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

Escaped sewage from a statutory sewerage system is “controlled waste” for the purposes of section 33 of the Environmental Protection Act 1990. Domestic legislation excludes waste water from the Waste Framework Directive only where it contains precise provisions organising the management of the escaped waste and provides equivalent environmental protection. A combination of provisions dealing with sewerage systems, statutory nuisance and contaminated land is insufficient where those provisions address prevention or harmful effects but do not regulate the collection, transport, treatment and disposal of the escaped waste as waste. The issue is not avoided by relying on a patchwork of provisions whose practical effect depends on their operation in individual cases.

Thames Water Utilities Ltd was prosecuted for alleged deposits of untreated sewage on land. The District Judge declined jurisdiction to determine whether the sewage was controlled waste. On judicial review, the Divisional Court held that the District Judge had jurisdiction and referred questions to the ECJ.

The ECJ held that escaping waste water was “waste” under the Waste Framework Directive and was not excluded by the Urban Waste Water Treatment Directive. It left the national court to determine whether domestic rules constituted “other legislation” under article 2(1)(b), applying criteria concerning precise waste-management provisions and equivalent environmental protection. The remaining issue was whether the Environmental Protection Act 1990, Water Industry Act 1991 and related legislation satisfied that test.

1. The court held that untreated sewage escaping from pipes maintained by a statutory sewerage undertaker was “controlled waste” within section 33 of the Environmental Protection Act 1990. The matter was remitted to the magistrates’ court to determine on the merits.

2. The ECJ’s test required domestic legislation to contain precise provisions organising the management of the waste in question and to secure environmental protection equivalent to that provided by the Waste Framework Directive, particularly articles 4, 8 and 15.

3. The duties under section 94 of the Water Industry Act 1991 and the Urban Waste Water Treatment Regulations dealt principally with the sewerage system, treatment and prevention of escape. They did not regulate the management of sewage after it had escaped.

4. The statutory-nuisance and contaminated-land regimes under Parts III and IIA of the Environmental Protection Act 1990 addressed harmful effects on land, abatement and remediation. They did not organise the management of the escaped waste in the sense required by the Directive. A remediation notice could not properly impose the full requirements of waste management, including transport, storage, treatment and disposal after removal.

5. The required statutory scheme could not be created by piecing together miscellaneous provisions which might produce similar practical effects depending on how they were operated in individual cases. There were no precise provisions governing the management of waste escaping unintentionally from the sewerage system. The statutory defence of reasonable precautions and due diligence meant that applying section 33 was not unfair.

• Divisional Court: On 18 May 2005, the court held that the District Judge had jurisdiction to determine the preliminary issue and referred questions to the ECJ.
• European Court of Justice: On 10 May 2007, the ECJ held that escaping waste water was waste, was not excluded by the Urban Waste Water Treatment Directive, and left the domestic-law question to the national court.
• High Court (Administrative Court): The court determined that the sewage was controlled waste and remitted the cases to the magistrates’ court.