FAULTY SEWAGE TANK.

Press, Volume LX, Issue 18195, 4 October 1924, Page 5

FAULTY SEWAGE TANK.

j ACTION AGAINST COUNTY ! COUNCIL. i ! INFORMATION DISMISSED. j My Wvvery. Vr-ison. S.M.. save his rcI served decision yesterday in tue case irc-'-'g'nt I D J" the Ilea!;!: Department egsfast the i Herthco:e Co-niv Council arising c-"to: j j nuisance which hid occurred as a result c: a defect in a at the sopite tsus in I Ma'.co'.nin avenue. } Mr A. W. Bro-:: appeared :or the piainj tiff, and Mr I''. S. Wilding :'cr the Oun.'y I Council. The judgment v;:? as follows:--"Thc i-:crrr.a::t is the Medica! Officer of Health at Christ-church, and he charges the defendants .'a body corporate under tee Counties Act, 10'20'. for {hat on Juiy CStn, 10-2-1, at Malcolm avenue, in the County of Heatheote, it 'did by the act, default or | sufferance of its egent the Council of the j sa : d County, cause to arise a nuisance in that the said Council in using- a pump that was working ineffectively, caused an overflow of sewerage matter from a tank used :n connexion vcitu a sewerage system of the sa:d County, and thereby caused an accumulation of such matter to exist in sucii a state as to be bcth cflensive and dengcrous to health." "The form in which the information is drawn i 3 confusing in that it alleges in the early part of it three alternative offenr.R3, 'the act, default or sufierance' of the defendant body. The defendant Taises no objection to the form of the charge, apparently being- ready and willing to refute all three charges at once, but as Section 51 oi the. Justices of the Peace Act, 1903. roI quires cr.lv one charge to be stated in an information, and a conviction (if recorded) can only be for one offence, it is necereary for me to consider the form and true nature of the charge. I think I can only treat thewords 'default and sufferance' as surplusage, and that the charge must be considered as being that the defendants did 'by the act of its agent, etc' I come to that conclusion from the later- corjtex* of the charge. which alleges the act of using a defective pump and by. such user causing a. nuisance. "The charga ia iaid under Section 37 cf The Health Act, 1920, which presides, 'Every person by whos.s act, default qr sufferance, a nuisance arises cr continues (whether such person 13 or is-not. the owner or occupier of tho premises in respect of which such nuisance exists) is ]in,b!e to a fine of twenty pounds, and if tho person convicted can lawfully abate such nuisance he is liable to a further fine of five pounds for every day or part cf a day during which such nuisance remains unabated after such conviction.' "Section 26 provides that a nuisance shall ! be deemed to be created 'where any ec- ' cumulation or deposit, is in such a. state or is so situated as to be dangerous to heaHh I or offensive.' On the closure of the in- I font's case Mr Y. S. Wilding moved for the diomissal of the information on the foi--owmg grounds: That tho arc-visions' of Sec tion 26 and 27 of The Health Act, 3920, do not apply to a local body controlling sewerage works; that the local body is not or wi J h - in the meal »in? of. Section -6; that the local body is acting in pursuance of statutory powers and is not criminproved ' at mCCS lca ™ at be

works tor tile disposal of fewaee -n +fL district under its control. Part of' those works consisted of a pumping station wif'i chamoers f °i' sewage tituated in a / N T rly two J" ears ag" a oonciete tanx (or chamber) was cracked by an earthquake and ha 3 'ZI n proper order since, there bein- a certain Si °, kaka = e ' bl ? t "PParently not sufceiept.to cauao.a nuisance to arise The pump which on the 28th July was in U3a has for many months past been 0011H u d !: th ■ and h ?- Ay ■ to be ' afc tbe tlnie oi its installation in 1919 it was. approved of by the Health Department s officer. The defendant body has now under weigh a schema for improvement of the means of disposal of sewage in the Malcolm avenue district but tue work is delayed by the non-arrival of the pumps, for the supplv of -which the contract has been. Tnade. The schemo has the approval of the Health Department. The evidence of the witnesses Clarke and Charleston is that from Friday, <ho 23th July, until Monday, tlio 23th, waa aji offensive discharge of sewage from the tank. On Friday and Saturday I think the matter was not serious, as Mceai'3 Clarke and Charleston, who a-re both most strongly averse to the present pumping station, did net cona'der the stata of affairs then <sristins -warranted any acti'ifa on their part. On Monday there was a most offensive and d-ingerous stream of sewage running from the tank to the river, and Messrs Clarke and Charleston complained to Dr. Telford, who visited the place, a>id described in detail to me the nature of the nuisance. Dr. Telford £?ave verbal notice to the clerk of the Healbcote County Council, who was surprised to learn tho f-act. The officers of the county tool: the matter in hand, and the evidonoe of Mr Charleston is that when be saw the place at 8.30 a.m. on the Tuesday it was 'in a more satisfactory slate/ I think the nuisance had then bean abated. I think that the occurrence of the wide etream of sewage flowing to the river on the morning Oif the 28th July was something quite out of the ordinary. Tho lid of the tank or c.hamber. which, is said to bo of Rrea* weight, had been forced up by eiOior an accumulation of gases or by water power. The pump iad become blocked, but it. is quite impassible to state the cause. The fact that the pump has apparently operated successfully leads mn to suppose th« cause of the blockade to be some unusual substance. I think that the whole circumstances may be described a3 an accidental or extraordinary break down of a portion of tho sjwera?c works of the U F~ thmmore, it seems to me that the defendant's servants acted expeditiously in abating tho nuisance.

