£75,000 "buck" stops with Yorkshire Water after contractor error

Two successful prosecutions of Yorkshire Water have underscored the need for sewerage undertakers to achieve proper supervision of their contractors if they are to avoid convictions for sewage pollution.

Yorkshire Water's latest convictions were the latest in a string of recent environmental offences by the company which have included a serious odour nuisance (ENDS Report 215, p 42 ) and infractions of waste disposal licence conditions (ENDS Report 219, p 43 ), as well as more conventional breaches of sewage effluent discharge consents (ENDS Report 218, p 7 ). But they have also helped clarify the responsibility of sewerage undertakers generally for acts or omissions by their contractors which result in pollution.

The more serious of the two offences occurred on 26 August 1991, a sunny Bank Holiday when Sandsend beach, between Whitby and Scarborough, thronged with holiday makers. Children were paddling in a shallow lagoon formed by the East Row Beck as it crossed the beach on route to the sea.

Meanwhile, maintenance work on the local sewerage system which was being carried out by Scarborough Borough Council on Yorkshire Water's behalf resulted in a spillage of raw sewage from a storm overflow. The sewage poured into the stream, and polluted it with cloudy water, toilet paper and faeces.

Campaigners from Whitby Green Party were the first to discover the pollution and warn holiday makers. The Council later cleared the beach and put up warning signs around the lagoon.

The National Rivers Authority (NRA) brought two charges against Yorkshire Water, both under sections 107(1)(c) and 107(5) of the Water Act 1989. The case was heard at Teesside Crown Court on 17 June.

The company pleaded guilty to the charges under the so-called deeming provision of section 107(5) of the Act. This holds that a sewerage undertaker is liable for discharges from its sewers even when it had not caused or knowingly permitted them.

However, Yorkshire Water argued that it was not morally guilty because the leak was caused by its contractor. The judge disagreed, concluding that "the buck stops here with the statutory water undertakers". He told the company that it had the choice of supervising its contractors properly to ensure that they acted correctly, or else accepting the blame, and the fine, when things went wrong.

The company was fined £50,000 for the first and £25,000 for the second offence, and ordered to pay costs of £2,550. The fine is large compared to those previously imposed on it and clearly reflects the seriousness and high public profile of the incident. Yorkshire Water was doubtless left reflecting on the irony that its contractor in this case was the same authority which had prosecuted the company successfully last November for an odour nuisance from a sewage pumping station.

Earlier this year, Yorkshire Water was also in court for a pollution offence in October 1991, when a sewer blockage caused a sewage overflow to operate prematurely, polluting the Driffield Beck and causing an odour nuisance. East Yorkshire Borough Council, the company's contractor, failed to clear the obstruction until two days after it was reported.

The NRA again brought proceedings under sections 107(1)(c) and 107(5) of the 1989 Act. Yorkshire Water pleaded not guilty, but was convicted by Hull Crown Court and fined £2,000, with costs of £2,000. The verdict clearly persuaded the company to change its plea to guilty in the Sandsend case.

Both prosecutions show that the NRA has changed its tack since failing in a prosecution of Wychavon District Council, a contractor for Severn Trent Water, last year (ENDS Report 213, p 39 ). It now appears intent on using the deeming provisions of the legislation to hold sewerage undertakers liable for the failings of their contractors, and having scored two successes it is now unlikely to make further attempts to prosecute local authorities for sewage pollution.

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