Hounslow v Thames Water Utilities Ltd.

Section 79(1)(d) of the Environmental Protection Act 1990 extends to odours arising from sewage treatment works. The word “premises” must be interpreted in its statutory context. The historical construction of “premises in such a state as to be a nuisance” in section 79(1)(a) does not control the distinct provision in section 79(1)(d), which concerns smell or other effluvia arising from industrial, trade or business premises.

Sewage treatment works are capable of being industrial premises because treatment of sewage is an industrial process. The fact that works are operated under statutory powers, or that alternative remedies exist, does not exclude statutory nuisance liability. The defence of best practicable means protects against an impossible abatement requirement.

Hounslow served Thames Water with an abatement notice under section 80 of the Environmental Protection Act 1990, alleging that malodorous gases from Mogden Sewage Treatment Works constituted a statutory nuisance under section 79(1)(d).

Thames Water appealed to the Magistrates’ Court, arguing that sewage treatment works were outside section 79(1)(d). The District Judge accepted that preliminary argument and quashed the notice, following the approach adopted by another District Judge in a similar case. Hounslow appealed by way of case stated. The issue was whether sewage works were excluded from section 79(1)(d) by the decision in The Queen v Parlby.

1. The appeal was allowed. The District Judge’s order quashing the abatement notice was quashed, and the matter was remitted to the Magistrates’ Court for continuation of the appeal hearing.
2. Section 79(1)(d) of the Environmental Protection Act 1990 applies to smell or other effluvia arising on industrial, trade or business premises. By section 79(7), premises are used for industrial purposes where they are used for treatment or processing as well as manufacturing. Sewage treatment works fall within that description.
3. The decision in The Queen v Parlby concerned the different wording and context of section 91(1) of the Public Health Act 1875. Its ratio was confined to the expression “premises in such a state as to be a nuisance”, which addressed the condition or fabric of premises rather than an injurious product arising from a process. It did not define “premises” for every statutory nuisance provision.
4. The legislative history showed that the predecessor of section 79(1)(d) developed separately from the provision considered in Parlby. In particular, section 92(1)(d) of the Public Health Act 1936 contained no reference to premises and addressed dust or effluvia caused by a trade, business, manufacture or process.
5. The presumption that repeated statutory language bears the same meaning was only a presumption. It was displaced by the different statutory context, legislative history and structure of section 79. The policy considerations which influenced Parlby in 1889 did not justify exempting modern sewage undertakers from section 79(1)(d).
6. The existence of statutory powers, alternative common-law remedies or regulation under the Water Industry Act 1991 did not alter the construction of section 79. Nor was the notice shown to require an impossible task, since section 80(9) provided the defence of best practicable means.
7. Scott Baker LJ agreed. He emphasised that Parlby remained relevant to section 79(1)(a), but should not be extended to provisions concerning what escaped from premises, including section 79(1)(d).

• High Court (Administrative Court): allowed Hounslow’s appeal by way of case stated, quashed the District Judge’s order and remitted the matter to the Magistrates’ Court.
• Magistrates’ Court: the District Judge accepted Thames Water’s preliminary argument and quashed the abatement notice.