Local government - Municipal corporation - Powers - Fluoridation of Water Supply Whether within powers of corporation - "Pure water" - Meaning - Municipal Corporations Act 1954. S.240

A power to add sodium silico-fluoride to water which is already pure is implicit in the terms of s.240 of the Municipal Corporations Act 1954, and a municipal corporation is thereby empowered to make this addition to the water which it supplies its citizens.

R. v. Fredericton (1956) 2 D.L.R. (2d.) 551 and Village of Forest Hill v. Municipality of Metropolitan Toronto (1957) 9 D.L.R. (2d.) 113, dissented from unless they could be distinguished.

Appeal from the judgement of the Court of Appeal of New Zealand [1964] N.Z.L.R. 438, dismissed.

[words missing from photocopy top of page] judgement of the Supreme Court of New Zealand (McGregor J.) refusing an order restraining the respondent, the corporation of Lower Hutt, from adding sodium silico fluoride to the domestic water supplied by it.

G.P. Burton for the appellant.

The Court of Appeal was in error in holding that s. 240 of the Municipal Corporations Act 1954 applied to enable the respondent corporation to fluoridate the water supply. The section is in Part 17 of the Act, which is headed "Waterworks" and it is the physical construction of works with which the section is concerned - that also appears from the context of s. 240. The fluoridation plant is not a "waterworks", the key to the meaning of which is supplying water which is conveyed through pipes, and the fluoridation plant does not do that and was not installed for that purpose. Nor does it come within the extended meaning of "waterworks" in s.239 of the Act, because there also the key is contained in the last three lines of subs. (1), "for collecting or conveying water for or to the district or any part thereof, or beyond the district".

Section 240 says that the council "may from time to time do all things necessary thereto". The installation of a fluoridation plant and the supply of fluoride is not a thing which is from time to time necessary to the construction of waterworks for the supply of pure water or for the keeping of the same in good repair. Where the water supply is already pure, as has been held here, the fluoridation plant and the fluoride are not necessary for the supply of pure water. They are acts for the purpose of supplying a substance, fluoride, in the consumers' water.

It is open to the respondent to say, granted that this plant is not "waterworks", nevertheless as a reasonable implication from s.240 it is possible for us to add this substance in connection with the supply of pure water.

It was agreed that "pure water" cannot mean chemically pure water. In the context of Part 17, "pure water" means water which is not unpleasant to drink - it must be fit to drink - and secondly, and more important, it must be such that foul or noxious substances which are detrimental to the use to which inhabitants would put it have been eliminated or reduced. Such water has been variously described as potable water or water fit to drink.

The definition of Turner J. in the Court of Appeal [1964] N.Z.L.R 438, 458, is relied on and adopted.

In Village of Forest Hill v. Metropolitan Toronto (1957) 9 D.L.R. (2d.) 113, 117, it was said "…purify it, that is reduce objectionable foreign matter in it by means harmless to its consumers". The meaning here contended for is supported not only by the context in which s.240 appears, but also in the light of various statutory provisions in New Zealand relating to the public water supply.

Section 75 of the Public Health Act 1848 in England was the statutory model for New Zealand municipal corporation legislation, and s. 75 is similar to, and in material aspects identical with, s. 35 of the Waterworks Clauses Act 1847, 26 Halsbury's Statutes of England, 2nd edition 729, which was the statutory basis of the section in New Zealand. Section 35 was considered in Milnes v Huddersfield Corporation (1888) 11 App. Cas. 511. The date of the first New Zealand Municipal Corporations Act is 1867. In 1876, and in several successive Municipal Corporations Acts - and since that date there have been five - the expression "waterworks for the supply of pure water" has been used.

There are other provisions in New Zealand - statutes and regulations - relating to the use of water which reinforce the contention that in using the expression "pure water" the Legislature was looking at freedom from impurities: the Health Act 1956, ss. 39, 40, 42 and 60; the Water Supplies Protection Regulations 1961 (S.R. 1961/86) (made under the Health Act), Regs. 2 and 15; the Underground Water Act 1953, s.4(6) (d) and (e); the Waters Pollution Act 1953, s 16 (2) (h); the Food and Drug Regulations 1946 (S.R. 1946/136) Reg 57. "Pure" means water which does not contain pollution - noxious substances which may be harmful to the consumer - and that is in accordance with the meaning in the Oxford English Dictionary.

