Targets for reduction in sewage outflow not unlawful, says High Court
28 September 2023
The King (on the application of Wildfish Conservation v Secretary of State for the Environment, Food and Rural Affairs and the Environment Agency (Defendant) and the Water Services Regulation Authority (Interested Parties)  EWHC 2285 (Admin)
In 2022, there were over three hundred thousand incidents of overflow into coastal waters, freshwater rivers and estuaries from sewerage works in the UK, following heavy rainfall. The most common cause of the overflows studied was rainwater entering sewers with insufficient capacity.
These proceedings were brought in regard to the publication of a Plan regarding setting out specific targets for water companies, regulators and the Government “to work towards the long-term ambition of eliminating harm from storm overflows”. These targets are compliance with existing statutory obligations, including conditions in permits issued by the Environment Agency.
The Plan sets three targets: that water and sewerage companies will by 2050 only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect; the second target is to protect public health in designated bathing waters: water and sewerage companies must by 2035 significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges; the third, a backstop target for 2050, which operates in addition to the first two targets: by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.
The Marine Conservation Society, an oyster growing company and an individual representing the public interest also challenged the legality of the Plan. The Environment Agency and Ofwat were interested parties.
In 2020 the sewerage network was under pressure from a growing population, increased run-off from urbanisation and heavy rainfall. It was acknowledged that the cause of overflow was the lack of capacity in the current sewer network and that had to be tackled. The government and Ofwat recognised that that water infrastructure had not kept pace with developmental growth over decades.
In the face of this, officials and ministers started formulating policy targets which would require improvements going beyond those which could satisfy a cost-benefit test(the so-called and therefore be required under regs.4 and 5 of the 1994 Regulations (BTKNEEC: see below.)
The new statutory plan that the Secretary of State had to produce was seen as a means to set specific, time-bound objectives which would drive widespread change on storm overflows across the country. But officials advised that the target should seek to reduce discharges significantly rather than eliminate them altogether, because of the costs involved and the small level of additional benefit generated.
The starting point is the Water Industry Act of 1991, which imposed various statutory obligations on water companies regarding the management of sewage. The Environment Act 2021 inserts into the WIA 1991 a suite of new provisions aimed at addressing inter alia capacity and overflow issues. By 2024, each sewerage undertaker will be required to show how they plan to manage its development and sewerage obligations under the WIA as amended.
Section 141A of the WIA is the provision under which the Secretary of State is required to prepare the “Plan” for the purposes of reducing discharges from storm overflows of sewerage undertakers and reducing the adverse impacts of these discharges on the environment and public health.
There are also the 1994 Urban Waste Water Treatment (England and Wales) Regulations of 1994. These impose an obligation on the sewerage undertaker to ensure that urban waste water is treated so as to ensure that disposal routes for treated waste water minimise the adverse effects in the environment. This, the Regulations provide, is to be achieved by the “design, construction and maintenance of collecting systems shall be undertaken in accordance with the best technical knowledge not entailing excessive costs”, this cost benefit expression being referred to as BTKNEEC.
Under the Environmental Permitting (England and Wales) Regulations the design, construction and maintenance of collecting systems should be undertaken in accordance BTNEEC. A typical permit condition allows the discharge of sewage via an overflow only when the flow passed forward for treatment exceeds a setting determined by the Environment Agency.
Other Regulations, designed to implement EU law on the subject, are discussed in the judgment, as well as the European Union (Withdrawal) Act of 2018 and the Human Rights Act 1998.
Arguments before the Court
Wildfish argued that when setting the first and third targets in the Plan, the Secretary of State failed to understand that reg.4 of the Urban Waste Water Treatment (England and Wales) Regulations 1994 Regulations requires water and sewerage companies to remedy insufficiency of physical capacity in accordance with the decision of the European Court of Justice in European Commission v UK (Re Storm Water Overflows) . They also maintained that the Plan was unlawful because it had the effect of directing water and sewerage companies to breach reg.4.
It also argued that the Secretary of State failed to take into account obviously material considerations, including the enforcement of reg.4 of the 1994 Regulations.
Wildfish also questioned whether the Plan constituted ‘a plan’ within reg.63 of The Conservation of Habitats and Species Regulations 2017 by failing to carry out an “appropriate assessment” of its effects on Special Areas of Conservation and Special Protection Areas. It argued therefore that approval of the Plan had been irrational.
All these arguments were rejected
The Court’s reasoning
WildFish submitted that the defendant proceeded on an erroneous view as to the scope of reg.4 of the 1994 Regulations, namely that it did not require physical incapacity of collecting systems and treatment works to be remedied. Holgate J said there was no merit in this first ground because it was ”plain that the [Secretary of State] was considering adopting a strategy for dealing with overflows which went substantially beyond existing legislation, in particular the 1994 Regulations.”
