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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wildfish Conservation, R (On the Application Of) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2285 (Admin) (15 September 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/2285.html Cite as: [2023] EWHC 2285 (Admin) |
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KING'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE KING (on the application of WILDFISH CONSERVATION) |
CO/4438/2022 Claimant |
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| - and - |
||
| SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS |
Defendant |
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| - and - |
||
| THE ENVIRONMENT AGENCY THE WATER SERVICES REGULATION AUTHORITY |
Interested Parties |
|
And Between : |
CO/4445/2022 |
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| THE KING (on the application of) MARINE CONSERVATION SOCIETY RICHARD HAWARD'S OYSTERS (MERSEA) LIMITED HUGO TAGHOLM |
Claimant |
|
| - and - |
||
| SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS |
Defendant |
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| - and - |
||
| THE ENVIRONMENT AGENCY |
Interested Party |
____________________
-and-
Marc Willers KC and Peter Lockley (instructed by Good Law Practice Ltd) for the Claimant in CO/4445/2022
Sir James Eadie KC, Richard Moules, Ned Westaway and Charles Streeten (instructed by the Government Legal Department) for the Defendant
Hearing dates: 4-6 July 2023
____________________
Crown Copyright ©
Mr. Justice Holgate:
Introduction
WildFish
Conservation ("
WildFish").
This is a charitable company established in 1903 as the Salmon and Trout Association. Its aims include the reversal of the decline in wild fish populations and their habitats. They campaign against pollution from agriculture and sewage and to achieve clean and healthy coastal and fresh waters.
Factual background
WildFish,
the Office for Environmental Protection established under the EA 2021 launched investigations into whether the defendant, Ofwat and the EA were failing to comply with their statutory duties in relation to the regulation of the use of storm overflows by WaSCs.
(1) A target for protecting the environment: WaSCs will only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect. The target must be met by 2050, save for overflows discharging in or close to certain sensitive areas where the target must be met by 2035, or 2045 at the very latest;
(2) A target to protect public health in designated bathing waters: WaSCs must significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges to meet EA standards by 2035.
(3) A backstop target for 2050, which operates in addition to the first two targets: by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.
The Government's objective has been to set policy targets in the Plan which, taken overall, are more restrictive than the existing regulatory regimes.
(1) (a) Whether in setting the first and third targets the defendant failed to understand that reg.4 of the 1994 Regulations requires WaSCs to remedy insufficiency of physical capacity in accordance with the decision of the CJEU in European Commission v UK (Re Storm Water Overflows) [2013] 1 CMLR 24 ("the UK case"). Alternatively, (b) the Plan is unlawful because it has the effect of directing WaSCs to breach reg.4 of the 1994 Regulations, or (c) the Plan will frustrate the purposes of that legislation;
(2) Whether the defendant failed when approving the Plan to take into account obviously material considerations, including the enforcement of reg.4 of the 1994 Regulations and addressing any gap between the requirements of environmental permits and the 1994 Regulations;
(3) Whether the Plan constitutes a "plan" within reg.63 of The Conservation of Habitats and Species Regulations 2017 (SI 2017 No. 1012) ("the 2017 Regulations") so that the defendant approved the Plan in breach of that regulation by failing to carry out an "appropriate assessment" of its effects on "European sites" (including Special Areas of Conservation and Special Protection Areas);
(4) Whether the defendant acted irrationally in approving the Plan.
Issue (1)(a) was put more widely in
WildFish's
skeleton than had been pleaded in the Statement of Facts and Grounds. I have given leave for the pleading to be amended so as to address the additional point.
(1) Whether the Plan fails to accord with or undermines the target in s.3 of the EA 2021 to halt the decline in species abundance by 2030;
(2) Whether the Plan breaches the rights of RHO under Article 1 of the First Protocol to the ECHR ("A1P1") and the rights of Mr. Tagholm under Article 8 of the ECHR;
(3) Whether the Plan is contrary to the "public trust doctrine", which is said to impose a duty on the defendant to maintain coastal waters in a fit ecological state for the purposes of the public's right to fish there.
