Taylor Woodrow Property Management Ltd v National Rivers Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEYN,MR. JUSTICE KAY |
| Judgment Date | 06 July 1994 |
| Judgment citation (vLex) | [1994] EWHC J0706-3 |
| Docket Number | No. CO-1185-94 |
| Date | 06 July 1994 |
| Court | Queen's Bench Division (Administrative Court) |
[1994] EWHC J0706-3
IN THE HIGH COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Lord Justice Steyn and Mr. Justice Kay
No. CO-1185-94
MR. ANDREW LYDRARD (instructed by McKenna & Co., Mitre House, 160 Aldersgate Street, London EC1A 4DD) appeared on behalf of the Appellant
MR. MARK HARRIS (instructed by Principal Solicitor, National Rivers Authority, Kingfisher House, Goldhay Way, Orton, Goldhay, Peterborough, PE2 5ZR) appeared on behalf of the Respondent
Wednesday 6th July 1994.
This is an appeal by Taylor Woodrow Property Management Limited by way of case stated under section 111 of the Magistrates' Court Act 1980 against conviction on four separate informations which alleged offences under section 85(6) of the Water Resources Act 1991.
In order to render intelligible the issue that arises, it is necessary in the first place to set out the statutory framework. Section 85(1) of the Act reads as follows:
"(1) A person contravenes the section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters'.
Section 85(6) reads as follows:
"Subject to the following provisions of this Chapter, 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 £20,000 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 88(1), so far as relevant, reads as follows: "Subject to the following provisions of this section, a person shall not be guilty of an offence under section 85 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 an act or omission and in accordance with —
(a) a consent given under this Chapter…."
Section 88(2) reads as follows:
Schedule 10 to this Act shall have effect, subject to section 91 below, with respect to the making of applications for consents under this Chapter for the purposes of subsection 1(a) above and with respect to the giving, revocation and modification of such consents."
Schedule 10 deals with the subject matter of discharge consents. Paragraph 1 of the schedule outlines the procedure applicable in respect of applications for consents. Paragraph 2 sets out the provisions applicable to consideration and determination of applications. Paragraph 5 of the schedule is material. It provides, so far as relevant to the present matter, as follows:
"The conditions subject to which a consent may be given under this paragraph shall be such conditions as the Authority may think fit and, in particular, may include conditions –
(a) as to the places at which the discharges to which the consent relates may be made and as to the design and construction of any outlets for the discharges;
(b) as to the nature, origin, composition, temperature, volume and rate of discharges and as to the periods during which discharges may be made;
(c) as to the steps to be taken, in relation to the discharges or by way of subjecting any substance likely to affect the description of matter discharged to treatment or any other process, for minimising the polluting effects of the discharges on any controlled waters",
It also provides:
"and it is hereby declared that a consent may be given under this paragraph subject to different conditions in respect of different periods."
Paragraph (6) is also relevant. It provides:
"A consent for any discharges which is given under this paragraph is not limited to discharges by a particular person and, accordingly, extends to discharges which are made by any person".
So much for the statutory background.
It is now necessary to turn to the material facts. Without making any criticism, I would say that the case stated is a little sparse in dealing with the contextual background. I therefore propose to refer to the background which counsel for the appellant has placed before us without objection. In doing so, I make clear that that is not a matter that has in any way affected my judgment in this matter.
The case is concerned with the Nursling Industrial Estate, Southampton. Taylor Woodrow Property Management Limited, to whom I will refer as Taylor Woodrow, is not an owner or occupier of any of the land. The position is that from about 1979 an associated company, Taylor Woodrow Industrial Estates Limited, developed the Nursling Industrial Estate. With the land that Associated Company acquired the right of free passage of surface water along drains and through an outfall into the River Test. In due course all the units on the estate were sold, in each case with the benefit of the same right of passage of surface water.
Taylor Woodrow is a property management company which is part of the Taylor Woodrow Group. The industrial estate is adjacent to the River Test. Surface water of the industrial estate is discharged into the River Test and it is common ground that Taylor Woodrow was at all material times in control of the outfall at the river bank which was designed to control discharge into the river.
It is further common ground that the River Test was "controlled waters" within the meaning of the Act. It was further agreed that on 23rd December 1983 the Southern Water Authority, the predecessor of the National Rivers Authority, granted a consent to the associated company under earlier legislation. It is agreed that it is irrelevant that the consent was granted under earlier legislation. We are asked to proceed and determine the matter as if the statutory framework which I have described was already in place. It is also irrelevant that the consent was issued to an associated company. We are asked to deal with the matter as if the appellant company was in fact the body to whom the consent was issued, and it is of course also irrelevant that the licensing authority is now a different one.
For the purposes of this appeal it can be accepted that Taylor Woodrow was entitled to the benefit of the licence and subject to the conditions imposed. That was common ground and expressly accepted by counsel on behalf of the Company.
The consent contained four conditions to which I would refer:
"1. Construction.
The outlet shall be constructed and maintained in accordance with the plan numbered E3148/312D submitted by the Applicant."
"2. Use.
The outlet shall be used only for the discharge of surface water at Map Reference SU 3672 1510.
3. Nature and composition.
The effluent discharged to the relevant waters shall not contain any traces of oil or grease.
6. Sampling Point.
Facilities for the taking of samples by the Authority's officers shall be provided and maintained at point G indicated on the plan numbered TWC E3184/30."
The critical condition is contained in paragraph 3 above.
I now turn to case stated which shows that on 13th September 1993 there were four separate informations preferred against Taylor Woodrow based on an identical ground, namely "You contravened the Condition of a Consent, namely the Consent dated 23rd December 1981 issued to Taylor Woodrow Industrial Estates Limited, Clause 3 of the Schedule to which stated that 'the effluent discharge to the relevant waters shall not contain any traces of oil or grease', in that on that date the effluent discharged did contain traces of oil. Contrary to section 85 (6) of the Water Resources Act 1991".
The factual background and findings of fact of the Stipendiary Magistrate appear in paragraph 2 of the case stated. The findings were as follows: (I read from (d))
"(d) On 22nd March 1993, Clifford Pain, a Water Quality Officer employed by the National Rivers Authority visited the outfall as a result of a complaint from a member of the public. He observed oil emerging from the outfall into the river. A boom which had been placed in the outfall was ineffective in preventing this because it did not reach the sides of the outfall and oil was able to pass either side.
(e) On 2nd April 1993 Mr. Pain observed oil within the outfall. He...
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