If the meaning contended for is applied to the waterworks of the respondent there is evidence that the water before fluoridation was pure water. The respondent has no power to fluoridate its water supply because the addition of fluoride has no effect whatever on the purity of the water in the sense contended for. Its only effect is to increase the fluoride content of the water. So far as purity is concerned, the fluoridation process is entirely neutral.

Alternatively, if the Board rejects the meaning of "pure water" contended for, the reasoning of Turner J. is adopted where he said: "In my opinion water can never be purified, using any reasonable interpretation of that word, by adding to it a substance not there before, simply by way of an additive for the purpose of compulsorily improving the diet of the consumer"; and again: "The plain fact is that the standard prescribed by the Act is 'pure water', and …one cannot increase the purity of water by adding an impurity to it, however beneficial that impurity may be to the diet of the consumer" (ibid., 459).

There is no justification for construing a New Zealand statute by reference to suggested overseas standards of fluoride content. If one may add fluoride, then in principle any other substances may be added so long as it is shown that the substance is to be found in most water supplies in the world. If that conclusion is accepted, the door is open wide to the addition of all kinds of substances - "the door is open to the preparation of synthetic 'water'"; the Forest Hill case (supra).

The tests adopted by the majority of the Court of Appeal should be rejected and that of Turner J. in the Court of Appeal and of McGregor J. in the Supreme Court should be affirmed. It is irrelevant to the respondent's power that such a change is beneficial, Reliance is placed on the judgement in the Ontario Court of Appeal and on the majority judgement of the Supreme Court of Canada in the Forest Hill case (supra) - the overwhelming weight of judicial opinion in Canada was against fluoridation under the Ontario legislation.

The word "wholesome" does not appear in the New Zealand Act, and the reasoning in the Canadian cases is a fortiori applicable to the New Zealand statute.

Reliance is also placed on R. v. Fredericton (1956) 2 D.L.R. (2d.) 551, 563. Although Milnes v. Huddersfield Corporation (supra) is not directly in point here, the implication of that judgment does support the appellant's contention. The addition of fluoride is not something which is necessary to, consequential on, or incidental to any of the express powers conferred by s. 240; nor does it come within any of the implied powers which arise by reasonable and fair implication from the express powers.
[Deals with s.288 of the Municipal Corporations Act and s. 23 of the Health Act 1956]

The question of the desirability of fluoridation does not arise here; what does arise is the important question whether a local authority in the exercise of its [words missing at top of photocopy page] add fluoride to its water. Parliament has not expressly conferred the power on any person; if the respondent is right, then the power has been conferred on municipalities by a side-wind. The power does not exist, and never has existed, and Parliament must speak in much clearer language than appears in any of the statutory provisions before the exercise of such a power will be recognised as lawful.

R.C. Savage for the respondent corporation.

If there is the power to add the fluoride, it must admittedly be found in ss. 240 or 288 of the Municipal Corporations Act or in s. 23 of the Health Act - it is solely a question of the interpretation of those three sections. The construction of those sections depends largely on the spirit in which one approaches it. There are four principles which appear not to be disputed: (1) The powers to be exercised by a public body should be construed liberally. (2) The powers granted include not only those expressly stated, but also whatever may be regarded as incidental to or consequential on them. (3) Acts done in the exercise of discretionary power will not be interfered with by the Courts if the discretion has been exercised reasonably and bona fide. (4) The sections should be given such large and liberal a construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent and spirit. Further, these are New Zealand Acts and must be construed in the light of conditions current in New Zealand.

On the construction of s. 240 of the Municipal Corporations Act the issue is the very narrow question of what is meant by "pure" in the context in which it is used. All Parliament intended was to lay down a general basic quality when it used that word. It is only having regard to the purpose that one can properly talk of contaminating elements - there must be some criterion to which one ties noxious or contaminating elements. The approach of the majority in the Court of Appeal is right in keeping with the spirit and intention of the legislation, and in conformity with scientific and medical advances. Fluoridation is a matter within the discretion of the particular municipal corporation. On the true construction of s.240, "pure" was not used in any literal sense, but in a general everyday sense. Fluoridated water is "pure water" within the meaning of s. 240.

The particular language of New Zealand Acts should not be interpreted with reference to the interpretation of overseas statutes, but that is a very different thing from saying that New Zealand legislation should not be interpreted as having regard to the standards overseas. There is therefore no inconsistency in relying on evidence which used scientific material culled from experience abroad.

