National Rivers Authority (Southern Region) v Alfred Mcalpine Homes East Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,MR JUSTICE MORLAND |
| Judgment Date | 26 January 1994 |
| Judgment citation (vLex) | [1994] EWHC J0126-9 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 January 1994 |
| Docket Number | CO/1003/93 |
[1994] EWHC J0126-9
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Simon Brown and Mr Justice Morland
CO/1003/93
MR CAMDEN PRATT QC and MR P MARSHALL (instructed by the Regional Solicitor, National Rivers Authority) appeared on behalf of THE APPELLANTS
MRS KENNEDY-McGREGOR (instructed by Messrs Laytons, Surrey) appeared on behalf of THE RESPONDENTS
Wednesday 26 January 1994
The National Rivers Authority Southern Region (the Authority) appeal by case stated against the decision of the Tunbridge and Malling Justices sitting at West Malling on 11th January 1993 upholding a submission of no case to answer and dismissing an information laid by the Authority against Alfred McAlpine Homes East Ltd (the Company). The information alleged that on 20th May 1992 the Company caused polluting matter, wet cement, to enter controlled waters, the Ditton Stream, contrary to section 85 of the Water Resources Act 1991.
The facts found by the justices can be shortly stated. The Company were engaged at the time in building houses on a new residential development at Goldwell Springs, East Malling. The Ditton Stream (which the Company acknowledge was a controlled water within the meaning of section 104 of the 1991 Act) ran through the development in a man-made culvert emerging to the north of the site where it entered first a lake and then the River Medway. On 21st May 1992 Mr. Barker, a water quality engineer employed by the authority, went to inspect the Ditton Stream and found it to be clear upstream of the Goldwell site but, downstream of the site, cloudy and containing a number of dead and distressed fish. During his inspection Mr. Barker was approached first by the Company's site agent, Mr. David Brown, and second by their site manager, Mr. Tom Riley. Both were interviewed separately under caution and both accepted responsibility for the pollution, explaining that it had been caused by cement being washed into the stream on 20th May 1992, during construction of a water feature on the Goldwell Springs site.
At the close of the Authority's evidence, the Company submitted that upon those facts there was no case to answer. The submission was accepted. The justices concluded that although both Mr. Riley and Mr. Brown took responsibility for the pollution and "although section 85 did seem to create an offence of strict liability", the Authority had failed to show that the Company itself was liable. They said this:
"We applied the guidelines in Tesco v Nattrass and found that neither Mr. Riley nor Mr. Brown were of a sufficiently senior standing within the company to enable us to say with confidence that they fell into the category of those whose acts were the acts of the company."
The question posed for the opinion of this court is:
"Whether we were correct to conclude that an offence under section 85 of the Water Resources Act 1991 could only be committed by a company if the offence was committed by a person exercising the 'controlling mind and will' of the company, such as a director, manager, secretary or some similar officer of the company, and therefore correct to find that there was no case to answer and to dismiss the information."
Section 85 provides so far as relevant:
"(1) A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter…..to enter any controlled waters."
So far as material it is in identical terms to section 2(1) of the Rivers (Prevention of Pollution) Act 1951. The starting point for consideration of this appeal must accordingly be the decision of the House of Lords in Alphacell Ltd v Woodward (1972) AC 824. There are helpful passages to be found in all five speeches. Let me, however, cite from just two. First, from Lord Wilberforce at pages 834 and 835:
"The subsection evidently contemplates two things —causing, which must involve some active operation or chain of operations involving as the result the pollution of the stream; knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge. I see no reason either for reading back the word "knowingly" into the first limb, or for reading the first limb as, by deliberate contrast, hitting something which is unaccompanied by knowledge. The first limb involves causing and this is what has to be interpreted.
In my opinion, 'causing' here must be given a common sense meaning and I deprecate the introduction of refinements, such as causa causans, effective cause or novus actus. There may be difficulties where acts of third persons or natural forces are concerned but I find the present case comparatively simple. The appellants abstract water, pass it through their works where it becomes polluted, conduct it to a settling tank communicating directly with the stream, into which the polluted water will inevitably overflow if the level rises over the overflow point. They plan, however, to recycle the water by pumping it back from the settling tank into their works: if the pumps work properly this will happen and the level in the tank will remain below the overflow point. It did not happen on the relevant occasion due to some failure in the pumps.
In my opinion, this is a clear case of causing the polluted water to enter the stream. The whole complex operation which might lead to this result was an operation deliberately conducted by the appellants and I fail to see how a defect in one stage of it, even if we must assume that this happened without their negligence, can enable them to say they did not cause the pollution. In my opinion, complication of this case by infusion of the concept of mens rea, and its exceptions, is unnecessary and undesirable. The section is clear, its application plain…
There are two previous decisions which call for brief comment. The first is Moses v Midland Railway Co. (1915) 113 LT 451 which was decided upon similar terminology in section 5 of the Salmon Fishery Act 1861. The cause of the escape of the polluting creosote was a defective tap in the tank wagon which did not belong to the railway company but to a private owner. The conclusion that the railway company had not caused it to flow was, I should have thought, inevitable. The second is Impress (Worcester) Ltd v Rees (1971) 2 AER 357. The appellant had placed a fuel tank near, though not adjacent, to the river Severn. The oil escaped through a valve which was not kept locked. The Divisional Court found that it was an inevitable conclusion of fact that some unauthorised person had opened the valve for purposes unconnected with the appellant's business. They held that the opening of the valve was of so powerful a nature that the conduct of the appellant was not a cause of the flow of oil. I do not desire to question this conclusion, but it should not be regarded as a decision that in every case the act of a third person necessarily interrupts the chain of causation initiated by the person who owns or operates the installation or plant from which the flow took place. The answer to such questions is one of degree and depends upon a proper attribution of responsibility for the flow of the polluting matter."
Second, this passage from Lord Salmon's speech at pages 847 —849:
"The nature of causation has been discussed by many eminent philosophers and also by a number of learned judges in the past. I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than by abstract metaphysical theory.
It seems to me that, giving the word 'cause' its ordinary and natural meaning, anyone may cause something to happen intentionally or negligently or inadvertently without negligence and without intention. ….
The appellants clearly did not cause the pollution intentionally and we must assume that they did not do so negligently. Nevertheless, the facts …… to my mind make it obvious that the appellants in fact caused the pollution. If they did not cause it, what did? There was no intervening act of a third party nor was there any act of God to which it could be attributed. The appellants had been responsible for the design of the plant; everything within their works was under their control; they had chosen all the equipment. The process which they operated required contaminated effluent being pumped round their works until it came to rest in an open tank which they sited on the river bank. If the pumps which they had installed in this tank failed to operate efficiently the effluent would necessarily overflow into the river. And that is what occurred. It seems plain to me that the appellants caused the pollution by the active operation of their plant. They certainly did not intend to cause pollution but they intended to do the acts which caused it. What they did was something different in kind from the passive storing of effluent which could not discharge into the river save by an act of God or, as in Impress (Worcester) Ltd v Rees (1971) 2 AER 357, by the active intervention of a stranger, the risk of which could not reasonably have been foreseen.
The appellants relied strongly upon Moses v Midland Railway Co. 31 TLR 440. In that case a private owner's tank wagon filled with creosote formed part of a train being driven by the defendants. At the beginning of the journey the wagon was subjected to careful examination by the defendants which revealed no defect. There was, however, a latent defect on one of its taps. Whilst the train...
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