Controlled waste – Environmental Protection Act 1990 – Escape of sewage from system – Claimant sewerage undertaker convicted of offences of depositing controlled waste on land contrary to section 33(1)(a) of 1990 Act – Whether “deposit” requiring deliberate act or extending to unintentional escape – Claim dismissed The claimant was the sewerage undertaker for the Thames region with responsibility for receiving and treating domestic sewage from properties within its area. On several occasions between February and April 2003, sewage escaped from the Thames sewage system onto residential gardens, allotments and the highway. The Environment Agency brought criminal prosecutions against the claimant on charges of depositing controlled waste on land contrary to section 33(1)(a) of the Environmental Protection Act 1990. On a preliminary issue referred to it in those proceedings, the European Court of Justice (ECJ) held that sewage that escaped from the sewage system and was not covered by other legislation was “controlled waste” as a matter of European Community law: see [2007] 1 WLR 1945; [2007] 20 EG 295 (CS). Subsequently, the High Court held that escaped sewage was not “covered by other legislation” in the sense explained by the ECJ, since domestic legislation dealt only with the handling and treatment of waste water within the system and did not provide for the management of waste once it had escaped: see [2008] EWHC 1763 (QB); [2009] Env LR 13; [2008] PLSCS 221. The case was accordingly remitted to the defendant magistrates’ court for determination on the merits. The claimant was convicted of the offences by a district judge, who held that the unintended escape of sewage amounted to a “deposit” within the meaning of section 33(1)(a). The claimant brought proceedings for judicial review of the district judge’s decision, contending that he had erred in law in his interpretation of the word “deposit”. It contended that section 33(1)(a) contemplated a deliberate act of depositing and did not cover an unintentional escape of waste, which was instead covered by the duty of care, under section 34, to take all reasonable measures to prevent the escape of waste from its control. Held: The claim was dismissed. The word “deposit” was an ordinary English word. The question for the court was therefore whether an unintended escape fell within a reasonable range of meanings for “deposit”; if it did, there were no grounds for interfering with the district judge’s conclusion. The case could not be disposed of by a dictionary definition, solely by reference to the word “deposit” considered in isolation. The word “deposit” in section 33(1)(a) covered an unintentional escape of waste. The word “deposit” should not be considered in isolation, by reference to a dictionary definition.Reading it in the context of the statutory provisions, it was relevant that the matters prohibited under the other limbs of section 33(1)(a) involved something being done “knowingly”, whereas, in stark contrast, there was no such qualification in relation to the first limb relating to the deposit of controlled waste. In the absence of any requirement that the deposit take place “knowingly”, the subsection was naturally capable of extending to a deposit resulting from an unintended escape. That was so even though, in the normal case, a person would know what they were doing: Shanks & McEwan (Teesside) Ltd v Environment Agency [1999] QB 333 applied. The conclusion that section 33(1)(a) covered unintended escapes was also supported by a consideration of section 33 as a whole, since it provided the best fit with the due diligence defence under section 33(7). The strictness of the first limb of section 33(1)(a) was mitigated by the availability of the section 33(7) defence, resulting in a scheme that was obvious and proportionate. Such a construction provided an effective deterrent, so according with the rational and moral justification for strict liability, while keeping it within acceptable limits: Tesco Supermarkets Ltd v Nattrass [1972] AC 153 considered. The view that unplanned escapes fell within the reasonable range of meanings for the word “deposit” was also supported by obiter observations in the earlier High Court decision in the instant case: see Carnwath LJ at [20] to [21]. Moreover, the 1990 Act clearly or by necessary implication displaced the usual presumption that mens rea was an essential ingredient of a criminal offence, in circumstances where: (i) the Act was concerned with an issue of social concern, namely the protection of human health and the environment; (ii) its its provisions, properly construed, pointed strongly to the imposition of strict liability under the first limb of section 33(1)(a); and (iii) strict liability would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act: Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] 1 AC 1 applied. The claimant’s submissions with regard to section 34 had no force. In light of the previous decisions of the ECJ and High Court in the case, the sewage only became “controlled waste” within Council Directive 75/442/EEC (the Waste Directive) once it escaped the system. There was therefore no room for the section 34 duty “to prevent the escape” of waste to bite until the waste had already escaped and was no longer in the control of the claimant. Accordingly, section 34 did not apply to the facts of the instant case. That which was in the sewage pipes was not controlled waste; once it had escaped, it was not in the control of the claimant. Per curiam: Although the court had decided the judicial review claim before it, it should not be understood as endorsing the claimant’s decision to pursue a judicial review rather than an appeal by way of case stated or as encouraging the use of judicial review rather than other forms of challenge to decisions in the magistrates’ court. Stephen Tromans QC and Gregory Jones QC (instructed by Berwin Leighton Paisner LLP) appeared for the claimant; Mark Harris and Mark Watson (instructed by the Environment Agency) appeared for the interested party; the defendant did not appear and was not represented. Sally Dobson, barrister
R (on the application of Thames Water Utilities Ltd) v Bromley Magistrates’ Court
Controlled waste – Environmental Protection Act 1990 – Escape of sewage from system – Claimant sewerage undertaker convicted of offences of depositing controlled waste on land contrary to section 33(1)(a) of 1990 Act – Whether “deposit” requiring deliberate act or extending to unintentional escape – Claim dismissed
The claimant was the sewerage undertaker for the Thames region with responsibility for receiving and treating domestic sewage from properties within its area. On several occasions between February and April 2003, sewage escaped from the Thames sewage system onto residential gardens, allotments and the highway. The Environment Agency brought criminal prosecutions against the claimant on charges of depositing controlled waste on land contrary to section 33(1)(a) of the Environmental Protection Act 1990.
