Thames Water Utilities Ltd v Bromley Magistrates' Court The Environment Agency (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Gross,Mr Justice Singh
Judgment Date20 March 2013
Neutral Citation[2013] EWHC 472 (Admin)
Docket NumberCase No: CO/2766/2011

[2013] EWHC 472 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Gross

and

Mr Justice Singh

Case No: CO/2766/2011

Between:
Thames Water Utilities Ltd.
Claimant
and
Bromley Magistrates' Court
Defendant
The Environment Agency
Interested Party

Mr Stephen Tromans QC and Mr Gregory Jones QC (instructed by Berwin Leighton Paisner LLP) for the Claimant

Mr Mark Harris and Mr Mark Watson (instructed by the Environment Agency) for the Interested Party

Hearing dates: 6th November 2012

Approved Judgment

Lord Justice Gross

INTRODUCTION

1

The applicant ("Thames") is the sewerage undertaker for the Thames region; it owns and operates the network of sewers within its area. It is obliged (as undertaker) to receive and to treat domestic sewage from properties within its area.

2

The interested party ("the EA") is the statutory body which has responsibility for the enforcement of waste legislation in England and Wales.

3

On a number of dates between 10 th February and 24 th April, 2003, sewage escaped from the Thames system onto land — residential gardens, allotments and the highway — in the London Borough of Bromley. It is not in dispute that the discharge of sewage emanated from the Thames sewage system.

4

The EA brought criminal proceedings against Thames, alleging various offences. Some of those were strict liability offences, which are not in issue in these proceedings. The remainder (with one exception) involved charges of contravening s.33(1)(a) of the Environmental Protection Act 1990 ("the Act"). After a somewhat extended history (to which I shall return), Thames was convicted on those charges and now, inter alia (see below) advances a claim for Judicial Review.

5

This claim for Judicial Review is concerned with the question of whether, on the true interpretation of s. 33(1)(a) of the Act, the unintended escape of sewage amounted to a "deposit" of the sewage in question on land by Thames.

6

In the careful written judgment under Review, dated 8 th March, 2011 ("the judgment"), DJ (MC) Lynch held that the answer to that question was "yes".

7

In the circumstances, DJ Lynch went on to consider the further question of whether Thames could establish the defence under s.33(7)(a) of the Act, namely, that it had taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence. To this question, DJ Lynch gave the answer "no".

8

Thames contends that DJ Lynch's findings as to the meaning of "deposit" in s.33(1)(a) of the Act constitute an error of law on the face of the record and resulted in the Judge misdirecting himself in his consideration of the specific offences under the relevant Summonses — namely those referred to in the judgment as Original Summonses 3, 1, 2, 7, 5, 8, 9, 11, 13 and 14. Thames accordingly seeks quashing orders in respect of its convictions under those Summonses. In a nutshell, Thames submits that the wording in s.33(1)(a), "shall not deposit controlled waste" imports a deliberate act of depositing, as opposed to an unintentional escape of waste from its control. Such a construction had proper regard to the fact that s.33(1)(a) imposed criminal liability on a party in breach thereof. Moreover, construing s.33(1)(a) in this fashion permitted ss.33 and 34 of the Act to be read sensibly together; I shall come to the terms of s.34 presently.

9

The claim for Judicial Review does not challenge DJ Lynch's conclusions on the second question, namely, whether Thames had made good (for shorthand) the "due diligence" defence under s.33(7)(a). It will, however, be necessary to refer to that defence insofar as it has a bearing on the true construction of s.33(1)(a).

10

The EA resists the Thames claim. In essence, the EA submits that the word "deposit" in s.33(1)(a) is an ordinary English word and it was for DJ Lynch, having heard the evidence, to apply it to the facts; his conclusion was reasonable and his decision should be upheld. In any event, the proper meaning of "deposit" in the first limb of s.33(1)(a) includes unintentional deposits, an interpretation consistent with the true construction of the remainder of the sub-section, authority and the "due diligence" defence under s.33(7)(a), to which reference has already been made. So far as concerns s.34 of the Act, the EA's case is that it is inapplicable to the circumstances in question and irrelevant.

