R Thames Water Utilities Ltd v Bromley Magistrates' Court The Environment Agency (Interested Party) Water Services Regulation Authority (Intervener)

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeLord Justice Carnwath,Mr Justice Bean
Judgment Date28 July 2008
Neutral Citation[2008] EWHC 1763 (QB)
Docket NumberCase No: CO/6423/2004

[2008] EWHC 1763 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Carnwath

and

Mr Justice Bean

Case No: CO/6423/2004

Between:
The Queen on the application of Thames Water Utilities Limited
Claimant
and
Bromley Magistrates' Court
Respondent

— and —

The Environment Agency
Interested Party

— and —

Water Services Regulation Authority
Intervener

Robert McCracken QC & Gregory Jones (instructed by Thames Water Utilities Limited) for the Claimant

Bromley Magistrates' Court were not represented in Court (Respondent)

David Hart QC & Mark Harris (instructed by The Environment Agency) for the Interested Party

Mark Beard (instructed by Water Services Regulation Authority) for the Intervener

Hearing dates: Monday 14th July, 2008

Lord Justice Carnwath

Introduction

1

The short point in this case is whether escapes of waste water from a public sewerage system are "Directive waste" within the scope of the Waste Framework Directive, and thus subject to the enforcement authority of the Environment Agency ("the Agency") under section 33 of the Environmental Protection Act 1990 " EPA".

2

In form the hearing is the renewed hearing of an application for judicial review which first came before the court in May 2005. Thames Water Utilities Limited "TWUL" had been prosecuted by the Agency in the Havering Magistrates' Court, for alleged offences under section 33 of the EPA, arising out of deposits of untreated sewage on land in the area of Elmers End, Kent, in February to April 2003. Section 33 makes it an offence to "deposit controlled waste on any land" without a waste management licence. It is a defence to show that "all reasonable precautions" were taken and "all due diligence" exercised to avoid commission of an offence (s 33(7)). By regulation 7A of the Controlled Waste Regulations 1992, waste which is not "Directive waste" for the purpose of the European Waste Framework Directive is excluded from the definition of "controlled waste".

3

A preliminary issue was raised by TWUL whether, as a matter of law, sewage escaping from pipes maintained by a statutory undertaker was "controlled waste" as so defined. District Judge Carr decided on 16th September 2004 that he had no jurisdiction to determine that issue. TWUL applied for judicial review. On 18 th May 2005, the Divisional Court held, in agreement with all parties, that the District Judge had had jurisdiction to decide the issue. However, rather than remit it, it agreed to decide the matter itself, but first to make a reference to the European Court of Justice "ECJ" for that purpose.

4

The questions referred to the ECJ were:

"1. Whether sewage which escapes from a sewage network maintained by a statutory sewerage undertaker pursuant to the Urban Waste Water Treatment Directive 91/271/EEC ('UWWTD') and/or the Water Industry Act 1991 ('WIA 1991'), amounts to 'directive waste,' for the purposes of the Directive 75/442/EEC (as amended by Directive 91/156/EEC) ('the Waste Framework Directive' hereinafter, the 'WFD').

2. If the answer to (1) is in the affirmative, whether the aforesaid sewage:

(a) is excluded from the scope of 'directive waste' under the WFD by virtue of article 2(1)(b)(iv) of the WFD, in particular, by virtue of the UWWTD and/or the WIA 1991; or

(b) comes within article 2(2) of the WFD and is excluded from the scope of 'directive waste' under the WFD, in particular, by virtue of the UWWTD."

5

On 10 th May 2007, the ECJ gave its answers. Under (1), it decided that escaping waste water from a statutory sewerage system was within the definition of "waste", and (under 2(b)) that it was not excluded by virtue of the UWWTD. The only remaining issue, which now falls to this court for determination, arises under 2(a), which the ECJ answered as follows:

"(The UWWTD) is not 'other legislation' within the meaning of Article 2(1)(b) of (the WFD). It falls to the national court to ascertain whether, in accordance with the criteria set out in the present judgment, the national rules may be regarded as being 'other legislation' within the meaning of that provision. Such is the case if those national rules contain precise provisions organising the management of the waste in question and if they are such as to ensure a level of protection of the environment equivalent to that guaranteed by (the WFD), and, more particularly, by Articles 4, 8 and 15." (emphasis added)

The Waste Framework Directive

6

To understand that answer it is necessary to refer to the relevant provisions of the WFD. Article 1 contains relevant definitions:

"For the purposes of this Directive:

(a) 'Waste' shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard;

(b) 'producer' shall mean anyone whose activities produce waste ('original producer') and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste;

(c) 'holder' shall mean the producer of the waste or the natural or legal person who is in possession of it;

(d) 'management' shall mean the collection, transport, recovery and disposal of waste, including the supervision of such operations and after-care of disposal sites."

7

Article 2 of the WFD contains certain exclusions, including:

"(1) The following shall be excluded from the scope of this Directive:…

(b) Where they are already covered by other legislation: …

(iv) waste waters, with the exception of waste in liquid form;"

8

The ECJ's decision makes clear that escaping waste-water is in principle "waste" within article 1, but leaves open the issue whether it is "covered by" other domestic legislation so as to be excluded under article 2. For that to be so, the domestic legislation must contain "precise provisions organising the management of the waste in question", and must ensure a level of protection of the environment equivalent to that guaranteed by the WFD, in particular Articles 4, 8 and 15.

9

Those articles provide as follows:

i) Article 4

"1. Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:

(a) without risk to water, air or soil, or to plants or animals;

(b) without causing a nuisance through noise or odours;

(c) without adversely affecting the countryside or places of special interest.

2. Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste."

ii) Article 8

"Member States shall take the necessary measures to ensure that any holder of waste:

(a) has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or II B; or

(b) recovers or disposes of it himself in accordance with the provisions of this Directive."

iii) Article 15

"In accordance with the 'polluter pays' principle, the cost of disposing of waste must be borne by:

(a) the holder who has waste handled by a waste collector or by an undertaking as referred to in Article 9; and/or

(b) the previous holders or the producer of the product from which the waste came."

10

It is useful to set out in full the ECJ's reasons for holding that the UWWTD did not satisfy the relevant test, and its comments on the approach to be adopted in assessing the domestic legislation:

"34. It follows that, for Community or national legislation to be regarded as 'other legislation', it must contain precise provisions organising the management of waste and ensure a level of protection which is at least equivalent to that resulting from (the WFD), and, more particularly, Articles 4, 8 and 15.

35. (The UWWTD) does not ensure such a level of protection. Although it regulates the collection, treatment and discharge of waste water, it does no more than...

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