regularly and efficiently and it later transpired
on evidence that that was certainly not the position, that despite being the owner of
this property since 1979 he did not even know there was a culvert at point I in
watercourse 1, which I think gives a clearer idea than anything else could as to how
efficient and regular his annual maintenance has been.
What Mr. Kean found was that the matters had not been dealt with for a long time and
that is why the ditches were so overgrown. So when Mr. De Rivaz did the works, or
some of the works, after the Magistrates’ Court hearing, he was in my submission
recognising the inevitable and he was really recognising that these are works properly
required.
31
However, he has continued with the action, as I understand it, or the appeal, for the
reason given by my learned friend in opening the case where he said that he would
not accept doing work that constituted in his view an improvement. He has continued
on that point. He has rebuffed what in my submission was a perfectly sensible
suggestion by the Council to dispose of the matter, which I think can be found at page
ElO7, when the Council wrote to Mr. De Rivaz or his solicitors in February of last year,
pointing out:
“With reference to the works recently carried out by Mr. De Rivaz to watercourses 1, 2
and 3, the Council’s Principal Surveyor considers that your client has now completed
the major part of the works required by the Council’s Notice, dated lst March 1995,
fulfilling the requirements of items 1 and 2 of the schedule of works.
Items 3 and 4 appear to be still outstanding but it is noted your client has unblocked
the existing culvert under the footpath to Pepper Alley.”
Then the second paragraph:
“With the major part of the works now complete there would seem little that either
party can gain from a further rehearing of this entire case when one bears in mind the
potential costs involved, as compared to the cost of completing the remaining
outstanding works which are estimated to be in the region of £100. These works are
relatively minor in nature and surely cannot justify the risk of a substantial award of
costs against your client,”
etc.,
etc.
The court in its judgment has confirmed the Council’s view that the remaining works
were minor and could have been
32
done by a man with a shovel in a day; in other words, we are talking about £100, or
something like that
JUDGE HAYWARD:
Yes, but the other side of the coin is that De Rivaz would say:
The Council could, had they applied their minds properly, have decided that what he
had done was sufficient, so it was the Council who opposed his appeal. These things
have to be approached from both ways when one gets to the question of costs
MR. NARDECCHIA:
Undoubtedly, but we have here a submission from my learned friend that Mr. De
Rivaz shall have all his costs and should have all his costs on an indemnity basis. In
my submission, that is totally unrealistic.
JUDGE HAYWARD:
Mr. Blackett-Ord never understates his case
MR. NARDECCHIA:
Indeed not. Your Honour, it is quite If I may say so, Mr. De Rivaz’s conduct throughout
this matter has been unduly confrontational, really quite obsessive, particularly with
regard to some imagined conspiracy between the Council and Mr. and Mrs Day, which
I may add he has totally failed to prove, and it is quite unreasonable. If Mr. De Rivaz
wishes to pursue legal rights, then as your Honour has said, I suppose he is entitled to
do so, but in my submission is it really right that public money, which is what it comes
to, that he should be paid large sums of public money for doing something which no
normal and reasonable person in the circumstances would do.
JUDGE HAYWARD:
But again, one has to look at these things on both sides
Here we have three -I am going to call them
33
piddling ditches -on somebody’s private land. Mr. Kean is called round by the Days;
we do not know what the Days said to Mr. Kean, but what did not happen is Mr. Kean
did not then pop up the driveway and call in on Mr. De Rivaz say:
“I have been told this by the Days about these ditches. It may be there is going to be a
bit of a problem; what do you say about it?”
MR. NARDECCHIA:
He did the next best thing
JUDGE HAYWARD:
No, what he did was write requiring Mr. De Rivaz to do some work, without first
perhaps discussing it with Mr. De Rivaz, and there was then a fairly —-
MR. NARDECCHIA:
With respect your Honour, that is not right. If one looks at the letter that was written at
Ell, he did not require, he requested. He requested, and said that if Mr. De Rivaz had
any kind of queries he should contact him. Mr. Kean wrote a very courteous letter on
18th February 1994, which is where this matter really starts.