"This prosecution must fail for many reasons, .firstly, I agree with Mr Wilding s contention that Section 2G doe 3 not apply to a local authority in its execution and control of sewerage works. Neither the spirit nor the language of the enactment lead me to suppose that a- local body was to be held criminally liable for an accidental accumulation of offensive sewage. XII2 reasoning of Mr Justice - Wills in Regina v. Parlby (22 Q.8.D.. p. S2«). when consoling provisions in the Kngiish Statute lar in nature to cur Section 27, is appropriate tn such sx prosecution as tlu present cna under Section 20, where he Bays . j 'lt seems to u? incredible that when Hie Legislature has entrusted tlio local .Boiux with a most ditfr-u!t and thankless -ta=-* , in the execution of which there was cct- | tain to be, as there has bsen in the a prooortiou of failures, involving pernap~ j a' cost to the district oi tens or even nun- j dreds oi thousands of pounds and ta " n | the utmost resources of mechanical avt an etigir.eerins skill to set tbem right, ajur. diction should be conierred on two i trates .... to substitute their jtid~ . mcnt oi the mode in which and the <- j at which the mischief should bo cure" for that cl the local lioard and I skilled advisers.' Under ths A.;: 1920, it is the duty oi the local au to 'promote arid conserve the public hea n, and to enable it to carry oat, that aw* it ■is invested with extensive tU _ | public is further safeguarded, l>>j ~ er3 ! tion of many oi the local au-horities being subject to the approval ox tn - of health, and a remedy is express . vided by Section 143 of tne Act_ sb /". tk—local authority fail in its duty, the Board oi Health may • step in ,® n s what is necessary anl recover w thereof from the local autbomy. t ,, jn in Eeginsk v. l'arlcyat p.. ;2cb, he with respect to public ocdies. such as local authorities -under t.is i Ul^! , Act, 1875, is largely founded on. U sumption that tJiey wiit honestly ihey can to carry out in a Pi°P e , o , he „ j ana with due regard to the rigb'- . ; e3 taa t the very important and dlfficu-t throughout the. 1320, there are penal provisions m ,}„■!- word 'person' is used, .and the * » 0 ity, or its inspector, is given i,° (join" order such person to do or lefrain ' ° soma act. These provisions, 3CC ; express remedy contained iu Section a - ' the general scope eJid intention ot , actme.nt, icad me to think that tho • ture did not intend the locai autcoritj included in the word 'parson' where 1136 , Section 26. Although the Acta In.erpret-i lion Act, 190S, provides that the J vo f G * son' includes 'a body of persons whether co perate or unincorporate, such an ' tion is or.lv,' if sot jnconsisect with the text and unless there are words to exciu o-* restrict the meaning. I r.m of _°P' that the dicta of Mr justice Blackourn Pharmaceutical Society v. Lcadoii

Provincial Supply Association (5 App. Cases at p. SG9) are directly in point in the present case: 'Circumstances, and indeed circumstances of a slight nature, in the context might shtfw in which way the word (person) is to be construed in an Act of Parliament, whenever you can see that 'the object-of the other. I am quite clear about this, that whenever ycu can see that the object of the Act requires that the word 'person' shall hav© the more extended or the less extended sense, then it should be so construed. "On the facts, iu justice, to the defendant boJy, I think I must say that even had they be©n at law liable under_ Section 26, they could only have been guilty- on proof of 'mens vea.' that is, had they been aware of the existence of the nuisance. On the evidence there is nothing thai leads me to suppose-that such was the case, indeed, when Dr. Teliord informed the County Clerk of the state of affairs, he expressed surprise. The information is dismissed." Mr AVilding applied for costs, but the Magistrate said he did not- consider that it was a case for that. Costs would not be allowed.