11

So far as material, S.33(1)(a) of the Act provides as follows:

" (1) ….a person shall not —

(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;"

12

S.33(6) of the EPA provides that a person who, inter alia, contravenes s.33(1) commits an offence. S.33(7), EPA, then provides that:

" It shall be a defence for a person charged with an offence under this section to prove —

(a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence;…"

13

S.34 of the Act, entitled "Duty of care etc. as respects waste", is in these terms:

" (1) ….it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances —

(a) to prevent any contravention by any other person of section 33 above;

……

(b) to prevent the escape of the waste from his control or that of any other person; …."

14

As already foreshadowed, something needs to be said of the history; strikingly, it is nearly a decade since the underlying events of which complaint is made. The EA prosecution commenced in 2004. A preliminary issue arose as to whether sewage which escaped from the system was, as a matter of law, "controlled waste". The upshot was reference by a previous constitution of this Court to the European Court of Justice ("ECJ") for a preliminary ruling. In the event, if by way of very crude summary, the ECJ held that sewage which escaped from the system and was not covered by other legislation, was waste as a matter of Community law: R (Thames Water Utilities Ltd) v Bromley Magistrates' Court [2007] 1 WLR 1945 ("the 2007 decision").

15

Subsequently, another constitution of this Court held that domestic legislation dealt only with the handling and treatment of waste water within the system, including requirements designed to prevent escape; such legislation did not contain provisions for management of the waste after it had escaped. Accordingly, the cases should be remitted to the Magistrates' Court to determine on the merits: see, R (Thames Water Utilities Ltd) v Bromley Magistrates' Court [2008] EWHC 1763 (QB); [2009] Env. LR 13 ("the 2008 decision"). At all events, following this remission, the matter came before DJ Lynch, resulting in hearings on a number of occasions in 2010 and culminating in the judgment (of March 2011).

16

Turning briefly to matters of procedure, Thames has pursued Judicial Review rather than an appeal by way of case stated (though it has preserved its position in that regard). Its reason for doing so is that the judgment already contains full findings of fact and full reasoning on the legal point in issue. We would not be minded to say anything to encourage the use of Judicial Review rather than other forms of challenge to decisions in the Magistrates' Court, so we should not be understood as endorsing the Thames decision in this case. That said, given the preparations made by the parties, it would have been idle and wasteful to engage in an extended debate as to the most appropriate procedure for this case, let alone to require the parties to start again by a different form of procedure. It was preferable instead to get on and determine the matter.

17

For completeness as to the procedural position:

i) Thames has also appealed to the Crown Court against the sentence imposed by DJ Lynch; as we understand it, that appeal remains in abeyance pending the outcome of the present proceedings.

ii) The Defendant ("Bromley Magistrates' Court") has indicated that any application for costs against DJ Lynch would be opposed and the District Judge would wish to be heard on any such application.

iii) Both Thames and the EA applied to have the present claim transferred to the Upper Tribunal; that application was refused by order of Ouseley J, dated 21 st December, 2011, for the reasons he there set out (and which need not be repeated here).

THE JUDGMENT UNDER REVIEW

18

Reference has already been made to the judgment. After a careful and extended consideration of the meaning of the word "deposit", the statutory language, the fact that this was a penal provision and the authorities, DJ Lynch's key conclusions as to s.33(1)(a) of the Act were expressed at pp. 61–2 of the judgment as follows:

" 26. …I have no hesitation in finding that the use of the verb 'deposit' at the beginning of Section 33(1)(a) clearly covers the unintended and unwanted escapes of sewage from the defendant's system as in this case. Effectively, whenever or however sewage escapes from the defendant's system, it has been 'put, place(d) or set down' by them within the ordinary linguistic meaning of the word 'deposit'. ….

28. Effectively, whenever and however sewage/controlled waste came out of the defendant's system in Wimborne Way and St James Avenue this was an escape/leakage from the defendant's system and as such became a deposit within section 33. The issue of how and why such leakages/escapes may have occurred will be a relevant issue in establishing any defence under Section 33(7). "

DISCUSSION

19

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