Brief Overview
This interesting case concerns a problem endemic to the manner of regulating water bodies under the Water Framework Directive and the regulations passed under it. This is what happened.
The anglers’ group Pickering Fishery Association raised concerns with the Environment Agency regarding the deterioration in the water quality of the Upper Costa Beck (“UCB), a ground water fed stream in North Yorkshire. It is described by the water campaigning group that acted for them in this litigation as “one of the best trout and grayling rivers in Yorkshire”. They owned the leasehold and freehold fishing rights for most of the UCB. The UCB provides water to two fish farms and downstream is the Yorkshire Water’s water treatment works, which discharges back into the UCB.
The claimant’s concerns included the impact of the recorded sewage overflows from Pickering Waste-Water Treatment Works; the level of sediment deposits resulting from the fish farm ‘suspended solids’ emissions; and the adequacy of the Environment Agency’s environmental permit conditions and other controls. Sewerage overflows from the water treatment works occurred over 250 times in 2020 and over 400 times the year before.
The Department of the Environment, Food and Rural Affairs and the Environment Agency had come up with a plan for a large area that would be a generic way to improve the water quality and biodiversity across a great stretch of water. In the claimant’s view this was not sufficient. They wanted their part of the river cleaned up. They pointed out that the Water Framework Directive (WFD) and the regulations which apply it directly in domestic law did not allow the authorities to get away with such a broad brush approach. What these overarching laws stipulate is that the regulators should work out from each specific area of water in what way it could be improved. If the regulators aggregate it all – saying, for example, that achieving the objectives of improvement would be too difficult and expensive – there will be nothing to be achieved by way of the legislation’s aims. If, on the other hand, the regulators break the problem down into sectors, they would be much more likely to find improvements.
Summary of the legal background
The claimants brought an application for judicial review of the decision of the defendant Secretary of State to approve the updated Humber River Basin Management Plan (“the management plan”), which begun as long ago as 2009 and had been signed off in 2022 by Therese Coffey, Secretary of State for DEFRA. The EA joined the proceedings as an interested party.
The EA had classified the UCB as a heavily modified water body within the meaning of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 reg.15 and the WFD 2000/60. The UCB was, in other words, a surface water body which, as a result of human activity, was substantially changed and could not meet the natural water body objective of “good ecological status”. In October 2021, the EA commenced a consultation on the draft management plan. In this programme of measures there were no proposals which were specific to the UCB.
On 14 December 2022, the SoS approved the management plan under reg.31(1) of the Regulations. Her approach was that the programme of measures could be wholly generic, whether at a national or river basin level, and that the measures did not need to relate to particular water bodies and the steps to achieve the environmental objectives for those specific water bodies.
Arguments before the Court
The claimant submitted that the SoS had misdirected herself on the 2017 WFD Regulations, in particular regulation 12, in considering that a programme of measures, submitted to her by the Environmental Agency in relation to the updated management plan, could be wholly generic. Regulation 13 requires river authorities to submit a programme of measures so as to achieve “good ecological status”, and regulation 12 requires a review of such measures. But the measures under challenge in this case had no information about the UCB.
The claimant submitted in particular, that:
- The SoS had approved the management plan on the basis of a misdirection of law. She had incorrectly found that updating of measures pursuant to the regulations did not have to be done at a water body level and could be carried out at river basin district level.
- She had failed to approve a lawful programme of measures under regulation 12, read with the duties on ministers and regulators set out in regulation 3, since the programme had been generic and did not include measures specific to the UCB;
- There had been a failure to conduct a lawful consultation, and there had been a breach of the duty under regulation 16(7) to include in the river management plan a review of “the implementation of the measures” for achieving the relevant objectives
It was submitted that the SoS and the Interested Party’s characterisation of the programme of measures in a generic way set out robbed it of any meaningful content in meeting the environmental objectives.
The Court’s Conclusions
The court granted the application. Lieven J agreed with the claimant that a generic framework across the whole river basin was not the correct approach. Instead the focus should be on individual stretches of water with their own environs and problems, not the whole river system of England and Wales.
“.. there is a considerable element of smoke and mirrors here. The risk commentary in the Overview is entirely generic.” [para 113]
Given that the environmental objectives under the WFD/Regulations are water body specific, and the programme of measures is created to achieve those objectives, the judge found it “counterintuitive” to suggest that the measures in this programme of measures could be wholly generic and not focussed on whether, when and how the environmental objectives designated for the invidual water body would be met. [para 134]
Although the decision under challenge was the SoS’s approval of the river management plan, the real thrust of the case was that there was an obligation on her to set out the measures to be taken to meet the objectives in respect of the individual water body, in the instant case the UCB, to review those measures, and to consult on them. It was those specific water body measures which the claimant submitted had not been lawfully set out, consulted on, or approved by the SoS.
The Statutory Guidance under the 2017 regulations, entitled “River basin planning guidance”, sets out a number of objectives that the regulators need to identify. These are environmental objectives for each water body in the river basin district and programmes of measures to achieve these objectives. Significantly, the Guidance states (in Section 9.2) that “For water bodies to reach their objectives, they must meet a large number of standards for things such as pollutant concentrations, health of fish populations, and groundwater quantity. Different objectives and standards will apply to different water bodies” [my italics].
The judge pointed out that this Guidance is statutory guidance made under regulation 36(5) and that therefore it was appropriate that she should place weight upon it, albeit it post-dates both the WFD and the Regulations.
The claimant’s interpretation of the Directive and the Regulations was correct. Critical to the claimant’s case was the lack of water body specific measures in any of the documents which related specifically to the UCB. The measures were “entirely generic and not site water specific” [para 62]
The SoS had not actually reached the stage of exercising a discretion as to what water body specific measures were necessary in respect of the UCB. The she had not properly followed the legal scheme which was broadly as follows:
- the purpose of the WFD was to establish a framework for the protection of areas of water, which aimed at enhanced protection and improvement through specific measures for reductions of discharges,
- because the UCB was a heavily modified water body, a programme of measures should have been drawn up for it, with the aim of achieving good ecological potential and good surface water chemical status within 15 years as specified in the Directive;
- it was counter-intuitive to suggest that the measures could be wholly generic and not focused on whether, when and how the environmental objectives designated for the individual water body would be met.
The WFD referred to controls which should be periodically reviewed where necessary. It seemed logical that where the Directive referred to controls being “where necessary”, that was a reference to individual water bodies and discharges, otherwise that phrase did not make sense. Ultimately the decision as to whether an individual discharger needed to be more tightly controlled could only be made on a water body specific basis.
Summarising this judgment is no easy task as it traverses the minutiae of the Directive’s Articles and the provisions under the related regulations. But it is fair to say by way of conclusion that the government and the EA have been rapped on the knuckles for taking an entirely generic and therefore, in Fish Legal’s words, an “effectively non-committal” approach to achieving targets, when what was needed was a “waterbody-by-waterbody plan of real action to stop ongoing damage”.
This case report will be published in the latest edition Environmental Law & Management 33(1)
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