Water pollution (see also: Procedure) - Environment Agency v Brock plc (16 February 1998) Queen's Bench Divisional Court

United Kingdom
In December 1996, an Environment Agency officer found contaminated leachate leaking from the Hooton landfill in Ellesmere Port, Cheshire into a ditch tributary of the River Dibben. The source of the escape was traced to a leak in a rubber seal in a hose carrying the leachate from the landfill to a treatment lagoon. The landfill operator, Brock plc, was charged with causing polluting matter to enter controlled waters, contrary to Sections 85(1) and 85(6) of the Water Resources Act 1991. Magistrates acquitted Brock plc on the grounds that (1) the ditch tributary was not controlled waters within the meaning of the Water Resources Act 1991 since Brock plc had extended the ditch itself and (2) Brock plc did not cause the leachate to escape because the leak was neither within its control nor the result of its negligence on the basis that the rubber seal, which was normally expected to last 12 months, had been installed only two months earlier. The Magistrates' decision was overturned by the Queen's Bench Divisional Court on appeal by the Environment Agency. The Court followed the principles in Empress Car Company (Abertillery) Limited v National Rivers Authority [1998] (Times Law Reports, 9 February 1998) which set out how to approach issues of causation in water pollution cases. The first issue to consider was whether there had been a positive act by Brock plc. The Court found that pumping of the leachate constituted a positive act. The second issue was whether the failure of the rubber seal was a normal fact of life or something extraordinary. The Court held that such items are often defective and, although the defect may not be detectable, such defects are nevertheless ordinary occurrences. The unforseeably early failure of the seal therefore provided no defence. The remaining question was whether the ditch was controlled waters. Section 104 of the Water Resources Act 1991 provides that a man-made watercourse can be controlled waters and the Court held that the ditch was controlled waters as water flowed through it into another watercourse which was itself controlled waters. Brock plc was fined £2,000 and ordered to pay costs of £3,526. (New Law Digest, 16 February 1998)