Butterworth v. West Riding of Yorkshire Rivers Board [1908] UKHL 1020
(Before the Lord Chancellor (Lorehurn) , Lords Macnaghten , Robertson , and Collins .)46 SLR 1020Butterworth v. West Riding of Yorkshire Rivers Board.(On Appeal from the Court of Appeal in England.)
Subject_ Public Health — River — Pollution — Polluting Liquid from Factory — Discharge into Public Seiver — “Person who Causes to Flow into Stream” — Rivers Pollution Prevention Act 1876 (39 and 40 Vict. cap. 75), secs. 4 and 7. Facts:A manufacturer who discharges polluting liquids into a public sewer which leads into a stream is a “person who causes to fall or flow or knowingly permits to fall or flow or to be carried into any stream any poisonous, noxious, or polluting liquid proceeding from any factory,” and thereby commits an offence under the Rivers Pollution Prevention Act 1876, sec. 4. He is not exempted from the provision of the Act by proving a prescriptive right to use the public sewer in the manner complained of.The appellants were manufacturers who for fifty years had discharged liquids from their factory into a sewer. The sewer was vested in the local sanitary authority and conveyed the liquids into a stream. The respondents, acting under powers conferred by the West Riding of Yorkshire Rivers Act 1894 (57 and 58 Vict. cap. clxvi) raised an action against the appellants in the County Court in which it was held that the appellants had committed an offence in terms of the Rivers Pollution Act 1876. This was affirmed by the King's Bench Division ( Phillimore and Walton, JJ. ) and by the Court of Appeal ( Lord Alverstone, C.J. , Sir Gorell Barnes, P. , and Farwell, L.J. )The manufacturers appealed.Their Lordships gave considered judgment as follows:—
Lord Chancellor (Loreburn) —An examination of the Rivers Pollution Prevention Act 1876 has led me to the conclusion that the order before your Lordships ought to be affirmed. The appellants have for a long time drained their manufacturing refuse into a pipe communicating with a stream. In that way it falls into the stream. Their predecessors constructed the pipe long ago and permitted sewage from eight or ten houses to be discharged into it. Then it became a sewer within the meaning of the Public Health Act 1875. It is not disputed that the manufacturing refuse is a “polluting liquid.” In these circumstances the respondents, the West Riding Rivers Board (who are entitled to take proceedings under an Act of 1894, to which I need not further refer) summoned the appellants for breach of sec. 4 of the Rivers Pollution Prevention Act 1876, in that they “caused and continue to cause to fall or flow, and knowingly permitted and still permit to fall or flow, or to be carried into a stream,” &c., this refuse. The defence is that the appellants had a prescriptive right to discharge it into the sewer (which I will presume to be true), and that it was then the duty of the local sanitary authority to dispose of it so as not to break the law. They maintain that they did not cause this refuse to flow into the stream within the meaning of the section, because although it did flow into the stream by gravitation, all that they (the appellants) did was to cause it to flow into the sewer which is under the control of the local sanitary authority, and that they had no responsibility for its ulterior destination. The question raised is, no doubt, of great importance. The purpose of the Rivers Pollution Prevention Act 1876 was, as its name denotes, to prevent the pollution of rivers or streams. In the second, third, fourth, and fifth sections are contained prohibitions against introducing (I use a neutral word) into a stream the substances there separately classified. Roughly they may be stated as solid refuse of manufacture, sewage matter (whether solid or liquid), liquid polluting refuse of manufacture, and polluting refuse from mines (whether solid or liquid). Now, the thing forbidden to be done in each of these sections is described in the same language, except that there is a slight variation in sec. 2—“Every person who causes to fall or flow, or knowingly permits to fall or flow, or to be carried into any stream” the substance in question commits an offence. It isPage: 1021 ↓
Lord Macnaghten —This appeal was apparently meant to bring under review the decision of the Court of Appeal in the case of Kirkheaton Local Board v. Ainley ( ubi sup. ), a decision pronounced in 1892. The Court then consisted of Lord Esher, M.R., Bowen and Smith, L.JJ. Holding themselves bound by the opinion of those eminent Judges as to the meaning and effect of certain expressions in the Rivers Pollution Prevention Act 1876, the learned Judges of the Court of Appeal in the present case affirmed the judgment of the Court below without giving any opinion of their own. The Kirkheaton decision was on the question of sewage pollution. Here the case is one of manufacturing pollution. In the Act of 1876 the two cases are kept quite distinct and are dealt with separately. But it is important to observe that in both the very same language is used to describe the doing of the thing which is constituted an offence by the Act. The Act of 1876 begins with a preamble which explains the scope, and indicates, I think, the scheme of the Act. It is in these words—“Whereas it is expedient to make further provision for the prevention of the pollution of rivers, and in particular to prevent the establishment of new sources of pollution.” The creation of new sources of pollution is prohibited. Existing sources of pollution are to be regulated and reformed. Such being the purpose of the Legislature, the naturalPage: 1022 ↓
Page: 1023 ↓
Lord Robertson —I think that this appeal fails, but my judgment is rested on a narrower ground than that which has been adopted in the Courts below. The first point to be remembered is that this is a case, not of sewage, but of manufacturing liquids; and it is necessary to see by what right the appellants get their liquids into the sewer. Now, the appellants have, not avowedly but actually, put forward two inconsistent theories. They say first that they have put their liquids into the sewer for fifty years, and they claim, therefore, a prescriptive right to do so. This, then, is a right as against the local authority— invitos . The other theory is that, as de facto the liquids get into the sewer, the local authority must he held to have granted facilities in the sense of section 7 of the Act. It seems to me that, as matter of historical fact, there has been no grant of facilities, and that whether there be a prescriptive right or not the local authority has been entirely passive. It results that the appellants are not in the position of having the local authority interposed (as it were) between them and the stream, as the active recipients and transmitters of the liquids—and the result is that, in my opinion, they are liable just as if they directly sent this stuff into the stream. In adopting this ground of judgment I dissociate myself from the doctrine that a person who sends his household sewage into the sewer is liable because the local authority empties the sewer into a stream. The local authority is the appointed collector, recipient, and disposer of household sewage; and in my opinion the responsibility of the householder ends when he delivers his stuff into the sewer.Lord Chancellor —My noble and learned friend Lord Collins agrees with the conclusions at which your Lordships have arrived.Appeal dismissed.Counsel for Appellants—Sir C. A. Cripps, K.C.— Lowenthal. Agents— Van Sandau & Company, for Mills & Company, Huddersfield.Counsel for Respondents— Danckwerts, K.C.— Jeeves. Agents— Clements, Williams, & Company, for H. F. Atter, Wakefield.