Law Report: Council did not cause pollution: Wychavon District Council v National Rivers Authority. Queen's Bench Divisional Court (Lord Justice Watkins and Lord Justice McCowan), 31 July 1992

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A person could only 'cause' a discharge of sewage into controlled waters, contrary to section 107(1)(c) of the Water Act 1989, if he took some positive or deliberate act to bring it about. Failure to prevent it was not enough to sustain a conviction.

The Queen's Bench Divisional Court allowed an appeal by Wychavon District Council, and quashed its conviction, by the Evesham Justices on 11 October 1990, for causing an overflow of raw sewage into the River Avon in March 1990.

James Tillyard (Sharpe Pritchard, for the Council Solicitor) for Wychavon; Roger Smith QC (Solicitor, National Rivers Authority,) for the authority.

LORD JUSTICE WATKINS said the council had the sewage agency for the Severn Trent Water Authority, on whose behalf it carried out the operation, maintenance and repair of sewers. It thus had a day-to-day responsibility for the sewage system.

It was not disputed that the effluent, which pollution control officers of the National Rivers Authority found flowing into the Avon, had contained raw sewage.

The authority contended that the council had 'caused' the sewage to enter the river, by failing to prevent or take steps to clear a blockage in the system for which it was responsible, and by failing to stop the discharge as soon as possible thereafter.

The council submitted that the offence under section 107(1)(c) contemplated two separate offences: either (a) causing polluting matter to enter any controlled waters, which involved some active operation or chain of operations bringing about pollution; or (b) knowingly permitting polluting matter to enter controlled waters, which involved a failure to prevent pollution accompanied by knowledge of its occurrence.

In his Lordship's judgment, the facts of the case were not capable of establishing that the council caused the pollution by creating a nuisance or otherwise. There was nothing to point to the performance by the council of either a positive or a deliberate act such as could properly be said to have brought about the flow of sewage into the river. There were facts which pointed to inactivity amounting possibly to negligence, or which could amount to knowingly permitting sewage to be discharged, but the council was not charged with that.