Review sewage spill prevention schemes, water companies warned

Water companies should to take necessary precautions to avoid sewage spills, a leading lawyer has warned, because they can be found criminally liable for sewage leaks that are unintentional.

The comments come as the High Court found Thames Water guilty last week of depositing raw sewage into properties and onto a main road in Bromley, London in 2003. 

Thames Water had challenged a ruling by Bromley Magistrates’ Court by claiming that it should not be liable as the discharge was unintentional. It was found guilty under the Environmental Protection Act (EPA). 

Under the EPA, it is an offence for companies to deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence or environmental permit authorising the deposit is in force and the deposit is in accordance with it. 

However, companies that can prove they “took all reasonable precautions and exercised all due diligence to avoid the unlicensed deposit of controlled waste” have a defence against the criminal offence. 

Gordon McCreath, partner at law firm Pinsent Masons, said the decision should prompt water companies to take the required measures so that they can rely on the defence. 

“Assuming things stay the same, water companies’ focus for sewage spills to land now needs to be on the due diligence defence offered under the EPA,” McCreath said. 

“They will need to show that they took all reasonable precautions and exercised all due diligence to avoid the sewage spill, so that will require evidence of the precautions taken at a network management level to avoid spills, as well as the steps taken in immediate response to the incident itself.” 

He called for water companies to review their asset management and incident response procedures, if they haven’t already done so, to meet the criteria for the defence.