The claimant's house was subject to flooding from the river Torridge in Devon. He argued that the flooding was caused by the Taddiport bridge, since the arches and plinths of the bridge restricted the flow of water under it. The claimant claimed that such restriction was a statutory nuisance.
He maintained that Devon County Council was responsible and engaged in efforts to persuade the District Council to serve an abatement notice under the Environmental Health Act 1990 on Devon County Council in order that the County Council would undertake remedial works to prevent or minimise the risk of future flooding.
Section 259(1)(b) of the Public Health Act 1936 provides that a statutory nuisance exists for the purposes of the Environmental Protection Act 1990 where:
"Any part of a watercourse 鈥� is so choked or silted up as to obstruct or impede the proper flow of water and thereby cause a nuisance."
The issue was whether the word "choked" in the Public Health Act was capable in law of including an obstruction to the proper flow of a river by a bridge constructed in or over it. The claimant applied for a declaration that it did.
Reference
The court held that it was unable to make the declaration sought as the application was academic and hypothetical, seeking as it was an advisory opinion of the court. In essence, the court decided that whether Taddiport bridge obstructed the proper flow of the river involved many factual issues that were not before the court.
However, the court further held that the meaning of the word "choked" in the 1936 Act had been fully argued in deliberations and was a live practical question that could be answered. Accordingly, the court held that where an obstruction or artificial obstruction in a watercourse caused a statutory nuisance, that watercourse could be said to be "choked". The word "choked" was not confined to a statutory nuisance that was ever present and continuous. Consequently, the piers of a bridge were capable of being artificial obstructions in a watercourse or river.
*Full case details
R (on the application of John Richard Robinson) vs Torridge District Council & Devon County Council QBD (Admin), Hodge J, [2006] EWHC 877 (Admin)
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Postscript
This decision reinforces the fact that it is the court's function to decide only live, practical questions and not hypothetical, premature or academic questions. In this particular case determination of the claimant's case involved many factual issues, which were simply not before the court.