Mr Barton referred to various sections in New Zealand Acts and to the definition of "pollutant" in s.2 of the Municipal Corporations Act; those sections are of no assistance in this case because they are obviously directed to putting in what are polluters.

One of the criteria for determining whether water is suitable for drinking must necessarily be its effect upon health. In the Forest Hill case (supra), so far as it is applicable, the dissenting judgment of the Chief Justice of Canada and of Locke J. are to be preferred. The other Canadian case, R. v. Fredericton (supra), is of no value in determining the present issue because a large part of that case was in whether or not certiorari lay in particular circumstances. On the basis of purifying, it is not permissible to add what are described as impurities; it is clear from the evidence however that water with fluoride in it is pure water.

As to the second issue on s.240 - whether the fluoride plant is a waterworks within the meaning of this section - if it is accepted that fluoridated water is pure water within the meaning of s.240, then the power in that section to construct waterworks for the supply of pure water must necessarily have incidental to it the power to construct any plant that is used for the supply of that water.

[Deals with s.288 of the Municipal Corporations Act and s 23 of the Health Act.]

Barton, in reply

The general principles of construction put forward by Mr Savage are accepted, the difficulty is their application to the facts of this case. Apart from s.5 (j) of the Acts Interpretation Act 1924, the rules of statutory interpretation in New Zealand are the same as in England. Attorney general ex relatione Hitchens v. Napier City [1963] N.Z.L.R. 991, was decision affecting s. 305 of the Municipal Corporations Act. In a matter relating to the construction of waterworks and the supply of pure water the board is in as good a position as the New Zealand Courts to construe the words of the New Zealand Act. In Ontario there is an Interpretation Act which appears to be identical with s.5 (j) of the New Zealand Act, and in the Court of Appeal in the Forest Hill case (supra), reliance was placed on that provision. That did not deter the Judges from striking down the exercise of the power by the local authority.

There is no question of distinguishing the Forest Hill case; it was held there that there was no power to fluoridate the water supply under the section which required pure and wholesome water to be supplied. "Wholesome" was always used in the sense of free from impurities.
Cur. adv. vult.

The judgement of their Lordships was delivered by

LORD UPJOHN: Since 1959, the respondent corporation have added to the public water supply which they provide, from artesian wells, for the inhabitants of the city of Lower Hutt a minute quantity of sodium silico fluoride so as to bring the content of fluoride in the water up to one part in a million. The natural content of fluoride in this water is so low as not to be capable of demonstration, but traces of it are definitely there. The reason for this addition is not disputed. The evidence, to which their Lordships will briefly refer, established conclusively that fluoride in water plays a great part in preventing dental caries or decay in teeth, and this is especially so in regard to the teeth of children up to the age of twelve or fourteen. As, for geological reasons, the fluoride in natural water in most parts of New Zealand is very low compared with natural waters in most other parts of the world, this lack of fluoride causes an abnormally high incidence of dental decay among the inhabitants.

