Out-Law News 2 min. read
29 Nov 2023, 10:14 am
In a first, the Department for Environment, Food & Rural Affairs (DEFRA) and the Environment Agency’s (EA) approach to plans to protect and enhance rivers and other water bodies in England has been found unlawful.
DEFRA and the EA were deemed to have failed to specify the measures required to meet environmental objectives for each river and water body in sufficient detail. It is the first such ruling since the introduction of the duty to produce river basin management plans (RBMPs) under the Water Framework Directive (WFD) in 2003.
Earlier this year, Pickering Fishery Association in Yorkshire applied for a judicial review of DEFRA's 2022 RBMP for the Humber district. The club argued that the RBMP lacked the necessary legal measures to restore the Upper Costa Beck, including a review and strengthening of inadequate discharge permits.
After a two-day hearing at the High Court, Mrs Justice Lieven ruled in favour of the fishery association on multiple grounds, finding errors in the government’s application of the 2017 Water Framework Directive Regulations and failure to conduct a lawful consultation.
The judge held that the “fundamental requirement” to assess and identify specific measures to achieve mandatory targets for each waterbody, such as enhanced environmental permits for controlling sewage pollution, had unlawfully not been fulfilled.
She noted a lack of evidence on how the RBMP could reasonably achieve environmental objectives. The judge also described the risk commentary in the RBMP overview as “generic”.
The Secretary of State and the EA had argued that the club’s interpretation of the requirements was “administratively unworkable and impracticable”, explaining that it would be unrealistic to expect the plans to contain individualised measures for each of the 4,929 water bodies in England, and the 58,000 water discharge permits and 20,000 licences that the EA regulated in them. The law assumes that parliament did not intend an interpretation that leads to unworkable or impracticable consequences. Mrs Justice Lieven held that the evidence did not support that and that if additional resources were required, “[t]hat is not a matter for the Court. The Court’s function is to interpret the statutory provisions.”
In addition, Mrs Justice Lieven found that the public consultation process by the EA was unlawful due to insufficient information regarding proposed actions to address fish failure.
Gordon McCreath, water expert at Pinsent Masons, said: “On the face of it, this ruling has significant financial consequences for the Environment Agency, at a time when its existing resources are already being criticised as inadequate to achieve effective regulation of the environment, and the water environment in particular. It isn’t clear from the judgment to what extent the court grappled with whether it was enough for the EA to apply the environmental objectives in its day to day regulation of the river in question: many of us have experienced a permit refusal on the basis that it would not be consistent with WFD objectives”.
“Some might question whether additional resources are best spent on writing plans, rather than regulating and enforcing permits on the ground. In any event, with those real world consequences in mind, it wouldn’t be a surprise if this case continues to run and an appeal is lodged,” he added.