Owner who contracted to allow effluent to be dispersed on his land did not thereby ’cause’ pollution of river through cracks in walls of the dispersal system–Conviction quashed–Distinction between ‘causing’ and ‘knowingly permitting’
This was an
appeal by Mr William Geoffrey Price, of Felton Grange, West Felton, Oswestry,
Salop, against his conviction by Ellesmere magistrates on March 4 1974 on
informations laid by the respondent, Mr Barry Norman Cromack, a district
pollution prevention officer of the Severn River Authority, charging him with
two offences of causing polluting matter to enter a stream.
Mr T I Payne
(instructed by Underwood & Co) appeared for the appellant, and Mr A P
Fletcher (instructed by Sharpe, Pritchard & Co, agents for the solicitor to
the Severn-Trent Water Authority) represented the respondent.
Giving
judgment, LORD WIDGERY said that at the magistrates’ court three informations
were laid against the appellant. He was acquitted on one charge, but convicted
on a charge that on September 27 1973, at Oak Farm, Bagley, Salop, he did cause
to enter a tributary of the River Perry poisonous, noxious or polluting matter,
contrary to section 2 (1) of the Rivers (Prevention of Pollution) Act 1951. He
was also convicted of a similar offence under section 8 (1) of the Salmon and
Freshwater Fisheries Act 1923, as amended in 1972, but it was necessary to deal
only with the conviction under the Rivers (Prevention of Pollution) Act 1951,
since both convictions stood or fell together.
On September
27 1973 Mr Cromack inspected the River Perry, and found it foul-smelling and
dirty, with dead fish floating in it. He traced the pollution to Oak Farm,
Bagley, owned by Mr Price. The situation was that in 1971 an agreement had been
reached between the appellant and two companies that the appellant would accept
on his land certain effluents discharged by the companies on adjoining land.
The contract contemplated the use of an existing sewer, and then the effluent
spreading over the appellant’s land and disappearing by saturation. In 1973 two
lagoons were built on the appellant’s farm and by that time the right to
discharge the effluent had become vested in a company called Ellesmere Animal
Products Ltd. So far as it was relevant, the appellant was concerned with that
company, he being the managing director up to 1972 and continuing as director
thereafter. Evidently the existing method of disposal was causing trouble in
1973, and the lagoons were built to contain the effluent prior to its disposal
by natural means. Mr Cromack traced the pollution to the lagoons. He found
breaches in the walls of both, and the effluent was running from one lagoon to
the other and then escaping into the land and out into the river. The question
for the court was whether, in the circumstances, it was proper for the justices
to convict the appellant on a charge of ‘causing’ the effluent to enter the
river. It was to be noted that the 1951 Act contemplated two offences. One was
causing poisonous, noxious or polluting matter to enter a stream, and the other
was knowingly permitting it. The offence here had been framed in terms of
‘causing,’ and what the court had to consider was only whether the conviction
of ‘causing’ could legally stand.
The House of
Lords decided a similar question in 1972 in Alphacell Ltd v Woodward
[1972] AC 824, and it was important to observe that this same distinction
between causing and knowingly permitting was very much in their Lordships’
minds in that case. It was their overwhelming opinion that whatever else
‘causing’ might involve, it did involve some active operation as opposed to
mere passive standing by and looking on. One therefore had to begin by asking
where was the positive act by the appellant which was said to be a cause, or
perhaps the cause, of the effluent entering the river. Counsel for the
respondent argued that the positive act by the appellant was his entering into
an agreement with the next-door firm to receive the effluent on to his land. He
(his Lordship) would have agreed that if the effluent had been handed over at
the boundary of the appellant’s land and he had then been free to deal with it
as he wished, it might very well have been that one would find in the appellant
the essential feature of positive action which would justify his being said to
have caused the ultimate entry into the river. However, that did not happen in
this case. The effluent went on to the appellant’s land by gravity, and found
its way into the river by gravity, with no action on the appellant’s part. He
(Lord Widgery) sympathised with the respondent’s approach. He could see that
there should be no great difference between the man who generated effluent on
his own land and one who voluntarily agreed to accept somebody else’s effluent
and had it put on his land. However, he could not find that it amounted to
‘causing’ effluent to enter a river when a landowner merely stood by and
watched effluent pass over his land, even if he had committed himself by an
agreement to allowing the adjoining owner so to act. Conviction on these
charges was therefore not possible in law in the circumstances of the case.
ASHWORTH and
MICHAEL DAVIES JJ agreed, and the appeal was allowed with costs.
