Property development — Building works — Pollution caused in course of works — Pollution admitted by site manager — Whether company liable for acts committed through supervisor — High Court holding that developers liable although pollution not caused through its directors or senior management.
In May 1992 Alfred McAlpine Homes East Ltd (“the company”) were constructing a new residential development at Goldwell Springs, East Malling. Through the site, in a culvert, ran Ditton Stream, which, beyond the site, emerged into a lake, which flowed into the River Medway. A waterfeature was constructed on the site. Somehow cement from that work entered the stream polluting it and killing fish. On May 21 a water quality engineer, of the National Rivers Authority, inspected the site when the site agent and the site manager, employed by the company, admitted that on the previous day cement had been washed into the stream during the construction of the water feature. On September 28 1992 the company appeared before West Malling Magistrates charged with causing polluting matter, namely wet cement, to enter controlled waters within the meaning of section 104 of the Water Resources Act 1991, ie Ditton Stream, contrary to section 85(1) of the Act. The company successfully submitted that it had no case to answer. The river authority appealed. The question for the opinion of the court was whether the magistrates were correct to conclude that an offence under section 85 could only be committed by a company if the offence were committed by a person exercising a “controlling mind and will” of the company, such as a director, manager, secretary or some similar officer and therefore was correct to find that there was no case to answer and to dismiss the information.
Held The appeal was allowed and the case remitted to be heard by a fresh bench of magistrates.
1. The object of the relevant words of section 85(1) and the crime created thereby was the keeping of streams free from pollution for the benefit of mankind generally and the world’s flora and fauna. Most significantly deleterious acts of pollution would arise out of industrial, agricultural or commercial activities. The damage occasioned might take years to repair and often at a cost running into millions of pounds. The act or omission by which the polluting matter entered a stream might result from negligence or not, it did not matter. In almost all cases the act or omission would be that of a person such as a workman, fitter or plant operative in a fairly low position in the hierarchy of the industrial, agricultural or commercial concern.
2. To make the offence an effective weapon in the defence of environmental protection, a company must by necessary implication be criminally liable for the acts or omissions of its servants or agents during activities being done for the company.
3. Accordingly, the case would be remitted to be reheard by a fresh bench of magistrates.
Camden Pratt QC and Phillip Marshall (instructed by the solicitor to National Rivers Authority (Southern Region) appeared for the river authority; Marilyn Kennedy-McGregor (instructed by Laytons, of Hampton Court) appeared for the developers.
