4 Water pollution offences
14.17 The criminal offences relevant to point source pollution are contained in the Environmental Permitting Regulations 2010.31 It is a criminal offence to either (i) operate a regulated facility without a permit, or (ii) to ‘cause’ or ‘knowingly permit’ a water discharge activity or groundwater activity, except to the extent permitted by an environmental permit.
14.18 As noted above32 a ‘water discharge activity’ is one which results in the entry or discharge into controlled waters of: any poisonous, noxious or polluting matter; or any waste matter or any trade or sewage effluent; or any discharge of trade or sewage effluent through a pipe from land into the sea outside the limits of controlled waters.33 The general offence (which applies whether or not the matter discharged is trade effluent) is complemented by a second offence, which makes it an offence to operate a regulated facility without a permit, even if no pollutants are discharged to controlled waters.34 It should be noted that the former offence requires only the ‘entry’ of noxious matter into controlled waters. It can therefore apply in situations where there is no point source for the pollution, for example where slurry or other agricultural waste enters nearby streams through run off following heavy rain. The secondary offence of operating a regulated facility without a discharge permit, on the other hand, does not require a ‘discharge’ to controlled waters. Operation of a regulated facility without a permit is in itself an offence.
14.19 There are several constituent parts to the general offence of ‘causing or permitting’ pollution: the matter that enters controlled waters must be poisonous, noxious or polluting; it must enter ‘controlled waters’; and the defendant must cause or knowingly permit the discharge. And the discharge must be made otherwise than in accordance with the terms of an environmental permit.
These terms were not defined in the 1991 Act, neither are they defined in the 2010 Regulations. They have been subject to extensive interpretation in the courts, as described below.(a)‘Controlled’ waters
14.20 An offence will only be committed if pollutants are emitted to ‘controlled’ waters. Controlled waters are defined very widely by s 104 of the 1991 Act. They include all inland waters (eg rivers, steams, canals, lakes ponds and reservoirs) and groundwaters contained in underground boreholes and strata, as well as coastal waters. In the case of streams or rivers, the definition includes watercourses that have temporarily deviated from their normal course eg by being diverted or flooding onto nearby farmland.35 The definition can also include a man made ditch if the ditch itself drains into controlled waters.36 It can also include a riverbed, even when temporarily dry.37
(b)Poisonous, noxious or polluting matter
14.21 The courts have taken a common-sense approach to the definitions of poisonous, noxious or polluting matter. ‘Poisonous’ has, in this context, been given its ordinary meaning eg it means something that is intrinsically poisonous. Noxious means something that may result in injury, though it is not immediately dangerous to life, and whether a substance ‘pollutes’ is to be assessed by reference to its effect on the receiving water. Thus a discharge may pollute water even if its only effect is to make the water concerned less palatable for cattle to drink. Discoloration of controlled waters may be polluting, particularly as it restricts light getting to plant life and may therefore impact upon its ecological quality. For example, milk is neither poisonous nor noxious, but if released into a lake, stream or river it may be polluting as the smallest amount of milk in water makes the water very cloudy and as it decomposes it takes oxygen out of the water. In R v Dovermoss Ltd.38 it was held that for matter to be ‘polluting’ all that is required is that a capability for the discharge to cause harm to plants, animals or persons using the water be demonstrated.
Proof of actual harm is not necessary. In this case slurry had been spread to farmland. A nearby stream later became blocked, causing it to change its course and run over the field. This resulted in the slurry mixing with the stream water spreading over the field and then contaminating nearby spring water with ammonia. An offence was found to have been committed, even though damage to water users was not proven.(c)‘Causes’ or ‘knowingly permits’
14.22 In Alphacell Ltd.v. Woodward39 it was established that ‘causing’ and ‘knowingly permitting’ are two distinct and separate grounds of liability. The courts have construed the terms of the offences strictly. Knowledge or an intention to pollute is, for example, irrelevant to the offence of ‘causing’ water pollution. All that is required for the ‘causing’ offence is a factual causal link between the agricultural activity in issue and the pollution incident to which it gave rise. If the activities that gave rise to the pollution are themselves done intentionally, all that is required to be shown is that there was a casual link between them and the pollution at issue.40
14.23 Causation is a factual issue, often resolved by applying a ‘but for’ approach – would the pollutant have entered controlled waters ‘but for’ the action of the defendant?41 So, for example, in Southern Water v Pegrum42 liability was established where unexpectedly heavy rainfall had led to the raising of the level in a slurry containment lagoon, and its subsequent overflow into a nearby river – even though this had never happened previously and was an unlikely occurrence. The chain of causation will only be broken if there is an intervening event, such as an act of God or third party intervention, such that the action of the defendant was not a causative factor in the pollution incident, but rather part of the background circumstances. The cases throw up two related issues which have exercised the courts and produced differing approaches: the extent to which an ‘active’ as opposed to ‘passive’ role is required by the polluter in the incident giving rise to the prosecution; and the extent to which the acts of a third party (for example a trespasser) which directly lead to the pollution incident can break the chain of causation and exonerate the landowner or operator of the installation concerned.