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Heading |
Paragraph number |
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Statutory Framework | |
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- The Water Industry Act 1991 | |
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- The Environment Act 2021 | |
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- Urban Waste Water Treatment (England and Wales) Regulations 1994 | |
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- Environmental Permitting (England and Wales) Regulations 2016 | |
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- The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 | |
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- The Conservation of Habitats and Species Regulations 2017 | |
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- European Union (Withdrawal) Act 2018 | |
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- Human Rights Act 1998 | |
|
Chronology leading up to the Plan | |
|
The Plan | |
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The investigation by the EA and Ofwat | |
|
Legal principles | |
|
| |
|
- Discussion | |
|
| |
|
| |
|
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212-214 |
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Ground 1 in CO/4445/2022 | |
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Ground 2 in CO/4445/2022 | |
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- Discussion | |
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Ground 3 in CO/4445/2022 | |
|
Conclusion |
Statutory Framework
The Water Industry Act 1991
"(2A) The Secretary of State or, as the case may be, the Authority shall exercise and perform the powers and duties mentioned in subsection (1) above in the manner which he or it considers is best calculated–
(a) to further the consumer objective;
(b) to secure that the functions of a water undertaker and of a sewerage undertaker are properly carried out as respects every area of England and Wales;
(c) to secure that companies holding appointments under Chapter I of Part II of this Act as relevant undertakers are able (in particular, by securing reasonable returns on their capital) to finance the proper carrying out of those functions;
(d) …
(e) to further the resilience objective.
(2B) The consumer objective mentioned in subsection (2A)(a) above is to protect the interests of consumers, wherever appropriate by promoting effective competition between persons engaged in, or in commercial activities connected with, the provision of water and sewerage services.
…
(2DA) The resilience objective mentioned in subsection (2A)(e) is—
(a) to secure the long-term resilience of water undertakers' supply systems and sewerage undertakers' sewerage systems as regards environmental pressures, population growth and changes in consumer behaviour, and
(b) to secure that undertakers take steps for the purpose of enabling them to meet, in the long term, the need for the supply of water and the provision of sewerage services to consumers, including by promoting—
(i) appropriate long-term planning and investment by relevant undertakers, and
(ii) the taking by them of a range of measures to manage water resources in sustainable ways, and to increase efficiency in the use of water and reduce demand for water so as to reduce pressure on water resources."
With regard to s.2(2A)(c), a "sewerage undertaker" is appointed under Chapter I of Part II of the Act.
"(1) Subject to subsection (2) and sections 19 and 20 below, where in the case of any company holding an appointment under Chapter I of this Part … the Secretary of State or the Authority is satisfied—
(a) that that company … is contravening—
(i) any condition of the company's appointment … in relation to which he or it is the enforcement authority; or
(ii) any statutory or other requirement which is enforceable under this section and in relation to which he or it is the enforcement authority;
or
(b) that that company … is likely to contravene any such condition or requirement,
he or it shall by a final enforcement order make such provision as is requisite for the purpose of securing compliance with that condition or requirement."
"(2) Subject to section 19 below, where in the case of any company holding an appointment under Chapter I of this Part …
(a) it appears to the Secretary of State or the Authority as mentioned in paragraph (a) or (b) of subsection (1) or (1A) above; and
(b) it appears to him or it that it is requisite that a provisional enforcement order be made,
he or it may (instead of taking steps towards the making of a final order) by a provisional enforcement order make such provision as appears to him or it requisite for the purpose of securing compliance with the condition or requirement in question."
In determining whether a provisional order is "requisite", the decision-maker must have regard to the extent to which any person is likely to suffer loss or damage before a final order can be made (following the procedure in s.20) from any likely act or omission in breach of a condition or other requirement enforceable under s.18 (see s.18(3)). A provisional order has immediate effect, but a maximum duration of 3 months (s.18(7)) unless confirmed under s.18(4).
