Waste – Environmental Protection Act 1990 – Escape of sewage from statutory sewerage system – Whether “controlled waste” – Whether excluded from scope of Waste Framework Directive by reason of being covered by other legislation within article 2(1)(b) – Preliminary issue determined against claimant
The Environment Agency prosecuted the claimant in the magistrates’ court, under section 33 of the Environmental Protection Act 1990 (1990 Act), for alleged offences of depositing controlled waste on land. A preliminary issue was raised as to whether sewage escaping from pipes maintained by a statutory undertaker was controlled waste within the meaning of the Controlled Waste Regulations 1992. Regulation 7A excluded from the definition of controlled waste any waste that was not “Directive waste” for the purposes of the European Waste Framework Directive (WFD); the directive in turn excluded certain waste from its scope, including, under article 2(1)(b), waste that was “already covered by other legislation”. The district judge decided that he did not have jurisdiction to determine the preliminary issue; his decision was overturned on a judicial review application before the Divisional Court, which none the less chose to determine the issue following a reference to the European Court of Justice (ECJ) to decide certain matters relevant to the issue.
The ECJ ruled that escaping waste water from a statutory sewerage system was within the definition of “waste”, and was not excluded from the scope of the WFD under article 2(1)(b) by reason of the Urban Waste Water Treatment Directive 91/271/EEC. It held that the national court should determine whether the relevant national rules amounted to “other legislation” for the purpose of article 2(1)(b). However, it provided guidance on the meaning of that provision by deciding that waste would be “already covered by other legislation” if the national rules contained precise provisions organising the management of the waste in question and were such as to ensure a level of protection of the environment that was equivalent to that guaranteed by the WFD.
The claimant sought to rely upon: (i) Part III and Part IIA of the 1990 Act, concerning statutory nuisances and contaminated land respectively; (ii) the Water Industry Act 1991 (1991 Act); and (iii) the Waste Water Treatment (England and Wales) Regulations 1994, as constituting relevant “other legislation”.
Held: The preliminary issue was determined against the claimant.
Little assistance could be gained from the 1991 Act or the 1994 Regulations. The 1991 Act imposed only general duties in respect of the maintenance of the sewerage system, which were supplemented by specific requirements imposed by the 1994 Regulations and derived from the Urban Waste Water Treatment Directive. Since the ECJ had decided that that directive did not meet the test for “other legislation”, it would be surprising if a different conclusion were to be reached in respect of regulations that were designed merely to transpose those requirements into domestic law.
With regard to the 1990 Act, although the escape of untreated sewage onto land might bring into play certain of its provisions, and result in placing the relevant authority under a duty to take action in respect of it, neither the statutory nuisance nor the contaminated land regime did any more than address the harmful effects of an escape of untreated sewage, and neither was directed to the “management” of the waste in any sense comparable to the objectives of the WFD. Nor could the requirement for “precise provisions organising the management of waste” be met by piecing together a patchwork of miscellaneous provisions, which, when taken together, and depending upon how they were operated in particular cases, might achieve similar practical effects to those of the WFD.
No “precise provision” governed the management of waste that escaped unintentionally from the sewerage system. Accordingly, such waste was not “covered by other legislation” in the sense explained by the ECJ. The alleged escapes came within the scope of section 33 of the 1990 Act and the case should be remitted to the magistrates’ court to determine on the merits.
Robert McCracken QC and Gregory Jones (instructed by the legal department of Thames Water Utilities Ltd) appeared for the claimant; the respondent did not appear and was not represented; David Hart QC and Mark Harris (instructed by the legal department of the Environment Agency) appeared for the interested party; Mark Beard (instructed by the legal department of OFWAT) appeared for the intervener.
Sally Dobson, barrister