“I write to request you, as landowner, to take action to clear the surface water
drainage ditches passing across your land,”
and he sets out the sort of work which is requested. Then, in the last paragraph:
“I look forward to your assitance in this matter. If you wish to discuss the matter please
contact Graham Kean of this Council, ” and gives a number.
Instead of doing what I suspect any reasonable person would do, which is to contact
Mr. Kean and put the reasons why Mr. De Rivaz was of the opinion that these works
were not justified, Mr. De Rivaz wrote the letter at E13.
“Before I consider your instruction that I carry out what
34
would be expensive works on our property I require the following information:” It is he
who requires, not Mr. Kean:
“The authority on which you are basing your instructions; details of the complainant
and precise details of his/her complaint, including dates and times of the alleged
events; a large scale detailed plan; a copy of the Engineer’s report,” etc., etc., and I
need not read it all.
That letter, quite frankly, encapsulates the whole of Mr. De Rivaz’s attitude throughout
this matter. If one reads through the correspondence from then on, what one finds is
the Council pointing out as courteously as possible that they do have authority to
serve the Notice, which unquestionably they do, and answering the points, but getting
absolutely nowhere with Mr. De Rivaz, because of course Mr. De Rivaz is already in
the grip of his conspiracy theory, and this is what it all comes to.
I have to say that his attitude towards this matter, which in my submission was
exemplified by his performance in the witness box on many occasions, indicates
somebody who in certain respects seems to have parted company with reality on the
matter. It is not too much to categorise his attitude as obsessive. That is why the
matter has escalated, and if Mr. De Rivaz had, as I say, done what any reasonable
person would have done and sat down calmly with Mr. Kean and talked about it and
drawn his attention to the points that needed answering, I anticipate that it may be that
much of this could have been avoided.
JUDGE HAYWARD:
So you think if Mr. De Rivaz had said:
35
“Look, I will clear out the culvert but I don’t think an increase in the size of culvert is
necessary,” that the Council would have accepted that?
MR. NARDECCHIA:
If Mr. De Rivaz had gone to Mr. Kean and said:
“Look, quite frankly very little water flows through these ditches; if there are flooding
problems in this vicinity, it has got nothing to do with these ditches. Come down and
have a look after a period of heavy rainfall, satisfy yourself that there is very little water
and there cannot be very little water because of course there are other drainage
arrangements in the area and it certainly does not take any water from the boundary
ditch and I have done these drainage works in 1991; I will clear out these ditches as a
matter of normal maintenance, but really there is not a case, is there, for upsizing the
culvert pipes, and if you do not believe me take a second opinion from an expert;” I
would have thought there must have been a very strong probability, putting it no
higher, that by far the greater part of this dispute, if not the whole of it, could and
would have been avoided. In fact, Mr. De Rivaz has refused at any stage in the whole
proceedings to sit down and talk calmly with the Councilor its officers because of the
point I have already made, Mr. De Rivaz has been in conflict with his neighbours for
many years, he regards, apparently, Mr. and Mrs. Day as against him, making
complaints against him. If the Council then require him to do some works, according to
him, it is because they are in cahoots with the Days, not because they have exercised
their own judgment as a Local Authority,
36
therefore the Council are not to be spoken to, they are to be opposed by every means
at his disposal, and that is really what has happened in this case. In my submission,
Mr. De Rivaz should not have his costs in this court
JUDGE HAYWARD:
At all?
MR. NARDECCHIA:
At all, because I say in fact the right order is no order for this reason:
He has lost on two of his grounds of appeal, he has lost on part of the schedule works;
if one adds it all up I would say that really things balance out. Mr. De Rivaz I would
say has won about fifty percent overall and the Council has won about fifty percent
overall, if you take the grounds of appeal and the works and the schedule and run
them all together, that is what it really comes down to.
