Urban waste – Contamination – Waste water escaping accidentally from sewerage network – Whether water constituting waste under EC Waste Directive – Whether management of waste water already covered by other legislation – Preliminary ruling
The claimant was a statutory sewerage undertaker. It was the subject of criminal proceedings brought by the Environment Agency, an independent corporate body responsible for certain aspects of pollution control in England and Wales (the interested party). It was alleged that the claimant had deposited untreated sewage constituting “controlled waste” on land and into controlled waters, contrary to section 33 of the Environmental Protection Act 1990. The magistrates’ court refused to rule on a preliminary point of law as to whether sewage escaping from networks maintained by a sewerage undertaker such as the claimant constituted controlled waste for the purposes of section 33.
The claimant applied for judicial review of the refusal to give a ruling. The Administrative Court decided to stay the proceedings and to refer to the European Court of Justice for a preliminary ruling as to whether: (i) sewage escaping from a sewerage network maintained by a statutory undertaker pursuant to Council Directive 91/271 and/or the Water Industry Act 1991 amounted to “Directive waste” for the purposes of Council Directive 75/442 on waste; if so, (ii) such waste was excluded from the scope of “Directive waste” under Directive 75/442 by virtue of article 2(1)(b)(iv) thereof, in particular by virtue of Directive 91/271 and/or the 1991 Act or because it came within article 2(2) of Directive 75/442.
Held: A ruling was made accordingly.
(1) The fact that waste water escaped from a sewerage network did not affect its character as “waste” within the meaning of Directive 75/442. The escape of waste water from a sewerage network constituted an event by which the sewerage undertaker, as the holder of that waste water, discarded it. The fact that the waste water was spilt accidentally did not alter that outcome: Re Van de Walle [2004] PLSCS 246 considered.
(2) Under article 2(1)(b)(iv), waste waters, with the exception of waste in liquid form, were excluded from the scope of Directive 75/442 provided that those waste waters were already covered by other legislation. For Community or national legislation to be regarded as “other legislation”, it had to contain precise provisions organising the management of waste and to ensure a level of protection at least equivalent to that under Directive 75/442.
Directive 91/271 did not ensure such a level of protection because it did no more than lay down a duty to prevent the risk of leakage of waste water when designing, constructing and maintaining collecting systems. Since the directive did not lay down any objective in relation to the disposal of waste or the decontamination of contaminated soil, it could not be regarded as relating to the management of waste water that escaped from sewerage networks or ensuring a sufficient level of protection. In the light of those criteria, it was for the national court to determine whether the 1991 Act or the Urban Waste Water (England and Wales) Regulations 1994 contained sufficiently precise provisions organising the management of waste to ensure the required level of protection of the environment.
Furthermore, Directive 91/271 did not constitute special legislation with regard to the management of waste water in the present context, and its provisions did not therefore prevail over those of Directive 75/442 and could not be applied pursuant to article 2(2) of that directive.
Robert McCracken QC and Gregory Jones (instructed by the legal department of Thames Water Utilities Ltd) appeared for the claimant; David Hart QC and Mark Harris (instructed by the legal department of the Environment Agency) appeared for the interested party; Elizabeth O’Neill, acting as agent and assisted by James Maurici (instructed by the Treasury Solicitor) appeared for the UK government; M Wimmer, acting as agent, appeared for the Belgian government; H Sevenster, acting as agent, appeared for the Netherlands government; M Konstantinidis and D Lawunmi, acting as agents, appeared for the European Commission.
Eileen O’Grady, barrister
