Express Ltd (trading as Express Dairies Distribution) v Environment Agency

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLADY JUSTICE HALE,MRS JUSTICE HALLETT,Lord Justice Kennedy,Mr Justice Treacy,LORD JUSTICE KENNEDY
Judgment Date15 July 2004
Neutral Citation[2003] EWHC 448 (Admin),[2004] EWHC 1710 (Admin)
Docket NumberCase No: CO/1849/2004,CO/5609/2002
Date15 July 2004

[2003] EWHC 448 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2

Before:

Lady Justice Hale

Mrs Justice Hallett

CO/5609/2002

Express Limited T/A Express Dairies Distribution
(Claimant)
and
Environment Agency
(Defendant)

MR R GORDON QC appeared on behalf of the CLAIMANT

MR R SMITH QC appeared on behalf of the DEFENDANT

Thursday, 27th February 2003

LADY JUSTICE HALE
1

This is an appeal by way of case stated from the decision of the West Mercia Justices sitting at Evesham on 21st June 2002 convicting the appellant of an offence under section 85(1) and 85(6) of the Water Resources Act 1991, for which they were fined £5,000 and ordered to pay over £6,000 in costs. The offence in question is defined by section 85(1) as follows:

"A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters".

85

(6) provides for the penalties on summary conviction and on conviction on indictment.

2

It is to be noted, as Lord Wilberforce said in Alphacell v Woodward [1972] AC 824, 834, dealing with the predecessor to this section, that this:

" … contemplates two different things —causing, which must involve some active operation or chain of operations involving as a result the pollution of the stream; and knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge".

The appellants in this case were convicted of causing, not of knowingly permitting.

3

It is also to be noted that there are other offences defined by subsections (2), (3) (4) of section 85 which require there to be some sort of discharge causing the pollution.

4

A defence is provided by section 89(1), so far as is relevant to these proceedings:

"A person shall not be guilty of an offence under section 85 above in respect of the entry of any matter into any waters … if —

(a) the entry is caused … in an emergency in order to avoid danger to life or health;

(b) that person takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the entry and of its polluting effects; and

(c) particulars of the entry … are furnished to the authority as soon as reasonably practicable after the entry occurs".

5

The facts as found by the Justices were as follows, and I quote from paragraph 2 of the stated case:

"i) The vehicle registration number T822 KNN was coupled to a tanker trailer T520 that contained milk and was being used by Express Dairies Distribution on 1st February 2000 in the course of its business.

ii) The vehicle was driven by Mr Kevin Pinches, an employee of Express Limited, on the M5 southbound.

iii) The trailer was built to the required British Standard but had an extra foot valve fitted to it, which exceeded the standard. The trailer was properly maintained and had passed the necessary tests.

iv) As a result of a tyre blow out on the trailer, part of the spray suppression system became detached hitting the under-run protection barrier (a legal requirement). The barrier became detached and sheared the delivery pipe, causing approximately 4,000 litres of milk to escape from the forward compartment of the milk tank.

v) Mr Pinches pulled on to the hard shoulder of the M5 southbound, just north of junction 4, where he stopped. At that point there are two drains approximately 100 metres apart which have no catch pit and feed into a culverted section of Battlefield Brook, controlled water within the meaning of the Water Resources Act 1991.

vi) The emergency services were alerted, including the Environment Agency, by the driver, who contacted his depot for advice and then operated the foot valve to stem the flow of escaping milk. The emergency services and the Environment Agency attended the scene.

vii) The milk from the tank entered Battlefield Brook and subsequently flowed to the pond at Silverdale.

viii) The Environment Agency deployed aerators and started aeration at approximately 6.00 pm in the pond at Silverdale."