On that basis, I would suggest the right order is no order and if there is any further
point pointing in that direction, it is Mr. De Rivaz’s behaviour which I have tried to
outline in my submissions. That is my submission as regards these costs in this court
As regards the Magistrates’ Court, the position is that Mr. De Rivaz called vey little
evidence in the Magistrates’ Court. He called himself, as I understand it. He called Mr.
Gregory, who gave his first report. that was it. He did not call Mr. Noble. As I
understand it He did not call any other witness of fact; therefore the Magistrates
certainly did not hear much of the evidence that he has presented in this court.
Something has been said by my learned friend about not exchanging or not disclosing
37
experts reports before the Magistrates’ Court hearing.
My instructions are that the Council attempted to arrange an exchange of expert’s
reports, Mr. Hammond against ~Mr Gregory, and this was refused by Mr. De Rivaz.
Although it appears that Mr. Hammond’s report was not disclosed until shortly before
the first day of the hearing, I think it should be remembered that the Magistrates’ Court
hearing took place on a number of different dates over a considerable period of time.
Therefore, it does not appear that Mr. De Rivaz or Mr. Gregory would have been
prevented from analysing and responding to Mr. Hammond’s report, bearing in mind,
as I understand it, that the hearing was adjourned for weeks, and indeed I think on
more than one occasion over a period of months rather than weeks. I do not, with
great respect, consider that the submission my learned friend made about disclosing
expert’s reports goes anywhere in this matter.
What does go somewhere in my submission is that because Mr. De Rivaz did not
present his full case, he ended up with the result that he ended up with, and that is not
the Council’s fault in my submission Although the Magistrates made an order in favour
of the Council, if there is to be any variation at all, it should certainly not be a variation
that Mr. De Rivaz should have his costs of the Magistrates’ Court hearing because
that hearing seems to have resulted in an order by the Magistrates, which on the
evidence they heard, seems to have been quite reasonable. It is questionable, in my
submission, whether there is a case for disturbing the
38
Magistrates’ Court order. If there is it should only be on a limited extent and Mr. De
Rivaz should not have his costs in the Magistrates’ Court.
JUDGE HAYWARD: It would appear from the notes from the in the Magistrates’ Court
Magistrates’ Court that the point under section 27(1)(C) was not really argued at all. Is
that your understanding of the matter?
MR. NARDECCHIA:
I must admit I did not have that point precisely in mind, but I do not in any way
challenge what your Honour has said.
JUDGE HAYWARD:
Certainly it was a much more limited hearing than the Crown Court
MR. NARDECCHIA:
Yes. In my submission, that is what should happen in relation to the Magistrates’
Court. The Court has heard submissions that the Council has behaved oppressively —
—
JUDGE HAYWARD:
I do not think that we need trouble you on that.
NARDECCHIA:
So be it. The only other point that perhaps I can say is this: The court has, in its
judgment, criticised the judgement of the Council Officer in not analysing correctly the
function of these ditches, and obviously I accept, and have to accept, what the court
says about that. What I should say, in my submission, on behalf of the Council is this:
Council Officers sometimes have a difficult task. Mr. Kean knew that this was an area
which had been subject to flooding, and which had led to many complaints. He
attends the site, he sees water in watercourse No.1 and 2—
39
JUDGE HAYWARD:
We did not hear evidence about the nature of those complaints or the extent of them,
or what the complaints were. We know that Mr. Kean visited the Days and we know
that following those visits this Notice was served. What we did not hear any evidence
about was the nature or accuracy of the complaints.
