Successful prosecution of a relevant person for noncompliance with a Regulation 18 Notice
This case study was initially reported in the Private Water Supplies annual report for 2015. The supply consists of a borehole supplying three properties, one owned by the farmer on whose land the source was located and two separate downstream properties.
In October 2012, following a local authority risk assessment, the supply was deemed to constitute a potential danger to human health. There was broken fencing around the borehole headworks, the head of the borehole was not sealed and there was evidence of sheep having defecated directly onto the borehole apron as Figure 10 shows. Water was stored in four tanks downstream of the borehole in a shed. The tanks had no lids and the shed roof had holes allowing contamination of the tanks with particles of rust and polystyrene. Figure 11 is an example of holes in the roof which allowed the potential for further contamination or vermin to enter.
Figure 10: area directly around Borehole
Figure 11: storage tank with holes in roof
The results of the sampling confirmed the presence of Enterococci, E. coli and coliforms in the supply, indicating faecal contamination. A Regulation 18 Notice was served, containing health protection actions requiring all water to be boiled before consumption. The Notice also required repairs to be made to the borehole chamber to prevent surface water ingress, together with installation of a stock-proof fence, new watertight chamber covers, installation of treatment, new reservoir tanks, vermin-proof overflow pipes and other actions to ensure suitable air gaps and backflow protection were in place. The local authority also provided a copy of the risk assessment, highlighting the key areas of risk.
The local authority arranged meetings to see how work was progressing in December 2012 and March 2013. The owner did not make himself available on either of these occasions, but on one of the visits a further sample taken from an outdoor sample point contained Enterococci, E. coli and coliforms. A further visit was undertaken in April 2013 when it became apparent that no work had been done to improve the supply. Despite assurances from the owner that quotes for work were being sought, no progress was made, so a Regulation 18 Notice was served in October 2013 based on new information from the most recent sampling requiring all water to be boiled before consumption. The Notice also required the other outstanding repairs to be made.
The owner was invited to attend an interview under caution with the local authority (under the requirements of the Police and Criminal Evidence Act). He did not attend either of two dates set for this meeting. At this point the local authority issued a summons for the owner to appear in court in November. The owner did not respond to any solicitor’s letters and did not turn up for the hearing. Following this, a further summons was issued in February and the owner was prosecuted in court in February 2015.
The magistrate had not previously encountered any cases involving private water supplies and initially thought that the case was just about a breach of a Notice. Once the public health risk was explained by the local authority, the magistrate took a very serious view of the offence. The local authority was called into the witness box in order for the magistrate to understand the difference between actual and potential risk. The local authority pointed to the failed sample results, but said that even if the samples had been clear a Notice would have been served based on the potential risk observed in the assessment.
The magistrate found in favour of the local authority and, in summing up, stated that there was a real risk to public health as downstream properties included young children and elderly residents. The defendant was fined £1,500 plus costs for non-compliance with the Notice, and the Notice was re-served with a deadline of May 2015.
Having still not undertaken any works, the owner returned to court in November 2015, where he pleaded guilty and received a sentence of eight weeks suspended for six months. Despite further visits and correspondence, the owner did not comply with the Notice, and was summoned to appear in court in July 2016.
The owner failed to appear, and due to the previous prosecutions for breach of the Notice and being subject to a suspended prison sentence, an arrest warrant was issued. The owner was duly arrested and pleaded guilty to the offences in Salisbury Magistrates’ Court in August 2016. The owner produced quotes for works to the supply, and sentencing was adjourned until October, under condition that if works were completed within six weeks then he would not receive a prison sentence. Following this the local authority served a Section 80 Notice, allowing the works to be completed in default.
The local authority visited the site in October 2016. Works had started, and were due for completion by the end of October. The court was informed of this, and a custodial sentence was not handed down. The owner was ordered to pay fines and costs of £9,000. The local authority visited the site again in November 2016 to review progress and sample the supply. The works had all been completed and the requirements of the Notice satisfied. The supply will be sampled again next year and risk assessed in five years.
This case study highlights the powers that local authorities have at their disposal to regulate private water supplies and protect public health. These powers can ultimately be enforced in a court of law if necessary and incur additional cost for the supply owner.