National Rivers Authority v Yorkshire Water Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Mackay of Clashfern L.C.,Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Lloyd of Berwick,Lord Nolan |
| Judgment Date | 17 November 1994 |
| Judgment citation (vLex) | [1994] UKHL J1117-10 |
| Date | 17 November 1994 |
| Court | House of Lords |
[1994] EWHC J1117-10
House of Lords
Lord Chancellor
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Lloyd of Berwick
Lord Nolan
My Lords,
In this appeal the appellant, Yorkshire Water Services Ltd., (hereinafter referred to as "Yorkshire Water Services"), was the defendant in criminal proceedings brought by the respondent, the National Rivers Authority as the prosecuting authority on behalf of Her Majesty. On 17 May 1991 Yorkshire Water Services was convicted by the Batley and Dewsbury Magistrates of having, on or about 13 and 14 May 1990, caused poisonous noxious or polluting matter to enter controlled waters contrary to section 107(1)( a) of the Water Act 1989. On 18 March 1992 the Wakefield Crown Court allowed Yorkshire Water Services' appeal against this conviction. On 15 November 1993 the Divisional Court of the Queen's Bench Division allowed the National River Authority's appeal by way of case stated and ordered that the case be remitted to the Wakefield Crown Court with a direction to convict Yorkshire Water Services.
The Divisional Court certified the following two points of law as being of general public importance:
"(1) On a charge brought against a sewage undertaker under section 107(1)( a) of the Water Act 1989 is the only reasonable conclusion for the tribunal of fact that the undertaker is guilty of causing poisonous, noxious or polluting matter to enter controlled waters from a sewage treatment works operated and designed as set out in the case stated when the matter of the subject of the charge has been rendered poisonous, noxious or polluting by the discharge into a sewer by an unidentified third party of iso-octanol?
(2) Is the defence provided by section 108(7) of the Water Act 1989 available in relation to a charge brought against a sewage undertaker under section 107(1)( a) of the Act of causing poisonous, noxious or polluting matter to enter controlled waters?"
The Divisional Court refused leave to present a petition of appeal to the House of Lords. This appeal proceeds as a result of leave granted by an Appeal Committee of your Lordships' House.
Yorkshire Water Services is a sewage undertaker and owns and operates North Bierley Sewage Treatment Works. By virtue of section 67 of the Water Act 1989 it is placed under certain statutory duties in relation to the provision and maintenance of a sewage system. North Bierley Works operate in a manner similar to many others in this country in that sewage enters the works via a sewer which leads into an inlet chamber. Normally, it will flow along a channel into one of two primary tanks, where some settlement takes place. From there the sewage flows by gravity to filter beds where it is treated by bacteria and grazing fauna. The resultant liquid then flows into humus tanks where further settlement takes place. The liquid continues to flow by gravity and is discharged through an outlet pipe into Hunsworth Beck which in turn flows into the River Spen.
Hunsworth Beck and the River Spen are controlled waters for the purposes of the Water Act 1989. Yorkshire Water Services enjoys the benefit of a consent granted by the National Rivers Authority pursuant to a direction of the Secretary of State to discharge sewage effluent into Hunsworth Beck subject to conditions as to the nature, volume and composition of the effluent discharged. Yorkshire Water Services was further empowered to, and had in fact, granted consents to its industrial customers to discharge trade effluent into its sewers, again subject to conditions imposed by Yorkshire Water Services. Those conditions, inter alia, excluded or forbade the discharge of iso-octanol into the sewers. Iso-octanol is a solvent known to be used by at least one of the Yorkshire Water Services' industrial customers. They are expected to dispose of such substance in some way other than allowing it to enter the Yorkshire Water Services' sewer. Iso-octanol is an immiscible substance which will collect the grease which should be left in the primary tanks, carry it to the filter beds and thus render the stones of the filter beds greasy so that they lose their efficacy. It can also, but did not on the occasion to which this appeal relates, destroy the bacteria in the beds. Once in the sewer because of its qualities, iso-octanol would pass through the works and be discharged into the controlled waters in a virtually undiluted condition. It is very dangerous to river life.
