Scottish Court of Session Decisions

These cases are reported ante ut supra.

The Rivers Pollution Prevention Act 1876

(39 and 40 Vict. cap. 75) enacts as follows Section 4—“Every person who causes to fall or flow, or knowingly permits to fall or flow or to be carried into any stream, any poisonous, noxious, or polluting liquid proceeding from any factory or manufacturing process, shall (subject as in this Act mentioned) be deemed to have committed an offence against this Act. Where any such poisonous, noxious, or polluting liquid as aforesaid falls or flows or is carried into any stream along a channel used, constructed, or in process of construction at the date of the passing of this Act, or any new channel constructed in substitution thereof, and having its outfall at the same spot, for the purpose of conveying such liquid, the person causing or knowingly permitting the poisonous, noxious, or polluting liquid so to fall or flow or to be carried shall not be deemed to have committed an offence against this Act if he shows to the satisfaction of the court having cognisance of the case that he is using the best practicable and reasonably available means to render harmless the poisonous, noxious, or polluting liquid so falling or flowing or carried into the stream.”

Section 5—“Every person who causes to fall or flow, or knowingly permits to fall or flow or to be carried into any stream, any solid matter from any mine in such quantities as to prejudicially interfere with its due flow, or any poisonous, noxious, or polluting solid or liquid matter proceeding from any mine, other than water in the same condition as that in which it has been drained or raised from such mine, shall be deemed to have committed an offence against this Act, unless in the case of poisonous, noxious, or polluting matter he shows to the satisfaction of the court having cognisance of the case that he is using the best practicable and reasonably available means to render harmless the poisonous, noxious, or polluting matter so falling or flowing or carried into the stream.”

Section 6—“Unless and until Parliament otherwise provides, the following enactments shall take effect:—Proceedings shall not be taken against any person under this part of this Act, save by a sanitary authority, nor shall any such proceedings be taken without the consent of the Local Government Board” [for which in Scotland there is substituted one of Her Majesty's Principal Secretaries of State ( see sec. 21 (4)), and now the Secretary for Scotland ( see Secretary for Scotland Act 1885 (48 and 49 Vict. c. 61), sec. 5 (1), and Schedule, Part I.)]… . The said Board in giving or withholding their consent shall have regard to the industrial interests involved in the case and to the circumstances and requirements of the locality. The said Board shall not give their consent to proceedings by the sanitary authority of any district which is the seat of any manufacturing industry, unless they are satisfied, after due inquiry, that means for rendering harmless the poisonous, noxious, or polluting liquids proceeding from the processes of such manufacturers are reasonably practicable and available under all the circumstances of the case, and that no material injury

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will be inflicted by such proceedings on the interests of such industry. Any person within such district as aforesaid, against whom proceedings are proposed to be taken under this part of the Act, shall, notwithstanding any consent of the Local Government Board, be at liberty to object before the sanitary authority to such proceedings being taken, and such authority shall, if required in writing by such person, afford him an opportunity of being heard against such proceedings being taken so far as the same relate to his works or manufacturing processes. The sanitary authority shall thereupon allow such person to be heard by himself, agents, and witnesses, and after inquiry such authority shall determine, having regard to all the considerations to which the Local Government Board are by this section directed to have regard, whether such proceedings as aforesaid shall or shall not be taken.” …

Section 10—“The County Court (in Scotland Sheriff Court—sec. 21 (5)) having jurisdiction in the place where any offence against this Act is committed may by summary order require any person to abstain from the commission of such offence.” … “Any person making default in complying with any requirements of an order of a County Court (Sheriff Court) made in pursuance of this section shall pay to the person complaining, or such other person as the court may direct, such sum not exceeding fifty pounds a day for every day during which he is in default, as the court may order.”

