Scottish Court of Session Decisions

These cases are reported ante ut supra.

The Rivers Pollution Prevention Act 1876 (39 and 40 Vict. cap. 75), section 3, enacts — “Every person who causes to fall or flow or knowingly permits to fall or flow or to be carried into any stream any solid or liquid sewage matter shall (subject as in this Act mentioned) be deemed to have committed an offence against this Act.

“Where any sewage matter 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 for the purpose of conveying such sewage matter, the person causing or knowingly permitting the sewage matter 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 available means to render harmless the sewage matter so falling or flowing or carried into the stream.. …”

Section 8—“Every sanitary authority shall, subject to the restrictions in this Act contained, have power to enforce the provisions of this Act in relation to any stream being within or passing through or by any part of their district, and for that purpose to institute proceedings in respect of any offence against this Act which causes interference with the due flow within their district of any such stream, or the pollution within their district of any such stream, against any other sanitary authority or person, whether such offence is committed within or without the district of the first named sanitary authority.. …”

Section 10—“The County Court 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, and where such offence consists in default to perform a duty under this Act may require him to perform such duty in manner in the said order specified; the Court may insert in any order such conditions as to time or mode of action as it may think just, and may suspend or rescind any order on such undertaking being given or condition being performed as it may think just, and generally may give such directions for carrying into effect any order as to the Court seems meet. Previous to granting such order the Court may, if it think fit, remit to skilled parties to report on the ‘best practicable and available means,’ and the nature and cost of the works and apparatus required, who shall in all cases take into consideration the reasonableness of the expense involved in their report….”

Section 20—“… ‘Stream’… includes rivers, streams, canals, lakes, and watercourses, other than watercourses at the passing of this Act mainly used as sewers and emptying directly into the sea, or tidal waters which have not been determined to be streams within the meaning of this Act….”

Section 21—“In the application of this Act to Scotland the following provisions shall have effect:—(1) The expression ‘sanitary authority shall mean and include the local authority in any parish or burgh in Scotland acting under the Public Health (Scotland) Act 1867. … (5) The expression ‘the County Court’ shall mean the Sheriff of the county, and shall include Sheriff-Substitute….”

The Rivers Pollution Prevention Act 1893 (56 and 57 Vict. cap. 31), section 1, enacts—“Where any sewage matter falls or flows or is carried into any stream after passing through or along a channel which is vested in a sanitary authority, the sanitary authority shall, for the purposes of section 3 of the Rivers Pollution Prevention Act 1876, be deemed to knowingly permit the sewage matter so to fall, flow, or be carried.”

The Local Government (Scotland) Act 1889 (52 and 53 Vict. cap. 50), sec. 55, enacts—“… A county council shall have power, in addition to any other authority, to enforce the provisions of the Rivers Pollution Prevention Act 1876 …, and for that purpose they shall have the same powers and duties as if they were a sanitary authority within the meaning of that Act … and the county were their district.”

On August 28, 1905, the County Council of the County of Lanark presented a petition in the Sheriff Court at Airdrie against the Provost, Magistrates, and Councillors of the Burgh of Airdrie, seeking under the Rivers Pollution Prevention Act 1876 to have the defenders ordained “to abstain from causing to fall or flow or knowingly permitting to fall or flow or be carried” into certain streams, “all of which streams flow through or by the parishes of New Monkland, Old Monkland, and Bothwell in the County of Lanark, and within the district of the pursuers, and the waters of which ultimately reach the river Clyde, any solid or liquid sewage.”

A similar petition was presented against the Provost, Magistrates, and Councillors of the Burgh of Coatbridge, and the two petitions were taken together.

The following averments by the defenders are taken from the statement of facts for the Magistrates of Coatbridge—[the portion in italics was tendered as an amendment in the Division]:—“(Stat. 2) The present arrangement of the drainage system of the burgh of Coatbridge has been in existence for more than thirty years, and was in operation prior to the passing of the Rivers Pollution Act 1876, and was taken over by the defenders on their constitution as a burgh in 1885. The burns and streams mentioned in pursuers' condescendence have been covered over, channelled and bottomed for a long period, and within the burgh boundaries have

