Watercourse Pollution and your Liability

Pollution of a watercourse.

It is an offence to cause or knowingly permit a water pollution discharge activity. The offences cover pollution of all watercourses, including streams, rivers, lakes, estuaries, coastal waters and the territorial sea out to 3 nautical miles. Groundwater is included as a watercourse. For England and Wales, the principal water pollution offences are contained in the Environmental Permitting (England and Wales) Regulations 2010: regulations 38(1) and 12(1).

It is a strict liability offence. This means that intention is not a pre-requisite to proving the offence. If pollution is due to a chain of events, a person may be regarded as having caused pollution even if someone else’s actions immediately triggered the incident. Being aware of a polluting incident and refusing to take reasonable prevention steps is also an offence.

If a person/entity is tried and convicted in a Magistrates Court, they could be fined any amount and/or sentenced to up to six months imprisonment. If they are tried and convicted in a Crown Court they could face an unlimited fine and/or be sentenced to up to five years imprisonment. The court can also impose ancillary orders such as disqualification from acting as a director or order you to take remedial steps.

Some activities, such as septic tank and sewage treatment plant discharge are treated as exempt as long as the responsible person registers with the Environment Agency, holds an environmental permit and complies with the incumbent rules.

Some of the most common ways of committing an environmental crime include:

  • causing pollution
  • knowingly permitting pollution
  • breach of a statutory duty
  • breach of an authorisation (eg. a permit)
  • breach of a prohibition
  • failure to comply with a notice

To knowingly permit pollution does not require intention, fault or any knowledge of action or inaction, only some positive act or operation. In Empress Car Co, the defendant was held to be liable for the discharge of oil from its oil tank:

  • The defendants left an unguarded tap on a large diesel tank next to a river
  • An unknown vandal trespassed on the property of the defendants and opened the tap, allowing the diesel to discharge into the river
  • It is a strict liability offence to cause the discharge of diesel into a river, under the Water Resources Act 1991, section 85
  • By maintaining the oil tank they had ‘knowingly caused’ the pollution. The defendants left an unguarded tap on a large diesel tank next to a river, they were strictly liable

In effect, the release of pollution from your land onto another’s land, even if caused by a third party, is your responsibility and there is no defence. You are strictly liable.

So, it is entirely possible by allowing or causing pollution of a watercourse (which includes groundwater) that you will be committing a criminal offence with strict liability, unlimited fine potential and a potential jail sentence. A third party (an external contractor) and the landowner may also be liable to a civil action for negligence. The penalty in this case would be financial.

As an indication of the seriousness of pollution offences we have included some of the larger pollution fines:

£20.3m – Thames Water for sewage pollution of the Thames

£750k – United Utilities for a pumping failure resulting in Duddon Estuary pollution

£100k – Miller Homes for polluting a watercourse with site run-off water

The financial repercussions might seem severe but then consider the reputational and insurance issues, not to mention the potential clean-up costs.

Further reading: Environmental Permitting (England and Wales) Regulations 2010, Environmental Protection Act 1990, Water Resources Act 1991 s 85, Rylands v Fletcher [1868], Cambridge Water Co Ltd v. Eastern Counties Leather Plc [1994]