Rural Estates Newsletter Spring 2021 - Flipbook - Page 12
4 – Illegal streaming – breaches of
water abstraction licences
Tom Dobson
This April may bring back memories of 2020’s lockdown heatwave.
Such unseasonable dry spells are fun for some, but they place
great pressures on arable farmers when combined with the strict
conditions and rigid time periods of water abstraction licences.
Even minor breaches of these conditions, including abstracting
just a day beyond the usual 31 March deadline, can have significant
environmental consequences and can attract heavy penalties,
financial and otherwise.
The law: criminal liability
Water abstraction is governed by sections 24-72 of the Water Resources Act 1991. Section
24 states that a person will be guilty of a criminal offence if they abstract water from any
source or supply (or cause or permit any other person to do so) unless in accordance
with a licence. In procedural terms, that means that anyone found acting in contravention
of this provision (or more likely, the organisation they work for) will face an Environment
Agency (EA) investigation and possibly prosecution. Notwithstanding the criminal record
which may follow and the associated negative publicity, the offending individual or
company could also face substantial financial sanctions.
Although it does not refer directly to water abstraction, the Sentencing Council’s
Definitive Guideline for Environmental Offences explains the factors taken into account
when considering penalties. Offences are graded by separate ‘culpability’ and ‘harm’
scales. The culpability categories are Deliberate, Reckless, Negligent and Low. The harm
scale runs from 1 to 4 with the highest, category 1, involving major adverse effect to air
or water and category 4 applying where there is only a risk of minor, localised effects.
Sanctions are set out on a sliding scale depending on the combination of culpability
and harm and the size of the company (there is a different scale for individuals).
“
For example, the penalty range for medium sized companies (turnover between
£10m – £50m) guilty of a deliberate, category 1 offence, is £170,000 to £1,000,000
with a starting point of £400,000. Even the lowest grade of offence has an upper
limit of £10,000 – a high price to pay for what could just be an unintentional error
by a farm hand.
If an EA inspector turns up unannounced on a sunny
April day, weeks after your abstraction period has
expired, to find a pump chugging away on the banks of
the dyke running through your land – what do you do?
12
Rural Estates Newsletter
Spring 2021
