Tough new powers have been given to the Environment Agency to take action against anyone believed to have polluted any inland surface waters or groundwater

United Kingdom

Anti-pollution Works Notices

Pamela Castle and Daniel Chappell of the Environment Practice Group outline the tough new powers to be given to the Environment Agency to take action against anyone believed to have polluted any inland surface waters or groundwater

The Environment Agency is likely to be given much tougher powers in combating water pollution in 1998 when an amendment to the Water Resources Act 1991 ("the WRA") is expected to be brought into force. The amendment, contained in schedule 22 to the Environment Act 1995, inserts new sections 161A to 161D into the WRA which contain the anti-pollution Works Notices provisions. A consultation paper containing a draft of The Anti-Pollution Works Regulations was issued in August 1997 and sources in the Department of the Environment, Transport and the Regions ("DETR") indicate that the new provisions may be brought into force this year.

The new provisions are significant for anyone who may pollute controlled waters. Controlled waters include all inland surface waters and groundwater. These provisions are therefore of importance to those carrying out construction activities.

Existing powers

The Environment Agency has existing powers under section 161 of the WRA where it considers any poisonous, noxious or polluting matter or any solid waste matter (i) to be in land from which that matter might enter controlled waters or (ii) to be in controlled waters, to carry out works to prevent the substances from entering controlled waters and if that has already occurred to remove the substances and/or remedy or mitigate the damage. The Environment Agency may recover its reasonable costs from the person who caused or knowingly permitted the substances to be in the water or in a place where they are likely to enter controlled waters.

These powers have rarely been used because the Environment Agency has not had the financial resources to fund such works and could expect difficulties in obtaining reimbursement of its costs.

Effect of the new sections

The new Sections 161A to 161D will overcome this problem by allowing the Environment Agency to serve a Works Notice on any person it considers to have caused or knowingly permitted the circumstances described above in relation to section 161 to arise. The Works Notice may require that person to carry out works the Environment Agency would currently have to undertake itself. Non-compliance with a Works Notice is an offence. The Environment Agency is, however, first required to consult with the person whom it considers to have caused or knowingly permitted the circumstances in question with the view to agreeing action to be taken without the service of a formal Works Notice.

Content of Works Notices

The draft of The Anti-Pollution Works Regulations (the "draft Regulations") sets out the required contents of Works Notices. These must inter alia specify:

  • the name and address of the person on whom the Works Notice is to be served.
  • the works or operations which that person is required to carry out
  • the consequences of not complying with the Works Notice.

The Works Notice must also state that the Environment Agency is entitled to recover from the person on whom the Works Notice is served its costs or expenses reasonably incurred in carrying out investigations into the likely or actual source and nature of the pollution and the persons on whom the Works Notice should be served. The draft Regulations also contain provisions on appeals against Works Notices, payment of compensation by the person on whom the Works Notice is served in respect of the granting of rights of entry to carry out the works and particulars of the Works Notices which must be contained in the Environment Agency's pollution control registers.

Overlap with contaminated land provisions

Much concern has been expressed about the relationship between sections 161A - 161D and the contaminated land provisions under Part IIA of the Environmental Protection Act 1990 which were introduced by the Environment Act 1995. The Government is currently considering how and when to implement the contaminated land provisions and amendments are expected to the detailed volumes of draft statutory guidance.

Under the contaminated land provisions, the definition of contaminated land includes land which is in such a condition by reason of substances, in on or under the land, that pollution of controlled waters is being or is likely to be caused. There is therefore a direct overlap between the powers of local authorities/the Environment Agency under the contaminated land provisions and the Environment Agency's new powers under sections 161A to 161D.

The concern arises from the fact that sections 161A to 161D are much simpler than the contaminated land provisions and consequently are likely to provide a much more effective power for the Environment Agency in procuring the clean up of controlled waters and contaminated land in the vicinity of controlled waters. While the contaminated land provisions were the subject of heavy scrutiny in their passage through parliament sections 161A to 161D were contained in a schedule to the Environment Act 1995 entitled "Minor and Consequential Amendments". The result is that, unlike the contaminated land provisions, sections 161A to 161D are unfettered by the complicated procedures and safeguards contained in the contaminated land provisions and are not subject to detailed statutory guidance covering the establishing, allocation and apportionment of liability.

DETR consultation paper

The DETR has sought to allay these concerns by indicating in the consultation paper issued in August 1997 how it foresees the two sets of powers will operate in relation to each other. It seems to rely on consultation between the local authorities and the Environment Agency and the general duties of the Environment Agency to have regard to costs and benefits of its actions and to act in accordance with its own enforcement policy. That enforcement policy requires that any action taken should be proportionate to any risks posed to the environment and to the costs involved. It also appears to rely on the fact that local authorities/the Environment Agency are under a duty to serve remediation notices under the contaminated land provisions where they identify contaminated land while under sections 161A to 161D the Environment Agency has the power to serve a Works Notice - which the DETR indicates would require use of the contaminated land provisions rather than sections 161 A to D. The approach does not effectively deal with the concerns raised and leaves a large degree of flexibility and uncertainty as to how the two regimes will in practice be applied.

Despite the comments of the DETR the potential remains for sections 161A to 161D to become a significant weapon for the Environment Agency which may in practice be more effective than the contaminated land provisions. The Government has indicated that the contaminated land provisions are intended to be used to deal with the worst cases of historic contamination with the majority of remediation being through planning requirements. It is not clear whether the same intention applies to the new provisions under the WRA.

The proposed European Union Directive

A future stimulus for the Environment Agency to use the powers under sections 161A to 161D might be the European Union Water Policy Framework Directive (the "proposed Directive") which is currently in draft form. If the proposed Directive is adopted in its present form it will require identification of all diffuse and point sources of water pollution and will require all waters in the European Union to have acquired "good status" by 2010. This ambitious target would require remediation of many of the sources of water pollution identified and sections 161A to 161D would provide the Environment Agency with a powerful instrument to allocate the costs of this clean-up and fulfil another aim of the proposed Directive which is achievement of the polluter pays principle.