MR. NARDECCHIA:
The court has heard evidence from both Mr. Kean and Mr. and Mrs. Day. You have
heard the nature of the evidence. It is disclosed that Mr. and Mrs. Day were the
complainants. I do not believe it is going too far to ask the court to put two and two
together and come to the conclusion that the complaints must have been of the nature
that Mrs. and Mrs. Day gave evidence about, namely that they had seen water in the
ditch, that there was flooding, the water would come down the driveway, flood Pepper
Alley; Mr. Kean would have known, therefore, that this was a sensitive area
JUDGE HAYWARD:
But they did not give evidence. That was one of the points that struck us. They did not
give evidence that the culvert at point I and the condition of watercourse 1 had ever
caused flooding into Pepper Alley, apart from the 1986 incident, which was a quite
separate issue.
MR. NARDECCHIA:
Mr. and Mrs. Day, if I can put it this way they are not Engineers, they are ordinary
local residents, they know when there is flooding and when there is not flooding. The
precise cause of any flooding incident may be something that is not apparent to them.
They would not complain:
“It has flooded because there is a blockage at
40
point I.”
What they would complain about is that there is flooding. If Mr. Kean goes there, he
knows it is a sensitive area, he knows there have been complaints, he looks at ditch
No.1, he finds that there is a 450mm culvert there, he is informed, quite correctly, it
has been placed there by Mr. De Rivaz to replace a small one, he looks at the second
culvert at point I, he finds it blocked, he finds it smaller; he knows through his
experience that small diameter culverts frequently get blocked, and indeed, that is the
advice given by the Environment Agency or National Rivers Authority. I accept the
court has found against the Council on this point.
It is not unreasonable, however, in my submission, for Mr. Kean to make the judgment
that if there is one 450mm culvert, it would be logical to have another one in the same
ditch, which seems to perform a drainage function in the context of the valley. It is a
judgment that has to be made, the court has found against him, but it was an honest
judgment. It was bona fides; it was not improper, it was not unreasonable, in my
submission, it was within the bounds of reasonableness and in my submission, and I
say this partly because of the comments made by my learned friend and partly
because of what your Honour said in the judgment, but for the reasons I have given, I
say no order.
MR. BLACKETT-ORD:
Your Honour, may I reply very briefly on three points?
JUDGE HAYWARD:
Yes.
MR. BLACKETT-ORD:
First of all, my friend refers to a document
41
A7, the grounds of appeal, and he says he has won on all or most of them. With
respect to him, A7 is not really the grounds of appeal at all, although it is headed as
such. If you see its date, it is dated September 1996, and that was a month before this
hearing began. The actual grounds are in A6, in the Notice of Appeal to the Crown
Court, which is dated a year before. A7 is a document composed entirely by myself
shortly before this hearing in order that everybody should have some idea vaguely of
what we were going to be talking about because the actual grounds of appeal at A6
were so broadly drafted and it is quite unrealistic for my friend to say costs should be
according to the document at A7.
The second point is that my friend says, and I quote:
“If Mr. De Rivaz had said to Mr. Kean that there was only a little water flowing, then
there might be some sort of friendly chat and all this might never have happened”;
with great respect to my friend, the letter that Mr. Kean wrote was in terms which
could only be a red rag to a bull, such as my client –that is at Ell –where he says;
“I write to request you, as a landowner, to take action to clear the surface water
drainage.”
It is no use my friend saying: “It is a mere request and a friendly suggestion from Mr.
Kean.” If one reads on, the fourth line:
“In addition I should be pleased if you could upsize the appropriate 225rnrn pipe under
the entrance to the lower garden of Pepper Alley to a 450mm diameter pipe, to match
the one under the driveway to that property. A further pipe for 450mm
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diameter should be provided where the ditch South of the public footpath passes
under the entrance to the lower garden of Pepper Alley.”
It is perfectly clear, this is in approaching mandatory terms. It is a formal letter. My
friend said that Mr. De Rivaz was so unreasonable in asking lots of things; it was
wholly reasonable for him to ask lots of things when he received a letter like that from
the Council, and quite right too.
In particular he asked:
“Where is your Engineer’s evidence that any of this is remotely required?”