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been regularly used as public sewers. They are not burns and streams within the meaning of the Rivers Pollution Act, but from time immemorial have always been channels mainly used for sewage, and the waters therein have been unfit for the primary purposes. The owners of lands and heritages within defenders' burgh have prescriptive rights of permitting liquid or solid sewage matter to fall or flow into said sewers and all streams with which they combine, and are beyond the control of the defenders. In so far as the defenders have acquired the sewers and drains of the burgh under the Burgh Police Act 1892, they also acquired on behalf of the burgh prescriptive rights of use of said channels and watercourses for the purpose of permitting liquid and solid sewage matter to fall or flow into them and all streams with which they join. From time immemorial the upper waters of said burns and streams have received sewage and industrial refuse and effluent water, and where they pass through the burgh of Airdrie have been used as public sewers for the prescriptive period, and have been unfit for the primary purposes, and the defenders have no control over the burgh of Airdrie and the upper heritors to prevent such use. The Middle Ward District Committee of the pursuers also pass sewage into said upper waters. The lower waters of the said burns and streams are not polluted by the defenders. Any sewage therein is harmless and innocuous. From time immemorial they have received sewage from the upper waters under the prescriptive rights foresaid, and have been unfit for the primary purposes. (Stat. 3) At the point where said burns and streams leave the territorial jurisdiction of the defenders and enter that of the pursuers they are not polluted by any solid or liquid sewage matter. The burns and streams mentioned in the pursuers' condescendence receive between their source and their outfall in the river Clyde chemical and other discharges from public works of a great variety of kinds on their banks or in their immediate vicinity, which discharges act as re-agents and purify and render innocuous any solid or liquid sewage matter which falls or flows or is carried into them. The introduction into such burns or streams of such chemical or other re-agents renders all sewage matter discharged into them innocuous, and, moreover, is the best practicable and available means of rendering harmless any sewage matter falling or flowing or carried into such streams.

On November 16, 1905, the Sheriflf-Substitute ( Glegg), finding that there was involved a question of heritable right exceeding £1000 in value ( Portobello Magistrates v. Edinburgh Magistrates, 10 R. 130, referred to), put the cases to the roll that the pursuers might determine their next step, but on appeal the Sheriff ( Guthrie) recalled this interlocutor (referring to the Rivers Pollution Prevention Act 1876, sec. 21 (7), and to Midlothian County Council v. Pumpherston Oil Company, 6 F. 387) and appointed parties to be further heard. On April 10th the Sheriff pronounced an interlocutor finding that the defenders admitted they were permitting sewage to be carried into the said streams, and that they were thus committing an offence against the Rivers Pollution Prevention Act 1876, sec. 3; repelling the defenders' pleas save (in Airdrie case) the eighth, which was, “(8) There being no means practicable and available by which the defenders can render the sewage less harmful, the defenders should be assoilzied,” and which he reserved; and, before making a remit as directed by section 10 of the said Act, appointing parties to be heard as to the terms of the remit.

Note ( Airdrie case).—“The defenders do not deny that they discharge sewage into the burns and rivers mentioned in the petition and condescendence. But they have stated a number of pleas as to competency and relevancy, and supported them with much apparent earnestness. On examination it is difficult to discover in them any real answer to the pursuers' case. But out of respect to the important communities represented by the defenders, and the able procurators who addressed me, I shall try to enumerate the principal points discussed and state my opinion in regard to each.

1. Title to sue. I can only look upon the 55th section of the Local Government Act as adding the County Council as an authority entitled to take proceedings against all offenders against the provisions of the Rivers Pollution Act passed thirteen years previously. Probably it was thought that that Act was not duly enforced, and that the newly instituted County Council should be invested with powers in addition to other sanitary authorities, whether created by the Act or previously existing. And it is to be observed that the section not only invests the County Council with ‘powers,’ but imposes on it ‘duties.’ This disposes I think of the point, which was more than once put forward, that the County Council has no ‘interest’ to prosecute. I apprehend that an interest is not required when Parliament imposes a duty. But even if it were not so, has not the county an interest in the purity of its rivers?

2. It is said that the burns and rivers are not streams in the sense of the statute, but are water-courses which at the passing of the Act were ‘mainly used as sewers and emptying directly into a tidal river.’ I do not think this can be seriously maintained. …

3. It is said nuisance is not averred. The Rivers Pollution Prevention Act says nothing about nuisance. It assumes that sewage should not be discharged into rivers, and seeks to prevent that from being done.

4. The defenders plead that as private persons in the burgh have a right by use and prescription to lead their drains into these streams within the burgh, they have no power to prevent sewage from reaching them. It is rather unusual in these days for municipal persons to depreciate or minimise their powers. But a perusal of

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the 219th, 222nd, and adjoining sections of the Burgh Police Act 1892 shows the real position of the defenders with regard to the drainage and sewers within burgh, and negatives their pleas on this point.

