Wallis v Bristol Water Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DYSON,MR JUSTICE TUGENDHAT |
| Judgment Date | 10 December 2009 |
| Neutral Citation | [2009] EWHC 3432 (Admin) |
| Date | 10 December 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9462/2009 |
[2009] EWHC 3432 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Dyson
Mr Justice Tugendhat
CO/9462/2009
Mr David Travers (instructed by Clarke Willmott LLP) appeared on behalf of the Claimant
Mr Ian Dixey (instructed by Bond Pearce) appeared on behalf of the Defendant
: I will ask Tugendhat J to give the judgment of the court.
: This case concerns the meaning of the word “likely” as it appears in regulations creating an offence, in particular Regulation 3(2) of the Water Supply (Water Fittings) Regulations 1999, SI 1148. These regulations make provision for the prevention by a water undertaker of contamination of water. The purpose is to protect the health of the public.
By Regulation 3(2) it is provided that:
“No water fitting shall be installed, connected arranged or used in such a manner that it causes or is likely to cause—
(i) waste, misuse, undue consumption or contamination of water supplied by a water undertaker …”
In paragraph 1 of Schedule 2 there are definitions. “Backflow” means flow upstream, that is, in a direction contrary to the intended normal direction of flow within or from a water fitting. “Contamination” includes any reduction in chemical or biological quality of water due to a change in temperature or the introduction of polluting substances.
By Regulation 7(1)(a) it is provided that a person who contravenes any of the provisions of Regulation 3(2) is guilty of an offence. By Regulation 4, it is provided that:
“(3) Every water fitting shall comply with the requirements of Schedule 2 to these Regulations as it applies to that fitting.
(4) Where any requirement of Schedule 2 relates to a water system, every water fitting which forms part of that system shall be fitted or, as the case may be, altered or replaced so as to comply with that requirement.”
There is provision to avoid the regulations having retrospective effect. Regulation 2(4) provides:
“Nothing in these Regulations shall require any person to remove, replace, alter, disconnect or cease to use any water fitting which was lawfully installed or used, or capable of being used, before 1st July 1999.”
But under the heading “Backflow prevention”, Schedule 2, paragraph 15 provides:
“(4) Backflow prevention shall be provided on any supply pipe or distributing pipe—…
(b) where the water undertaker has given notice for the purposes of this Schedule that such prevention is needed for the whole or part of any premises.
(5) A backflow prevention device is adequate for the purposes of paragraph (1) if it is in accordance with a specification approved by the regulator for the purposes of this Schedule.”
There are five categories of water under the regulations which are defined in Schedule 1. Fluid category 1 is Wholesome water supplied by a water undertaker or licensed water supplier and complying with the requirements of regulations made under section 67 of the Water Industry Act 1991. Fluid category 5 is “Fluid representing a serious health hazard because of the concentration of pathogenic organisms, radioactive or very toxic substances, including any fluid which contains—(a) faecal material or other human waste; (b) butchery or other animal waste; (c) pathogens from any other source.”
The case stated records that on 20 November 2008 an information was preferred against the appellant that he had contravened Regulation 3(2)(i) in six respects. The first question in the case raises a point which is common to each of the six charges, and for that purpose it is sufficient to read the first:
“On 28/05/2008 at Brittons Farm being the owner thereof did contravene requirements of the Water Supply (Water Fittings) Regulations 1999, as follows: the hose union tap in the old dairy on the farm used for non-domestic purposes in an area exposed to a fluid category 5 risk had no backflow prevention contrary to paragraph 15 of Schedule 2 to the Regulations and was thus connected in such a manner as to be likely to cause contamination of water supplied by Bristol Water plc contrary to Regulation 3(2)(i) of the Water Supply (Water Fittings) Regulations 1999.”
The case continues as follows, save that I omit passages which refer to non-statutory guidance material which was before the justices.
