Environment Agency v Biffa Waste Services & Anor

Criminal liability under section 85 of the Water Resources Act 1991 depends on the responsibility that a contractor has assumed for preventing pollution. That responsibility ordinarily requires close analysis of the contractual and factual relationship between the contractor and the person managing the incident.

A contractor instructed only to perform specified services does not thereby assume general responsibility for the pollution. An omission may amount to knowingly permitting pollution, rather than causing it, where the contractor fails to prevent an existing discharge. An independent contractor’s acts and omissions do not ordinarily create vicarious liability for the engaging contractor.

The Environment Agency brought a prosecutor’s appeal by way of case stated from acquittals at Mansfield Magistrates’ Court. Biffa Waste Services and Eurotech Environmental had been acquitted of charges under section 85(1) of the Water Resources Act 1991 relating to untreated sewage entering controlled waters.

The Agency alleged that Biffa had assumed responsibility for managing the pollution incident and that Eurotech had caused pollution by stopping tankering at the end of its contractual period. It further alleged that Biffa was vicariously liable for Eurotech’s conduct. The central issues were the parties’ respective responsibilities, the distinction between causing and knowingly permitting pollution, and whether Eurotech acted as Biffa’s agent.

1. Appeal dismissed. The magistrates’ acquittals were upheld.
2. The District Judge was entitled to find that Severn Trent Water Authority, rather than Biffa, managed the emergency and was responsible for ordering plant and services. The challenge was substantially to findings of fact. The appellate court would not interfere because the findings were neither perverse nor ones which no reasonable District Judge could reach. The contractual relationship and the evidence of how the incident was managed were material to identifying Biffa’s assumed responsibility.
3. A contractor may fall within section 85 of the Water Resources Act 1991 where it undertakes services connected with a polluting emergency. The extent of liability depends on the responsibility assumed. If the contractor has discretion under its contract, liability may extend beyond the precise acts contractually required. The Agency should investigate the contractor’s precise role, authority and contractual arrangements.
4. Eurotech did not cause the renewed pollution merely by leaving when its contractual tankering obligation ended. The relevant conduct was the cessation of tankering. That was an omission which, if accompanied by knowledge, could constitute knowingly permitting pollution, not causing it. Eurotech was also acquitted of knowingly permitting pollution because its director did not know that pollution was occurring.
5. Eurotech was an independent contractor hired to perform a particular task for a fee. There was no evidential basis for treating it as Biffa’s agent. Since Eurotech was correctly acquitted, no question of vicarious liability arose in any event.
6. The defendants were awarded their costs out of Central Funds.

• Mansfield Magistrates’ Court: Biffa and Eurotech were acquitted on the informations.
• High Court (Administrative Court): The Environment Agency’s prosecutor’s appeal by way of case stated was dismissed and the acquittals upheld.