13th July, 2020
Pigot v. The Environment Agency
As anyone in the hydro industry knows only too well, the rights to use water in a watercourse, and the extent of those rights, is often contentious.
The recent case of Pigot v. The Environment Agency provides some clarification and demonstrates the benefit to scheme operators of understanding their rights and being prepared if necessary to assert them.
Sir George Pigot has a property on the River Kennet, historically used as a mill since at least the Domesday survey. Since the 1930s it was used, with a weir, sluices etc to power a hydroelectric turbine. In 1999 the EA constructed a fish pass on the weir. For many years the fish pass caused no issue, at least in part because when flows were low the fish pass was closed off. After 2015 – a dry year – this became a point of contention, the parties disagreeing about the EA’s rights under the 1975 Salmon & Freshwater Fisheries Act 1975 (the ‘1975 Act’).
Section 10 of the 1975 Act provides the EA with the statutory power to construct, alter, remove and maintain fish passes – and it was under this power that this fish pass was constructed. However, Section 10 also provides that in may only do so ‘so long as no injury is done by such a fish pass to the milling power…’. It was not in dispute that a hydro scheme comes within the definition of a mill: ‘”mill” includes any erection for the purpose of developing water power’ (Section 41).
Sir George’s case was that by refusing to continue closing the fish pass in times of low flow the EA was contravening Section 10, by injuring the milling power of his scheme, and he brought a case for declarations to that effect. The EA’s case included that the hydro scheme had changed since the fish pass was constructed and that they could not be held to a standard not in place at the time of construction, but also the contention that, in effect, the 1975 Act could not mean what it said, as ‘a fish pass could not reasonably have been constructed or maintained in any other way which would have reduced injury to milling power’; ie that the consequences were inevitable and sanctioned by regulations, primarily the Water Framework Directive.
The court decided first, that the EA was, on the face of it, liable in nuisance to Sir George by keeping the fish pass open at low water, on the basis – extremely important to hydro operators – that ‘any person who affects the flow without a right to do so, by making the flow materially stronger or weaker commits the tort of nuisance’.
Secondly, the court gave extensive consideration to the EA’s argument that Section 10 was, in effect, incorrectly worded on the basis that the construction of any fish pass would inevitably cause injury to the milling power. The conclusion reached was that the EA’s argument was unsupported and not correct – ‘a reduction [in flow] which causes no present harm to anyone, nor is likely to cause any harm in the future, should not be treated as ‘injury’. Nor would a minimal and inconsequential effect [count as such]’. On that basis, Section 10 is consistent with the 1975 Act’s purpose.
Third, the EA’s argument that the ‘milling power’ should only be read as referring to mills in existence at the time the fish pass was constructed was dismissed in short order. It is established law that a use of land which has continued for a long time may become a nuisance if it starts to cause adverse effects on neighbouring land due to a change in the use of that land. That being so, it is not surprising that Section 10 imposes a continuing duty on the EA not to injure the milling power.
Fourth, the EA had shown no other statutory authority to keep the fish pass open.
Accordingly, Sir George’s case succeeded, although the EA is seeking to appeal the court’s decision, and a final ruling is not likely to be available until early 2021.
As so many hydro schemes are in old mill sites with associated weirs, it is clearly a significant decision. It is unlikely that Sir George is the only hydro operator who has been told by the EA that a fish pass takes precedence, and he is perhaps unusual only because he has refused to accept that position. Anyone presently on the sharp end of the EA in this regard is encouraged to take advice promptly, as there are potential issues associated with the delay in taking action which did not arise in this case.
David Harries heads the Energy Team at Aaron & Partners LLP Solicitors and acted for the successful claimant in this case.
Planning, Environmental, Energy & Regulatory
Head of Team and Partner
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