United Utilities Water Plc v Environment Agency for England & Wales

A purposive construction of domestic legislation implementing an EU directive may include intermediate waste-treatment processes within an environmental permit regime. Biological or physico-chemical treatment falls within section 5.3(c) of Part I of Schedule I to the Pollution Prevention and Control (England & Wales) Regulations 2000 where it ultimately produces material for disposal, even though further treatment occurs before final disposal. Treatment leading to recovery remains outside that provision.

Separate premises connected only by a pipeline and situated some 700 or 800 metres apart are not on the same site. They therefore cannot be included as directly associated activities under the domestic definition of an installation.

United Utilities Water Plc, a statutory water and sewerage undertaker, sought declarations that no environmental permits were required for operations at six wastewater treatment plants. The issue arose under the Pollution Prevention and Control (England & Wales) Regulations 2000, which implemented the Integrated Pollution Prevention and Control Directive (96/61/EEC).

Nelson J held that permits were required for four sludge-treatment plants but not for two plants receiving industrial effluent from nearby industrial premises. United Utilities appealed in respect of the sludge plants. The Environment Agency cross-appealed in respect of the industrial-effluent plants. The central questions were whether intermediate sludge treatment was treatment resulting in material for disposal, and whether the effluent plants were on the same site as the industrial plants.

1. Disposition. Laws LJ, with whom Lady Justice Smith and the Master of the Rolls agreed, dismissed both the appeal and the cross-appeal.
2. The court construed the Pollution Prevention and Control (England & Wales) Regulations 2000, so far as possible, in the light of the wording and environmental purpose of the Integrated Pollution Prevention and Control Directive (96/61/EEC) and the Waste Framework Directive. That purpose extended to preventing or minimising pollution in the course of waste-disposal operations.
3. Section 5.3(c) of Part I of Schedule I covered biological or physico-chemical treatment at an intermediate plant where the process ultimately produced compounds or mixtures for disposal by one of operations D1 to D12. The words did not require the treatment at that plant directly to produce the final material without any further process. Intermediate treatment could affect the quality of material ultimately disposed of. The distinction between intermediate and final operations was not principled. Treatment whose end product was recovered, rather than disposed of, remained outside the provision. Accordingly, the appeal concerning the sludge plants was dismissed.
4. The industrial-effluent plants were not on the same site as the brewery and milk-processing plants. Premises separated by more than half a mile and connected only by a pipeline could not, on any ordinary reading, satisfy that requirement in Regulation 2(1)(ii). The court therefore dismissed the cross-appeal without reaching a concluded view on whether there was a sufficiently direct technical connection between the operations.
5. Laws LJ added obiter that the domestic "same site" requirement appeared to add a condition absent from the Directive. The State regulator could not rely on its own defective transposition to its advantage. He also expressed concern that an undefined specialised expression such as "technical connection", when breach carries criminal liability, might prompt an Article 6 legal-certainty challenge in a future prosecution.

• Court of Appeal (Civil Division): By [2006] EWCA Civ 633, the court dismissed United Utilities’ appeal and the Environment Agency’s cross-appeal.
• High Court, Queen’s Bench Division: Nelson J held that permits were required for four sludge-treatment plants, but not for the Blackburn and Dalston industrial-effluent plants. No citation for that decision is stated in the judgment.