Court rules on legal status of leaking sewage

The High Court has held that waste water escaping from a public sewerage system maintained by a statutory undertaking is controlled waste within the meaning of section 33 of the Environmental Protection Act 1990 (EPA) and that this is subject to enforcement control by the Environment Agency (EA).

The judgment of the Court was delivered following a judicial review hearing instigated by Thames Water Utilities Ltd (TWUL).

TWUL had been prosecuted by the EA for alleged offences under section 33 of the EPA as a result of the leakage of untreated sewerage onto land.

The Controlled Waste Regulations 1992 provide that waste which is not 'Directive waste' for the purposes of the Waste Framework Directive (WFD) is excluded from the definition of 'controlled waste'.

TWUL therefore applied for judicial review asking the question whether, as a matter of law, sewage escaping from pipes maintained by a statutory undertaking was controlled waste.

The matter was initially referred to the ECJ for a preliminary ruling. In May 2007 the European Court found that escaping waste water from a statutory sewerage system did fall within the definition of waste set down in the WFD; and, furthermore, that it was not excluded by virtue of the Urban Waste Water Treatment Directive (UWWTD).

The Court held that the UWWTD was not 'other legislation' within the meaning of Article 2(1)(b) of the WFD which provides that waste water shall be excluded from the scope of the Directive where they are already covered by other legislation.

However, the ECJ held that it fell to the national Court to determine whether the national laws were to be regarded as 'other legislation' within the meaning of that provision and whether the national rules contained precise provisions organising the management of waste so as to ensure a level of protection equivalent to the WFD.

The High Court found that although there are no 'precise provisions' governing the management of waste water which escapes unintentionally from the sewerage system, there is no reason for those wastes not to be subject to the criminal sanctions otherwise thought appropriate for the deposit of controlled waste.

Accordingly, the Court held that escape of untreated sewerage fell to be regulated as controlled waste under the scope of section 33 of the EPA.

The full judgement of the High Court in this case is available via the following link:-
http://www.bailii.org/ew/cases/EWHC/Admin/2008/1763.html

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