Comparisons of the Offences of water Pollution in UK - Essay Example

G 326 Abstract To some extent the Government priorities are determined by European Community (EC) law and other international agreements. There are over 300 EC Directives dealing with environmental matters: about 30 concern water. If pollution occurs, including when the conditions of a consent is broken, a criminal offence has been committed. In these cases the polluter can be prosecuted, usually by the Environmental Agency, and may be fined and made to clean up the pollution. Prosecution is a last resort. The Secretary of State has powers under the Water Resources Act 1991 to set statutory objectives, giving the Government and the Environment Agency a legal duty to ensure that they are achieved. These powers have been used to establish environmental water quality standards for particular stretches of inland and other coastal waters to fulfill the requirements of the European directives. Examples include bathing waters, shellfish waters or sources for drinking water supply. The EC surface water Abstraction Directives (75/440/EC) set quality objectives for the surface water sources from which drinking water is taken. The Water Resources Act 1991 consolidated previous water legislation in respect of both quality and quantity of water resources. 1 G2015326 Comparisons of the Offences of water Pollution in UK Problem Statement Main Pollutants of Water In November 1997, the department of the Environment, Transport and the Regions issued a consultation paper “Economic Instruments for water pollution. The paper concluded, “the levels of control within the main (water) sectors is largely uniform in absolute terms the sewage treatment sector is by far the dominant source of the main pollutants of water in the UK”1 When we compare the levels of water pollution in Greece with that of the UK it was found that the situation in Greece presents similar environmental pollutants, albeit some of the characteristics of the two countries water systems vary. Greece has no natural reservoir catchments, and there is a substantial disparity in rainfall. The water system is seriously imbalanced with most of its portable resources concentrated in the Turkish Cypriot area. Its most profound similarity with the UK is it harbors the same dilemma with a high incidence of water pollution from sewage and industrial waste. Additionally, the loss of wildlife habitats from urbanization is an increasing environmental malady”.2 Main Sources of Pollution The main effect by which pollution is defined is damage to living components of the environment, so it is a sadly expanding area of interest for Biologists. Some general 1Defra, United Kingdom-Environmental Protection – water – Water Quality Department for Environment, Food and Rural Affairs – Economic Instruments for Water Pollution Discharges 2Cyprus 1988: Crisis or stagnation? (Background paper 17) (1997-1998) 2 G2015326 categories of substances which may be present as pollutants in water are; “factory waste, farm waste, such as slurry, silage, manure, fertilizers, oil, pesticides, paper mill waste, and air pollution”.3 There are several forms of air pollution, some of which interact with carbon, nitrogen, oxygen and water cycles. Some of the causes of pollution sources and apparent ill-effects: soot, smoke which prevents photosynthesis by plants, acid rain, SO2 kills trees. CFCS, aerosols – ozone depletion extra UV (skin) cancer, “Green house effect, CO2, global warming, lead pollution, exhaust fumes causes IQ lowering. Low level ozone, vehicle engines, especially in cities and astma”4 EC Directives The EC standardized reporting Directive 91/692/EEC requires member states to collate environmental data concerning seven water directives and to transmit this to the commission at intervals of three years and within nine months of the end of this period (unless otherwise agreed with the commission beforehand). The directives concerned are: Abstraction of Drinking Water Directive 75/440/EEC Dangerous Substances Directive 76/464/EEC Titanium Dioxide Directive 78/176/EEC Freshwater for fish Directive 78/659/EEC Shellfish Waters Directive 79/923/EEC Groundwater Directive 80/68/EEC 4 3Water main causes of pollution 4ibid. 3 G2015326 Urban Wastewater treatment Directive 91/271/EEC its aim is to protect the environment by ensuring that all significant discharges of sewage from urban waste water and biodegradable waste water from the food-processing industry are treated before they are discharged into the water environment. The information required was specified in outline templates in council decisions from 1992 and 1995. The executive is responsible for ensuring that the completed data returns are submitted to the Department of the Environment, Food and Rural Affairs (DEFRA) who are responsible for collating the UK return and submitting it to the European Commission.. General Quality Assessment The biological and chemical quality of rivers has improved greatly since 1990. This is due to a number of factors including a major clean-up of discharges from industry and sewage treatment works.5 River quality is assessed annually using a survey called the General Quality Assessment (GQA) scheme. This measures four aspects of river quality – biology, chemistry, nutrients, and aesthetic quality. In England and Wales the Environment Agency “monitors the quality at about 7,000 sites representing about 40,000 km of rivers and canals”6 5Environment Agency (formerly National Rivers Authority) 6Ibid. 4 G2015326 Estuary quality is assessed every five years, based in chemicals, aesthetic and biological quality. In 2005, 73 per cent of estuaries were of good quality – the best results on record.7 The aforementioned areas establishes the benchmarks and proactive steps which the government has created in their efforts to maintain and achieve the optimum level of purity for the water system. The promulgation of the Water Resources Act 1991, is put into place so that the proper vigilance is adhered to by all. The interpretation of the statute, has proven to be challenging as more and more determinations must be made on the cause of an offence. The establishment of the term “cause” is the prevailing determinant as to whether and to what degree any defendant is guilty of an infraction. “Cause, as the correlative effect, is understood as being that which in any way gives existence to, or contributes towards the existence of, anything, which produces a result, to which the origin of anything is to be ascertained.8 The term cause is also employed in a different context by courts in different times, to which references will be made herein. The first case to use the terminology was Moses v. Midland Railway [1915] TLR 440.9. The Railway Company agreed to transport a tank wagon for a customer, which contained creosote. At some point during the course of transport, the wagon developed a 7Environmental Agency (formerly National Rivers Authority) 8Waseem Ahmad Quershi, development of Environmental Law in UK-An Analysis 9Moses v.Midland Railway [1915] TLR 440 5 G2015326 leaking valve with the result that the creosote escaped from the wagon and polluted a river which ran alongside the railway line. The court considered the question, whether the Midland Railway Company had “caused” polluted material to flow into the river. The court held, “the railway company had not caused the pollution, although it had clearly brought the polluting material onto the land”.10 It might be said that the basis of this decision was that the Railway Company exercised a reasonable duty of care, that there was no foresee ability of the event, and there was nothing to suggest that they were in any way negligent. In Alphacell v. Woodward [1972], a new approach was adopted. The court maintained for the first time that the term causing should be given a common sense and ordinary meaning. The court further held, “that a person can be said to have caused the pollution even though he had no knowledge of the fact that polluted water is entering the stream and even though he has not been negligent”.11 “Cause” was given its everyday meaning in the Alphacell case and it was established that intention, knowledge and negligence as the pollution would simply make causation more problematic and the “culpability” was satisfied by the deliberate and intentional conducting of a process which produced pollution in the water”.12 Clearly, had the reasoning in Alphacell been applied in Midland Railway, then the 10Moses v. Midland Railway 11Alphacell v. Woodward [1972] 12Qureshi Waseem Ahmed, Development of Environmental Law 6 G2015326 Rail Company would have been found guilty. However, in 1915, the law had not yet evolved to the point of 1972.. One point which is salient, particularly as it relates to further development of the law in this regard, was made by Lord Wilberforce in commenting on the decision held by the court he said, “the act of the third party does not necessarily free the person of responsibility who owns and operates the plant from which the water overflowed.” 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 party 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 question is one of degree and depends on a proper attribution of responsibility for the flow of the polluting matter”.13 On the matter of third party and the application of “causing”, Lord Wilberforce said, “rather than say that the actions of the appellants were a cause of the pollution, I think it might be more accurate to say that the appellants caused the polluting water to enter the stream”.14 In Alphacell an argument that blocking leaves represented and independent “cause” was rejected. The House of Lords held, “there were events which could not be reasonably foreseen, or events which could be regarded as beyond their ability to foresee or control”15 13lord Wilberforce excerpt from decision in Alphacell v. Woodward [1972] 2 AC 824 14Ibid 15Ibid 7 G2015326 The situation of independent cause rose again under different circumstances in Southern Water Authority v. Pegrum (1990) JP 581.16 In this case a stream in Kent had been polluted as a result of ingress if rain water into a lagoon of pig effluent. The court asserted that the strict liability approach of Alphacell and held that the inch and a quarter of rain in 4 days was not so extraordinary. In Impress (Worcester) v. Rees [1971] 2 ALL ER, 17. Impress (Worcester) Ltd had a fuel oil storage tank on their premises, which was not enclosed by a boundary wall and could be easily