"94.— General duty to provide sewerage system.
(1) It shall be the duty of every sewerage undertaker—
(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers and any lateral drains which belong to or vest in the undertaker as to ensure that that area is and continues to be effectually drained; and
(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers.
(2) It shall be the duty of a sewerage undertaker in performing its duty under subsection (1) above to have regard—
(a) to its existing and likely future obligations to allow for the discharge of trade effluent into its public sewers; and
(b) to the need to provide for the disposal of trade effluent which is so discharged.
(3) The duty of a sewerage undertaker under subsection (1) above shall be enforceable under section 18 above—
(a) by the Secretary of State; or
(b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Authority.
…. "
"141A Storm overflow discharge reduction plan
(1) The Secretary of State must prepare a plan for the purposes of—
(a) reducing discharges from the storm overflows of sewerage undertakers whose area is wholly or mainly in England, and
(b) reducing the adverse impacts of those discharges.
(2) The reference in subsection (1)(a) to reducing discharges of sewage includes—
(a) reducing the frequency and duration of the discharges, and
(b) reducing the volume of the discharges.
(3) The reference in subsection (1)(b) to reducing adverse impacts includes—
(a) reducing adverse impacts on the environment, and
(b) reducing adverse impacts on public health.
(4) The plan may in particular include proposals for—
(a) reducing the need for anything to be discharged by the storm overflows;
(b) treating sewage that is discharged by the storm overflows;
(c) monitoring the quality of watercourses, bodies of water or water in underground strata into which the storm overflows discharge;
(d) obtaining information about the operation of the storm overflows.
(5) When preparing the plan the Secretary of State must consult—
(a) the Environment Agency,
(b) the Authority,
(c) the Council,
(d) Natural England,
(e) sewerage undertakers whose area is wholly or mainly in England, or persons representing them, and
(f) such other persons as the Secretary of State considers appropriate.
(6) The Secretary of State must publish the plan before 1 September 2022.
(7) The Secretary of State may at any time revise the plan, having consulted the persons referred to in subsection (5), and must publish any revised version.
(8) The plan, and any revised version of it, must be laid before Parliament once it is published."
The Environment Act 2021
"3 Environmental targets: species abundance
(1) The Secretary of State must by regulations set a target (the "species abundance target") in respect of a matter relating to the abundance of species.
(2) The specified date for the species abundance target must be 31 December 2030.
(3) Accordingly, the species abundance target is not a long-term target and the duty in subsection (1) is in addition to (and does not discharge) the duty in section 1(2) to set a long-term target in relation to biodiversity.
(4) Before making regulations under subsection (1) which set or amend a target the Secretary of State must be satisfied that meeting the target, or the amended target, would halt a decline in the abundance of species.
…."
"84 Report on elimination of discharges from storm overflows
(1) The Secretary of State must prepare a report on—
(a) the actions that would be needed to eliminate discharges from the storm overflows of sewerage undertakers whose areas are wholly or mainly in England, and
(b) the costs and benefits of those actions.
(2) The Secretary of State must publish the report before 1 September 2022.
(3) The report must be laid before Parliament once it is published."
Urban Waste Water Treatment (England and Wales) Regulations 1994
"4.— Duty to provide and maintain collecting systems and treatment plants
(1) This regulation supplements the duty imposed on every sewerage undertaker by section 94 of the Water Industry Act 1991 (general duty to provide sewerage system) and any contravention of the requirements of this regulation shall be treated for the purposes of that Act as a breach of that duty.
(2) Subject to paragraph (3) below, the duty imposed by subsection (1)(a) of the said section 94 shall include a duty to ensure that collecting systems which satisfy the requirements of Schedule 2 are provided–
(a) where the urban waste water discharges into receiving waters which are a sensitive area, by 31st December 1998 for every agglomeration with a population equivalent of more than 10,000; and
(b) without prejudice to sub-paragraph (a) above–
(i) by 31st December 2000 for every agglomeration with a population equivalent of more than 15,000; and
(ii) by 31st December 2005 for every agglomeration with a population equivalent of between 2,000 and 15,000.
