[2023] UKUT 201 (LC)

Dr Brookes sought to argue that water did not flow from the mill race into the channel before 2001, and that the channel’s water arose from springs in the ground beside it. He relied upon what he said was an Ordnance Survey map that pre-dated the works in 2001, and which showed at the point of the side weir a gap in the water of the river and the water of the side channel. At the near corner of the side channel there was a single blue dot. In Dr Brookes’ experience, this dot represented a spring or seepage of water out of the ground. In his view, the plan indicated that before the works there was no surface water where the new side weir had been installed. This analysis ran aground in two ways. First, the date of the plan he relied upon could not be confirmed. Secondly, Mr Benn produced a version of the plan confirmed to be from 2023, so well after the works, which while not having the blue dot, also showed a gap between the two blue areas of water. Accordingly we derive no assistance from a comparison of the plans.

Mr Willis recalled that there was water in the channel when the team arrived to do the work in 2001. Ms Manning referred to Mr Scott’s recollection that the channel was a running channel. Mr Benn’s opinion was that the channel had always been an active conduit for water. He pointed to three pieces of historic evidence: first, that the channel has been designated as a main river (see paragraph 7 above) since the 1960s and it would be odd for a dry watercourse to be so designated; second, that it has been shown as a channel with a left and right bank on OS maps from at least 1855-1882 and would have been shown as a single line if it only occasionally caried water; and third because the 1884-1914 and 1938 OS maps show a “waterfall/overflow” at the inlet to the bypass channel and that label would only have been used for a feature that was actively carrying water.

We find that there was usually water in the channel in 2001 and prior to that date.