Thames Water ordered to pay £345,000 after serious sewage spill

A water company which allowed thousands of litres of raw sewage to discharge into gardens, allotments, homes and streams over a ten-week period has been fined £204,000 for 15 environmental offences by Bromley Magistrates’ Court (on Tuesday, 8 March).

In addition Thames Water Utilities Ltd was ordered to pay the Environment Agency’s costs of £139,689.98 and compensation totalling £2,250 to two badly affected local residents.

Thames Water had earlier pleaded guilty to four offences against section 85 of the Water Resources Act, 1991, in relation to sewage entering the St James Stream. However they had contested 11 charges of depositing waste in the gardens, garages and the allotments of local residents, under one house, and in the street. These were all contrary to section 33 of the Environment Protection 1990.

The result was the culmination of an eight year prosecution saga, in which the matter has been before the High Court twice and the European Court of Justice.

Bromley Magistrates’ Court heard that on the evening of 10 February 2003 a couple living in Wimbourne Way, Elmers End, Bromley, saw sewage gushing from a manhole cover near their back door onto their lawn and an allotment at the end of their garden. They reported the sewage leak to Thames Water. Previously their property had been subject to sewage manhole discharges in very wet weather, but the weather was not the cause in February 2003. The history, however, did demonstrate their vulnerability to any problems with the sewer system in the locality and should have caused Thames Water to take urgent steps to resolve sewer blockages.

Contractors attended in the early hours of 11 February on behalf of Thames Water and told the couple that there was a blockage in the foul sewer in St James’s Avenue and that a tanker was on the job. But by 7am the effluent was still gushing out and their garden was completely covered in raw sewage and waste water, which had spread to other gardens and more allotments.

The sewage stopped that day, but then continued to discharge intermittently over the next two months until 22 April. The volume peaked on the evening of 3 March when nine neighbouring gardens and an allotment were flooded by the waste water and sewage effluent. On a number of occasions sewage was coming out of the manhole because the pumps set up by the contractors had run out of fuel, completely stopped, or because sufficient pumps were not available.

Environment Agency officer Richard Maile first attended St James’s Avenue on 11 February where he saw a large hole in the road containing liquid, some of which was flowing into a highway gully, which in turn flowed into the St James Stream. He also found sewage flowing from a manhole chamber into gardens and a residential area. He took pictures and video evidence of this and the affected land in Wimbourne Way.

Later that day a pump had been set up in St James’s Avenue by the Thames Water’s contractors, and when it was switched on a jet of sewage escaped from a fractured pipe, on to the ground and into the nearby St James’s Stream.

On 22 February sewage was found flowing across ground at the bottom of a trench 10 ft deep and 10 ft long. It was disappearing into a foul sewer at the end of the trench. On another occasion widespread sewage flooding was seen and also detected in St James Stream which was discoloured and smelled strongly of sewage.

The last major escape of sewage, which affected several houses in Wimbourne Way, was on the 22 of April, over two months after the first sewage and waste water flooding of houses.

Richard Maile, a leading investigating officer for the Environment Agency, said: “The underlying problem was a collapsed sewer pipe in the area that was not repaired quickly enough, and Thames Water and its’ contractors failed to take reasonable steps to divert the waste water and sewage from the broken pipe.

“This was a deeply unpleasant experience for the families that had raw sewage flowing into their gardens, under their homes and into their allotments, making the produce inedible. It has taken a long time for these people to see justice.

“We take these types of incidents very seriously and will do everything within our powers to safeguard the environment and people affected, and that includes bringing those who harm the environment to justice.

“It was particularly gratifying to see the court award significant compensation to two of the persons badly affected by the escaped sewage.”

Environment Agency prosecutor Angus Innes said: “We persisted with our prosecution, despite a strong legal challenge, because we believe it is unacceptable not to move legal mountains to protect householders from the effects of the flooding of their property with sewage and waste water.

“Pollution of rivers and streams is relatively easy to prosecute as the offences are subject to strict liability, without proving negligence or intent. But to prosecute the eleven waste deposit offences we had to first overcome Thames Water’s  argument in superior courts to rule that the waste laws do not apply to them.

“Once the European Court had agreed that these laws did apply, we were able to prove in the magistrates’ court that Thames Water did not act with due diligence in addressing the problems flowing from the collapsed sewer.”

“In 2004 the Auditor General published a report about the sewer network “Out of sight – not out of mind”. It states that 5,000 to 7,000 properties are flooded internally each year. It comments “sewer flooding is a key measure because it is one of the worst service failures a customer can suffer.”

Ends

Notes to editors:

Thames Water Utilities Ltd was charged with 11 offences under section 33(1)(a) of the Environmental Protection Act 1990 and four offences under section 85(3)(a) of the Water Resources Act 1991. The defendant pleaded guilty in 2009 to the four Water Resource Act offences, and sentencing on these charges had been held over until Thames Water’s guilt on the 11 waste charges was determined.

Prosecution Time Line

2003, Feb – April:  Offences happened. 2003, November:  Prosecution commenced with issue of summons charging the above offences and some Health and Safety offences, which were subsequently dropped after legal objection by Thames Water. 2004, 16 September – Before the Magistrates Court , TWUL raised a preliminary legal argument (that is before the court embarks on the hearing of any evidence) that escaped sewage is subject to the European "Urban Waste Water Treatment Directive" only and not the European "Waste Framework Directive" and therefore cannot be "directive waste" or "controlled waste" – one of the elements of a s 33 EPA 1990 offence. The court ruled that it did not have jurisdiction to decide a preliminary point of law. Thames Water judicially reviewed this decision to the High Court (Administration Court) asserting that the Magistrates' Court should have decided the preliminary point.

2005, 18 May – The High Court ruled that the Magistrates’ Court did have the power to rule on the preliminary legal point. However, instead of sending the case back to Bromley Magistrates’ Court, and with the agreement of the EA that an important question of law was involved, the legal issue about whether escaped sewage was "directive waste " or "controlled waste", the case was referred to the European Court of Justice.

2007, 10 May – The European Court of Justice ruled that waste water escaping from a sewerage network did constitute waste for the purposes of the European Waste Framework Directive. However it also stated that it was possible that it might be subject to a specific exemption from the obligations of the Waste Framework Directive if there were laws applicable in the member country (ie England and Wales) that contained precise provisions organising the management of the waste in question to achieve the level of protection of the environment required by the Waste Framework Directive. In lay terms, if the legislation dealing with sewage undertakers, made for the purposes of the Urban Waste Water Treatment Directive (eg the Water Act) had comprehensively dealt with the management of escaped sewage to achieve the level of environmental protection required by the WFD, then the WFD and laws made to implement it would not apply. It referred the decision on this latter point back to the High Court.

2008, 28th July  – The High Court (Admin Ct – Carnwath LJ and Bean J) ) ruled that there was no other system of rules or laws achieving the level of protection of the environment  required by the WFD except the general waste legislation and therefore escaped sewage is "controlled waste" for the purposes of s. 33 EPA 1990. They remitted the matter back to the Bromley Magistrates Court for the taking of evidence and a trial of the contested waste charges. 2009, June – Directions given in Bromley M Ct for the future trial. 2010. January, May, June, September and November: the trial – evidence and  and closing submissions relating to the eleven, s 33 EPA 1990, waste offences. 2011, March 7th and 8th, – Delivery of reasons for judgement and sentencing.