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Environmental Law

Environmental Law. Water Pollution and Water Quality II Water Pollution Offences and Defences. Water Pollution Offences. Criminal Liability: S85(1) Water Resources Act 1991 established the general offence of causing or knowingly permitting any

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Environmental Law

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  1. Environmental Law Water Pollution and Water Quality II Water Pollution Offences and Defences

  2. Water Pollution Offences Criminal Liability: • S85(1) Water Resources Act 1991 established the general offence of causing or knowingly permitting any poisonous, noxious, or polluting matter or any waste to enter controlled waters. R v Dovermoss Ltd [1995] It is not necessary to establish actual harm. The likelihood or capability of causing harm to animal or farm life or to those who use the water is sufficient.

  3. Water Pollution Offences Two separate offences: • That of causing (strict liability); and • that of knowingly permitting Alphacell v Woodward [1972] HL Not necessary to prove knowledge, intent or negligence in the offence of causing polluting matter to enter the river. The offence is one of strict liability.

  4. Water Pollution Offences CPC (UK) v NRA [1995]CA • Question of causation = for the jury to determine; • Latent defect irrelevant: no fault or knowledge need be proved; • Carrying out of activity which caused pollutant to enter controlled waters was sufficient; • Defendant had caused pollution; irrelevant that third party might also have done so • Alphacell test applied

  5. Water Pollution Offences Attorney-General’s Reference (No 1 0f 1994) • The active operation was running a sewerage system in an unmaintained state. • Possible for more than one person to be liable for causing pollution of controlled waters. Empress Car Company (Abertillery) Ltd v NRA [1998] HL • No need to prove defendant did something which was immediate cause of pollution; • Maintaining tanks, lagoons or sewerage systems full of noxious liquid was ‘doing something’.

  6. Water Pollution Offences • Lord Hoffman: ‘The true common sense distinction is, in my view, between acts and events which, although necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary.’ Express Dairies v Environment Agency [ 2003] • Causation • Confirms strict approach • Necessary to show entry of pollution into controlled waters was done to avoid danger to life or health

  7. Water Pollution Offences Knowingly Permitting • Requires proof of knowledge • Constructive knowledge • Vicarious liability NRA v Alfred McAlpine Homes East Ltd [ 1994]

  8. Water Pollution Defences Express Dairies v EA [ 2003] Defence in an emergency if in order to avoid danger to life or health [S85-91 WRA 1991 repealed and replaced by Environmental Permitting (England and Wales) Regulations 2010]

  9. Environmental Permitting Regs 2010 • Reg. 38(1) It is an offence for a person to • Contravene Regulation 12(1) or • Knowingly cause or knowingly permit the contravention of Regulation 12(1)(a). (2) It is an offence for a person to fail to comply with the requirements of environmental permit conditions

  10. Environmental Permitting Regs. 2010 • Reg 12(1) A person must not, except under and to the extent authorised by an environmental permit • Operate a regulated facility or • Cause or knowingly permit a water discharge activity or groundwater activity • Criminal Penalties Reg. 39 • Defence = Emergency Defence Reg. 40

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