England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		18th May 2005

1. LORD JUSTICE ROSE: This is the judgment of the court. There is before us an application for judicial review with permission granted by the single judge. The claimant challenges a decision of District Judge (magistrates' court) Carr, sitting at Havering Magistrates' Court on 16th September 2004, that he had no jurisdiction to determine a preliminary point of law.
2. That conclusion was reached in the face of submissions, on behalf of both the claimant company and the interested party, that he did have jurisdiction. That stance, in relation to jurisdiction, is maintained by both the claimant and the interested party before this court. Furthermore, this court is invited by both parties, in the written submissions, to resolve the question of law which the district judge decided he had no jurisdiction to resolve. The point is of considerable importance. If we were to conclude that the district judge did have jurisdiction, it seems that no useful purpose would be served and delay would result if we were to remit the case for decision by him, because an appeal against his decision would be almost inevitable. That approach is reinforced by the submissions of counsel for the complainant and the interested party to this court today, which invite this court to refer a question, crucial to determination of the outcome of this matter, to the European Court of Justice.
3. The facts can briefly be identified. The claimant company is being prosecuted by the interested party, the Environment Agency, in relation to 15 offences, 11 contrary to section 33 of the Environmental Protection Act 1990 and four contrary to section 85(3) of the Water Resources Act 1991. The company was summoned to appear before the Bromley Magistrates and a preliminary issue arose as to whether, even if the Environment Agency proved the case alleged, the prosecution would still fail because, as a matter of law, sewage escaping from pipes maintained by a statutory undertaker is not controlled waste for the purposes of section 33 of the Environmental Protection Act 1990 under which, as we have said, 11 of the charges are brought.
4. So far as the jurisdictional aspect of the matter is concerned, the district judge concluded that the jurisdiction of the Magistrates' Court, in relation to making a preliminary determination, was effectively limited to cases involving abuse of process. In that respect, as it seems to us, the district judge was wrong. He did have jurisdiction to rule on a preliminary point of law in relation to which it was not necessary to find any facts and, as it seems to us, he had that jurisdiction, even before the coming into force, on 5th April of this year, of sections 8A and 8B of the Magistrates' Courts Act 1980, which were inserted by Schedule 3 of the Courts Act 2003. Those provisions expressly confer powers to make preliminary rulings. But, as is apparent from what we have already said, the hearing before the district judge took place before those provisions came into force.
5. Taking the view we do as to the district judge's jurisdiction, it seems to us that his refusal to exercise jurisdiction must be quashed. That being so, this court has power contained in CPR 54.19 to resolve the question of law which the district judge was invited to resolve, having regard to the fact that no useful purpose would seem to be served by remitting the matter to the district judge.
6. In order for this court to resolve the question to which we earlier referred, it is apparent that it is necessary for an authorative decision to be made by the European Court of Justice in relation to whether the sewage, with which this case is concerned, is properly to be regarded as "directive waste" for the purposes of the European directives. Accordingly, by consent of counsel on both sides, and with the approval of this court, we propose to refer to the European Court of Justice, for their determination, the following two questions:

"1. Whether sewage which escapes from a sewage network maintained by a statutory sewerage undertaker pursuant to the Urban Waste Water Treatment Directive 91/271/EEC ('UWWTD') and/or the Water Industry Act 1991 ('WIA 1991'), amounts to 'directive waste,' for the purposes of the Directive 75/442/EEC (as amended by Directive 91/156/EEC) ('the Waste Framework Directive' hereinafter, the 'WFD').

2. If the answer to (1) is in the affirmative, whether the aforesaid sewage:

(a) is excluded from the scope of 'directive waste' under the WFD by virtue of article 2(1)(b)(iv)of the WFD, in particular, by virtue of the UWWTD and/or the WIA 1991; or

(b) comes within article 2(2) of the WFD and is excluded from the scope of 'directive waste' under the WFD, in particular, by virtue of the UWWTD."

7. Counsel have indicated that the appropriately phrased request will be lodged with this court tomorrow and, on the assumption that that takes place, we refer the questions which we have identified to the European Court of Justice. When their decision on these matters is known, the case can come back for consideration by a Divisional Court, not necessarily, as presently constituted, for determination of the issue in these proceedings in the light of the judgment of the European Court of Justice.
8. MR JONES: I am grateful to your Lordships and I shall draft the appropriate order.
9. LORD JUSTICE ROSE: Thank you very much, both of you.