Can the failure to act "cause" pollution?

The essential ingredients of many environmental offences are that the defendant "caused" or "knowingly permitted" the pollution in question. These are separate offences, and a recent decision of the Divisional Court has emphasised once again the importance of the prosecution choosing the correct limb, especially where a failure to maintain abatement systems is at the heart of the case. The decision also raised a significant issue of legal principle where local authorities act as agents for statutory sewerage undertakers.

In Wychavon District Council v National Rivers Authority (Queen's Bench Division, Local Authority Law, 30 September 1992), the local authority operated and maintained sewers on behalf of the sewerage undertaker, Severn Trent Water.

In March 1990, raw sewage was seen to be flowing from an overflow into the river Avon at Evesham, apparently because of a blocked sewer. An NRA pollution control officer investigated the incident in the

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