Prosecution of a supply owner for not complying with a regulation 18 notice

In 2020 the Inspectorate published a case study in its annual report entitled “An established private water supply that was discovered during CoViD-19 pandemic lockdown restrictions”. This supply was found to be periodically insufficient, unwholesome and a danger to human health. The following case study relates to the prosecution of the owner/controller of this supply by the local authority, for failing to comply with a notice served by them to mitigate these risks.

Background

This public and commercial private water supply first became known to the local authority following reports of insufficiency from its users at the start of 2020. Prior to this time, due to its inconspicuousness, it had not been risk assessed or monitored in accordance with regulatory requirements. Initially officers were unable to attend site to investigate this due to the Government lockdown restrictions brought about by the CoViD-19 pandemic. When they were able to do so they found serious deficiencies across the supply system, notably no source protection and a complete absence of any treatment. Analysis of samples taken from a point of consumption also confirmed that the supply was contaminated with faeces. The local authority concluded that the supply posed an insufficiency risk and constituted a potential danger to human health. In accordance with regulation 18 of The Private Water Supplies (England) Regulations 2016 (as amended), the local authority served a notice on the supply owner, requiring him to carry out remedial steps to make the supply wholesome. Unfortunately, the owner was unwilling to do the necessary remedial work, and whilst he later made some attempts to address the deficiencies, these were considered by the local authority to be inadequate and untimely. In response to this, the local authority facilitated the appropriate and necessary work themselves, with the aim of later recovering the incurred costs from the owner through legal proceedings – a process commonly known as works in default. This is an option made available to local authorities in both primary and secondary legislation.

Prosecution

Proceedings were subsequently initiated to prosecute the owner for not complying with the notice and failing to protect private water supply users. The preparation to gather and compile information and evidence was a considerable task for the local authority, involving 292 hours of investigative work, comprising 667 separate actions with 88 hours spent creating the prosecution file and 82 hours completing the works in default.

At a court hearing on 27 April 2022 the accused pleaded guilty to 7 of 8 offenses. The 3 magistrates involved concluded that this was a very serious case that could have had catastrophic consequences on public health. As the supply owner had been previously convicted for other offenses under environmental law, they considered a custodial sentence of up to 3 months per offence. Sentencing was deferred for a further 5 months. Meantime, the supply owner was invoiced for the work in default for the sum of £3643.

When the case was again heard in court on 14th September 2022, the supply owner informed the court that although he had not undertaken the remedial work on the private water supply, he had instead arranged for the local water company to connect the properties concerned to the public water supply network. This work was due for completion in November 2022. 

As the owner had taken these remedial measures, the court issued the sentence instead of further deferring it until the work had been completed. 

The owner was ordered to pay the following fines:

• £500 for each of the 7 offences, amounting to £3,500 in total.
• Council Costs of £4,540.37
• A victim Surcharge of £190
• The magistrate ordered the total amount of £8,230.37 to be paid in full within 28 days. 

Learning

Despite the numerous challenges and pressures that this case presented to the local authority, these endeavours ultimately brought about an appropriate outcome to protect public health. This case study shows that local authorities should not feel reticent in bringing to court those relevant persons that fail to protect the public health of consumers, when ordered to do so. This case also sends a strong message to those that exercise control over public and commercial private supplies that local authorities will not tolerate their failure to comply with a regulation 18 notice. It also exemplifies the purpose and effectiveness of the legislation when it is correctly and appropriately applied.