“We heard the said information on the 24th and 27th days of April 2009 and found the following facts.
a. The appellant's working dairy farm was surveyed by the respondent on 14 May 2007 and found to have five hose union taps (HUTs), in agricultural premises, namely the dairy, the old dairy and the parlour. At the time of inspection, no hoses were connected to any of the HUTs. Those buildings were not being used for animal occupation, were dry and contained no animal slurry.
b. The udder wash was in agricultural premises, namely the dairy and was flexible and capable of being moved so that the outlet could make contact with surrounding walls.
c. The udder wash was not used at the time of inspection and was not tested to see if it was connected to the mains. The stock tap was turned off. It was subsequently disconnected by the appellant following advice from his expert.
d. The contamination risk in each location was of Fluid Category 5 because pathogenic organisms are presumed to be present in cow excreta.
e. The appellant was given notice on 22nd May 2007 that action was required to bring this equipment into conformity with the regulations [that is a reference to Schedule 2, paragraph 15(4)(b)].
f. On 28th May 2008, inspection by the respondent found that the appellant had not taken action to bring the equipment into conformity with the regulations.
3. It was contended on behalf of the appellant that:
a. The HUTs and udder wash were not 'connected in such a manner as to be likely to cause contamination'.
b. There was no likelihood of contamination as there were no cow excreta in any of the buildings.
c. There was adequate backflow protection appropriate to a risk of category 5.
d. The AUK3 air gap backflow protection is present where an HUT, fed directly from the mains, is located at least twice the bore diameter, or 20mm, whichever is greater, above the floor, or highest fill level of any receptacle beneath it.
e. The AUK3 air gap is maintained by the appellant's actual use of the fitting, either by not attaching a hose or by attaching a hose that does not reach within the stipulated distance of the floor, and by not placing any such hose in a receptacle that could fill to a level creating a risk of backflow.
f. The Regulations do not outlaw the use of hoses in agriculture premises …
h. Devices are readily available to enable a hose to be connected to a standard bib tap; the use of standard bib taps does not preclude the possibility of a hose being connected.
i. The regulations do not apply to the udder wash because it was lawfully installed before the Regulations came into force in 1999.
j. The udder wash was adequately protected from backflow by means of an isolating stop tap. There was no evidence on which to base a finding that the udder wash was connected to the mains on the day of inspection.
4. It was contended on behalf of the respondent that:
a. The regulations provide, inter alia for the prevention of contamination of water supplied by the respondent as a water undertaker and regulation 3 makes it an offence to install, connect, arrange or use a water fitting so as to cause or be likely to cause such contamination.
b. The respondent has a statutory duty to enforce the Regulations and would itself be liable to enforcement action if it failed to do so …
c. The dangers of contamination of the public water supply by backflow of pathogenic organisms were very great, and incidents giving rise to the risk of backflow were a common occurrence. An analysis of data collected over 2003/2004 in the Bristol Water area, showed that the conditions under which contamination can happen are present on average 42 times a day, 365 days a year.
d. The requirement for AUK3 air gap backflow protection to an HUT where the contamination risk is Fluid Category 5, requires that tap to be fed from a cistern, itself fed by an inlet pipe arranged so that the approved (AUK3) air gap is maintained above the highest water level in the cistern, rather than being fed directly from the main water supply.
e. It is immaterial whether or not a hose was observed by the respondent to be attached to any of the HUTs. The requirement for an AUK3 air gap applies whether or not a hose is attached.
f. The assurance of the appellant that he would not attach a hose did not enable him to avoid the Regulations as the taps remained connected and were available for use. The taps needed to be removed, replaced with taps which were not designed to be used with a hose, or the threaded sections removed with a hacksaw. The respondents could not inspect premises regularly to monitor that no hose was in use and any assurance by the appellant would not be binding on future owners if the premises changed hands.
g. An isolating stop tap did not provide adequate backflow protection for the udder wash because as soon as it was turned on there would be direct connection to the mains water supplied.
5. We were not referred to any cases.
6. We were of the opinion that:
a. The Regulations require that where the contamination risk is of Fluid Category 5 and the HUTs are fitted, mechanical backflow protection (a valve) is not adequate; an AUK3 air gap, of at least twice the pipe...
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