Raw sewage in the Court of Appeal

21 February 2023 by Guest Contributor

The pumping of raw, untreated sewage into Britain’s waterways is one of the defining political issues of the day. Its potency as a legal issue, however, is limited. That, at least, is the outcome of R (Wild Justice) v OFWAT [2023] EWCA Civ 28.

The Claimant, a not-for-profit organisation which advocates for the protection of wildlife and nature, asked the Court of Appeal for permission to apply for judicial review of the Respondent’s alleged failure to perform its duties to regulate the discharge of raw sewage. 

Permission had already been refused twice below – on the papers by Ellenbogen J, and at an oral hearing by Bourne J. This appeal was heard by Bean LJ.

The law

The Claimant’s application turned on compliance with several statutory duties found in the Water Industry Act 1991 and the Urban Waste Water Treatment (England and Wales) Regulations 1994. For the purposes of this application, those duties fall into two groups.

First, the Respondent’s own regulatory duties:

• Section 2A of the 1991 Act requires the Respondent to secure that the functions of sewerage undertakers are properly carried out. Notably, the Respondent must do so “in the manner which it considers best calculated”. As discussed further below, this discretionary caveat may explain the bold, but ultimately unsuccessful strategy pursued by the Claimant.
• Section 27 of the 1991 Act requires the Respondent to collect information regarding the carrying on by sewerage undertakers of their functions.

Second, the duties of sewerage undertakers (i.e., private water companies such as Thames Water), which the Respondent must regulate:

• Section 94(1) of the 1991 Act requires sewerage undertakers to provide, improve, clean, and maintain public sewers, and to empty them by means of sewage disposal.
• Regulation 4 of the 1994 Regulations, which supplements the section 94 duties, further obliges sewerage undertakers to ensure the “design, construction and maintenance of collecting systems notably regarding […] limitation of pollution of receiving waters due to storm water overflows”, and to treat urban waste water in accordance with certain requirements.

Proposed grounds of review

The Claimant raised four grounds of challenge, arguing that the Respondent unlawfully-

1. took a passive stance in relation to enforcement of the 1994 Regulations, including taking no steps to obtain information relating to compliance with them from undertakers with specific obligations;
2. failed to collect information on the sewerage undertakers’ performance of their obligations under the 1994 Regulations;
3. failed to discharge its functions so as to best secure that sewerage undertakers carry out their obligations under the 1994 Regulations;
4. considered that the collection of data passed on by another enforcement body, the Environment Agency (“EA”), was sufficient to discharge the Respondent’s obligations, even though the EA collected that information in order to comply with its own, distinct obligations (perhaps understandably, Bean LJ described this particular ground of challenge as “extraordinarily technical”). 

Decision

Crucially, grounds 1 to 3 each alleged what Bean LJ called a “wholesale failure” on the part of the Respondent to fulfil their regulatory obligations. Rather than arguing that they had not done enough, had acted insufficiently, or had carried out their obligations in the wrong way, the Claimant was simply accusing Ofwat of not performing those duties at all.

As they were framed in this way, Bean LJ had little trouble agreeing with the judges below and dismissing all three grounds. All the Respondent had to do was highlight, in essence, that they had done more than nothing in the fulfilment of those duties. This was achieved by way of its letter in response to the Claimant’s pre-action protocol letter, in which the Respondent explained-

• Ofwat’s functions, as well as those of the EA;
• Ofwat’s approach to monitoring and enforcement;
• that it was currently investigating all water companies and was developing its wastewater monitoring and compliance assessment;
• the monitoring activities it carries out, including collecting information of the annual performance commitments given by water companies;
• that Ofwat had sent notices to five water companies requesting further, site-specific data in response to information received from the EA, and that those notices specifically referenced potential contraventions of the 1991 Act and 1994 Regulations.

Ground 1 was therefore not arguable because the evidence in the Respondent’s letter was destructive of the broad allegation that it had taken a “passive stance”. Grounds 2 and 3 were similarly unsuccessful because in the words of Bourne J, cited approvingly by the Court of Appeal: “However well or badly [the Respondent] has done those things it is not arguable that it has simply failed to do them”.

Finally, ground 4 was also rejected as unarguable on the basis that it was “plain and obvious” that the data passed over by the EA “were and remain relevant” to the obligations of the water companies that are regulated by the Respondent.

Comment

Courts like reviewing laws. They are much less comfortable assessing policy, which risks dragging judges out of what Conor Gearty has called the “shallow end” of the swimming pool and towards the “deep end” in which they risk making merits-based decisions on matters in which public bodies have discretion.

It was perhaps for this reason that the Claimant elected to avoid a policy-based argument altogether, instead adopting the ambitious ploy of stating that the Respondent had not fulfilled their duties full stop. This argument could have provided a tempting get-out for a sympathetic judge who was with the Claimant on the merits, but who was wary of wading into policy and undermining the freedom given to the Respondent by the “best calculated” clause in section 2A of the 1991 Act. Rather than finding against the Respondent on the basis that they disagreed with the way in which they implemented their duties, such a judge could have held that the Respondent only ever purported to fulfil those duties and had therefore totally failed to do so.

The problem for the Claimant, however, was that the broad framing of the allegations was easily rebuttable by evidence that the Respondent had pursued some regulatory activity under the banner of its duties under the 1991 Act. As Bourne J stated in his decision below: “This Court may not be well placed to assess, and has not been asked to assess, the merits or demerits of the specific action which Ofwat is taking. Instead, the claim is based on a lack of connection with the regulation 4 obligations but, as I have said, there is plainly a connection with those obligations”. Put simply, arguing that the Respondent had done nothing in the fulfilment of its duties flew in the face of reality.

This week has seen two further significant developments in the world of sewage. First, it has been reported that the government is considering rowing back from its plans to fine water companies up to £250m for discharging untreated sewage into rivers and seas. Second, at least one judicial review concerning sewage will be heard in full, after the Marine Conservation Society received permission to proceed with a claim against the government under the Public Trust Doctrine. Whilst the former confirms that sewage will not be leaving the political stage any time soon, the latter shows that its path through the courts isn’t entirely blocked, after all.

Nicholas Jones is a pupil barrister at 1 Crown Office Row