Section 13—… “Nor shall proceedings in any case be taken under this Act for any offence against this Act until the expiration of two months after written notice of the intention to take such proceedings has been given to the offender.” …

By section 55 of the Local Government (Scotland) Act 1889 (52 and 53 Vict. c. 50) the County Council is empowered to enforce all the provisions of the Rivers Pollution Prevention Act 1876 in relation to so much of any stream as is situate in or passes through or by any part of the county.

These were proceedings under the Rivers Pollution Prevention Act, and the question now decided and reported was whether the preliminary procedure prescribed by sections 6 and 13 of the Act of 1876 as necessary before proceedings under that Act can be taken had been duly observed.

On 8th May 1902 the County Council of Midlothian as sanitary authority for the county brought a petition in the Sheriff Court of the Lothians and Peebles at Edinburgh against the Oakbank Oil Company, Limited, carrying on business at Mid-Calder, Midlothian, and having their registered office at 39 St Vincent Place, Glasgow, craving the Court “to ordain the defenders to abstain from causing to fall or flow, or knowingly permitting to fall or flow, or to be carried into the stream commonly called or known as the Linnhouse Burn, or into the river Almond, any poisonous, noxious, or polluting liquid, and in particular any poisonous, noxious, or polluting liquid refuse from the shale oil work at Mid-Calder aforesaid, belonging to the defenders.”

The defenders were proprietors of and carried on a shale oil work at Oakbank, Mid-Calder, in the county of Midlothian.

On January 19th 1901 the pursuers had sent a notice to the defenders in the following terms:—“The County Council of the County of Midlothian, being the Sanitary Authority of the said county under the Rivers Pollution Prevention Act 1876, hereby give notice that having been informed of pollutions issuing from your works at Oakbank into the Linnhouse Burn, they call upon you to take all possible steps to provide remedial measures to prevent pollution. Notice is further given that application has, in terms of section 6 of the said Rivers Pollution Prevention Act 1876, been made to the Secretary for Scotland for his consent to the institution of proceedings under the Act, and failing any attempt on your part to deal with this matter efficiently within two months from this date the said Authority will proceed to enforce the Act above cited.”

The pursuers in January 1901 applied to the Secretary for Scotland for his consent to the institution of proceedings against the defenders under the Rivers Pollution Prevention Acts.

On January 30th 1901 the defenders received a letter from the Scottish Office informing them that application had been made by the County Council of Midlothian in terms of section 6 of the above Act for the consent of the Secretary for Scotland to the institution of legal proceedings against them in respect of the alleged pollution, and requesting that any observations which they might have to offer thereon, together with any reasons why the Secretary for Scotland should withhold his consent, should be sent to the Scottish Office within fourteen days.

The Secretary for Scotland, after an independent inquiry, at which the defenders did not attend, gave his consent in September 1901. No intimation that he had done so was sent to the defenders. No further notice of the pursuers' intention to institute proceedings was sent to the defenders after the pursuers had obtained the consent of the Secretary for Scotland.

The pursuers averred that the defenders' oil work was a factory, and the work carried on therein was a manufacturing process within the meaning of section 4 of the Rivers Pollution Prevention Act 1876; that the defenders' oil work was situated near the Linnhouse Burn, which passes through the county of Midlothian and is a tributary of the Almond, which for a great part of its course passes through the said county; and that the Linnhouse Burn and river Almond were streams within the meaning of section 20 of the Rivers Pollution Prevention Act 1876.

The pursuers further averred as follows:—“(Cond. 4) The pursuers have found that the defenders have been and still are causing to fall or flow, or knowingly

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permitting to fall or flow or be carried into the said Linnhouse Burn, and thereby into the said river Almond, large quantities of poisonous, noxious, or polluting liquids, and in particular sulphuric anhydride, ammonia, and the tarry matters produced in the manufacture of paraffin oil and other shale products, or other poisonous, noxious, or polluting liquids proceeding from their said oil works, or from manufacturing processes carried on by the defenders therein, and are thereby committing an offence against section 4 of the Rivers Pollution Prevention Act 1876. (Cond. 5) The defenders have taken no effectual means for rendering harmless the said poisonous, noxious, or polluting liquids proceeding from their said manufacturing processes, although such means are reasonably practicable and available. With reference to the answer, the defenders are called on to state what means for rendering harmless said liquids they have adopted.”