(3) …
(4) The duty imposed by subsection (1)(b) of the said section 94 shall include a duty to ensure that urban waste water entering collecting systems is, before discharge, subject to treatment provided in accordance with regulation 5, and to ensure that–
(a) plants built in order to comply with that regulation are designed (account being taken of seasonal variations of the load), constructed, operated and maintained to ensure sufficient performance under all normal local climatic conditions;
(b) treated waste water and sludge arising from waste water treatment are reused whenever appropriate; and
(c) disposal routes for treated waste water and sludge minimise the adverse effects on the environment." (emphasis added)
A "collecting system" refers to a system of sewers for collecting and conducting urban waste water (i.e. domestic waste water or a mixture of domestic waste water with industrial waste water and/or run-off rain water) (reg. 2(1)).
"2. The design, construction and maintenance of collecting systems shall be undertaken in accordance with the best technical knowledge not entailing excessive costs, notably regarding–
(a) volume and characteristics of urban waste water;
(b) prevention of leaks;
(c) limitation of pollution of receiving waters due to storm water overflows."
The cost benefit expression "best technical knowledge not entailing excessive costs" is referred to as "BTKNEEC."
"Given that it is not possible in practice to construct collecting systems and treatment plants in a way such that all waste water can be treated during situations such as unusually heavy rainfall, Member States shall decide on measures to limit pollution from storm water overflows. Such measures could be based on dilution rates or capacity in relation to dry weather flow, or could specify a certain acceptable number of overflows per year."
"5.— Requirements as to provision of treatment
(1) Subject to paragraph (5) below, treatment plants which provide secondary treatment or an equivalent treatment shall be provided–
(a) by 31st December 2000 or, in an exceptional case, [a] later date (not being later than 31st December 2005) [...], in respect of all discharges from agglomerations with a population equivalent of more than 15,000;
(b) by 31st December 2005 in respect of all discharges from agglomerations with a population equivalent of between 10,000 and 15,000;
(c) by 31st December 2005 in respect of all discharges to freshwaters and estuaries from agglomerations with a population equivalent of between 2,000 and 10,000."
WildFish)
submitted that the prohibition upon discharging untreated waste water applies to all discharges through storm overflows however caused, subject only to the exclusion of spills caused by exceptional circumstances or the BTKNEEC exception. Thus, breaches of reg.4 may occur because of inadequate physical capacity as well as operational and maintenance failures. This was common ground and I agree with the submission.
Environmental Permitting (England and Wales) Regulations 2016
WildFish,
the EA relied upon a document it issued in September 2018: "Water companies: environmental permits for storm overflows and emergency overflows." The document makes it plain that a sewerage system must be designed, built and maintained to BTKNEEC, a reference to regs.4 and 5 of the 1994 Regulations.
The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 (SI 2017 No. 407)
The Conservation of Habitats and Species Regulations 2017
"63.— Assessment of implications for European sites and European offshore marine sites
(1) A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of that site, must make an appropriate assessment of the implications of the plan or project for that site in view of that site's conservation objectives.
(2) …
(3) The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specifies.
(4) It must also, if it considers it appropriate, take the opinion of the general public, and if it does so, it must take such steps for that purpose as it considers appropriate.
(5) In the light of the conclusions of the assessment, and subject to regulation 64, the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).
…"
"64. Consideration of overriding public interest
(1) If the competent authority is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).
(2) Where the site concerned hosts a priority natural habitat or a priority species, the reasons referred to in paragraph (2) must be either—
(a) Reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or
(b) Any other reasons which the competent authority, having due regard to the opinion of the appropriate authority, considers to be of imperative reasons of overriding public interest."
