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Fish Legal wins important case against Scottish Water

05.09.18

River Devon_15 - credit Clearwater Photography x550px

Fishing on the River Devon. Credit: Clearwater Photography

Fish Legal has won an important victory against Scottish Water in a long running legal battle over a pollution incident in the River Devon in 2011. The case has established an important legal point that concerns all fishing clubs in Scotland that hold their brown trout fishing under a lease.

Fish Legal initiated legal action against Scottish Water on behalf of the Devon Angling Association(i). The DAA is one of Scotland's most prestigious and historic fishing associations with several miles of prime trout and salmon fishing on the River Devon in Clackmannanshire. Nearly five miles of DAA's premium brown trout fishery was destroyed in July 2011 after 10,000 litres of sulphuric acid was allowed to escape from Scottish Water's Castlehill water treatment works into the River Devon.

Despite having pled guilty(ii) to a statutory offence relating to the unauthorised release of acid into a watercourse, Scottish Water refused to pay compensation to the Devon Angling Association for the massive fish kill.

SEPA investigators established that the cause of the spill was a poorly tightened bolt that leaked and caused the containment system to fail. Nevertheless, the company argued that their maintenance regime at the plant was “reasonable and reactive”.

Fish Legal issued proceedings against Scottish Water on behalf of DAA for the losses caused by fish kill. Scottish Water responded by challenging DAA's right to sue on a legal technicality. They argued that because DAA leased, rather than owned, their fishing rights they did not have sufficient “possessory interest” to give them legal title to sue.

This argument succeeded at first hearing at the Alloa Sheriff Court but was emphatically rejected by the Sheriff Appeal Court after Fish Legal appealed. The Appeal Court described the Association as having a “plenitude” of rights; more than sufficient to grant them legal standing to sue a polluter. The judgement specifically flagged that it would be most odd to end up in a situation "where a landowner could not pursue a claim because he had suffered no loss, whereas the Association which had suffered a loss could not pursue a claim because it was held to have no title".

After losing on this point Scottish Water finally agreed a settlement of £15,000 with the Association. DAA intend to use the settlement monies to fund ongoing improvement to its River Devon fishery, including work to address bank erosion and improve feeder burns.

Robert Younger, of Fish Legal, said:

"Scottish Water attempted to use an obscure point of law to avoid paying compensation to our member club. I was delighted to be able to assist DAA in taking all the necessary steps to defeat them. In our view Scottish Water's liability for the fish kill was clear from the outset and we cannot understand why the company chose to fight the case and accrue what will be significant legal costs."

Mark Lloyd, chief executive of Angling Trust and Fish Legal, said:

"It is scandalous that Scottish Water tried to use its considerable power and resources to stop the angling association claiming compensation. If they had been successful, it would have permanently removed the legal right of redress for hundreds of other clubs and associations who hold their fishing under lease. This is not only a good settlement for our member but also a victory for angling clubs throughout Scotland in our ongoing fight against polluters."

David Mudie, secretary of DAA, said:

"We are extremely grateful to Fish Legal for enabling the Association to stand up to Scottish Water's bullying conduct. We call on the Scottish Government to scrutinise the way Scottish Water conducts itself as a publicly owned company to ensure that it cannot continue to operate in the oppressive and high-handed manner that it has in this case."

Notes:

(i) The Devon Angling Association was formed in 1905 to provide affordable trout fishing for the local community and to act to protect and enhance the river environment. It now offers over 15 miles of fishing on the River Devon below Castlehill Reservoir in Glendevon. It is well known for its wild brown trout fishing.

(ii) Scottish Water pled guilty to the following charge: “on 4th July 2011 at Glendevon Water Treatment Plan, Pool of Muckhart, Clackmannan FK14 7JX you Scottish Water did fail to comply with or contravene a water use licence namely water use licence CAR/S/1018203 and you did fail to comply with conditions of the said water use licence namely condition 2.4.1 that the authorised activities shall not have a significant adverse impact on or cause pollution of the water environment; condition 3.4.1 that the discharge shall not cause inter alia significant discolouration of the receiving waters; condition 3.9.4 that the pH of any sample of the effluent shall not be less than 5 or greater than 9; in that you did discharge concentrated sulphuric acid to Castlehill Reservoir and thence to the River Devon whereby the toxic impact killed fish, molluscs and shrimps and significant discolouration of the River Devon and you did discharge an effluent with a pH of less than 5 contrary to the Water Environment (Controlled Activities) (Scotland) Regulations 2011 Regulation 44(1)(d) and the Water Environment and Water Services (Scotland) Act 2003 Section 20(1)."

Contact: Fish Legal - Eastwood House | 6 Rainbow Street | Leominster | HR6 8DQ | Tel: 01568 620447

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