The Gazette 1981

GAZETTE

SEPTEMBER 1981

Water Pollution — Strict Proof Required

river, it was liable to render the entire of the river poisonous or injurious to fish, spawning grounds or the food of any fish. It was submitted by Counsel for the Defendant that to secure a conviction within the Section, it was incumbent on the Complainant to prove that deleterious matter had fallen into or been emptied into the entire of the river, or that the entry or discharge of deleterious matter into any part of the river was liable to render the entire of the river poisonous or injurious to fish, spawning grounds or the food of any fish. It was on this point that the District Justice had dismissed the original summons, while accepting that the Complainant had proved that deleterious matter had entered the river at a certain point. It was submitted by Counsel for the Complainant that such a submission and construction of the relevant provisions of the Act would render a relevant portion of the Act unworkable and that the greater must include the lesser and that, accordingly, if deleterious matter within the definition was shown to have fallen into or been emptied into any portion of the river, an offence had been committed. It was further submitted by Counsel for the Defendant, that any or any adequate proof that the pipes out of or from which the alleged deleterious matter was alleged to have fallen or been emptied into the river, was the property of the Defendant, or came from their premises, had not been adduced. Counsel for the Complainant submitted that it was not necessary in order to secure a conviction within the Section to show that the entire erf the river had been rendered liable to injure or poison or endanger fish, or that deleterious matter had fallen or been permitted to enter the entire of the river. It was held by the learned Circuit Court Judge that it was not necessary under the Section to show that deleterious matter had fallen into the entire of the river, or that the entire of the river had been rendered liable to poison or endanger fish or fish life and that it was sufficient to secure a conviction under the Section to show that deleterious matter within the meaning of the Act, had fallen or been permitted to enter into any part of the river at all and that any part of the river had been rendered liable to injure or poison fish and that the phrases "waters" and "deleterious matter" in the Act of 1959, should be construed accordingly. He held, further, that no or no adequate or sufficient evidence had been adduced by the Complainant to show that the deleterious matter in question had come from the Defendant's premises, and that accordingly, the Summons should be dismissed. The Judge made no Order as to costs. •

Anglers, potential water polluters and lawyers will, alike, be interested in the recent decision of the Honourable Judge Timothy N. Desmond in a Circuit Appeal concerning the alleged pollution of the River Feale by creamery effluent The case was that of John Costello, Complain- ant/Appellant v. North Kerry Milk Products Limited, De- fendant/Respondent and the following summary of the proceedings and of the decision has been prepared by Counsel for the Complainant. The Complainant in his capacity as Chief Inspector of the Shannon Regional Fisheries Board (formerly The Limerick Board of Fishery Conservators), caused a Summons to be issued against the Defendant on the 1st day of November 1980, alleging that on the 2nd day of May 1980, at Islandganniv North, Listowel, within the District Court area of Listowel, District No. 13, the Defendant permitted to fall into the waters of the River Feale, deleterious matter, contrary to Section 171 (1) of the Fisheries (Consolidation) Act, 1959; that on the same date the Defendant emptied into the waters of the River Feale, deleterious matter contrary to the said Section of the said Act; and that on the same date, the Defendant caused to fall into the waters of the said river, deleterious matter contrary to the said Section of the said Act. The matter came before the District Court in Listowel, when the learned District Justice dismissed the Summons, from which decision the Complainant appealed. The Appeal came before the Honourable Judge Timothy N. Desmond, Judge of the Circuit Court, at Listowel in the South Western Circuit, County of Kerry, on the 9th day of July 1981. At the close of the case for the Complainant, Counsel for the Defendant sought a Direction on the grounds, inter alia, that in order to secure a conviction against the Defendant, it was necessary for the Complainant to show that deleterious matter had been permitted to fall into and/or had been emptied into and/or had been caused to fall into the entire of the River Feale, and that evidence that such matter was emptied into a portion of the River, was not sufficient to secure a conviction under the Section, having regard to the definition of "deleterious matter" and "waters" in Section 2(1) of the Act. The expression "deleterious matter" is defined in the Act as "any substance (including an explosive) which, on entry or discharge into any waters, is liable to render the waters poisonous or injurious to fish, spawning grounds or the food of any fish". The word "waters" is defined in the said Section of the Act as "any river, lake, watercourse, estuary or any part of the sea". The evidence of the Complainant was that deleterious matter had fallen or been emptied into the river in question through a certain pipe, but the evidence did not show that the deleterious matter had either fallen or been emptied into the entire of the waters of the river or that, if deleterious matter had fallen or been emptied into the

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