Express Ltd. v The Environment Agency

Section 85(1) of the Water Resources Act 1991 creates a strict-liability offence. Liability does not require proof of intention, negligence or recklessness. A defendant may cause pollution without being its immediate physical cause where there is a sufficient causal nexus.

Under section 217(3), an offence committed by one person may be due to the act or default of another. A landowner who permits a pollution-risk operation on its land may have a statutory duty to assess and respond to that risk. Matter may be polluting without proof of actual harm. Staining or tainting may suffice, although whether an entry has a polluting effect remains a question of fact and degree.

Express Ltd appealed by way of case stated against its conviction by justices at Redditch on 29 January 2004. Pardy’s Dairies, operating on Express’s premises, spilled cream while transferring it to a van. Some cream entered Hewell Brook, which the justices found to be controlled waters.

Pardy’s pleaded guilty to an offence under section 85(1) of the Water Resources Act 1991. Express was convicted under section 217(3), on the basis that Pardy’s offence was due to Express’s act or default. The issues were whether the pollution was due to an act or default of Express and whether the cream was polluting matter despite the absence of proved actual harm.

1. Appeal dismissed. Each of the five questions in the case stated was answered affirmatively.
2. Section 85(1) of the Water Resources Act 1991 imposes strict liability. The prosecution need not prove intention, negligence or recklessness. The causal principles stated in Empress Car Co Ltd [1999] 2 AC 22 permit liability where the defendant’s conduct created the relevant situation, even though a third party or event was the immediate occasion of the escape.
3. Section 217(3) is not confined to cases involving an immediate causal act and is not mutually exclusive with section 85(1). The prosecution had to identify an act or default of Express which caused Pardy’s contravention. The statutory obligation in section 85(1) was sufficient to support a duty on a landowner permitting a pollution-risk operation to carry out a risk assessment and respond to what it revealed. Express’s failure to assess the risks of the cream-transfer operation, and its permission for the operation to continue near surface-water drains, provided a sufficient basis for conviction.
4. Actual harm to the receiving water was unnecessary. Following R v Dovermoss Ltd [1995] Env L R 258, matter may be polluting if it stains, taints or otherwise makes water physically impure. Whether the quantity has a polluting effect is a question of fact and degree. The justices were entitled to rely on the discolouration, photographs, increased biochemical oxygen demand, suspended solids and ammoniacal nitrogen, together with the potential for harm.
5. The justices’ findings established both the requisite act or default and the polluting effect of the cream. The conviction was therefore upheld.

This was an appeal by way of case stated from the decision of justices sitting at Redditch, who convicted Express Ltd on 29 January 2004. The High Court dismissed the appeal.