The respondent corporation therefore decided to add fluoride to its water solely with a view to improving the dental health of its citizens, especially its children. It has installed a standard fluoridation plant adjacent to the pump room which (as the learned Judge held) ensures that the whole water supply contains an even mixture with the proportion of fluoride to water one part per million, which medical opinion thinks is the optimum proportion for the preservation of dental health. It appears that some other public authorities in New Zealand have done [words missing from photocopy at top of page] of the respondent corporation to do this, but before examining that argument it will be convenient to set out some of the disputed facts.
At first instance the action came before McGregor J. and he examined the evidence with meticulous care. At one stage of his judgment he said this: "I have heard considerable evidence in the matter and I must say at the outset that I have never hitherto experienced evidence more impressive and cogent than that of the defendant establishing that it is, to use a neutral expression, most desirable that fluoride should be added to the water" (ibid., 439). Later on in his judgment he said: "In the present case I was satisfied on the evidence (1) that there is a high incidence of dental caries in New Zealand generally, (2) there is almost a complete absence or at least a high deficiency in the fluoride content of the natural artesian well water supply of Lower Hutt, (3) that the absorption of fluoride has a substantial effect in reducing the incidence of dental caries, especially in young children, (4) there are no deleterious or toxic effects on the human body from the absorption of fluoride more emphatically in the minute proportion of one part to a million, (5) that any surplus fluoride taken into the body is excreted without harmful effects, and (6) that tablets or other vehicles for the taking of fluoride are unsatisfactory in that the required regularity with children would not be achieved and that natural water is the only really satisfactory vehicle" (ibid)., 443.
Notwithstanding that these findings of fact have not been challenged, the relators, as they are perfectly entitled to, challenge the powers of the respondent corporation to make this minute addition of fluoride to the waters they supply to the public and seek an injunction restraining the respondent corporation from doing so.
The respondent corporation is entitled under the Municipal Corporations Act 1954 to construct water works and supply pure water for the use of the inhabitants of the district and it relies on three statutory powers which, it contends, entitles it to add fluoride to the water for the purposes of improving the dental health of those who use and drink the water supplied by it.
The first section on which reliance is placed is s. 240 of the Municipal Corporations Act 1954. This section is the second section in Part 17 of the Act which is entitled "Waterworks". Section 239 defines the term "waterworks" and their Lordships do not think it necessary to set that section out in detail. Then there is a sub-heading "Construction and Maintenance" and s.240 is in these terms:
(1) The council may construct water works for supply of pure water for the use of the inhabitants of the district, or of the shipping in any harbour adjoining, and may keep the same in good repair, and may from time to time do all things necessary thereto, and in particular may…"
Then follow a number of special powers which their Lordships do not think it necessary to set out for they do not bear on the problem they have to consider.
The second power upon which the respondent corporation relies is to be found in s. 288 of the same Act. It is the first section in Part 20 of the Act which is entitled "Public Health and Convenience" and is in these terms (as amended when the Health Act 1956 supplanted the Health Act 1920).
"The council may do all things necessary from time to time for the preservation of the public health and convenience and for the carrying into effect provisions of the Health Act 1956 so far as they apply to the district."
Finally, the respondent corporation relies on s. 23 of the Health Act 1956 which so far as relevant is in these terms:
"Subject to the provisions of this Act, it shall be the duty of every local authority to promote and conserve the public health within its district…"
and for that purpose certain powers were expressly conferred upon the local authorities.
McGregor J. decided that s. 288 of the Municipal Corporations Act entitled the respondent corporation to make this addition of fluoride, but that s. 240 of the same Act did not do so. He did not rely on s. 23 of the Health Act 1956 which, indeed, he thought might be restrictive of the powers conferred by s.288 though not in this respect.
In the Court of Appeal, North P. and McCarthy J. held that the respondent corporation was empowered to make this addition but by virtue of s. 240, and in these circumstances did not consider the other sections. Turner J. dissented and held that the respondent corporation had no power to do so.
Their Lordships propose to consider first the question whether, as the majority of the Court of Appeal held, s. 240 entitles the respondent corporation to make this addition. Ultimately it comes to a very short point of construction, whether the power to construct waterworks for the supply of "pure water" entitles the corporation to do so. No-one has suggested that the phrase "pure water" means pure H2O distilled of all other ingredients. It would indeed be a most unappetising and unsatisfactory liquid.