The defenders denied the averments of the pursuers in Cond. 4 and 5, and stated that their works had been in existence for more than forty years; that during that period discharges from the works had been made into the said streams; and that they had taken and were taking every reasonable precaution, and were using the best practicable and reasonably available means, to prevent any pollution of the said streams. The defenders also stated as follows:—“(Ans. 7) Explained that, following upon the said notice of 19th January 1901, a correspondence ensued between the defenders and Mr A. G. G. Asher, W.S., on behalf of the pursuers. The defenders wrote on 1st February 1901 stating their position in regard to the matter, and received a reply from Mr Asher, dated 5th February 1901, stating that the matter would be further inquired into. The defenders have received no further intimation between that date and the service of the petition. Explained further that the defenders were not advised of any independent inquiry, or that the said Secretary had given his consent as stated, nor were they given an opportunity either by the Secretary for Scotland or by the pursuers after obtaining his consent of objecting in terms of section 6 of the Act to the present proceedings being taken, or of removing any cause of complaint discovered by the inquiry instituted by the said Secretary. The provisions of sections 6 and 13 of the Act have been entirely ignored. No intimation was made to the defenders after obtaining said Secretary's consent.”

The pursuers pleaded, inter alia—“(1) The defences are irrelevant and ought to be repelled. (2) The defenders having polluted the said streams, and having thereby committed an offence against the statute libelled, the pursuers are entitled to an order or decree in terms of the prayer of the petition.”

The defenders pleaded, inter alia—“(1) The action is incompetent.”

On October 30th 1902 the defenders' agents wrote to the County Clerk of Midlothian intimating that the defenders required the pursuers to afford them an opportunity of being heard against proceedings being taken against them. The letter further stated—“You are aware that our clients had no intimation that the Secretary for Scotland had given his consent to the proceedings, and that consequently they had not an opportunity of requiring to be heard prior to the initiation of the proceedings.”

On November 5th 1902 the County Clerk of Midlothian replied—“Your letter is the first intimation which the committee have received of your clients' desire to have an opportunity of being heard against proceedings being taken, and I am instructed to inform you that they are not now prepared to accede to that request in view of the procedure which has already taken place in Court.”

Similar actions in respect of pollution of streams passing through the respective counties were brought by the County Council of Midlothian against the Pumpherston Oil Company, Limited, in the Sheriff Court at Edinburgh, on 8th May 1902; by the County Council of Linlithgow against the Pumpherston Oil Company, Limited, on 9th May 1902; by the County Council of Linlithgow against the United Collieries, Limited, as owners of the Crofthead Colliery, on 9th May 1902; and by the County Council of Linlithgow against the United Collieries, Limited, as owners of the Fallahill Colliery, on 9th May 1902. The three latter actions were in the Sheriff Court at Linlithgow. In all these cases the essential facts as regards the preliminary procedure prior to the institution of proceedings in Court were practically identical with those narrated supra in the case of the Oakbank Oil Company.

In the action by the County Council of Linlithgow against the Pumpherston Oil Company, Limited, a correspondence was produced between the County Clerk of Linlithgow and the defenders showing that after the action was raised in the Sheriff Court the defenders suggested a conference between the parties with a view to concerting means of removing the cause of complaint. The defenders submitted plans showing proposed additional works for the prevention of pollution.

On October 20th 1902 the County Clerk of Linlithgow wrote to the defenders in these terms—“Your letter sending plan and statement showing the proposed works for the prevention of pollution of the river Almond, and the proposed additional works which you are prepared to carry out, has now been submitted to counsel, who advise that no proposal should be considered by the Connty Council without the judicial admission from you that pollution has existed and does exist. I shall be glad to hear from you as to this as early as possible.”

