WWF-UK v Secretary of State for Environment, Food and Rural Affairs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 07 July 2021 |
| Neutral Citation | [2021] EWHC 1870 (Admin) |
| Docket Number | Case No: CO/3029/2015 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
[2021] EWHC 1870 (Admin)
Mrs Justice Lang DBE
Case No: CO/3029/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe QC instructed by Jake White, Head of Legal WWF-UK, for the First Applicant/Claimant and Justin Neal, in-house solicitor Fish Legal, for the Second and Third Applicants/Claimants
Richard Turney (instructed by the Government Legal Department) for the First Respondent / Defendant
Andrew Parkinson (instructed by Legal Services) for the Second Respondent / Defendant
The Interested Party did not appear and was not represented
Hearing date: 16 June 2021
Approved Judgment
This application arises from a claim for judicial review, disposed of by way of a consent order (“the CO”) at a hearing on 27 November 2015, which gave the parties liberty to apply in relation to the enforcement of the Schedule to the Order. The Claimants now apply for a declaration that the Defendants are in breach of the Schedule to the CO.
The original claim
The Claimant's case
In the original claim, the Claimants applied for judicial review of the Defendants' failure to comply with the obligations of Directive 2000/60/EC, known as the Water Framework Directive (“WFD”), for protected areas, in particular, by not making orders for Water Protection Zones (“WPZs”).
Article 4(1) WFD requires Member States to implement programmes of measures, specified in river basin management plans, for surface waters, groundwater and protected areas.
By Article 6(1) WFD, protected areas are to be listed in a register, and they include all protected areas covered by paragraph 1(v) of Annex IV which are:
“areas designated for the protection of habitats or species where the maintenance or improvement of the status of water is an important factor in their protection, including relevant Natura 2000 sites designated under Directive 92/43/EEC(1) [the Habitats Directive] and Directive 79/409/EEC(2) [the Wild Birds Directive].”
Article 2(2) of the Habitats Directive provides that:
“Measures taken pursuant to this Directive shall be designed to maintain or restore, at favourable conservation status, natural habitats and species of wild fauna and flora of Community interest.”
The Claimants submitted that the combined effect of the Habitats Directive and Article 4(1)(c) WFD was that, by 22 December 2015 (15 years after the WFD came into force), favourable conservation status was to be achieved for the water dependent features of Natura 2000 sites where the maintenance or improvement of the status of water was an important factor in their protection.
It was common ground that a barrier to achieving favourable conservation status in many Natura 2000 sites in England was diffuse water pollution from the activities of third parties, e.g. agriculture.
By Article 11(1) and (2) WFD, Member States are required to establish a programme of measures, to include basic measures and where required, supplementary measures. Article 11(3) describes basic measures as the minimum requirements, which include, among other matters:
“(h) for diffuse sources liable to cause pollution, measures to prevent or control the input of pollutants….”
By Article 11(8), the programme of measures was to be established no later than 9 years after the coming into force of the WFD and to be made operational no later than 12 years after that date.
The UK introduced river basin management plans for each river basin, pursuant to Article 13(1) WFD. These plans provided, among other matters, that voluntary measures and WPZs would be used to achieve favourable conservation status in protected areas.
The UK made provision for WPZs with effect from 22 December 2009 by way of an amendment to the Water Resources Act 1991 (“WRA 1991”). By section 93(5) and Schedule 11 of the WRA 1991, the Secretary of State is empowered to make an order designating an area as a WPZ and to regulate specified activities so as to prevent or control the entry of any polluting matter into controlled waters with a view to prevent or limit harm, as defined.
The Claimants complained that, although other measures had been deployed, the First Defendant had not designated any WPZs. A letter from the Second Defendant to the Claimants, dated 24 March 2015, referred to a report made in 2011 which stated “WPZs do have a future role but this is as a ‘last resort’ where other mechanisms are unlikely to deliver the required objective”. The Claimants argued that the “last resort” approach was unacceptable, given the continuing failure of other measures to achieve favourable conservation status in protected areas within the 15 year deadline. The Claimants submitted that the failure to progress WPZs was unlawful, and active steps should now be taken to deploy them.
The Claimants relied upon extensive evidence of the threat posed by pollution to habitats and wildlife, which was not being successfully addressed by the Defendants' current measures. In October 2014, Natural England produced a spreadsheet entitled ‘ Extended Deadline information for Natura 2000 Protected Areas’ which showed that, of the 57 sites identified as failing in the 2009 river basin management plans, some 50 sites continued to be impacted by agricultural diffuse pollution, and time extensions were now proposed for 39 of them.
The Defendants' case
The Defendants' response was that a WPZ was not an off-the-shelf, ready-made “solution” to the problems presented by diffuse water pollution. It was a bespoke regulatory tool which had to be tailor-made to address the specific causes of pollution in a specific area and in a specific way, by identifying specific measures to address those causes. It required a robust evidence base in order to justify it and to be effective.
The Defendants explained that, together with Natural England, they were undertaking the very work which was required before any WPZs could be designed or designated, namely, to determine what measures were required in each area. The fact that such work was not described as specific to the creation of a WPZ was irrelevant. The work may show that a WPZ is not needed in any one given area, because the identified measures will be sufficient even without the backing of a WPZ. Equally, it may show that a WPZ is in fact needed in that area. It is only by completing the work of identifying the required measures that a judgment will be able to be made as to where it may be necessary to back them with a WPZ in order to achieve the required standards for protected sites, and, if so, precisely what measures should be adopted within the context of any such WPZ.
The Defendants had not adopted a policy or “doctrine” whereby WPZs will not be identified as necessary (or even considered for deployment) until other measures aimed at achieving compliance have failed. The Defendants were giving specific and active consideration to the measures which need to be adopted to achieve the objectives required by the WFD. In that context, the use of a WPZ remains an available option.
The Claimants' submission that WPZs must be progressed and implemented without delay did not have regard to factors such as whether there was sufficient evidence to ensure it would be effective; the costs its imposition would incur; whether those costs were proportionate to any benefit which might be obtained; and whether similar benefits could be achieved by less intrusive means. The WFD does not require that Member States must make use of all available measures, regardless of whether a particular measure's use would be effective and proportionate. It is wholly acceptable to work towards the use of a particular measure over time, where it is not at present technically feasible, or it would be disproportionately expensive, to do otherwise. The deployment of WPZs remained under consideration in the context of the updated river basin management plans, but there were also a range of other measures which may be implemented to achieve the applicable standards and objectives for protected sites.
So far as the timing by which those objectives are met was concerned, all the necessary improvements in the status of the water bodies could not reasonably be achieved by 22 December 2015. The work completed since 2009 has shown that the scale of the improvements required can only reasonably be achieved in phases exceeding that timescale, for reasons of technical feasibility and because completing the improvements within that timescale would be disproportionately expensive. While it is true that in 2009, the river basin management plans anticipated that the objectives would be met (including by use of WPZs), matters had moved on with the benefit of considerably fuller information and understanding of the problems raised by diffuse water pollution.
In those circumstances, the WFD allowed the timescale for achieving the required objectives to be extended. It was not necessary to prematurely deploy poorly researched and disproportionate WPZs before an extension to the deadline was capable of being invoked under the terms of Article 4(4) WFD.
For these reasons, the Defendants had not acted unlawfully. Further, the Claimants' proposed order that the Defendants should take steps to investigate or progress the deployment of WPZs was inappropriate and unnecessary in any event. Whether ultimately a WPZ could or should be deployed will depend on the circumstances in relation to each individual site, and on the judgment formed in each case as to the most proportionate,...
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