accessed and seen from the highway. There was a valve on the rank which was not kept locked and which if opened could lead to oil flowing out of the tank. There was no watchman to guard that area. One night an unknown person came to their premises, and opened the valve. As a result some of the oil flowed out and into the River Severn. The contention of Impress was that a person can not be guilty of causing polluting material to enter the stream unless he consciously does some act which will or is likely to lead to that result. In the case of Impress (Worcester) the person who opened the valve was totally unconnected to the business of the company and was unknown to them. They had no knowledge of the escape of oil and there was no mens rea in their part. Thus, they can not be said to have caused the oil to enter the river. The court held, “the opening of the valve by a stranger was an intervening cause of the pollution of the river and the company was not responsible for the said pollution. 16Southernwater Authority v. Pegrum (1990) JP581 17Impress (Worcester) v. Rees [1971] 2 ALL ER 8 G2015325 Evidence that pollution had resulted from a valve being opened by some unauthorized person for purposes unconnected with the appellants business meant that there was no offence of the company of “causing” the pollution. The court was able to use the notion of ‘novus actus interveniens’ (an intervening cause of so powerful a nature that the conduct of the appellants was not a cause at all). But this reasoning was not to be followed in the future.18 The statutory provision which addresses passivity is the Rivers (Prevention of Pollution) Act 1951 Section 2 (1) states: “Subject to this act, a person commits an offence punishable under this section – (a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter”19 The section contemplates two separate offences: (1) causing, and (2) knowingly permitting, which means that causing does involve some active operation as opposed to mere tacit standing by and looking on. The mere acquiesce on the part of the owner of the land does not make him responsible for the overflow into the river. This principle is appropriately applied in Price v. Cromack [1975] 1 WLR 988.20. The defendant owned a land on the bank of a stream which led to the river. He 18Impress (worcester) v. Rees 19Rivers (Prevention of Pollution) Act 1951 20Price v. Cromack [1975] 1 WLR 9 G2015326 allowed polluted water from a neighboring factory to be discharged onto his land. After sometime, the company with owners consent built two lagoons on his land to contain polluted water. One day due to breaches in the wall of the lagoon the polluted water escaped and went into the stream and flowed into the river. It was contended by the defendant that he did not cause the polluting water to enter the stream because he did not do any positive act in this regard. The maintenance of the lagoons and the disposal of the effluent was not his liability. The court decided in favor of the defendant and held, “that causing must involve some activity on the part of the defendant and not mere standing by and allowing the polluted water to cross his land. The defendant did not go to the factory and receive the affluent. The effluent came on to his land by gravity and made its way to the river with no act on his part..21 The Alphacell case was again applied in the case of National Rivers Authority v. Yorkshire Water Services LTD [17] 22. In this case a water authority was permitted by the National Rivers Authority to discharge treated sewage effluent into a beck and into a river, subject to conditions as to the nature, volume and composition of the effluent discharged. One night an unknown person discharged iso-octanol into the sewer from where it made its way into the river. The water authority was charged with causing the effluent to enter the river. It was held, “that although the water authority was not 21National Rivers Authority v. Yorkshire Water Services LTD [1995] 1 A C 4 444 22Ibid G2015326 responsible for the presence of the iso-octanol in the affluent discharged into the river, but by setting up a system for gathering affluent into the sewers and then carrying it into the river, it had caused poisonous, noxious or polluting matter to enter controlled waters.23 Lord Chancellor, Lord Mackay of Clashfern observed, “that the word ‘cause’ is to be used in its ordinary sense in these provisions and it is not right as a matter of law to add further requirements. While I have adopted the language used by Lord Wilberforce in Alphacell LTD v. Woodward [1972] A. C. 8, 24 of “active operation” I do not consider that it is to be regarded as anything more than a reminder that in the present context absolute passivity is not enough to constitute a cause. The maintaining of a system, the carrying on of an enterprise, and the management of an ongoing concern may each constitute causative factors. So also the discontinuing of an enterprise or the closing down of a concern, as in the case of Lockhart v. National Coal Board, 1981 S. L. T. 161.25 In many cases an omission may be analyzed as the provision or operation of an adequate or deficient system. Thus a failure to take precautions in relation to a risk of the escape of a pollutant in the course of the management of premises such as those which the appellants were occupying in the present case may be seen as an active operation for the purpose of causation. 