Thames Water Utilities Ltd v Bromley Magistrates' Court & Anor

For the purposes of section 33(1)(a) of the Environmental Protection Act 1990, “deposit” is capable of including an unintended escape of controlled waste. The issue cannot be resolved by dictionary meaning alone. The statutory structure, including the absence of “knowingly” from the first limb and the availability of the due-diligence defence under section 33(7), supports strict liability. Section 34 does not create an overlap on facts where sewage is not controlled waste while within the sewerage system and is no longer in the undertaker’s control after escape. The criminal nature of the provision does not prevent this construction because the statutory presumption of mens rea is displaced by necessary implication.

Between February and April 2003, sewage escaped from the claimant sewerage undertaker’s system onto land in Bromley. The Environment Agency prosecuted the claimant for offences under section 33(1)(a) of the Environmental Protection Act 1990. District Judge Lynch concluded, in a judgment dated 8 March 2011, that the unintended escapes were “deposits” within the section and that the due-diligence defence had not been established.

The claimant sought judicial review of its convictions, arguing that “deposit” required a deliberate act and that section 34 supplied the applicable regime for unintended escapes. The central issues were the true construction of “deposit” in section 33(1)(a), the relationship between sections 33 and 34, and whether strict liability was permissible for a penal provision.

1. The claim was dismissed. The court upheld the conclusion that unintended escapes of sewage could constitute deposits under section 33(1)(a) of the Environmental Protection Act 1990.
2. The word “deposit” was an ordinary English word, but its application could not be determined in isolation. The first limb of section 33(1)(a) was not qualified by “knowingly”, whereas the second and third limbs were. That contrast naturally permitted the first limb to include a deposit resulting from an unintended escape.
3. The due-diligence defence in section 33(7) supported that construction. Although the defence applied to all limbs, the statutory scheme fitted more naturally with strict liability for the first limb, subject to the defence. Strict liability could encourage greater vigilance and was not unduly harsh because the defence remained available.
4. Section 34 did not apply on these facts. Sewage within the pipes was not controlled waste, while after escape it was no longer in the claimant’s control. The suggested overlap between sections 33 and 34 therefore did not arise. This conclusion did not deprive section 34 of effect in other circumstances.
5. The court accepted that the observations in R (Thames Water Utilities Ltd) v Bromley Magistrates’ Court concerning unintended escapes were obiter, because the earlier decision concerned “controlled waste”, not the meaning of “deposit”. Nevertheless, those observations were of considerable persuasive authority.
6. The usual presumption that mens rea is required for a criminal offence was displaced clearly or by necessary implication. The claim for judicial review was accordingly dismissed.

• European Court of Justice: In the earlier proceedings, the court ruled that sewage escaping from the sewerage system was not excluded from the waste regime merely because of other legislation. The matter was remitted for consideration of the national legislation.
• High Court: In the 2008 decision, the court held that escaped sewage was controlled waste within section 33 of the Environmental Protection Act 1990 and remitted the prosecutions to the Magistrates’ Court.
• High Court (Administrative Court): The present court dismissed the judicial review claim and upheld the construction adopted by District Judge Lynch.