European Union (Withdrawal) Act 2018.
Human Rights Act 1998
"Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"Article 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
Chronology leading up to the Plan
WildFish
and MCS).
"We therefore expect water companies to significantly reduce the frequency and volume of sewage discharges from storm overflows, so they operate infrequently, and only in cases of unusually heavy rainfall. We expect overflows that do the most harm or impact on the most sensitive and highest amenity sites to be prioritised first. The outcomes we expect water companies to meet on storm overflows will be set out in the Storm Overflows Discharge Reduction Plan. Water companies should set out how they will improve the performance of their drainage system, including reducing discharges, through drainage and wastewater management plans. We also expect companies to be open and transparent with the public and provide information relating to discharges to the environment and their environmental impact as soon as reasonably practicable."
WildFish
provided its consultation response. They criticised the targets for allowing failures to comply with the 1994 Regulations as interpreted in the UK case to continue for up to 30 years, whereas compliance should have been achieved many years ago. In May 2022 the MCS submitted their response in which they said inter alia that more immediate action must be taken to reduce harm by 2030.
The Plan
"1. Water companies must comply with all their existing regulatory obligations and duties, including permits issued by the Environment Agency.
Water companies need to maintain and upgrade their wastewater systems to ensure they meet their statutory service obligations and keep pace with all the pressures that add surface water to the combined sewer network. Before implementing infrastructure upgrades, water companies must ensure all their wastewater and drainage assets are working as intended, are not limiting capacity of their sewage system, and are compliant with all relevant legislation and permits. This includes (but is not limited to) proactive management and adequate maintenance of assets, with timely replacements, upgrades, or repairs of assets as appropriate. Upgrades as a result of non-compliance do not fall within the scope of this plan."
"1. Protecting the environment:
Headline target: Water companies will only be permitted to discharge from a storm overflow where they can demonstrate that there is no local adverse ecological impact.
Sub-targets:
1. The headline target must be achieved for most (at least 75%) of storm overflows discharging in or close to high priority sites (as defined in Annex 1) by 2035.
• It must be achieved for all (100%) storm overflows discharging in or close to high priority sites by 2045.
• Water companies must achieve this target for all remaining storm overflows sites by 2050."
"High priority areas" include SACs and Sites of Special Scientific Interest. Annex 1 provides a technical definition of "no local adverse ecological impact." The object is to ensure that no water body should fail to achieve "good ecological status." That term is defined in Annex 1 by reference to The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017. Ms. Amzour explains that currently an ecology test is only applied to overflows suspected of causing "ecological failure", which represents about 13% of the total. The target in the Plan is required to be applied to each inland overflow (WS para 169b).
"2. Protecting public health in designated bathing waters
Headline Target: Water companies must significantly reduce harmful pathogens from storm overflows discharging into and near designated bathing waters, by either: applying disinfection; or reducing the frequency of discharges to meet Environment Agency spill standards by 2035."
Ms. Amzour explains that this represents an improvement on existing standards which only apply to overflows impacting on a designated sampling point. The Plan's target affects all overflows discharging in or near a bathing area and would lead to the improvement of around 660 overflows (WS para 169c and briefing to Minister on 30 November 2021).
"3. Ensuring storm overflows operate only in unusually heavy rainfall events
Headline Target: Storm overflows will not be permitted to discharge above an average of 10 rainfall events per year by 2050."
The target seeks to ensure that storm overflows will only be used in "the rare case of unusually heavy rainfall…". Annex 1 supplies a technical definition of a "rainfall event." The Plan explains that this operates as the "backstop target" to the first and second targets. If an overflow meets the first two targets it must also meet the third.
"For too long water companies have been able to discharge raw sewage without appropriate scrutiny due to a lack of monitoring data and an incomplete picture of the full impact of storm overflows on the water environment. These new duties on monitoring will increase transparency and provide the Government, regulators and the public with the information to take action and hold the industry to account."