Really, for my friend for the Council, having lost in effect, to say:
“If only we had been friendlier to the Council beforehand and given them a little cosy
chat, none of this would have happened, everything that you have seen must surely
lead you to reject such a contention.
It is perfectly clear that Mr. Kean was as entrenched, if not more entrenched than
anybody else with the Days or the De Rivaz’s in his position. His position has been
defended by the Council root and branch from that moment until this, and it is fanciful
to suppose, granted what your Honour has rightly held were the motives which bona
fides influenced Mr. Kean right from the beginning; they were the size of the pipe
upstream and what the Days had told him. It is fanciful to suppose that something that
my client would have said to him then would have led him to change his mind and not
serve the Notice.
Even if that were the case, so what? The Council went ahead and served the Notice
and he has had to fight it and it has been rejected so I would simply say that that point
is irrelevant.
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Finally, going to the Magistrates Court, my friend says my client, in effect, did not call
much evidence and my friend says, and I am not going to go into this, that Mr.
Gregory would have had an opportunity during the course of the hearing to challenge
Mr. Hammond’s evidence.
But, hang on, the fact is that what has happened in this court is this court, sitting as in
effect a Court of Appeal, has rejected Mr. Harnrnond’s report. The central contention
in the Hammond report is that 100,000 square meters of land drain into these
watercourses and you have rejected it. Where a Court of Appeal, for so I call you,
overturns a decision of a lower court because that court was misled, then costs must
follow the event, and it is outrageous for my friend to stand up and rely on his own
Hammond’s report, which was proved to be wrong and say:
“Oh well, we could have challenged it a bit harder.”
Those are my submissions
JUDGE HAYWARD:
We will retire to consider the matter.
DECISION
We turn to the question of the costs of this appeal and the costs incurred in the
Magistrates’ Court below. A huge sum of money has been spent on this case, bearing
in mind that the dispute is over three small ditches on private land, far removed from
any public utilities.
We start, of course, on the basis that costs normally follow the event, and Mr. De
Rivaz is of course entitled to exercise his legal rights, and he has done so to some
44
success.
The Council, of course, have a discretion about the service of section 25 Notices and
these Notices, as in this case, are often served on the owners of private land and they
require prople to do work at their own expense on their own land, and we are of the
view that such Notices should be served with considerable caution.
The Council knew, from Mr. De Rivaz’s reaction to their initial letter about this matter
back in February 1994 that Mr. De Rivaz was not going to readily comply with the
instructions from the Council to carry out work on these ditches, and the Council
should in our view therefore have been careful before proceeding to the next stage,
almost a year later just over a year later, of serving a formal Notice.
We also take into account that in April of 1996, before the Magistrates’ Court hearing,
the Council were informed of the result of a meeting which had taken place between
the experts acting for the Days and for the De Rivaz’s in a County Court action, at
which meeting the Day’s expert had accepted that the 225mm culvert under the
footpath was sufficient and that what we have called watercourses 2 and 3 did not
form part of the land drainage system in the immediate area, so the Council are aware
of that agreement before the Magistrates’ Court hearing, but it would seem that the
Council chose, nevertheless, to proceed to enforce this Notice.
As we have already said, we do not in any way doubt Mr. Kean’s good intentions and
we accept that the Council when they get caught in what was undoubtedly part of a
neighbour
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dispute, have a difficult role to play.
As I have indicated, we do think that Mr. Kean unfortunately allowed himself to be
influenced by what he might have been told by the Days and was overinfluenced by
the importance of these ditches. We also take into account what Mr.Nardecchia has
submitted to us about Mr. De Rivaz’s reaction to this Notice. He says that it was wholly
unreasonable and that Mr. De Rivaz has been obsessive and lost touch with reality.
We do not think he has lost touch with reality, but we think his reaction has been
stronger than many people’s reaction might have been, but nevertheless the Council
were aware of the person they were dealing with and in our view should have been
much more cautious before embarking on the issue of this Notice.
