Judge green lights private prosecution of Southern Water over chalk stream pollution claims

The not-for-profit group Fish Legal has been given permission to issue Southern Water with a court summons relating to diesel pollution of a rare chalk stream.

In July, the environmental group launched its legal action against the water company for charges relating to diesel pollution entering the river Test from one of its outfalls at the Nursling Industrial Estate, near Southampton.

A private prosecution is considered a difficult form of legal action, with a judge, magistrate, or justices’ legal adviser required to make a decision on if a case should be allowed to proceed based on the information in an application form, rather than in a hearing.

The river Test is a chalk stream and a Site of Special Scientific Interest that Fish Legal said supports Atlantic salmon, otters and water voles. However, the stretch between Romsey and the estuary is currently classed by the Environment Agency (EA) as being in an unfavourable condition.

According to Fish Legal, pollution has been entering the Test from Nursling Industrial Estate “for decades” without effective enforcement action being taken by the EA.

The group is not arguing that Southern Water was the original source of the diesel, but alleges that the pollution travelled through the company’s outfall. Writing on its website in July, Fish Legal noted that while the case does not involve sewage or wastewater pollution, “it shows that water companies are responsible for all sorts of assets that should be fit for purpose and maintained to prevent any pollution of rivers, lakes and coastal waters”.

On 29 September, a judge approved Fish Legal’s private prosecution.

Commenting in the Guardian, Penelope Gane, head of practice at Fish Legal, said: “We’re delighted that the judge has given our private prosecution against Southern Water the green light.

“Despite protests from both the Environment Agency and Southern Water, the judge could see no reason why Fish Legal should not go ahead with bringing its own criminal case against the water company.”

According to the newspaper, during the hearing at Southampton magistrates court the EA argued against the prosecution.

The EA has an official investigation ongoing against the water company, and reportedly wanted Fish Legal’s case to be adjourned until after it had been concluded, with Southern Water backing this position.

However, the district judge Peter Greenfield dismissed the counter arguments. “I think they are interesting arguments but there is a fundamental right to issue a summons,” he said.

A spokesperson for Southern Water told ENDS: “At an administrative hearing in West Hampshire Magistrates Court, Fish Legal was granted permission to issue a summons against us. For legal reasons we can make no further comment.”

The next hearing is set for February 2024.