(i)The case law throws up numerous examples of liability accruing where operators of polluting installations (or landowners) have acted passively, yet been held to have ‘caused ‘ pollution. A good example is National Rivers Authority v Yorkshire Water Services Ltd.43 Industrial solvent had been introduced into the sewer system by an unidentified company and fed through the water company’s sewage treatment plant, which operated on a gravity feed basis. There was no operative action by the company or any other third party, before the solvent passed by gravity feed through the treatment works and into controlled waters. The operators of the sewage treatment works were held to have ‘caused’ the pollution that resulted, in that they operated the plant from which the pollutants passed into the environment.44 In the agricultural context the decision in Southern Water v Pegrum45 (above) is another example of this wide approach to causation. In the 1980s and early 1990s, however, a number of decisions distinguished the strict liability approach in Alphacell Ltd v Woodward from the situation where the defendant plays a purely passive role in a pollution incident, by requiring the commission of some positive act to ground liability under s 85.46 In Price v Cormack,47 for example, a farmer allowed a firm to discharge animal waste products into lagoons on his land. A retaining wall of one of lagoons failed, resulting in polluting matter entering a nearby river. In this case the farmer was acquitted of causing the pollution incident, on the basis that he had merely permitted the deposit of waste materials on his land and had not ‘caused’ the pollution by his own actions. These cases seemed to reinterpret the guidance given in Alphacell v Woodward so as to require that the polluter be actively involved in the immediate cause of the pollution.48 This line of cases was disapproved by the House of Lords in Empress Car Company (Abertillery) Ltd v National Rivers Authority.49 It was there reaffirmed that a wider interpretation is required, one that merely requires that the polluter be actively involved in operating the facility from which the pollution emanates.
This reaffirms the position in Alphacell v Woodward50 as originally understood.(ii)In another line of cases the courts limited the wide interpretation of the requirements of causation by allowing the intervention of a third party, natural event or other intervening cause to break the chain of causation. So, for example, in Impress (Worcester) Ltd v Rees51 the act of a trespasser who released oil from the defendants tank at night into the River Severn, without the knowledge or consent of the landowner, was held to be an intervening ‘cause’. The site operator had not, therefore ‘caused’ the pollution incident in the required sense. These cases were also reviewed by the House of Lords in Empress Car Company (Abertillery) Ltd v National Rivers Authority.52 In this case oil was stored onsite within a protective bund, but the oil tank was connected to a pipe that fed into a smaller tank outside the bund. A trespasser vandalised the tap on the pipe, causing the smaller tank to overflow, and oil then passed into a nearby river through a storm drain. Lord Hoffman, giving the leading judgment, emphasised that the intervention of a third party in the chain of causation must not be judged by whether it is foreseeable or not. If the intervention of a third party or natural event is ‘a normal and familiar fact of life’ it will not break the chain of causation between the site operator and the pollution incident, even if it is unforeseeable. On the other hand, an event or intervention that is ‘abnormal or extraordinary’ will break the chain of causation. Vandalism was foreseeable, whereas a terrorist attack would not have been. In the later case of Environment Agency v Brock plc53 the pollution was caused by a fracture in a pipe that had a latent manufacturers defect. Although this was not readily identifiable, the operator was nevertheless held liable. A defect in equipment of this sort was an ordinary fact of life and not ‘extraordinary’ in the sense required by the Empress Cars test.
The net result is to reinforce the strictness of liability under s 85 (and now the 2010 Regulations). There remains some scope for debate as to where the distinction will be drawn between ‘extraordinary’ events or interventions, and those that will be regarded as the ordinary facts of life.(iii)‘Knowingly Permits’. Most cases are prosecuted under the ‘causing’ offence, and this limb of the offence has generated the majority of the case law. The ‘knowingly permits’ offence is more sparingly used and has narrower application owing to the requirement to prove knowledge that the polluting acts have taken place. It is, however, clear that it’s commission can entail the purely passive involvement of the polluter. The chief difficulty is the requirement to establish knowledge. ‘Knowingly permitting’ water pollution imports a failure to act to prevent pollution, in circumstances where it is within the power of the accused to take affirmative steps to avoid the incident complained of, coupled with knowledge that pollution will result from the failure to act. It is probably sufficient for the defendant to be aware of the factual state of affairs that caused the pollution, without being aware that it constitutes a breach of the terms of discharge consent or other relevant authorisation.54 It was also suggested in Schulmans Incorporated Ltd v NRA55 that constructive knowledge of the state of affairs giving rise to the pollution would be sufficient to ground a prosecution. Had the farmer in Price v Cormack been charged with knowingly permitting the pollution complained of (rather than causing it) he would probably have been successfully prosecuted.56
(d)Defences to water pollution offences
14.24 The Environmental Permitting Regulations 201057 provide a defence to charge of causing or knowingly permitting pollution discharge where the acts alleged to have caused the contravention were done in an emergency in order to avoid danger to human health. The defendant must have taken all steps reasonable in the circumstances to minimise pollution and details of the acts done must be furnished to the regulator as soon as reasonably practicable after they were done. There is no guidance on how this is to be interpreted.58 The defence was successfully pleaded in Express Ltd (T/A Express Dairies Distribution) v Environment Agency59 where a milk tanker had been steered on to the hard shoulder of a motorway following a tyre blow out, and this had resulted in milk getting into a nearby stream. The court stressed that it is the entry of the pollutant (here milk) into controlled waters that must have been caused in order to avoid danger to life or health.