On a preliminary issue referred to it in those proceedings, the European Court of Justice (ECJ) held that sewage that escaped from the sewage system and was not covered by other legislation was “controlled waste” as a matter of European Community law: see [2007] 1 WLR 1945; [2007] 20 EG 295 (CS). Subsequently, the High Court held that escaped sewage was not “covered by other legislation” in the sense explained by the ECJ, since domestic legislation dealt only with the handling and treatment of waste water within the system and did not provide for the management of waste once it had escaped: see [2008] EWHC 1763 (QB); [2009] Env LR 13; [2008] PLSCS 221. The case was accordingly remitted to the defendant magistrates’ court for determination on the merits.
The claimant was convicted of the offences by a district judge, who held that the unintended escape of sewage amounted to a “deposit” within the meaning of section 33(1)(a).
The claimant brought proceedings for judicial review of the district judge’s decision, contending that he had erred in law in his interpretation of the word “deposit”. It contended that section 33(1)(a) contemplated a deliberate act of depositing and did not cover an unintentional escape of waste, which was instead covered by the duty of care, under section 34, to take all reasonable measures to prevent the escape of waste from its control.
Held: The claim was dismissed.
The word “deposit” was an ordinary English word. The question for the court was therefore whether an unintended escape fell within a reasonable range of meanings for “deposit”; if it did, there were no grounds for interfering with the district judge’s conclusion. The case could not be disposed of by a dictionary definition, solely by reference to the word “deposit” considered in isolation.
The word “deposit” in section 33(1)(a) covered an unintentional escape of waste. The word “deposit” should not be considered in isolation, by reference to a dictionary definition.Reading it in the context of the statutory provisions, it was relevant that the matters prohibited under the other limbs of section 33(1)(a) involved something being done “knowingly”, whereas, in stark contrast, there was no such qualification in relation to the first limb relating to the deposit of controlled waste. In the absence of any requirement that the deposit take place “knowingly”, the subsection was naturally capable of extending to a deposit resulting from an unintended escape. That was so even though, in the normal case, a person would know what they were doing: Shanks & McEwan (Teesside) Ltd v Environment Agency [1999] QB 333 applied.
The conclusion that section 33(1)(a) covered unintended escapes was also supported by a consideration of section 33 as a whole, since it provided the best fit with the due diligence defence under section 33(7). The strictness of the first limb of section 33(1)(a) was mitigated by the availability of the section 33(7) defence, resulting in a scheme that was obvious and proportionate. Such a construction provided an effective deterrent, so according with the rational and moral justification for strict liability, while keeping it within acceptable limits: Tesco Supermarkets Ltd v Nattrass [1972] AC 153 considered. The view that unplanned escapes fell within the reasonable range of meanings for the word “deposit” was also supported by obiter observations in the earlier High Court decision in the instant case: see Carnwath LJ at [20] to [21].
Moreover, the 1990 Act clearly or by necessary implication displaced the usual presumption that mens rea was an essential ingredient of a criminal offence, in circumstances where: (i) the Act was concerned with an issue of social concern, namely the protection of human health and the environment; (ii) its its provisions, properly construed, pointed strongly to the imposition of strict liability under the first limb of section 33(1)(a); and (iii) strict liability would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act: Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] 1 AC 1 applied.
The claimant’s submissions with regard to section 34 had no force. In light of the previous decisions of the ECJ and High Court in the case, the sewage only became “controlled waste” within Council Directive 75/442/EEC (the Waste Directive) once it escaped the system. There was therefore no room for the section 34 duty “to prevent the escape” of waste to bite until the waste had already escaped and was no longer in the control of the claimant. Accordingly, section 34 did not apply to the facts of the instant case. That which was in the sewage pipes was not controlled waste; once it had escaped, it was not in the control of the claimant.
Per curiam: Although the court had decided the judicial review claim before it, it should not be understood as endorsing the claimant’s decision to pursue a judicial review rather than an appeal by way of case stated or as encouraging the use of judicial review rather than other forms of challenge to decisions in the magistrates’ court.
Stephen Tromans QC and Gregory Jones QC (instructed by Berwin Leighton Paisner LLP) appeared for the claimant; Mark Harris and Mark Watson (instructed by the Environment Agency) appeared for the interested party; the defendant did not appear and was not represented.
Sally Dobson, barrister
