R (on the application of Thames Water Utilities Ltd) v Bromley Magistrates Court

Questions surrounding the interpretation of EU law are to be referred to the European Court of Justice (ECJ) following a decision this week in the case of R (on the application of Thames Water Utilities Ltd) v Bromley Magistrates Court.

Proceedings were initially raised by the Environment Agency, as prosecutor, regarding numerous allegations that Thames Water Utilities Ltd was responsible for unlawfully depositing “controlled waste” in breach of Section 33 of the Environment Protection Act (EPA) 1990.

However, in the course of proceedings, the question arose as to whether the District Judge had jurisdiction to determine the issue of whether sewage escaping from a pipe controlled by Thames Water Utilities Ltd was indeed “controlled waste” under section 33 of the EPA 1990.

The district judge held that he did not have such jurisdiction, but this was challenged by way of judicial review, in which it was held that the district judge did have jurisdiction to determine this issue. The matter is now to be determined by the Divisional Court, who, however has decided to refer two questions to the ECJ.

The first of these concerns whether sewage that escapes from a sewerage network maintained by a statutory sewerage undertaker pursuant to the Urban Waste Water Treatment Directive (UWWT) (Directive 91/271/EEC) and/or the Water Industry Act 1991 is to be regarded as “Directive waste” under the Waste Framework Directive (Directive 75/442/EEC).

If this is held to be ‘Directive waste’, the ECJ has then been asked whether such sewage is excluded from the definition of ‘Directive waste’ by virtue of Article 2(1)(b)(iv) or falls under Article 2(2) of the WFD and is therefore excluded from the scope of ‘Directive waste’, in both cases having regard to the UWWT Directive.

Environment Agency

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