| ENVIRONMENT — Protection — Waste — Leakage of untreated sewage from sewerage system — Whether escaping waste water covered by other domestic legislation — Whether controlled waste — Environmental Protection Act 1990, s 33 — Council Directive 75/442/EEC (as amended), art 2
Regina (Thames Water Utilities Ltd) v Bromley Magistrates’ Court (Water Services Regulation Authority intervening) [2008] EWHC 1763 (QB); [2008] WLR (D) 264
QBD: Carnwarth LJ and Bean J: 28 July 2008
Sewage escaping from pipes maintained by a statutory undertaker was “controlled waste” within the meaning of s 33 of the Environmental Protection Act 1990.
The Queen’s Bench Divisional Court so held when determining a preliminary issue raised by the claimant, Thames Water Utilities Ltd, following the decision of District Judge Carr at Bromley Magistrates’ Court on 16 September, 2004, that he had no jurisdiction to determine the issue of whether, as a matter of law, sewage escaping from pipes maintained by a statutory undertaker was “controlled waste” within the meaning of s 33 of the Environmental Protection Act 1990. The claimant sought judicial review of the District Judge’s decision, and on 18 May 2005 the Divisional Court held that the District Judge had no jurisdiction to determine the issue, and made a reference to the European Court of Justice. On 10 May 2007, the European Court’s decision ([2007] 1 WLR 1945) made it clear that escaping waste water was in principle “waste” within art 1 of the Waste Framework Directive (Council Directive 75/442/EEC on waste (as amended)) but left open the issue whether it was “covered by” other domestic legislation so as to be excluded under art 2. That was the remaining issue falling to the court for determination.
CARNWARTH LJ said that for waste to be so covered, the domestic legislation must have contained precise provisions organising the management of the waste in question, and must have ensured a level of protection of the environment equivalent to that guaranteed by the Directive, in particular arts 4, 8 and 15. Article 2(1)(b) of the Directive contained certain exclusions, including waste waters with the exception of waste in liquid form, where they were already covered by other legislation. There were no precise provisions governing the management of waste which escaped unintentionally from the sewerage system. Accordingly they were not covered by other legislation in the sense explained by the European Court. This might not have been surprising, since the escapes were by definition unplanned, and were therefore outside the scope of the ordinary management regime. However, that was no reason for them not being subject to the criminal sanctions otherwise thought appropriate for deposit of controlled waste. There was nothing unfair in this. If the claimant could show that it took all reasonable precautions and exercised all due diligence, it would have a defence. Accordingly, the alleged escapes of untreated sewage were within the scope of s 33 of the 1990 Act, and the cases were to be remitted to the magistrates’ court to be determined on the merits.
BEAN J agreed.
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Appearances: Robert McCracken QC and Gregory Jones (Legal Department, Thames Water Utilities Ltd, Reading) for the claimant; David Hart QC and Mark Harris (Environment Agency, Reading) for the Environment Agency, as an interested party; Mark Beard (Legal Department, OFWAT, Birmingham Water Services Regulation Authority) for the Water Services Regulation Authority, intervening. The magistrates’ court was not represented.
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