Government approach found unlawful in successful water industry judicial review

In R. (on the application of Pickering Fishery Association) v Secretary of State for the Environment, Food and Rural Affairs [2023] EWHC 2918 (Admin) the High Court has upheld an application for judicial review of the Secretary of State's ("SoS") decision to approve a River Basin Management Plan ("RBMP") with potentially broad implications for the approach taken by the SoS and the Environment Agency ("EA") in relation to other bodies of water.

Key points

• While expert decision makers are afforded wide discretion in their area, the court demonstrated the importance of proper statutory interpretation and the need to comply with the legislative purpose.
• Failing to provide legally required information amounted to an unlawful consultation, as it precluded consultees from actively and intelligently participating in the consultation process.
• The correct approach to statutory interpretation requires legislative documents to be read as a whole.

Background

The Water Environment (Water Framework Directive) England and Wales Regulations 2017 ("the Regulations") transpose the Water Framework Directive 2003 ("WFD") into domestic law and require a review and update of RBMPs containing a Programme of Measures every six years. This is aimed at achieving the environmental objective of good ecological status for all waterbodies by the target date of 2027. The SoS has the duty to review and consult on the Programme of Measures submitted by the EA.

The Claimant challenged the lawfulness of the RBMP for the Upper Costa Beck ("UCB"), a body of water within the Humber district for which it owns leasehold and freehold fishing rights. The water quality of the UCB had been deteriorating, in part, due to sewage overflows. The SoS took a generic approach when approving the draft RBMP, arguing that the Programme of Measures did not need to relate to individual waterbodies.

The main thrust of the Claimant's challenge was whether, and to what degree, the RBMP 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 was what measures are going to be taken to achieve the environmental objectives referred to in the WFD and the Regulations.

Judgment

Lieven J agreed with the Claimant's interpretation of the Regulations, holding that the SoS had erred in law. Acknowledging that the Regulations are not particularly clear in their drafting, Lieven J set out to identify the intended purpose and scope of the provisions.

The court accepted that there may be cases where the required measures are wholly generic and apply across a range of water bodies. There is nothing unlawful about the Programme of Measures referring to such generic measures. Equally the level of detail required in the Programme of Measures will vary, and the EA will have a discretion in that regard. However, as a matter of statutory interpretation, here the Programme of Measures needed to have measures which relate to specific water bodies which the SoS failed to appreciate. Given that error of law, the SoS never got to the stage of exercising a discretion as to what specific measures were necessary in respect of the UCB.

The SoS contended that there was a discretion to include specific waterbody measures within the Programme of Measures, but not a duty, and the draft plan was sufficient in giving the SoS the requisite level of confidence that the environmental objectives would be met. The court was largely unimpressed by this, describing the Defendant's approach as one of "smoke and mirrors". When examined, there was no evidence to suggest the Programme of Measures would be expected to achieve the environmental objectives for this individual waterbody i.e. the UCB, which was the critical purpose of the legislation.

On conventional principles of statutory interpretation, the environmental objectives clearly related to specific waterbodies and the Programme of Measures are "to be applied in order to achieve those objectives". As such, given that the legislation was aimed at protection of areas of water, the court held it would be counterintuitive to neglect "whether, when and how" the objectives for the individual waterbody would be met.

Lieven J emphasised the requirement to read the document as a whole and considered the Defendant's interpretation inconsistent with this requirement.

Notably, this analysis was supported by a guidance document that the SoS produced in September 2021 which clearly stated that there must be a Programme of Measures "for each waterbody". Therefore, the SoS's argument that the Claimant's interpretation of the Regulations would be administratively impossible if individualised measures were developed for each of the 4,929 waterbodies, was not only unfounded, but overlooked and was undermined by the SoS's own statutory guidance. In addition, the issue of whether this would require additional resources was not a matter for the court; its primary function is one of statutory interpretation.

Finally, the court held, through the SoS's error of law, that there had also been an error in the consultation process because the plan did not contain the legally required information.

Comment

While the court's focus was to establish whether the SoS's specific decision on a particular body of water was vitiated by an error of law, this decision has the potential to have far-reaching implications for the water industry, not least because the UCB is one of 4,929 bodies of water covered by the Regulations.

It also demonstrates that even in specialist areas where expert regulatory bodies and decision makers are afforded broad discretion, the court will closely examine arguments about statutory interpretation and reach its own conclusions informed by the purpose of the legislation.