A recent judgment looks at the meaning of "likely" in the context of environmental pollution.
The word "likely" comes up time and time again in UK environmental liability law. A range of pollution offences, for example relating to waste, are triggered when something is done that makes pollution "likely" to occur.
In addition, a number of common regulatory powers (e.g. the anti-pollution works and operations powers contained in sections 161 and 161A of the Water Resources Act 1991, and the statutory nuisance abatement powers contained in the Environmental Protection Act 1990) can be triggered when pollution of the environment or harm to health is "likely".
A judgment on the meaning of "likely" in the environmental context is therefore worth noting.
Step forward the recent case of Wallis v Bristol Water Plc (10 December 2009). The case started when Bristol Water prosecuted Wallis in connection with the use of "hose union" taps on Wallis' farm. Bristol Water thought that the taps, which had no backflow prevention in an area exposed to contaminating fluids, were "connected in such a manner that is likely to cause contamination of water supplied by Bristol Water", thus contravening regulation 3(2)(i) of the Water Supply (Water Fittings) Regulations 1999.
The Magistrates' Court convicted Wallis, who then appealed by way of case stated to the High Court. The key question on appeal was whether the magistrates had been entitled to find that Wallis' equipment had been likely to cause contamination of the water supply.
Wallis' main grievance was that in determining whether his equipment was likely to cause contamination of the water supply, the magistrates had taken into account both the actual likelihood of contamination (which he thought was low) and the potential consequences of contamination (which were serious). Wallis thought that only the first of these was a relevant consideration. The seriousness of the consequences did not affect the probability of a contamination event occurring one way or another.
The appeal was dismissed. The High Court looked at case law on the meaning of the word "likely" in a number of statutes (none of which, incidentally, were environmental statutes). It accepted that in some contexts, the word "likely" means "probable". However, in relation to this matter, this was not the case. Having regard to the health interests at stake and the potential for significant harm in the event of water contamination, it was inherently unlikely that Parliament would have intended that the prohibition in regulation 3(2)(i) would only catch cases where it was more probable than not that contamination of the water supply would occur.
In relation to this offence, the High Court believed that the word "likely" was being used in the sense of "real possibility"; one which could not sensibly be ignored having regard to the nature and gravity of the feared harm to public health in a particular case. Wallis was wrong, therefore, to claim that severity of consequences was not relevant.
In practice, the Court's interpretation of "likely" in this judgment means that the threshold for breaching regulation 3(2) is rather lower than it could have been.
It is not usually safe to assume that the interpretation of a word in one context will necessarily apply in another context. However, given the frequent use of the word "likely" in many environmental laws and the common broad theme of environmental protection that these laws share, it is quite possible that the interpretation of "likely" given in this instance will be applied to other environmental laws.
This article first appeared in "Insurance Day" on 23 July 2010.
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