The King (on the application of Pickering Fishery Association by Martin Smith) v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven DBE |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] EWHC 2918 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/996/2023 |
and
[2023] EWHC 2918 (Admin)
Mrs Justice Lieven
Case No: CO/996/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr David Wolfe KC and Mr Raj Desai (instructed by Fish Legal) for the Claimant
Ms Nina Pindham (instructed by Government Legal Department) for the Defendant
Mr Matthew Fraser (instructed by Environment Agency) for the Interested Party
Hearing dates: 12 and 13 July 2023
APPROVED JUDGMENT
This is a challenge to the decision of the Defendant, the Secretary of State (“SoS”), on 14 December 2022 to approve the updated Humber River Basin Management Plan (“HRBMP”) under regulation 31(1) of the Water Environment (Water Framework Directive) England and Wales Regulations 2017 (“the Regulations”).
The Claimant is the Pickering Fishery Association, an unincorporated association established in 1892, acting through its Club Secretary (Martin Smith). The Claimant owns leasehold and freehold fishing rights for most of the Upper Costa Beck (“UCB”), a surface water body in the Ryedale district of North Yorkshire.
The SoS is the “appropriate authority” for river basin districts in England under the Regulations. These transpose the Water Framework Directive 2000 (“WFD”) into domestic law (with minor necessary amendments as retained EU Law).
The Interested Party, the Environment Agency (“the EA”), is the “appropriate agency” for river basin districts in England and has various water management responsibilities under the Regulations.
The representation was Dr David Wolfe KC and Raj Desai for the Claimant, Nina Pindham for the Defendant and Matthew Fraser for the Interested Party.
There is considerable overlap and interaction between the Grounds. In essence they are:
a. Ground One — error of law in respect of regulation 12(6) of the Regulations, namely the duty to carry out periodic review of the “Programme of Measures”;
b. Ground Two is not proceeded with as a separate Ground.
c. Ground Three — the SoS's approval of the HRBMP was wrong in law because the document submitted did not comply with regulation 3 and regulation 12;
d. Ground Four — breach of regulation 16(7) by failing to carry out a lawful review of the implementation of the measures set out in regulation 16(6)(b);
e. Ground Five – failure to carry out a lawful consultation.
Permission was granted on all Grounds by Mrs Justice Lang.
At the heart of all the Grounds lies the issue of whether, and to what degree, the HRBMP or any other documents produced by the EA pursuant to the Regulations must set out information at the level of the individual water body as opposed to at river basin district level, or even national level. The information in question is what measures are going to be taken to achieve the environmental objectives referred to in the WFD and the Regulations.
A significant complication in the case is that although the decision under challenge is the SoS's approval of the HRBMP, the real thrust of the case, as I understand it, is that there is an obligation on the SoS to set out the measures that are to be taken to meet the objectives in respect of the individual water body (here the UCB); to review those measures; and to consult upon them. It is these specific water body measures which the Claimant submits have not been lawfully set out, consulted upon and approved by the SoS.
The Water Framework Directive (WFD) and the Regulations
The scheme of the Regulations is a complex one, not least because it relates back to the WFD itself. I will therefore start with the Directive and then set out the relevant provisions of the Regulations. Regulation 3 makes the obligations under the WFD directly applicable and therefore it is necessary to read the two documents closely together.
Article 1 sets out the purpose of the WFD, and states:
“ Article 1 Purpose
The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:
…
(c) aims at enhanced protection and improvement of the aquatic environment, inter alia, through specific measures for the progressive reduction of discharges, emissions and losses of priority substances and the cessation or phasing-out of discharges, emissions and losses of the priority hazardous substances;
…”
Article 2(10) defines a “body of surface water” (in the Regulations “a water body”) as:
“… ‘Body of surface water’ means a discrete and significant element of surface water such as a lake, a reservoir, a stream, river or canal, part of a stream, river or canal, a transitional water or stretch of coastal water.”
Article 2(13) defines a “river basin” as the area of land from which all surface runoff flows through a sequence of streams, rivers and possibly lakes into the sea at a single river mouth, estuary or delta.
Article 2(15) of the WFD defines “river basin district” as the area of land and sea made up of one or more “neighbouring river basins together with their associated ground waters and coastal waters”. The WFD Regulations define these as “…the main unit for the management of river basins…”
Article 3(4) provides “Member States shall ensure that the requirements of this Directive for the achievement of the environmental objectives established under Article 4, and in particular all Programmes of Measures are coordinated for the whole of the river basin district”.
Article 4 sets out the environmental objectives for surface water:
“ Article 4 Environmental Objectives
1. In making operational the programme of measures specified in the river basin management plans:
(a) for surface waters
(i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;
(ii) …
(iii) Member States shall protect and enhance all artificial and heavily modified bodies of water, with the aim of achieving good ecological potential and good surface water chemical status at the latest 15 years from the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the applications of paragraphs 5, 6 and 7 without prejudice to paragraph 8; [emphasis added]
…”
Article 4(4) allows the time limits in Article 4(1) to be extended in certain circumstances and to certain limits:
“The time limits laid down in paragraph 1 may be extended for the purposes of phased achievement of the objectives for bodies of water, provided that no further deterioration occurs in the status of the affected body of water when all the following conditions are met:
(a) Member States determine that all necessary improvements in the status of bodies of water cannot reasonably be achieved within the timescales set out in that paragraph for at least one of the following reasons:
(i) the scale of improvements required can only be achieved in phases exceeding the timescale, for reasons of technical feasibility;
(ii) completing the improvements within the timescale would be disproportionately expensive;
(iii) natural conditions do not allow timely improvement in the status of the body of water.
(b) Extension of the deadline, and the reasons for it, are specifically set out and explained in the river basin management plan required under Article 13.
(c) Extensions shall be limited to a maximum of two further updates of the river basin management plan except in cases where the natural conditions are such that the objectives cannot be achieved within this period.
(d) A summary of the measures required under Article 11 which are envisaged as necessary to bring the bodies of water progressively to the required status by the extended deadline, the reasons for any significant delay in making these measures operational, and the expected timetable for their implementation are set out in the river basin management plan. A review of the implementation of these measures and a summary of any additional measures and a summary of any additional measures shall be included in updates of the river basin management plan.”
The UCB is a heavily modified water body (“HMWB”), because of the human impact upon it, and therefore Article 4(1)(a)(iii) applies.
Article 5 requires each Member State to ensure that there is an analysis of the characteristics of the river basin, according to the technical specifications in Annex II. Paragraph 1.5 of Annex II states:
“ 1.5 Assessment of Impact
Member States shall carry out an assessment of the susceptibility of the surface water status of bodies to the pressures identified above.
Member States shall use the information collected above, and any other relevant information including existing environmental monitoring data, to carry out an assessment of the likelihood that surface water bodies within the river basin district will fail to meet the environmental quality objectives set for the bodies under Article 4. Member States may utilise modelling techniques to assist in such an assessment.
For those bodies identified as being at risk of failing the environmental quality objectives, further characterisation shall, where relevant, be carried out to optimise the design of both the monitoring programmes required under Article 8, and the programmes of measures required under Article 11.” [emphasis added]
Article 11 sets out matters at the heart of the dispute in this case. It is headed ...
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