Courts crack down on pollution
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The effects of a recent High Court ruling that a Cornish council must take a tougher stance against South West Water over coastal pollution are already being felt.
But solicitor Charlie Hopkins, of London-based environmental champions Leigh Day & Co, believes the full impact of the decision has yet to be appreciated.
He said the judgment spotlights on-going breaches of anti-pollution law and a misconception by local authorities about the enforcement of anti-pollution measures. It has, he added, left no doubt that water companies must still comply with anti-pollution measures they are ordered to take.
The Environment Act 1995 suspends anti-pollution orders if the water company lodges its appeal after April this year. But with about 1,100 pre-April appeals in the pipeline, in which few of the water companies have taken steps to comply pending the outcome of their challenge, Hopkins said each case can be seen as an on-going pollution offence.
As a one-time surfing enthusiast, Hopkins found the cause of his clients, Rachel Shelley and Sara Delaney, easy to identify with. The High Court action was over complaints that a popular surfing beach near the clients' north Cornwall village of Porthtowan was being polluted with sanitary towels, condoms and other sewage debris being washed ashore.
In court, David Pannick QC successfully argued that Carrick District Council acted unlawfully when it refused to issue abatement proceedings against South West Water under the 1990 Environmental Protection Act after SWW failed to implement anti-pollution measures demanded by the National Rivers Authority.
SWW, following what Hopkins said is a popular misconception by water companies, put the measures on hold pending the outcome of an appeal to Environment Secretary John Gummer. However, the appeal, launched three years ago, is yet to be decided.
Mr Justice Carnwath, in accepting the arguments, ruled that the council had failed to deal with the critical issue of whether a health risk or a public nuisance was being caused by the state of the beach. He also condemned as "extraordinary" Gummer's failure to decide whether the water company should be ordered to screen a raw sewage outfall blamed for much of the pollution.
The ruling must now force coastal local authorities to review their obligation to act against water companies.
"The point that seems to have gone over some heads is that just because a water company is appealing against an order to carry out particular anti-pollution measures, that does not mean the order is suspended pending the appeal," said Hopkins. "It has had that effect since April. But prior to April, once a water company has been ordered to carry out particular measures it should carry them out irrespective of whether it is going to appeal and should be subject to abatement proceedings and/or prosecution if it does not.
"Traditionally, though, all concerned have wrongly treated pending appeals as a period during which the orders are in suspension. They have not been anything of the sort.
"The situation currently is that I understand there are around 1,100 such appeals pending. The required measures are likely to have been put on hold by the water companies in the majority, if not all, of those cases pending decision. Effectively, therefore, these breaches are being committed on a daily basis.
"I think that quite apart from the other messages of the recent decision it also puts the water companies on notice that their failure, pending appeals, to comply with measures required of them renders them vulnerable to further action."