6

A number of questions were stated by the Justices for the opinion of the High Court, but, as things have developed, only certain of those questions are relevant to the issues in the appeal as now presented. These are:

"xii) Whether the statutory defence under section 89 of the Water Resources Act 1991 is available to a person in circumstances in which the entry is caused or permitted or the discharge is made as a result of an emergency in which a person acts so as to avoid danger to life or health or whether the statutory defence is limited to circumstances in which the entry or discharge is itself the emergency occasioned to avoid danger to life or health.

xiii) Whether there was any evidence on which a reasonable Magistrates' Court could have concluded that:

xv) The defendant caused polluting matter to enter the Battlefield Brook;

xvi) The release of milk was not in an emergency to avoid danger to life and health".

7

The appellants accept, for the purpose of this appeal only, that milk is capable of being polluting matter. They also accept that Bafflefield Brook is controlled waters. They make two submissions. The first is that there was a break in the chain of causation so that the offence was not committed at all. The secondly is that the defence under section 89(1) applied. In support of this second submission, Mr Gordon, QC, who appears for the appellants here, prays in aid the Human Rights Act in that to deny such a defence would constitute a discrimination under Article 14 in the enjoyment of the right to a fair trial under Article 6. He therefore argues that, under section 3 of the Human Rights Act, that consideration should be deployed as an aid to the construction of section 89.

(1) Was there a break in the chain of causation?

8

Mr Gordon relies upon the speech of Lord Hoffman in Environment Agency v Empress Car Company (Abertillery) Limited [1999] 2 AC 22. This case concerned a diesel tank in a yard which drained into a river. A pipe from the tank led to a drum which was outside the spillage bund round the tank. That tap governing the outlet from the tank had no lock. The tap was opened by a person unknown. There was no finding in the court below as to whether it had been done by an employee or a stranger, although there was clearly some reason to think that it might have been done by a stranger. The entire contents of the tank ran into the drum, overflowed into the yard and passed down the drain into the river.

9

The appeal against conviction was dismissed by the Divisional Court, points of law were certified by the Divisional Court for the House of Lords. The leading speech was given by Lord Hoffman, with whom Lords Browne-Wilkinson, Lloyd and Nolan agreed. He began by emphasising the distinction between acts and omissions drawn by Parliament: causing an entry must require that the defendant had done something. He then considered the meaning of the concept of causation and summarised the outcome of that discussion in five propositions at pages 35F to 36C:

"(1) Justices dealing with prosecutions for 'causing' pollution under section 85(1) should first require the prosecution to identify what it says the defendant did to cause the pollution. If the defendant cannot be said to have done anything at all, the prosecution must fail: the defendant may have 'knowingly permitted' pollution but cannot have caused it.

(2) The prosecution need not prove that the defendant did something which was the immediate cause of the pollution. Maintaining tanks, lagoons or sewage systems full of noxious liquid is doing something, even if the immediate cause of the pollution was the lack of maintenance, a natural event or the act of a third party.

(3) When the prosecution has identified something which the defendant did, the Justices must decide whether it caused the pollution. They should not be diverted by questions like 'What was the cause of the pollution?' or 'Did something else cause the pollution?' because to say that something else caused the pollution (like brambles clogging the pumps or vandalism by third parties) is not inconsistent with the defendant having caused it as well.

(4) If the defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party or a natural event, the justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. If it was in the general run of things a matter of ordinary occurrence, it will not negative the causal effect of the defendant's acts, even if it was not foreseeable that it would happen to that particular defendant or take that particular form. If it can be regarded as something extraordinary, it will be open to the justices to hold that the defendant did not cause the pollution.

(5) The distinction between ordinary and extraordinary is one of fact and degree to which the justices must apply their common sense and knowledge of what happens in the area".

In that particular case, applying those principles, it seemed to him that there was ample evidence upon which the court was entitled to find that the company had caused the pollution in that case.

10

Mr Gordon relies upon the evidence given by Mr Irvine, who is employed as the Technical Director for the appellants and has been involved with vehicles for a great many years. He described the tanker and he described the damage to the tanker. In words of the justices' case:

"He explained that the near side front...

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