Thames Water Utilities Ltd, R (on the application of) v Water Services Regulation Authority

Escaped sewage from a statutory sewerage system is “controlled waste” within section 33 of the Environmental Protection Act 1990. Waste water is excluded from the Waste Framework Directive only where other legislation contains precise provisions organising the management of that waste and provides equivalent environmental protection, particularly in relation to safe disposal, handling and the polluter-pays principle. A combination of provisions directed to preventing or remedying harm caused by an escape does not satisfy that requirement. Nor can the necessary management scheme be constructed from a patchwork of provisions which may produce similar practical effects in individual cases.

Thames Water Utilities Limited faced prosecutions brought by the Environment Agency under section 33 of the Environmental Protection Act 1990 concerning deposits of untreated sewage on land. A preliminary issue was whether sewage escaping from pipes maintained by a statutory sewerage undertaker was “controlled waste”. The magistrates’ court initially declined jurisdiction to decide that issue. The Divisional Court held that it had jurisdiction, referred questions to the European Court of Justice, and retained the issue for determination.

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 decide whether domestic legislation constituted “other legislation” under article 2(1)(b)(iv) of the Waste Framework Directive. The central issue was whether the domestic statutory nuisance, contaminated land and water industry regimes satisfied that test.

1. The claim was determined in favour of the Environment Agency on the preliminary issue. Sewage escaping from pipes maintained by a statutory undertaker was “controlled waste” within section 33 of the Environmental Protection Act 1990. The cases were remitted to the magistrates’ court to determine the merits.

2. Article 2(1)(b)(iv) of the Waste Framework Directive requires domestic legislation relied upon as “other legislation” to contain precise provisions organising the management of the waste in question and to ensure environmental protection equivalent to that guaranteed by the Directive, particularly articles 4, 8 and 15.

3. The Water Industry Act 1991 and the Urban Waste Water Treatment Regulations 1994 dealt with the handling and treatment of waste water within the sewerage system, including measures designed to prevent escape. They contained no provision governing management after escape. The Urban Waste Water Treatment Directive had already been held by the ECJ not to satisfy the equivalent-protection test.

4. The statutory nuisance and contaminated land regimes addressed the harmful effects of escaped sewage, including harm to land and remediation. They did not organise the collection, transport, recovery or disposal of the escaped waste in a manner comparable to the Waste Framework Directive.

5. The required scheme could not be created by piecing together miscellaneous provisions whose combined operation might achieve similar practical effects in particular cases. There were no precise provisions governing the management of waste which escaped unintentionally from the sewerage system. The statutory defence under section 33(7), based on reasonable precautions and due diligence, meant that applying the criminal sanction was not unfair.

• Divisional Court: On 18 May 2005, the court held that the magistrates’ court had jurisdiction to determine the preliminary issue, quashed the order declining jurisdiction, and referred questions to the ECJ.
• High Court (Queen’s Bench Division): Following the ECJ’s answers, the court held that escaped sewage was controlled waste and remitted the prosecutions to the magistrates’ court.