Law Report: River polluted by sewage works operator: National Rivers Authority v Yorkshire Water Services Ltd - Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Buckley), 15 November 1993

The question of whether a person caused polluting matter to enter controlled waters within section 107(1)(a) of the Water Act 1989 was a matter of fact. The operator of sewage treatment works caused polluting matter to enter controlled waters even though it could not have prevented the discharge of the polluting matter and another party was responsible for the discharge.

The Divisional Court allowed an appeal by the National Rivers Authority by way of case stated by Wakefield Crown Court which had allowed Yorkshire Water's appeal against conviction by justices of causing poisonous, noxious or polluting matter to enter controlled waters, namely the River Spen, contrary to section 107(1)(a) of the Water Act 1989.

Yorkshire Water owned and operated the North Bierley Sewage Treatment Works, which operated largely by gravity. Sewage entered the works, was treated and flowed by gravity into Hunsworth Beck and then into the River Spen which were controlled waters. Yorkshire Water was granted consent to discharge effluent, subject to conditions which, inter alia, excluded the discharge of iso-octonal, which is dangerous to river life. During the night of 13 May 1990, someone made a single discharge of iso- octonal into the sewer. Yorkshire Water could not reasonably have prevented the discharge.

Shaun Spencer QC and Gerard Heap (National Rivers Authority) for the authority; Stuart Brown QC and Alaric Dalziel (Yorkshire Water Authority) for the authority.

MR JUSTICE BUCKLEY said that the meaning of an ordinary word of the English language was not a question of law. Once the facts had been established, whether any party might be said to have 'caused' a certain result was itself a factual conclusion for the tribunal.

In the present case, it was treated as a matter of law for the recorder. That was wrong. Views as to the meaning of 'causing' might be gleaned from the cases and might be used as a guide by courts and tribunals in reaching their own decision on a set of facts.

In the present case Yorkshire Water operated the works which was calculated to direct effluent into Husworth Beck. It was unarguable that because the design of the works utilised the force of gravity Yorkshire Water merely stood by and thus did not cause the outflow.

As 'causes' did not import either knowledge or negligence, it was equally clear that Yorkshire Water 'caused' the contents of the effluent, including the iso-octonal, to be discharged into Hunsworth Beck. The fact that the party responsible for putting the slug of iso-octonal into the sewers might also be regarded as 'causing' the pollution was neither here nor there.

The second issue was the proper construction of section 108(7) which provides that in certain circumstances 'a sewage undertaker should not be guilty of an offence under section 107 above by reason only of the fact that a discharge . . . contravenes conditions of a consent'. There were two ways of committing an offence under section 107(6): contravening section 107(1) or the conditions of any consent. Yorkshire Water was charged with contravening section 107(1).

The wording of section 108(7) was clear and provided a defence only to a charge of contravening the conditions of a consent. It did not provide Yorkshire Water with a defence. The findings that Yorkshire Water could not reasonably have prevented the iso-octonal entering the sewers or the works and could not have known of its presence might be very material considerations to the questions of penalties but did not go to liability. On the facts it was unreasonable to reach any conclusion other than Yorkshire Water did cause the polluting matter to enter controlled waters.

Lord Justice Simon Brown agreed.

Ying Hui Tan, Barrister