The investigation by the EA and Ofwat
"This was an approach taken in the context of an awareness by the Minister and the Secretary of State of the ongoing investigation by the EA and Ofwat into suspected non-compliance with existing permits, and their publicly expressed support for taking enforcement action against any existing breaches. In circumstances where the investigation was ongoing and its outcome could not be known, the approach taken in the Plan is to make clear that existing obligations must be adhered to and will be enforced by EA and Ofwat."
WildFish
has advanced arguments concerned with the relationship between targets in the Plan and the pre-existing statutory obligations of WaSCs and, in that context, the scope of the investigation being carried out by the EA and by Ofwat. I have referred to the letters and statement issued by the regulators on 18 November 2021 ([111] to [112] above).
WildFish,
Ofwat stated that its investigation included the issue of whether the relevant companies are complying with the 1994 Regulations. In a letter dated 1 June 2023 in response to recent requests for information from the solicitors acting for
WildFish,
Ofwat again stated that its investigation included compliance with reg.4 of the 1994 Regulations.
"The SOAF is intended to address the problems caused by discharges from storm overflows considered to operate at too high a frequency. The framework will ensure that water companies are proactively monitoring and managing the performance of its overflows in light of the pressures of growth, urban creep and changing rainfall patterns. It is also intended to demonstrate that sewerage systems are compliant with relevant legislation such as the Urban Waste Water Treatment Regulations 1994."
The SOAF is based upon regs. 4 and 5 of the 1994 Regulations ([84] to [85] above). The EA found that for 126 overflows (or 21% of the total) there were no solutions to reduce the frequency of discharge which satisfied the cost benefit test. But improvement schemes which did pass that test were identified for 472 overflows, of which 53 have already been introduced into the improvement programme under the Water Industry National Environment Programme ("WINEP") and Asset Management Plan ("AMP") regimes and the remainder (419) remain to be programmed.
Legal principles
WildFish's
claim it is said that the Secretary of State failed to take into account various relevant considerations which were "obviously material". The relevant legal principles have been laid down by the Supreme Court in R (Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2020] PTSR 221 and R (Friends of the Earth Limited) [2021] PTSR 190. It is insufficient for a claimant simply to say that the decision-maker failed to take into account a material consideration. Such a consideration is only something which is not irrelevant and which a decision-maker is empowered to take into account. A decision-maker does not fail to take into account a material consideration into account unless he was under an obligation to do so.
WildFish
depends upon establishing irrationality, it is necessary to have in mind the relatively light intensity of review appropriate for dealing with a plan setting strategic or high level policy on environmental and socio-economic considerations, particularly where the legislation allows the minister a very broad discretion as to the contents of the plan and he is required to lay the document before Parliament to whom he is answerable. This subject has been considered in case law summarised in, for example, R (Spurrier) v Secretary of State for Transport [2020] PTSR at [141] et seq and Transport Action Network at [57] – [58].
WildFish
Ground 1
WildFish
submits that the defendant proceeded on an erroneous view as to the scope of reg.4 of the 1994 Regulations, namely that it did not require physical incapacity of collecting systems and treatment works to be remedied.
WildFish
says that the expectation that storm overflows should "operate infrequently and only in cases of unusually heavy rainfall" simply articulated the pre-existing legal requirement in reg.4 of the 1994 Regulations. Accordingly, to treat that expectation as the basis for new policy requirements in the forthcoming Plan which are to be met in the future involved "downgrading a long-standing historic statutory requirement in respect of which compliance is long overdue". The same flawed reasoning is said to infect the Plan itself.
WildFish's
skeleton).