The phrase must be construed in relation to the background that water in the section refers to a natural liquid obtained from the earth through artesian wells (as in this case) or rivers or streams, and as such it must have within it many substances in solution which it has collected in the course of its percolation through the earth's crust. These substances will differ greatly according to the nature of the earth through which the water passes on its way to the point where it is finally collected by the local authority, be it by artesian well, or from rivers, stream or reservoirs to form the basic supply for the distribution of water to the local inhabitants. But the authority exercising its powers under s. 240 may not be entitled to deliver that water in its natural condition for it may contain many ingredients highly deleterious and harmful to human beings who desire to use it for drinking and domestic purposes. It must supply "pure water". For this purpose therefore it must be empowered to add to the natural water content substances such as chlorine to counter toxic bacilli; to take the necessary steps by the addition or subtraction of constituents, to prevent cloudiness or discolouration, to make the taste more acceptable and "potable", and so on. In the case of the waters supplied by the respondent corporation in fact it appears that the only other addition made to the water besides fluoride is lime to counter some excess of CO2 in the water and possibly trace elements of chlorine to combat bacilli though the evidence on this was far from clear. The learned Judge, however, held on the evidence that the natural water supply of the respondent corporation from its artesian wells was "pure water" and that the water after fluoridation and with the slight percentage of other chemicals added thereto, already mentioned, was still pure water in the sense that it was wholesome water or potable water. He concluded this part of his judgment by saying: "It is no more and no less pure than the natural supply."
On these findings, McGregor J. held that s. 240 did not entitle the respondent corporation to make this addition for the reasons he expressed thus: "As I have already said, s. 240 gives power to construct waterworks, a power already exercised prior to the installation of the fluoridation plant and from time to time all things necessary thereto. The question therefore arises whether the addition of the fluoridation plant was necessary for collection or conveying pure water to any part of the district. I do not think any such addition was necessary. It is certainly in my opinion expedient and highly desirable, but the council had already installed all pipes, machinery and appliances for collecting and conveying water to the district. What it has now done is not an addition to the supply or something necessary to collect and convey the water, but most worthily it has improved the health quality of the existing supply. A chlorinated plant might well be authorised for the reason that an impure or dangerous supply may be converted into a pure supply, and such a plant would be necessary to give a supply of pure water. The fluoridated plant is for the supply of what might be termed 'medicated pure water'. This seems to be in accord with the view expressed by the Court of Appeal of Ontario in Village of Forest Hill v. Municipality of Metropolitan Toronto [1956] O.R. 367 and by the New Brunswick Supreme Court Appeal Division in R. v. Fredericton (1956) 2 D.L.R. (2d.) 551. In the former the municipality had 'a power and obligation to provide a continued and abundant supply of pure and wholesome water'. It was held that although the word 'wholesome' may properly be interpreted as meaning 'beneficial to health' and although a municipality may be entitled to do something to make its water more beneficial to health as water, it enters a different field, and one it is not entitled to enter when it proposes to add something for medicinal purposes to pure and wholesome water, and its real purpose is not to make the water pure and wholesome, but to improve the general health of the community" (ibid., 441)
The learned Judge then went on to cite a passage from the judgment of Pickup C.J.O. in the Forest Hill case. He summarised his conclusion in this respect: "It seems to me that what is necessary for the supply of pure water is at least in part a question of fact, but it would be straining the language of the Act to hold that by implication the Legislature has empowered the defendant to add fluoride to its water supply. Such an act seems to me neither incidental or consequential to the supply of pure water where the water is already pure" (ibid 442).
That really states the case on s. 240 presented to their Lordships by Mr Barton for the relators. He summarised his submission in this way. That under s. 240 the local authority has an implied power to ensure that all impurities in the water were neutralised or eliminated; to prevent impurities arising during distribution and to add substances to the water for that purpose, but that the addition of fluoride could be justified only if it was added to remove an impurity or make it more pleasant to drink; neither of which were suggested. He contended that the powers conferred by s. 240 did not entitle local authorities to add a food or a medicine to its water supply.
In the Court of Appeal North P. took a different view from that of McGregor J. and he said this: "But if, as I think the position to be, the word 'pure' in the context in which it appears in our statute is a relative term and does not refer to the water being chemically pure, then I see no reason why a local body, so long as it acts in good faith, should not be entitled to take any reasonable steps it may think proper to improve the quality of its available water supply as water. I agree [words missing from bottom of photocopy]
Their Lordships think it right to add that had the natural water of Lower Hutt been found to be impure it would of course have been the duty of the respondent corporation to add such substances as were necessary to remove or neutralise those impurities; but that water having been made pure they see no reason why fluoride should not be added to the water so purified in order to improve the dental health of the inhabitants.
In these circumstances their Lordships do not think it necessary to express any opinion upon the question of whether s.288 of the Municipal Corporations Act or s.23 of the Health Act by themselves empower the respondent corporation to add fluoride to the water.
Their Lordships have been referred to the Canadian cases of R. v. Fredericton (1956) 2 D.L.R. (2d.) 551 and Village of Forest Hill v Municipality of metropolitan Toronto in the Court of Appeal [1956] O.R. 367; and in the Supreme Court (1957) 9 D.L.R. (2d.) 113. While there are many points of similarity between those cases and the present case (which their Lordships do not think it necessary to enumerate) which may have influenced those decisions, yet basically these cases did decide that a local authority had no power to add fluoride to the water solely for the purpose of improving the dental health of the consumers but limited their powers to the removal of impurities. Unless these cases can be distinguished their Lordships regret that they cannot agree with them. As to the Forest Hill case they agree with North P. that they find the judgement of Mackay J.A. at first instance and the dissenting judgments of the Chief Justice of Canada and Locke J. In the Supreme Court the more convincing.
For these reasons their Lordships will humbly advise Her Majesty that this appeal should be dismissed. The appellant must pay the costs of the respondents of this appeal.
Appeal dismissed.
Solicitors for Appellant: Scott, Hardie Boys and Morrison,
Solicitors for Respondent: Hogg, Gillespie, Carter and Oakley,


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