The defenders refused to entertain the suggestion for a judicial admission.

The procedure by which, under section 11 of the Rivers Pollution Prevention Act 1896, the petitions and processes were removed from the Sheriff Courts at Edinburgh and Linlithgow respectively to the

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Court of Session, is reported, ante— Midlothian County Council v. Pumpherston Oil Company, Limited, July 15, 1902, 39 S.L.R. 767, and 4 F. 996.

Argued for the pursuers—The procedure prescribed by the Rivers Pollution Prevention Act 1876, as preliminary to proceedings being taken, had been duly observed. The consent of the Secretary for Scotland had been obtained; written notice of the intention to take such proceedings had been given to the several defenders; and in each case more than two months had elapsed between the date of the notice and the date at which the petitions were brought. As soon as these three conditions were fulfilled, the County Councils as the sanitary authorities in the respective counties were in titulo to take proceedings. All that was required by the statute was written notice of the County Councils' intention to take proceedings, and there was no warrant in the statute for holding that such notice could not be effectually given until the consent of the Secretary for Scotland had been obtained. It was absurd to say that the County Council could not “intend to take proceedings” before the consent of the Secretary for Scotland was given. As soon as the “intention to take proceedings” was formed by the County Council the notice was properly and effectually given. On January 30, 1901, in the Oakbank case, the defenders received from the Scottish Office notice that an application had been made to the Secretary for Scotland for his consent to legal proceedings being taken. They were therefore in knowledge that the notice sent to them on January 19, 1901, was being followed up. Under section 6 they were at liberty to send a written request for a hearing before the County Council, but they made no such request for a hearing until October 30, 1902, five months after the action was brought. In these circumstances the provisions in sections 6 and 13 could not avail them, and their objection to the competency on the ground that they were deprived of an opportunity of being heard should be repelled. At the best, the objection was a purely formal and technical one. In the Pumpherston case it was quite reasonable for the County Council to insist that the defenders should judicially admit the pollution before schemes for mitigating the pollution could be considered.

Argued for the defenders—The petitions were incompetent in respect that the pursuers had not given notice to the defenders in compliance with the requirements of the Act. With a view to protecting industries the statute had prescribed stringent conditions-precedent to proceedings being taken under it. In particular the defenders had no notice of the consent of the Secretary for Scotland having been given, and consequently did not have the opportunity of being heard before the sanitary authority. The notice sent by the pursuers was issued prior to the consent of the Secretary for Scotland being obtained, and therefore before the pursuers were in titulo to bring the actions. At the date of the notice the pursuers could not tell that they would ever be in a position to take proceedings, and therefore the notice was ineffectual. An effectual notice could have been sent only after the consent of the Secretary for Scotland had been granted. This objection was not merely technical but went to the substance of the case, inasmuch as under the course followed by the pursuers the defenders were deprived of the opportunity of demanding a hearing by the County Councils. This was the defenders' only opportunity of stating their defence, in so far as it was based on the industrial interests imperilled, for such industrial interests were not competent, or at least not appropriate, matters of consideration for a court of law. In any event the defenders had an absolute right under the Act to have this aspect of the case laid before the County Council before the County Council took proceedings. It was said that the defenders the Oakbank Oil Company had not asked for a hearing by the County Council until the action had been brought against them, but the reason for that was that they assumed that if the Secretary for Scotland consented to the prosecution they would receive notice of such consent and be allowed two months, as provided for in the Act, in which to make representations to the County Council before the action was brought. In the case of the Pumpherston Oil Company negotiations were proceeding as to the best means of preventing pollution when the County Council suddenly and unwarrantably insisted on an admission that pollution existed. This demand by the County Council, insisted in while denying the defenders a hearing, was in contravention of the Act.

At advising—