Queen’s Bench Divisional Court
Published August 28, 2008
Regina (Thames Water Utilities Ltd) v Bromley Magistrates Court, Environment Agency, interested party
Before Lord Justice Carnwarth and Mr Justice Bean
Judgment July 28, 2008

Sewage escaping from pipes maintained by a statutory undertaker was controlled waste within the meaning of section 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 September 16, 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 section 33 of the Environmental Protection Act 1990.

Thames Water sought judicial review of that decision, and on May 18, 2005, the Divisional Court held that the district judge had no jurisdiction to determine the issue, and made a reference to the Court of Justice of the European Communities.

The European Court’s decision (The Times May 25, 2007; [2007] 1 WLR 1945) made it clear that escaping waste-water was in principle “waste” within article 1 of Council Directive 75/442/EEC of July 15, 1975 on waste (OJ July 25, 1975 L194/47), as amended by Council Directive 91/156/EEC of March 18, 1991 (OJ March 26, 1991 L78/32), and Council Directive 91/271/EEC of May 21, 1991 concerning urban waste water treatment (OJ May 30, 1991 L135/40), but left open the issue whether it was covered by other domestic legislation so as to be excluded under article 2 of Directive 75/442. That was the remaining issue falling to the court for determination.

Mr Robert McCracken, QC and Mr Gregory Jones for Thames Water; Mr David Hart, QC and Mr Mark Harris for the Environment Agency, interested party; Mr Mark Beard for the Water Services Regulation Authority, intervening; Bromley Magistrates did not appear.

LORD JUSTICE CARNWARTH 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 Directive 75/442.

Article 2(1)(b) of Directive 75/442 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 that was not covered by other legislation in the sense explained by the European Court.

That might not have been surprising, since escapes were, by definition, unplanned and were therefore outside the scope of the ordinary management regime.

However, that was no reason for escapes not being subject to the criminal sanctions otherwise thought appropriate for deposit of controlled waste.

There was nothing unfair in that. 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 section 33 of the 1990 Act, and the cases were to be remitted to the magistrates to be determined on the merits.

Mr Justice Bean agreed. Solicitors: Mr Marie De Viell Reading; Mr Anthony Plytas, Reading; Mr Adrian Yeo, Birmingham.

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