Transcript water pollution and water quality ii water pollution offences and

Environmental Law
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WATER POLLUTION AND WATER QUALITY II
WATER POLLUTION OFFENCES AND
DEFENCES
Water Pollution Offences
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Criminal Liability:
 S85(1) Water Resources Act 1991 established the
general offence of causing or knowingly permitting any
poisonous, noxious, or polluting matter or any waste to
enter controlled waters.
R v Dovermoss Ltd [1995]
It is not necessary to establish actual harm. The
likelihood or capability of causing harm to animal or
farm life or to those who use the water is sufficient.
Water Pollution Offences
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Two separate offences:
 That of causing (strict liability); and
 that of knowingly permitting
Alphacell v Woodward [1972] HL
Not necessary to prove knowledge, intent or
negligence
in the offence of causing polluting matter to enter the
river. The offence is one of strict liability.
Water Pollution Offences
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CPC (UK) v NRA [1995]CA
 Question of causation = for the jury to determine;
 Latent defect irrelevant: no fault or knowledge need
be proved;
 Carrying out of activity which caused pollutant to
enter controlled waters was sufficient;
 Defendant had caused pollution; irrelevant that third
party might also have done so
 Alphacell test applied
Water Pollution Offences
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Attorney-General’s Reference (No 1 0f 1994)
 The active operation was running a sewerage system in
an unmaintained state.
 Possible for more than one person to be liable for causing
pollution of controlled waters.
Empress Car Company (Abertillery) Ltd v NRA [1998] HL
 No need to prove defendant did something which was
immediate cause of pollution;
 Maintaining tanks, lagoons or sewerage systems full of
noxious liquid was ‘doing something’.
Water Pollution Offences
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 Lord Hoffman: ‘The true common sense distinction
is, in my view, between acts and events which,
although necessarily foreseeable in the particular
case, are in the generality a normal and familiar
fact of life, and acts or events which are abnormal
and extraordinary.’
Express Dairies v Environment Agency [ 2003]
 Causation
 Confirms strict approach
 Necessary to show entry of pollution into controlled
waters was done to avoid danger to life or health
Water Pollution Offences
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Knowingly Permitting
 Requires proof of knowledge
 Constructive knowledge
 Vicarious liability
NRA v Alfred McAlpine Homes East Ltd [ 1994]
Water Pollution Defences
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Express Dairies v EA [ 2003]
Defence in an emergency if in order to avoid danger to
life or health
[S85-91 WRA 1991 repealed and replaced by
Environmental Permitting (England and Wales)
Regulations 2010]
Environmental Permitting Regs 2010
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 Reg. 38(1) It is an offence for a person to
(a) Contravene Regulation 12(1) or
(b) Knowingly cause or knowingly permit the
contravention of Regulation 12(1)(a).
(2) It is an offence for a person to fail to comply with
the requirements of environmental permit
conditions
Environmental Permitting Regs. 2010
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Reg 12(1) A person must not, except under and to
the extent authorised by an environmental permit
(a) Operate a regulated facility or
(b) Cause or knowingly permit a water discharge
activity or groundwater activity
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Criminal Penalties Reg. 39
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Defence = Emergency Defence Reg. 40