3.2 Water pollution offences and penalties in England und WaJes
3.2.3 Defence to the offences of polluting controlled waters
Where the agency carries out necessary works or investigations, it shall be entitled to recover the expenses reasonably incurred in doing so from any person who, as the case may be, caused or knowingly pennitted the matter in question to be present at the place from which it was likely, in its opinion, to enter any controlled waters; or caused or knov.ingly permitted the matter in question to be present in any controlled waters.26
The Act prohibits the recovery of such expenses from a person for any works in respect of water from an abandoned mine which that person permitted to reach such a place or to enter any controlled waters.27 The recovery of expenses does not derogate any right of action or other remedy (whether civil or criminal) in proceedings otherwise instituted; or affect any restriction imposed by or under any other enactment, whether public, local or private. 28 The Environment Act s. 61 is primarily aimed at closed landfill sites but is drafted in such a way that it applies to any land the conditions of which may cause harm to health or pollution to the environment. 29
b) that person takes all such steps as are reasonably practicable in the circumstances for minimizing the extent of the entry or discharge and its polluting effects; and
c) particulars of the entry are furnished to the agency as soon as reasonably practicable after the entry occurs. 30
It is not an offence to cause or pennit any discharge of trade or sewage effluent from a vessel.31 The same applies for a person who permits water from any abandoned mine or an abandoned part of the mine to enter controlled waters. 32 However, the defence does not apply to the owner or former operator of any mine, or part of a mine, if it became abandoned after 31st December 1999. 33
A person shall not, otherwise than in respect of the entry of any poisonous, noxious or polluting matter into any controlled waters, be guilty of an offence by reason of his depositing the solid refuse of a mine or quarry on any land so that it falls, or is carried into, inland freshwaters if he deposits the refuse on the land with the consent of the agency; no other site is reasonably practicable; and he takes all reasonably practicable steps to prevent the refuse from entering those inland freshwaters.34
In Express Ltd (trading as Express Dairies Distribution) v Environmental Agency,35 the defence of causing pollution of waters was in issue. An employee of the defendant dairy company was driving a milk tanker along a motorway in the course of the company's business. As a result of a tyre blow-out, the delivery pipe was sheared, causing several
30 Water Resources Act op cit (n. 5) s. 89 (1).
31 Ibid s. 89 (2).
32 Ibid s. 89 (3 ).
33 Ibid s. 89 (JA).
34 Ibid s. 89 (4).
3s [2003) 2 All ER 778 (QBD).
thousand litres of milk to escape from the tank.36 The driver pulled onto the hard shoulder and stopped at a point where two drains fed into a brook which constituted controlled waters. The company was successfully charged with causing polluting matter to enter controlled waters. It appealed to the Divisional Court. The Court held that the defence, provided by s. 89 (1) of the 1991 Act, to the offence of causing polluting matter to enter controlled waters, was available to a person whose act, in causing that entry, was done in an emergency in order to save life or health. 37 Parliament recognised that some of those acting in an emergency should be excused. The defence succeeded and the conviction was set aside. The significance of this case was that milk was considered as a water polluting substance. The appeal succeeded because the appellant committed a pollution of water in an emergency situation in order to avoid an accident and probably save life.
3.2, 4 Offence of supplying water unfit for human consumption
Where a water authority supplies water by means of pipes to any premises and that water is unfit for human consumption, the authority shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding the statutory maximwn; on conviction on indic1ment, to a fine. 38 Where a person is guilty, together with a body coiporate and any enactment where an individual is guilty of this offence, the penalty, on conviction on indictment, of the offence shall be deemed to include imprisonment (in addition to, or instead of, a fine) for a term not exceeding two years.39 Proceedings shall not be
36 Jbid at 778 D.
37 Ibid parn 26 at 784 G.
38 Water Industry Act 1991 (c. 56) s. 70 (1); Water Act 1989 (c. 15) s. 54 (1).
39 Water Industry Act op cit (n. 38) s. 70 (l); Water Act op cit (n. 38) s. 70 (2).
instituted except by the Secretary of State or the Director of Public Prosecutions.40 A person can escape conviction ifhc or she can show that there were no reasonable grounds for suspecting that the water would be used for human consumption; or all reasonable steps had been taken and all due diligence exercised for securing that the water was fit for human consumption on leaving the pipes or was not used for human consurnption.41