During the night of Sunday 13 May 1990 when no one was on duty at the works, an unidentified third party unlawfully discharged such chemical iso-octanol into the sewer. Once in the sewer it was inevitable that a significant proportion of the iso-octanol would pass into and through the works and thence into controlled waters.
On Monday 14 May at 8.00 a.m. a foreman of the National Rivers Authority observed pollution of the River Spen immediately upstream of a bridge at Valley Road, Liversedge. Thereafter reports were made and samples taken. Analysis of the samples revealed levels of solids and a biochemical oxygen demand substantially in excess of those permitted by the National Rivers Authority's consent. The cause of the effluent exceeding such levels (and thus breaching the consent) was the contaminating presence of iso-octanol in the works.
The iso-octanol had been discharged into the sewer at night and with the intention of avoiding detection. No one was on duty at the time of such discharge. Yorkshire Water Services could not reasonably have been expected to prevent the discharge of iso-octanol into the sewer or indeed into the works and could not have known of its presence until after it had entered the works at the earliest. Thereafter its discharge into controlled waters was inevitable.
We were informed on the hearing of the appeal that in addition to the facts I have stated parties were agreed that a list of incidents involving a particular customer of Yorkshire Water Services Limited between 1975 and 1992, in accordance with an exhibit agreed between the parties and forming pages 93 and 94 of the Appendix, was accepted as correct.
The statutory provisions relevant to this case are those of the Water Act 1989, section 67 of which imposes a duty on every sewage undertaker such as Yorkshire Water Services to provide a system of public sewers and so to cleanse them and maintain those sewers as to ensure that its area is effectually drained and to make provision for the emptying of those sewers as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers. Such an undertaker in performing its duty is to have regard to its existing and likely future obligations to allow for the discharge of trade effluent into its public sewers and to the need to provide for the disposal of trade effluent which is so discharged. The detailed provisions of that section are not relevant for the purposes of this appeal.
The appeal turns on the application of sections 107 and 108, so far as relevant these are in the following terms:
Section 107
"(1) Subject to section 108 below, a person contravenes this section if he causes or knowingly permits -
( a) any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters; or
( b) any matter, other than trade effluent or sewage effluent, to enter controlled waters by being discharged from a drain or sewer in contravention of a relevant prohibition; or
( c) any trade effluent or sewage effluent to be discharged -
(i) into any controlled waters; or
(ii) from land in England and Wales, through a pipe, into the sea outside the seaward limits of controlled waters; or
( d) any trade effluent or sewage effluent to be discharged, in contravention of any relevant prohibition, from a building or from any fixed plant on to or into any land or into any waters of a lake or pond which are not inland waters; or
( e) any matter whatever to enter any inland waters so as to tend (either directly or in combination with other matter which he or another person causes or permits to enter those waters) to impede the proper flow of the waters in a manner leading or likely to lead to a substantial aggravation of -
(i) pollution due to other causes; or
(ii) the consequences of such pollution.
(5) For the purposes of this section where -
( a) any sewage effluent is discharged as mentioned in subsection (1)( c) or ( d) above from any sewer or works vested in a sewage undertaker; and
( b) the undertaker did not cause or knowingly permit the discharge but was bound (either unconditionally or subject to conditions which were observed) to receive into the sewer or works matter included in the discharge, the undertaker shall be deemed to have caused the discharge.
(6) A person who contravenes this section or the conditions of any consent given under this Chapter for the purposes of this section shall be guilty of an offence and liable -
( a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both;
( b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both."
Section 108 -
"(1) A person shall not be guilty of an offence under section 107 above in respect of the entry of any matter into any waters or any discharge if the entry occurs or the discharge is made under and in accordance with, or as a result of any act or omission under and in accordance with -
( a) a consent given under this Chapter or under Part II of the Control of Pollution Act 1974;
( b) a disposal licence;
( c) a licence granted under Part II of the Food and Environment Protection Act 1985;
( d)...
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