The King (on the application of Wildfish Conservation) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 15 September 2023 |
| Neutral Citation | [2023] EWHC 2285 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4438/2022 and CO/4445/2022 |
and
The King (on the application of)
and
[2023] EWHC 2285 (Admin)
THE HON. Mr. Justice Holgate
Case No: CO/4438/2022 and CO/4445/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Forsdick KC and Charles Bishop (instructed by Fieldfisher LLP) for the Claimant in CO/4438/2022
-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
FINAL JUDGMENT
Introduction
The claimants in these two applications for judicial review challenge the lawfulness of the Storm Overflows Discharge Reduction Plan (“the Plan”) published by the Secretary of State for Environment, Food and Rural Affairs on 26 August 2022 and laid before Parliament pursuant to s.141A of the Water Industry Act 1991 (“WIA 1991”).
The claimant in CO/4438/2022 is 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.
The first claimant in CO/4445/2022 is the Marine Conservation Society (“MCS”), the UK's largest marine charity. It seeks to promote cleaner, better protected and healthier oceans. It works to protect the marine environment through education, research and engagement with Government and business.
The second claimant in CO/4445/2022 is Richard Haward's Oysters (Mersea) Limited (“RHO”). This is a family business which, since the 1700s, has been cultivating oysters in and around the creeks leading into the River Blackwater to the west of Mersea Island, Essex. It operates both on “free ground”, which is a common resource, and 14 acres of oyster beds which it owns at Salcott Creek.
Mr. Hugo Tagholm is a swimmer, surfer and bodyboarder. He joined Surfers Against Sewage (“SAS”) in 1991 and was its Chief Executive from 2008 to 2023. SAS is recognised as one of the UK's marine conservation charities.
The Environment Agency (“EA”) is an interested party in both proceedings. It is responsible for regulating all discharges from storm overflows by issuing and enforcing compliance with environmental permits under the Environmental Permitting (England and Wales) Regulations 2016 (SI 2016 No. 1154) (“the 2016 Regulations”).
The Water Services Regulation Authority (“Ofwat”) is an interested party in CO/4438/2022. It is responsible for the economic regulation of water and sewerage companies in England and Wales, including the price review mechanism. It is also under a duty to take enforcement action against discharges from storm overflows in breach of s.94 of the WIA 1991 and the Urban Waste Water Treatment (England and Wales) Regulations 1994 (SI 1994 No. 2841) (“the 1994 Regulations”).
The spillage of large quantities of sewage in various locations throughout the country has become the subject of widespread public concern. So it is important to emphasise at the outset what this case is and is not about. Judicial review is the means of ensuring that public bodies, including ministers, act within the limits of their legal powers and in accordance with any duties, legal principles and procedures governing the exercise of their functions. The court's role is to resolve questions of law. It is not responsible for making political, social or economic choices or decisions about, for example, the acceptability of environmental impacts. Those choices and decisions have been entrusted by Parliament to ministers and regulatory bodies. Such matters may be the subject of legitimate political and public debate, but they are not for the court to determine. The court is only concerned with legal issues raised by the claimants as to whether the defendant has acted unlawfully. It is not for the court to assess the merits of the policies in the Plan.
Factual background
The parties have helpfully agreed a statement of facts which sets out the background to these claims.
The combined sewerage system in England and Wales carries both sewage from homes and businesses as well as water generated by rainfall falling on built-up areas. When combined sewers become overwhelmed in a heavy rainstorm, overflows are designed to act as a “safety valve” by releasing contents from the sewer (including diluted but untreated sewage) into waterways. The overflows also prevent sewage backing up into homes and streets during very heavy rainfall. They may be located either in the combined sewer network or at a wastewater treatment works. There are around 15,000 storm overflows.
Where the flow of water exceeds the capacity of a system or treatment works, untreated sewage may be released via a storm overflow into rivers, estuaries or the sea. This may cause harm to humans and to the environment. In addition, for a number of years storm overflows have been used regularly in dry weather conditions, a use for which they are not intended.
Around 10–12% of the storm overflows discharge into estuaries and coastal waters. These estuaries and coastal waters include Marine Protected Areas (or “MPAs”), an umbrella term which covers the marine parts of the following: Special Areas of Conservation (SACs), Special Protection Areas (SPAs), Marine Conservation Zones (MCZs), Nature Conservation Marine Protected Areas, Sites of Special Scientific Interest (SSSIs) and Ramsar sites. Estuaries and coastal waters also include shellfish water protected areas of which there are 101 in England.
The EA collects “Event Duration Monitoring” data on the frequency and duration of storm overflow spills from the water and sewerage companies (“WaSCs”) operating in England. This data was available to the SoS at the time the Plan was finally approved. It shows that in 2022 52% of storm overflows spilled more than 10 times; 39% more than 20 times; 20% more than 40 times and 11% more than 60 times. The average duration of each spill was 5.8 hours but a spill may last a full day.
Overall, there were 301,091 spills in 2022. That represented a decrease from the previous year because of drier weather in that year.
The EA's data shows that of the 1,355 outflows they have assessed so far, the reason for the spill was lack of hydraulic capacity in 60% of cases, a maintenance issue for 16% and exceptional rainfall for 0%. The reason for the spills in 21% of storm overflows was still being investigated. Inadequate capacity was the overwhelming cause of the spills from the storm overflows with the highest number of spills, that is those with more than 60 spills a year.
Section 141A was inserted into the WIA 1991 by s.80 of the Environment Act 2021 (“EA 2021”). Section 141A(6) required the Plan to be published by 1 September 2022. The Storm Overflows Evidence Project (“SOEP”), prepared by Stantec Limited (“Stantec”) and published in November 2021, formed part of the evidence base for the Plan. An Addendum was issued in March 2022. The defendant consulted on a draft plan between 31 March 2022 and 12 May 2022. There were nearly 22,000 responses. On 2 September 2022 the Department published an Impact Assessment for the Plan.
In section 3.2.2 of the SOEP, Stantec stated that the most common cause of the overflows studied was rainwater entering sewers with insufficient capacity. Hydraulic modelling indicated that inadequate capacity in sewerage systems explained 74% of the spill incidents measured. The view of the Government and regulators is that sewage overflows have been used far too often. The pressure on our combined sewer systems has increased because of (1) increases in population, (2) increases in impermeable surfaces resulting in more rainwater run-off, and (3) more frequent and heavier storms through climate change.
In 2013 the Government wrote to the 11 WaSCs in England and Wales requiring them to introduce monitoring of storm overflows. By 2015, 10% of overflows had monitors and by 2022 that proportion had increased to over 90%. It is expected that there will be 100% monitoring by the end of 2023.
During 2021 the monitoring by WaSCs revealed significant non-compliance with environmental permits through the discharge of sewage at overflows. By November 2021 estimates indicated that up to 30% of all treatment works would be affected and that this could even be worse, showing that the problem was far more widespread than previously identified.
The Environment Minister described the situation as wholly unacceptable and said that water companies had to take urgent and immediate steps to comply with their legal duties. She added that it was necessary to go much further than addressing non-compliance with existing rules and permits, by reducing the harm caused when spills are allowed in “exceptional circumstances”, such as severe weather conditions. On 18 November 2021 the EA and Ofwat announced a major investigation of over 2,000 sewage treatment works. That investigation is complex and ongoing.
In June 2022, following a complaint by WildFish, the Office for Environmental Protection established under the EA 2021 launched investigations into...
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