Thames Water Utilities Ltd, R (on the application of) v Bromley Magistrates Court

A magistrates’ court has jurisdiction to determine a preliminary point of law where the issue can be resolved without finding facts. That jurisdiction was not confined to abuse of process and existed before the commencement of express statutory powers for preliminary rulings. A refusal to exercise that jurisdiction may be quashed on judicial review. Where remittal would serve no useful purpose, the Administrative Court may determine the legal question itself and may refer an issue requiring an authoritative ruling on European law to the European Court of Justice.

Thames Water Utilities Ltd was prosecuted by the Environment Agency for alleged offences under the Environmental Protection Act 1990 and the Water Resources Act 1991. Before the Bromley Magistrates, District Judge Carr held that he had no jurisdiction to determine a preliminary point concerning whether sewage escaping from pipes maintained by a statutory undertaker was controlled or directive waste.

Thames Water challenged that conclusion by judicial review. The parties invited the Divisional Court to decide both the jurisdictional issue and the underlying European-law question. The central issues were whether the magistrates’ court had jurisdiction to rule on the preliminary point and whether the substantive question should be referred to the European Court of Justice.

1. Jurisdiction. The district judge was wrong to treat the magistrates’ court’s power to make a preliminary determination as effectively limited to abuse-of-process cases. The court had jurisdiction to rule on a preliminary point of law where no factual findings were necessary.
2. Temporal scope. That jurisdiction existed even before the commencement of sections 8A and 8B of the Magistrates’ Courts Act 1980, inserted by Schedule 3 to the Courts Act 2003. Those provisions expressly conferred powers to make preliminary rulings, but they did not mark the first existence of the relevant jurisdiction.
3. Relief. The refusal to exercise jurisdiction was therefore quashed. Under CPR 54.19, the court had power to determine the legal question itself. Remittal was inappropriate because it would serve no useful purpose and would probably lead to a further appeal.
4. Reference. Determination of the substantive issue required an authoritative ruling from the European Court of Justice on whether sewage escaping from a statutory sewerage undertaker’s network constituted directive waste under Directive 75/442/EEC, as amended by Directive 91/156/EEC, and on the possible exclusions under article 2(1)(b)(iv) and article 2(2), having regard to Directive 91/271/EEC and the Water Industry Act 1991. The two questions were referred by consent, with the case to return for further consideration after the European decision.

1. Magistrates’ court: District Judge Carr, sitting at Havering Magistrates’ Court, held that he lacked jurisdiction to determine the preliminary point of law.
2. High Court (Administrative Court): The Divisional Court quashed that refusal, held that the magistrates’ court had jurisdiction, and referred two questions concerning directive waste to the European Court of Justice.