23National Rivers Authority v. Yorkshire Water Services LTD [1995] 1 A. C. 444 24Lord Mackay excerpt from National Rivers Authority v. Yorkshire Water Service 25Lockhart v.National Coal Board, 1981 S.L.T. 161 26Ibid 11 G2015326 The issue of the act of third parties was resolved by the case of Empress Car Company (Abertillery) LTD v. National Rivers Authority.27. The company maintained a diesel tank in a yard which was drained directly into the river. The tank was surrounded by a bund to contain spillage, but the company had overridden this protection by fixing an extension pope to the outlet of the tank so as to connect it to a drum standing outside of the bund. It appears to have been more convenient to draw oil from the drum than directly from the tank. The outlet from the tank was governed by a tap which had no lock. On 20 March 1995 the tap was opened by a person unknown and the entire contents of the tank ran into the drum, overflowed into the yard and passed down the drain into the river.28. The company’s case before the Divisional Court was that if the evidence was consistent with the rap having been opened by a stranger, it should have been acquitted. The escape would have been caused by the stranger and not the company.The Divisional Court disagreed, saying, “although it would be true to say that the escape had been caused by the stranger, it was open to the Crown Court to find that it had also been caused by the company. But they said that the authorities on the subject were not easy to reconcile and certified the following question of general public importance: “Whether a person can be convicted of an offence under Section 85 (1) of the 27Empress Car Company (Abertillery) Ltd v. National Rivers Authority 28Ibid 12 G2015326 Water Resources Act 1991 of causing polluting matter to enter controlled waters if it is proved that – (a) he held the polluting matter and contained it in such a way as it would not escape but for a positive act by himself or another; and (b) he failed to take reasonable precautions to prevent such an escape occurring as a result of an action by a third party; and it is not proved that he took any other actions which resulted in the pollution. The concept of acts and omissions was introduced on the context of the two limbs found in Section 2 (1) (a) of the Rivers (Prevention of Pollution) Act of 1951, which was in the same terms as Section 85 (1) of the 1991 Act. These were analyzed by Lord Wilberforce in Alphacell Ltd v. Woodward [1972] A. C. 824, 834. “The subsection evidently contemplates two things - - causing, which must involve some active operation or chain of operations involving as a result the pollution of the stream; knowingly permitting which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge.29 Putting the matter shortly, if the charge is “causing”, the prosecution must prove that the pollution was caused by something which the defendant did, rather than merely failed to prevent. It is however, very important to notice that this requirement is not because of anything inherent in the notion of “causing”. It is because of the structure of the subsection which imposes liability under two separate heads: The first limb simply for doing something which causes the pollution and the second for knowingly failing to prevent the pollution. The notion of causing is present in both limbs: under the first limb, 29Lord Hoffman excerpts from Impress Car Company (Abertillery) LTD v. National Rivers Authority 13 G2015326 what the deterrent did must have caused the pollution and under the second limb, his omission must have caused it. The distinction in Section 85 (1) between acts and omissions is entirely due to the fact that Parliament has added the requirement of knowledge when the cause of the pollution is an omission. Liability under the first limb, without proof of knowledge, therefore requires that the defendant must have done something.30 In Attorney General’s Reference (No.1 of 1994) [1995] 1 W.L.R. 599, 615 Lord Taylor of Gosforth C.J. in the Court of Appeal said, “in my view rightly, that the insistence in Price v. Cromack and Wychavon District Council v. National Rivers Authority, on a positive act as the immediate cause of the escape was a “further requirement” which the defendant had done, whether immediately or antecedently, had caused the pollution.31 Lord Hoffman goes on to say,”in the present case, the Crown Court found that the escape was caused by the way the company maintained its tank of diesel fuel. Maintaining a tank is doing something and therefore, provided that it was open to the court to find the necessary cause connection established, they were in my view entitled to convict.32 30Lord Hoffman excerpts from Empress Car Company (Abertillery) LTD v. NRA 31Attorney General Reference (NO.1 of 1994) [1975] 1 W.L.R. 599, Lord Taylor of Gosforth CJ 32op cit 14 G2015326 In the District Court, Buckley J. at p. 285, cited with approval a remark of Lloyd L. J. in the Divisional Court in Welsh Water Authority v. Williams Motors (CWMDU) LTD. The Times 5 December 1988: The question is not what was