Express Ltd – and – The Environment Agency

The appellants had dairy depot premises. One of their customers was Ian Pardy, a private contractor who bought milk from the appellants. On 21st January 2002 Pardy was engaged in the transfer of cream from a lorry to the open back of one his transit vans on the premises of the appellant. Unfortunately on this occasion about 10 litres of cream escaped. The van was parked, as it usually was, in an area served by surface water drains. The appellant was convicted on the grounds that Pardy’s Dairies caused polluting matter to enter controlled waters contrary to section 85(1) and (6) of the Water Resources Act 1991 and the offence was committed due to the act or default of Express Limited contrary to section 217(3) of the Water Resources Act 1991. The appellant appealed against the conviction. The High Court emphasized that in order to establish a breach of section 217(3) it had to be shown that Pardy’s contravention of section 85(1) was due to an act or default of Express Dairies. Section 85(1) required every person not to cause or knowingly permit polluting matter to enter controlled waters. The source of the obligation was statutory. It was not to be found in the law of tort. If a landowner, such as Express, was going to permit an operation on his land which gave rise to a risk of pollution then, in order not to fall foul of section 85(1) he had to carry out a risk assessment and respond to what that assessment reveals. Otherwise if pollution did occur it was impossible for him to say that the offence committed by those using his land was not due to one or more of his acts or defaults. The second question the Court had to analyze was whether the cream could be classified as “polluting matter” within the meaning of sections 85(1) and (6). The court recognized that section 85(1) created a criminal offence, but it was worded in such a way as to make it clear that polluting matter needed not be either poisonous or noxious. It was sufficient if it, for example, stained or tainted as this cream did, but the cream also had a potential for harm. The appeal was dismissed.