WildFish
contends that the Plan is unlawful because it has the effect of directing WaSCs to remedy inadequate physical capacity through the Plan's targets and not under regs.4 and 5 of the 1994 Regulations. Mr. Forsdick referred to the passage on p.18 of the Plan entitled "Complying with regulations" (see [124] above). He says that on a proper reading of that passage, in the context of the whole document, the upgrades which fall outside the scope of the Plan's policy targets are simply those which involve non-compliance with operational obligations to maintain, upgrade, and repair existing assets. Consequently, the upgrades needed to deal with the physical incapacity of existing systems do fall within the Plan's targets. Accordingly, the object of the passage on p.18 of the Plan is merely to require WaSCs to comply with their operational obligations before implementing infrastructure upgrades pursuant to the Plan's targets to deal with physical incapacity issues (
WildFish's
skeleton paras. 102 to 104).
WildFish
on the interpretation of the Plan and decide that upgrades to deal with physical incapacity fall outside the scope of the Plan's targets, Mr. Forsdick appeared to accept that the Gillick principle would not be infringed. On that reading, the Plan would not contradict the operation of regs.4 and 5 of the 1994 Regulations. But he introduced a new fallback argument. The £56bn costing and the 2050 timescale allowed by the third target, assumed that none of the infrastructure capacity to be provided in order to meet that target, as assessed in the SOEP, would be required in order to comply with existing legal obligations of a WaSC, including the 1994 Regulations. But in so far as such upgrading is required to meet an existing legal obligation, the total cost to consumers will be reduced and therefore the justification for not requiring the third policy target to be met until a year as far off as 2050 is undermined. That target should have been brought forward. Mr. Forsdick says that this ought to have been considered by the defendant but was not.
WildFish
submits that the Plan frustrates the legislative framework and its objectives (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). That framework is said to comprise the WIA 1991 and the 1994 Regulations (para.106 of the Statement of Facts and Grounds). The Plan unlawfully treats what is currently happening as the baseline, including any existing breach of the 1994 Regulations. Although
WildFish
does not contend that a lawful Plan under s.141A of the WIA 1991 must rectify immediately any existing breaches of the legislation, the defendant must at least consider that unlawfulness in the Plan. The Plan cannot ignore that unlawfulness "and usurp the requirements of reg.4 through the imposition of the Plan on top of it" (skeleton paras. 115 to 117).
Discussion
WildFish's
case appeared to ignore that principle and suggested that overflows are only permitted in exceptional circumstances (see e.g. para 96 of the Statement of Facts and Grounds and footnote 13 in the claimant's skeleton referred to in [155] above).
WildFish's
contention that the third target in the Plan purports to give effect to regs.4 and 5 of the 1994 Regulations and so involves a "downgrading" of the force of those statutory requirements. That involves a misreading of the Plan and the documentation which led up to it. It is impossible to read the third policy target in the Plan as allowing a WaSC until 2050 to comply with regs. 4 and 5 of the 1994 Regulations or to remedy any breach of those regulations. Equally neither of the other two targets allows a breach of the 1994 Regulations to continue until the target years to which they refer.
WildFish's
case, including the allegation that the Plan involves a misunderstanding of the 1994 Regulations, is based upon (a) the estimates that a high proportion of storm overflow discharges is caused by physical incapacity (i.e. 60% or 74% - see [15] and [17] above) and (b)
WildFish's
view that only a small proportion of those discharges is lawful under the 1994 Regulations applying the BTKNEEC test (see e.g. para 53(b) of skeleton). Indeed,
WildFish
even goes so far as to assert that, outside the category of exceptional cases, as explained in the UK case, discharges are only lawful where it has been demonstrated "exceptionally" that they must be tolerated applying BTKNEEC. That involves a misreading of the UK case. CJEU did not indicate that discharges will only satisfy BTKNEEC exceptionally. The Advocate General stated that there must be a comprehensive assessment of the circumstances of each case ([AG 61]).