foreseeable by the respondents or anyone else: the question is whether any act on the part of the respondents caused the pollution.33 Buckley goes on to point out, “that does not mean that foreseeability is wholly irrelevant.It is one factor a tribunal may properly consider in seeking to apply common sense to the question: Who or what caused the result under consideration.34 33Lloyd, L. J excerpt, cited by Buckley J from Welsh Water Authority v. Williams Motors (CWMDU) LTD. The Times 5 December 1988, for emphasis in Empress Car Company (Abertillery) LTD v. NRA 34Buckley J, Excerpts from Empress Car Company (Arbetilleru) LTD v. NRA 15 G2015326 Evaluation The Empress cases asserted that cases like Price v. McCromack and Wychavon District Council v. National Rivers Authority had wrongly insisted that a “positive act” was to be shown to be immediate cause of the pollution. If the defendant did not do anything to cause the pollution then he must be acquitted but that does not mean that prosecution has to prove that the act of defendant was immediate cause of pollution The notion of “causing” has been given a wider and common sense interpretation in the Empress case. It was established that a person may be guilty of “causing” polluting material to enter controlled waters if he operated a plant or system which gives rise to that entry. A common sense meaning of “cause” is to be applied in all cases, especially where the immediate cause has been intervention by a third party. Conclusion The series of cases mentioned above give an overview of change and development of precedents on “causes”. As the term was interpreted in a different way in some situations in various cases. English courts are obliged to follow previous decisions of the courts. So the above mentioned cases appear to be violation of the doctrine of precedent. What the doctrine of precedent declares is that cases must be decided in the same way when the material facts are the same. We know that in the flux of life all the facts of a case will never recur: but the legal material facts may recur and it is with these that the doctrine is concerned. The rule of precedent instructs judges that they are or are not bound to decide the G2015326 case before them in a particular way. The rules don’t tell judges what principles to act upon when the situation is unconstrained by authority, for example when faced by a precedent in a lower court which is not binding. The judge then has to choose between notions of justice, convenience, public policy, mortality, analogy and so on, perhaps taking into account the opinions of other judges in other countries or of writers and jurists.. As phrased by Lord Hobhouse and as we have just realized in the cases reviewed above; “the common law develops as circumstances change and the balance of legal, social and economic need changes. New concepts come into play; new statutes influence the non-statutory law. The strength of the common law is in its ability to evolve and develop. All this carries with it the inevitable need to recognize that decisions may change. What was previously thought to be law is open to challenge and review. If the challenge is successful, a new statement of the law will take the place of the new statement. 16 G2015326 Bibliography 1.DEFRA, UK Environment Protection-water-Water Quality Department for Environment, Food, and Rural Affairs-Economic instruments for water pollution discharges, Accessed on line on October 19, 2006, from www.defra.gov.uk 2.Cyprus 1988 – Crisis or Stagnation? (Background Paper 17) 1997 – 1998, accessed on line on October 19, 2006, from www.cypruswatersys.gov 3.Main causes of water pollution, accessed on line on October 19, 2006, from www.biotopics.co.uk 4.Ibid 5.Environment Agency, Accessed on line on October 19, 2006, from www.environmentagency.gov.uk 6.Ibid, 7.Environment Agency, Accessed in October 19, 2006, from www.environmentagency.gov.uk 8..Quershi, Waseem Ahad, Development of Environment Law in UK. Accessed on line on October 19, 2006, from www. qla.net.pk 9.Moses v, Midland Railway [1915] TLR 44 10.Ibid. 11.Alphacell v. Woodward [1972] 12.Quershi, Waseem, Ahmad, development of Environment Law in UK 13.Lord Wilberforce excerpt from decision in Alphacell v. Woodward 14.Ibid. 15.Ibid. 16.Southern Water Authority v. Pegrum (1990) JP 581 17.Impress (Worcester) v. Rees [1971] 2 All ER 18.Ibid. 19.Rivers (Prevention and Pollution) Act 1951, Accessed on line on October 20, 2006, from www.defra.gov.uk 20.Price v. Cromack [1975] 1 WLR 21.Ibid. 22.National Rivers Authority v. Yorkshire Water Services 23.Lord Mackay excerpt from NRA v. Yorkshire Water Service 24.Impress Car Company (abertillery) LTD v. NRA 25.Ibid. 26.Lord Hoffman excerpt from Impress Car Company (Abertillery) LTD v. NRA 27.Ibid. 28.Attorney General Reference (NO.1 of 1994) 1 WLR 599, Lord Taylor of Gosforth CJ 29.Ibid. 30.Welsh Water Authority v. Williams (CWMDU) LTD. The Times 5 December 1988 31.Attorney General Reference (NO.1 of 1994)[1954] WLR 599, Lord Taylor of Gosforth CJ 32.Ibid G2015326 33.Lloyd LJ excerpt cited by Buckley J, from Welsh Water Authority v. Williams Motors (CWMDU) LTD. The Times 5 December 1988. 34.Buckley J ,excerpt from Impress Car Company (Abertillery)LTD v. National Rivers Authority Read More