The judge said the option of complete elimination of all discharges had been rejected as being far too costly and two alternatives were considered; to reduce spills from all overflows to an average of either 10 or 20 a year.
“There is nothing in the plan or in the material leading up to the plan…to indicate that the secretary of state or Defra have proceeded on the basis that the 1994 Regulations do not require the physical capacity of a collecting system or treatment work to be remedied,” the judge said, adding there was “no merit in Wildfish’s contention that the third target in the plan purports to give effect to regs.4 and 5 of the 1994 Regulations and so involves a ‘downgrading’ of the force of those statutory requirements.
“That involves a misreading of the plan and the documentation which led up to it. “
Holgate J sam Wildfish’s argument was that in preparing and publishing the plan the Secretary of State failed to have regard to whether the standards set by specific ‘flow to full treatment’ permit conditions were failing to comply with the 1994 Regulations.
He said: “This argument is misconceived. The defendant was under no legal obligation to do this.”
There was also no merit, he found, in Wildfish’s contention that non-compliance with the 1994 Regulations was an obviously material consideration in formulating the plan, so that it was irrational for the secretary of state not to have addressed the subject in the plan’s policies.
The judge found the plan did not fall within the ambit of the appropriate assessment provisions in the 2017 Regulations and so rejected Wildfish’s third ground.
He said Wildfish’s claim that approval of the plan had been irrational “adds nothing to submissions which I have already rejected”.
“Because part of the claim brought by WildFish depends upon establishing irrationality, it is necessary to have in mind the relatively light intensity of review appropriate for dealing with a plan setting strategic or high level policy on environmental and socio-economic considerations, particularly where the legislation allows the minister a very broad discretion as to the contents of the plan and he is required to lay the document before Parliament to whom he is answerable. ” [para 151]
In the judge’s opinion it was important to keep in mind that, “according to the principles laid down in the UK case, the mere fact that a storm overflow discharges to a waterway in non-exceptional circumstances does not necessarily involve a breach of the 1994 Regulations. If there is no remedy for that occurrence which satisfies the BTKNEEC test, then the discharge is lawful under the 1994 Regulations. Sometimes WildFish’s case appeared to ignore that principle and suggested that overflows are only permitted in exceptional circumstances” [para 162]
“Section 141A [of the WIA 1991 as amended] imposes an obligation on the Secretary of State to produce a storm overflow reduction plan in addition to existing legal obligations. Parliament has not directed the Secretary of State to produce a plan dealing with any issues in relation to regulatory compliance, whether existing issues or ones which may arise during the lifetime of a plan.”
This legislation gives the Secretary of State a “very broad discretion” as to the contents of a plan. It does not mandate the Secretary of State to adopt polices setting out requirements in the discharge of the Environment Agency’s regulatory functions.
Holgate J rejected all three grounds argued by the three claimants in the other application, which he said were essentially similar to those of Wildfish, noting the Marine Conservation Society came “nowhere near showing that the defendant’s exercise of judgment on these matters was irrational”.
“MCS’s submission that the defendant was required by law to adopt targets in the Plan which align with the target in s.3 of the EA 2021. As I have said, s.141A does not require the Secretary of State to put forward any targets. The obligation is to produce a plan for the purposes of reducing discharges from storm overflows and their harmful effects. A plan does not have to contain quantitative targets in order to satisfy that requirement. Neither the language of s.141A of the WIA 1991 nor of Part 1 of the EA 2021 requires the Plan to “align with” the species abundance target. There is no requirement in the legislation that the Plan should contain proposals for contributing to the s.3 target by 2030 or thereafter.” [para 220]
The Court rejected the claimants’ contentions based on the right to life under Article 2 ECHR and the right to physical integrity under Article 8 ECHR. The Strasbourg case law does not establish that environmental protection against pollution afforded by Article 2 and/or Article 8 is owed to society or the population of a country as a whole. In the absence of special circumstances, a domestic could should follow the jurisprudence of the Strasbourg Court if it is “clear and constant”. The duty of a domestic court is to keep pace with that law, but not to go further. [para243]
Furthermore, a common law right to clean water cannot be derived from the public right to navigate and fish. Given that Parliament has intervened to provide dedicated controls to address the pollution of tidal waters, including the environmental permitting regime, there is no justification for extending the common law in the way the claimants contend. [para 252].
The Plan, concluded Holgate J, contains measures to improve the performance of storm overflows. It does not prejudice the need for WaSCs to comply with existing statutory requirements, including environmental permit conditions and the 1994 Regulations. That is the subject of an on-going, large scale investigation by the EA and Ofwat. Any issue about that process, such as whether those regulatory bodies are taking sufficient action, or whether the cost-benefit approach is sufficiently robust (e.g. with regard to the valuation of harm to ecology, or to human health and amenity, or to a business use) was not a matter for the Court in these proceedings. [para 237]