So far as the costs of the Magistrates’ Court hearing is concerned, at that time the
culvert in watercourse No.1 was still blocked; Mr. De Rivaz had not even carried out
that work, and we are satisfied that any proper Notice, as found by the Magistrates on
the hearing of that appeal, would have included his carrying out work to that culvert
and watercourse No.1.
In all the circumstances, taking into account the arguments we have heard, we
consider that Mr. De Rivaz should pay 20% of the costs of the Magistrates’ Court
hearing.
As to the costs of appeal, Mr. De Rivaz has substantially succeeded but has lost on
some points, for instance the question of whether or not these watercourses are
46
watercourses within the meaning of the Act, and the arguments really in relation to
watercourse No.1, save for the upgrading of the culvert, and again, taking all the
arguments into account, we think that it is right that the Council should pay 80% of Mr.
De Rivaz’s costs of this appeal. The costs will be on the standard basis.
We reject the suggestion that the Council have acted oppressively in this matter, so
therefore they will be on the standard basis and taxed if not agreed
MR. BLACKETT-ORD:
Your Honour, in the court below my client still has to bear his own costs and pay 20%
of the Council’s costs?
JUDGE HAYWARD:
Yes.
We are grateful for the assistance of counsel in this matter. It has not been an easy
case, but I very much hope that the problems between the Days and the De Rivas’ will
no longer continue and they can reach some greater harmony.
MR. BLACKETT-ORD:
Your Honour, my friend and I are very grateful that this court has sat at such length to
hear it
JUDGE HAYWARD:
Thank you very much.
—00000—
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ADDENDUM
The following Wealden District Council Officers were involved in this case:
D. Holness – Chief Executive
Crone – Head of Works and Services
Abbott – Legal Department
G. Keane – Engineer
The Council’s International Drainage Expert:
I. Hammond – Posford Duvivier – Haywards Heath
Subsequent to the Crown Court hearing, it emerged that the Council had apparently spent its entire drainage budget for one year pursuing this enforcement action. Councillors had apparently also been advised that this was a “test” case, a point denied under oath in the Crown Court. It is understood that a number of similar actions were taken by the Council in the southern area of Wealden. The Sussex Police later issued an apolgy for not having investigated the matter (after Councillors had been informed to the contrary). The District Auditor took no action over this expenditure.
The Council`s wasted costs in the Magistrates Court were approximately £20,000.00. At that hearing the Council had successfully opposed an application by Mr. de Rivaz to submit a second report in rebuttal after the Council had produced its own report part-way through the hearing.
No enforcement report was prepared before the enforcement action was started by an officer acting under “delegated powers”. Councillor Ryde, the local Councillor who knew the area well, had apparently objected internally to the enforcement action. Councillor Ryde did not give evidence to the Crown Court.
Mr. D. Holness and the subsequent Chief Executive, contrary to the evidence of fact, still continue to deny that privileged documents were ever released by the Council to Mr. and Mrs. Day.
The Court plan showed all the levels from a full ground survey, the Council sought to have removed from the plan the levels that showed that water could not flow where the Council maintained (uphill), these levels were retained on the plan in a different colour. The inability of water to flow uphill is referred to in the judgement.
On the matter of costs, at the subsequent Costs Hearing the cost of Mr. de Rivaz`s own expert work in preparing the Court plan for the Crown Court appeal was not allowed. However Mr. de Rivaz was advised to lodge an appeal and this point was referred to the Supreme Taxing Office where it was ruled that Mr. de Rivaz`s expert costs were recoverable providing that they were properly invoiced.
The Supreme Taxing Office Ruling has set a legal precedent that any litigant who is an expert, hitherto only a solicitor had this entitlement, is entitled to recover his costs if he was acting as his own expert.
The appeal to the Supreme Taxing Office was supported by the Federation of Small Businesses.
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