Local authorities regain power

The High Court has allowed an appeal made by Hounslow London Borough Council (HLBC) and quashed the decision made by the lower courts in favour of Thames Water Utilities (Thames Water).

It determined that sewage works did fall within the definition of “premises” and were not excluded from the operation of claims in statutory nuisance under Environmental Protection Act 1990 (EPA 1990).

Background

HLBC served an abatement notice on Thames Water pursuant to its powers under the EPA 1990. The notice stated that an odour amounting to a nuisance had occurred and was likely to recur at Mogden Sewage Treatment Works in Middlesex.

Thames Water was responsible and as the undisputed owner/occupiers of Mogden had 60 days from when the notice was served in which to abate the nuisance and prevent its recurrence.

At a preliminary hearing, Thames Water contended that Mogden did not constitute premises within the meaning of section 79(1)(d) of the EPA 1990. The district judge accepted this argument.

HLBC appealed against this decision. The question was whether or not sewage works were excluded from the operation of the statutory nuisance provisions of the EPA 1990.

Section 79(1) defines, subject to specified exceptions, statutory nuisances as including: “Any premises in such a state as to be prejudicial to health or a nuisance; and any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;”

It also states that: “Premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purposes of manufacturing.”

The arguments

HLBC argued that the abatement notice was justified by the escape from the sewage treatment works of gases amounting to a nuisance.

It argued that under the definitions of section 79(1)(d) and (7) above, it was clear that Thames Water was carrying out an industrial process on the premises.

Thames Water, on the other hand, argued that section 79 did not apply to sewage treatment works because the court is bound by the law of precedent and was required to follow the decision in The Queen v Parlby and others (1889) where the court held that “premises (in such a state)” did not include sewage works.

Thames Water argued that the policy considerations that the court used to explain the legislative intention behind the Public Health Act 1875 applied today, just as they did in 1889.

However, the court ruled that sewage works did fall within the definition of ‘premises’ and were therefore subject to regulation under the statutory nuisance provisions of the EPA 1990.

Comment

Prior to March 2000, local authorities used their statutory nuisance powers to control odours from sewage works. In the case of Yorkshire Council v Yorkshire Water Services, the water company successfully argued that a sewer was not ‘property’ within the meaning of the EPA 1990.

Since that time, local authorities have been unable to control odour problems from sewage works, which has lead to problems of odour control in a number of long-standing cases, including Hounslow.

To rectify this problem, the government issued a consultation paper in December 2002 suggesting a number of solutions including:

• a voluntary code of practice for the control of odours in the sewage industry;

• amendments to the EPA 1990 to bring sewage works within it;

• bringing all sewerage works within LAPPC (other than those falling within IPPC); and

• bringing all sewage works within IPPC.

The last two options would be the most costly for water companies as odour control costs would have to be brought into the five-year cost-setting process for the industry.

The government’s consultation closed in March 2003 and it will be interesting to see how the government eventually decides how to deal with the issue.

In the meantime, it would seem that local authorities have been provided with a more immediate solution to the restriction on their powers created by Yorkshire Water.

For now, case law has reinstated their power to serve abatement notices on sewage works. The matter will be put beyond the interpretation of the courts once the new legislative measures take effect.