WildFish
also said that the evidence available from the EA on the discharges they have assessed indicates that only 15% have been found to have "no cost benefit solution" (i.e. irremediable applying BTKNEEC) (see Mr. Measham's second witness statement para. 13). In a letter to the court dated 6 July 2023 the EA stated that the data referred to by
WildFish
related to those of the high-spilling overflows[2] that had been subjected to a SOAF assessment so far (see [84] to [85] above). There were 598 such overflows of which 21% (not 15%) were said to have no cost-benefit solution. As to the other overflows, 53 had already been included in an improvement programme, while the improvement of the remaining 419 was still to be programmed. The EA added that this analysis should not be treated as representative of other high-spilling overflows, or indeed all other overflows with lower spill frequencies. It should be noted that in 2022 about 1500 overflows spilled more than 60 times (see [10] and [13] above).
WildFish
that the defendant failed to appreciate that there is a gap between the conditions set by the EA in the environmental permits and the requirements of the 1994 Regulations because the conditions only deal with operational issues and not with physical capacity.
WildFish's
argument is that in preparing and publishing the Plan the Secretary of State failed to have regard to whether the standards set by specific FFT permit conditions are failing to comply with the 1994 Regulations. This argument is misconceived. The defendant was under no legal obligation to do this.
WildFish's
contention depends upon showing that the extent to which there is non-compliance with the 1994 Regulations was an obviously material consideration in formulating the Plan, so that it was irrational for the Secretary of State not to have addressed the subject in the Plan's policies.
WildFish's
fallback argument summarised in [160] above.
WildFish's
skeleton).
WildFish
Ground 2
WildFish
Ground 3
WildFish
contends that the plan is "a plan … which is likely to have a significant effect on a European site or a European offshore marine site …" within reg.63(1) of the 2017 Regulations. On that basis it is submitted that the Plan could not be agreed to without carrying out an "appropriate assessment" of its implications for the site(s) in view of the site[s]' conservation objectives. It is common ground that no such assessment was carried out. The defendant maintains that the Plan is not a plan falling within regulation 63(1) of the 2017 Regulations.
WildFish
relies, were rather different. There, the harbour authority for Lymington Pier proposed to introduce a larger class of ferry on an established ferry route which ran through a Special Area of Conservation. The proposal for that activity was held to be a plan or project within the Habitats Directive requiring appropriate assessment.
"However, a distinction needs to be made with 'plans' which are in the nature of policy statements, i.e. policy documents which show the general political will or intention of a ministry or lower authority. An example might be a general plan for sustainable development across a Member State's territory or region. It does not seem appropriate to treat these as 'plans' for the purpose of Article 6(3), particularly if any initiatives deriving from such policy statements must pass through the intermediary of a land-use or sectoral plan (C 179/06, paragraph 41). However, where the link between the content of such an initiative and likely significant effects on a Natura 2000 site is clear and direct, Article 6(3) should be applied."
WildFish
was unable to explain how the tests regarding absence of adverse effects on the integrity of relevant European sites (having regard to the "conservation objectives" of each such site) and "imperative reasons of overriding public interest" could be applied to the Plan (see regs.63(1)(b) and (5) and 64(1) and (2) in the absence of proposals for upgrades on specific sites. This only serves to reinforce the conclusion I have already reached on the outcome of ground 3.
WildFish
Ground 4
WildFish
alleges that the Secretary of State's decision to publish the plan was irrational. As its skeleton makes clear (paras. 127 to 128), the argument is based on the contention that Parliament intended s.141A of the WIA 1991 to enforce regs.4 and 5 of the 1994 Regulations, but the Plan's targets fail to address that aim. Put that way the irrationality argument adds nothing to submissions which I have already rejected.
Ground 1 in CO/4445/2022
WildFish grounds 1 to 4. I have dealt with those matters.
Ground 2 in CO/4445/2022
Discussion
Ground 3 in CO/4445/2022
Conclusion
Note 1 Regulation 5(5) relaxed the requirement in reg.5(1) for certain discharges into high natural dispersion areas. [Back] Note 2 Overflows that spilled more than 60 times in 2022. [Back] Note 3 See also p.14 of the Impact Assessment for the Plan to the same effect. [Back]