I regret not to be able to deal at greater length with arguments which occupied a considerable time. But there are really, as it seems to me, no relevant defences to the petition, and no course is open but to find, as the defenders admit, that they are permitting sewage to flow into the streams condescended on, and to remit to an engineer to report as to the best practicable and available means of preventing sewage matter from flowing or falling into the said streams, or of rendering it harmless, and as to the nature and cost of the work and apparatus required. The defenders do not allege that they have used any means to render the sewage passing into the streams harmless. Thus there is no case falling within the second paragraph of section 3, and the remit required is simply one under section 10 for the information of the Court.

Perhaps I should notice two decisions referred to on both sides. The Portobello case already cited ( 10 R. 130) differs from this in respect that a proof was taken before the Sheriff as to the history of the streams and the extent of pollution. The Judges did not comment on this, or hold it to be unnecessary, and as pollution was not admitted, perhaps it could not have been avoided. The proof, however, seems to have dealt with a good deal of matter which, in the light of subsequent cases and on a true construction of the Act, was irrelevant.

The other case is the West Riding of Yorkshire Council v. Holmfirth Urban Sanitary Authority, 1894, 2 Q. B. 842, which shows that even where a sanitary authority does not increase the quantity of sewage matter entering a stream by ancient sewers within its district, it is within the third section of the Act.

The principle of this judgment is illustrated and confirmed by the Midlothian County Council v. Oakbank Oil Company, 6 Fr. 387, a case under the fourth section of the Rivers Pollution Prevention Act.

Although the defenders' pleas as answers to the charge of committing an offence against the Act and to their being ordered to do their duty are repelled, it does not follow that the referee and the Court may not give effect to some of their contentions when the manner in which they are to do their duty comes to be determined. Thus, as one example, it may be shown that the continued use of the channels of the streams within the burgh for drainage purposes may be expedient under conditions.”

Stated cases were taken and presented to the Division under the Rivers Pollution Prevention Act 1876, sec. 11. Owing to the amendment tendered at the hearing ( v. sup.) it was unnecessary to deal with the questions submitted.

Argued for appellants—This was the statutory method of review—Rivers Pollution Prevention Act 1876, section 11— County Council of Lanark v. Magistrates of Airdrie, May 22, 1906, 8 F. 802, 43 S.L.R. 632. The Sheriff had gone wrong. The offence charged was one of knowingly permitting sewage to fall or flow ( vide section 3 of Act of 1876), and this was denied. He ought, therefore, either to have dismissed the petitions or allowed proof. In the Pumpherston and Oakbank cases, December 15, 1903, 6 F. 387, 41 S.L.R. 181, which were decided on section 4 of the 1876 Act, the offence charged was different, viz., that of causing the pollution. That an offence was committed was denied on a variety of grounds all of which required inquiry if they were not to be at once sustained. There were private prescriptive rights involved here over which the defenders had no control, and the Court could not, especially against a public body, proceed without full inquiry — Attorney-General v. Guardians of Poor of Union of Dorking, L.R., 20 C.D. 595: Kirk-heaton District Local Board v. Ainley, Sons, & Company (1892), 2 Q.B. 274. The Court would not compel the defenders to do what they were unable to perform— per Lindley, L.J., in Yorkshire West Riding Council v. Holmfirth Urban Sanitary Authority (1894), 2 Q.B. 842, at p. 849.

Argued for respondents—The Sheriff was right. The appellants had no substantive case and were merely fighting for delay. Esto that private owners might pollute, that did not affect the liability of the burgh, for the burgh was bound to purify all sewage entering the streams within their district. That was the effect of the amending Act of 1893 (56 and 57 Vict. c. 31). That Act was specially passed to get rid of all such qualifications of the burgh's liability. For it provided that where sewage actually fell into a stream the local sanitary authority should be deemed to “knowingly permit” it so to fall in. Prior to that Act it would have been very difficult to dispense with inquiry but the reason for it had now been obviated. There was no averment here either that the burns were not in fact polluted when they entered the pursuers' jurisdiction (the appellants amended to meet this argument), or that the defenders had adopted the best known means of preventing pollution. The burgh had power under the Public Health Act of 1897 to adopt compulsory measures if such were necessary, but it had done nothing at all.

At advising—