QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE WALKER
|UNITED UTILITIES WATER PLC||Appellant|
|MOSS ROSE PIGGERIES LIMITED||Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR LEOLIN PRICE QC (instructed by Messrs Dyne Solicitors, Chester CH3 9PX) appeared on behalf of the Respondent
Crown Copyright ©
"I am prepared to accept that on the balance of probabilities in 1980 or thereabouts there is evidence of some sort of agreement or accommodation between the Defendant Company and officials either from the Water authority or acting as agents for them."
"there was however in 1980 or thereabouts an agreement or accommodation (outside of the statutory framework) between the respondent and the appellant's officials or its agents. My reasons for this finding are as follows:
• A number of retired officials were mentioned as being present. Whilst not produced as witnesses, their existence at the relevant time as people in authority was not challenged.
• The respondent carried out extensive work over the years in an effort to comply with some sort of standard which was being set by others.
• There was support for this contention in the letter from the NRA dated 19th Sept. 1995.
It seems inevitable that the authorities were aware of the continuing discharge into the sewer as it continued for a long period without prosecution from 1980 to 1995, some 15 years, without hindrance, and without charging, save for a small standing levy which was paid briefly and then cancelled."
"This agreement satisfied the requirements of section 129 of the Water Industry Act 1991 and its statutory predecessor section 7 of the Public Health (Drainage of Trade Premises) Act 1937."
"If, which is denied by United Utilities (Water) plc there has ever been an agreement capable of coming within the terms of Section 129 of the Water Industry Act 1991 entitling you to discharge trade effluent into the public sewer that this letter serves as 3 months notice determining such agreement."
"Mr Bradley argues that it was adequate, given the defendant's knowledge of the water company's concerns. In addition he argues that the concession offered in the notice to allow the defendant to apply for consent to bring him within the statutory frame work (or face prosecution) makes it more so. I have had no guidance as to what is a reasonable period. I note that six months features in the two cases relied on. I heard evidence from Mr Baguley. This is a substantial business which has been operative since the 1950s. There are about 2000 pigs that would have to be disposed of. The livelihoods of the extended Bagley family depend on the Piggery. I therefore find that 3 months notice is insufficient. It naturally follows that in my view at the date mentioned in the charge insufficient notice had been given to terminate the authorisation and that the discharges remained authorised. I therefore find the company not guilty of this charge as it stands. It will be equally clear that in my view had adequate notice been given the finding of this court on the same facts would have been one of guilty."
Accordingly, the Deputy District Judge found that the discharge had been authorised by agreement and the authorisation had not been lawfully terminated.
"(a) was there sufficient evidence for me reasonably to determine that there was an agreement entitling the respondent to discharge trade effluent into the public sewer?
(b) was my decision that three months notice period to terminate an agreement was not reasonable, one that a reasonable tribunal could have made in this case?
(c) was I correct in ruling that the respondent had the evidential burden to establish the existence of an agreement or other authority and that having done so it was for the appellant to prove that the discharges were not in accordance with the agreement, to the usual standard?"
"1. In finding the Defendant not guilty of an offence of discharging trade effluent to a public sewer contrary to section 118(5) of the Water Industry Act 1991 on the grounds that there was an agreement or accommodation entitling the Defendant to discharge trade effluent to a public sewer compliant with section 129 of the Water Industry Act 1991 the Court erred in law because the discharge was not made in compliance with the agreement or accommodation.
2. The Court erred in law in holding that three months was not a reasonable period to terminate an agreement or accommodation entitling the Respondent to discharge trade effluent to a public sewer.
3. There was no evidence to support the Court's conclusion that the agreement or accommodation was an agreement made pursuant to section 7 of the Public Health (Drainage [of Trade] Premises) Act 1937 (the statutory predecessor to section 129 of the Water Industry Act 1991) as opposed to being an agreement to permit a connection to the public sewer pursuant to section 34 of the Public Health Act 1936 or some other power."
"4.2 The Court declined to make findings as to the terms of the agreement or accommodation. Without making findings as to the terms of the agreement or accommodation the Court could not find that the discharge was authorised.
4.3 The evidence before the Court was that the discharge was to be in accordance with the plans submitted to the local authority. The plans showed the discharge via a 2 inch pipe. Mr Thornton [he I understand was an official] examined the 2 inch pipe in place. Therefore, the 2 inch pipe was removed so that at the date of the offence the discharge was being made via a 4 inch pipe.
4.4 In the Case Stated at paragraph 2(d) the District Judge states that there was no findings that changes made in the 1980 installation (the substitution of the 4 inch pipe) caused deterioration in the quality of discharged effluent. That is not the point. The discharge was not in accordance with the consent. A vastly greater quantity of effluent can be discharged via a 4 inch pipe. In addition a different quality can be discharged. It was not for the prosecution to prove that there was a deterioration in the quality of the discharge as a result of these changes. The fact is that the changes discharge was not made in accordance with the agreement or accommodation."
"There was no finding that changes made in the 1980 installation (the substitution of the 4 inch pipe) caused deterioration in the quality of the discharged effluent."
"The 4" pipe was substituted in Jan 81."
And then a little later:
"Mr Thornton [he was the official] came after we started to discharge. I cannot recall telling him. He looked at the installation to see if everything [was] in order. He was very happy the whole system worked. The 2" pipe was alcothene. The 4" pipe was plastic."
"Had to dig trench out again to lay 4" pipe. I did not communicate that to Thornton."
"was I correct in ruling that the respondent had the evidential burden to establish the existence of an agreement or other authority and that having done so it was for the appellant to prove that the discharges were not in accordance with the agreement, to the usual standard?"
As the question is framed I would answer it in the affirmative, although it seems to me that a different question might have been asked concerning the need to go into the details of the agreement. Although as I understand it attempts were made to persuade the Deputy District Judge to draft the case somewhat differently from the draft initially prepared, they did not prosper and no separate question was asked about the failure to find details of the agreement, albeit that the matter is raised in counsel's skeleton argument. In the circumstances as I have said I would answer it in the affirmative.
"Please note that our client may be prepared to abandon the appeal if your client will agree to cease discharge by no later than 31st December 2006."
The next day they wrote another letter which constituted a further (effectively a substitute) notice to terminate the agreement. It states:
"If (which is not admitted) there ever was an agreement capable of coming within the terms of Section 129 of the Water Industry Act 1991 entitling the company to discharge trade effluent into the public sewer, then this letter serves as 12 months notice determining such agreement with effect from the 13th January 2007."