Jersey Unreported Judgments

 [2005]JRC020

ROYAL COURT

(Samedi Division)

 

25^th February 2005

 

 

The Attorney General

-v-

Environment and Public Services Committee

 

1 count of:

Contravening Article 17(2) of the Water Pollution (Jersey) Law, 2000 by causing pollution when sewage escaped from a public sewer, for which the Committee was responsible as the sewerage undertaker for the Island, and entered controlled waters.

 

Plea:    Facts admitted.

 

Details of Offence:

On 17^th January, 2004 a resident noticed that a private manhole cover on his property was leaking effluent.  PSD attended the property, a tanker was dispatched, the drain was cleared and PSD thought the problem was solved.  However, the following day the effluent was still leaking and inspection of a public manhole downstream revealed the flow was severely reduced due to blockage.  Attempts to remedy the spill by use of tankers were unsuccessful, due to the amount of gravity-fed effluent within the sewerage system.  Jersey New Waterworks were informed of the situation, albeit after a delay, but fortunately reservoirs were full and no water was being abstracted from the stream into which the sewage was running.  Eventually a shaft was excavated over the point of blockage and quantity of stones and bricks were removed from the blocked area.  The overflow eventually ceased at 16.00 on 19^th January, 2004.  Tests carried out on the stream showed ammonia levels nearly 68 times above normal level and a chemical oxygen demand nearly 60 times above normal level.  Ammonia is the initial product of the breakdown of animal and vegetable waste and high levels are associated with sewage: chemical oxygen demand is a measure of the amount of oxygen required to break down organic matter in water.  High levels are also associated with sewage.  Elevated levels were also found in St. Aubin's Harbour, being the eventual outlet of the affected stream.  It could not be proved, however, that any flora or fauna had been affected by the pollution.

 

Details of Mitigation:

The blockage was caused by builder's rubble, of which the Defendant Committee was ignorant until a shaft was excavated above the suspect area.  Offence is one of strict liability.

 

Previous Convictions:

One previous similar conviction in July 2004 relating to a spillage at Goose Green Marsh.

 

Conclusions:

Count 1:

£10, 000 fine; £2,500 costs.

 

 

Sentence and Observations of Court:

Count 1:

£5,000 fine; £2,500 costs.

 

 

Mrs S. Sharpe, Crown Advocate.

Advocate N.M. Santos Costa for the Defendant Committee.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        As a result of builder's rubble finding its way into the main sewer, a blockage occurred.  This in turn caused foul sewerage, both solid and liquid, to escape into a nearby stream from which at times the Jersey New Waterworks Company extracts water for drinking purposes.  The pollution travelled down stream as far as St. Aubin's harbour and the leakage continued for over twenty four hours from Sunday 18^th January to Monday 19^th January.  It is clear from the photographs that considerable quantities of sewerage were escaping into the stream.  We accept that the Committee was faced with a clean-up situation, but there are two aspects which might be said to cause concern about that operation. 

2.        The first is that the Department did not alert the Waterworks Company to what was happening until 4p.m. that Sunday - that was some three and a half hours after they had discovered the scale of the problem on site.  Fortunately, no harm followed because the Waterworks Company was not, in fact, abstracting water from the stream at the time; but it could have been and it certainly seems to us very questionable whether a delay of that nature is acceptable. 

3.        Secondly, we have heard that towards the end of the operation some of the solid waste was not removed by suction hose, but was deliberately washed into the stream by pressure hose.  Again, we do not make a finding on that because it is often a judgement call as to whether that is an appropriate method or not, but, on the face of it, it would seem that suction was infinitely preferable and we would certainly expect the Committee to wish to look into whether that was appropriate.

4.        There is, however, considerable mitigation, as Mr Santos Costa has stated.  First and foremost, this blockage was not caused by any fault of the Committee.  It is clear that builders' rubble can unfortunately find its way into the sewers, sometimes from houses in the course of construction.  So no criticism is made of the Committee in that regard.  Secondly, drinking water was not, in fact, polluted.  Thirdly, there is no evidence of any significant damage to the environment, whether to animal or plant life.

5.        This is the first prosecution under this Law which has come to this Court.  We have been referred to four English cases, but we accept that the facts of those cases were rather different to those with which we are now faced.  There has in fact been one prosecution, namely AG -v- Ozouf (9^th November 2001) Jersey Unreported; [2001/225], but that was completely different.  What we do think is that a helpful summary of some of the relevant factors is to be found in the decision of the English Court of Appeal in R -v- Yorkshire Water Services, Ltd [2001] EWCA Crim 2635, and taken from that we would list some factors which will influence the sentence to be passed:

(i)        The degree of culpability involved in the commission of what is, in effect, an offence of strict liability;

(ii)       The damage done to the environment.  As Mr Santos Costa said, this is a Law designed to protect the environment and therefore the damage done to the environment as a result of the breach of the Law will be a material factor in sentencing.

(iii)      The defendant's previous record, including any failure to heed specific warnings or recommendations.

(iv)      The need to strike a balance between a fitting expression of censure, designed not only to punish, but to stimulate improved performance, on the one hand, and the counterproductive effect of imposing too great a financial penalty on an organisation that is already competing for funds with other deserving causes, on the other.

(v)       The defendants' attitude and performance after the events, including not only their plea, but also whether they have approached the accident with an open mind, with a view to seeing what lessons can be learned.

6.        We do urge the Department and the Committee in this case to see if any lessons can be learned and we have to say we were not entirely reassured that this exercise has, so far, been undertaken.  Certainly, as we say, there seem to us to be at least two respects in which it could be considered that the clean up operation might be improved in future, namely the need to make immediate contact with the Waterworks Company where there is any risk to one of their sources and, secondly, the question of whether solid waste should be vacuumed rather than pressure hosed.

7.        Another point which arose, although it does not relate to the clean-up operation, is the question of whether the Water Resources section of the Department needs to be available in the event of emergencies.  We are not saying that it necessarily has to be; that is a matter for others to consider, but it certainly would seem to merit consideration.

8.        However, taken in the round, we think Mr Santos Costa is right; this was not a situation of the Committee's making.  By and large, they did all they could to remedy the situation as urgently as possible, subject only to the two comparatively minor issues we have raised.  In all the circumstances we think the fine asked for is too high and we think the right level is a lower fine.  Would you be kind enough to stand up Senator?  We think the Committee should be fined £5,000 with £2,500 costs and seven days to pay.   

Authorities

AG -v- Ozouf (9^th November 2001) Jersey Unreported; [2001/225A].

Environment Agency -v- Thames Water Utilities, Ltd (18^th February 2005). www.environment-agency.gov.uk

Environment Agency -v- Severn Trent Water (28^th January 2005) www.environment-agency.gov.uk

Environment Agency -v- Anglian Water (18^th June 2004) www.environment-agency.gov.uk

Environment Agency (Wales) -v- Dwr Cymru Cyf (17^th August 2004) www.environment-agency.gov.uk

R -v- Yorkshire Water Services, Ltd [2001] EWCA Crim 2635.

National Rivers Authority -v- Yorkshire Water Services, Ltd (1995) 1 All ER 225.