Environment – Water conservation – Management plan – Defendant secretary of state approving plan setting out programme of generic measures for river basin not specific to particular site or water body – Claimant association seeking statutory review of decision – Whether defendant erring in approving plan – Whether measures required to meet relevant environmental objectives at level of individual water bodies – Application granted
The claimant was an unincorporated association which owned leasehold and freehold fishing rights for most of the Upper Costa Beck (UCB), a surface water body in the Ryedale district of North Yorkshire.
The defendant secretary of state was the appropriate authority for river basin districts in England under the Water Environment (Water Framework Directive) England and Wales Regulations 2017. They transposed Council Directive 2000/60/EC (the Water Framework Directive) into domestic law.
The interested party Environment Agency was the “appropriate agency” for river basin districts in England and had various water management responsibilities under the Regulations.
On 14 December 2022, the defendant approved the updated Humber River Basin Management Plan under regulation 31(1) of the 2017 Regulations. It considered that, although the measures in the plan were entirely generic and not specific to any particular site or water body, that was permissible under regulation 12 which did not require the measures to relate to particular water bodies or the steps to achieve the environmental objectives for specific water bodies.
The claimant applied for judicial review of that decision. There was an obligation on the defendant to set out the measures to be taken to meet the objectives in respect of the individual water body (here the UCB); to review those measures; and to consult upon them. It was those specific water body measures which the claimant argued had not been lawfully set out, consulted upon and approved by the defendant.
Held: The application was granted.
(1) The programme of measures had to set out the measures which met the requirements of the Water Framework Directive and the 2017 Regulations. There was nothing unlawful about the programme of measures referring to wholly generic measures, ie, they applied across a range of water bodies, either across the country or the River Basin. Equally the level of detail required in the programme of measures would vary, and the interested party would have a discretion in that regard.
The issue in this case was one of statutory interpretation, whether the defendants erred in law in their interpretation of the Regulations in failing to appreciate that the programme of measures needed to have measures which related to specific water bodies. Given that error of law, the defendants never got to the stage of exercising a discretion as to what water body specific measures were necessary in respect of the UCB. Once the correct legal analysis was applied there might be further dispute over what was required in the water body specific programme of measures, but that was not the issue before the court on appeal.
(2) The environmental objectives, as set out in regulation 13(1) and (2) plainly related to specific water bodies. That was apparent from the wording of regulation 13(2) and was accepted by the defendant. Given that the environmental objectives were water body specific, and the programme of measures was created to achieve those objectives, it was counter-intuitive to suggest that the measures in the programme of measures could be wholly generic and not focused on whether, when and how the environmental objectives designated for the individual water body would be met.
The content of the programme of measures was set out in article 11 (and regulation 20). Article 11(3)(g) referred to a basic measure including for point source discharges (such as a water treatment works) a requirement for prior regulation, and that the controls should be periodically reviewed where necessary. It was not clear whether that was generic controls, or it was intended to mean that the programme of measures had to make specific reference to discharges and review. However, the plan did make reference to the specific point source discharges in UCB. It seemed logical that where article 11(3)(g) referred to controls being “where necessary” updated, that was a reference to individual water bodies and discharges, otherwise the phrase did not make sense.
(3) Ultimately the decision as to whether an individual discharger needed to be more tightly controlled could only be made on a water body specific basis. Even if it might be argued that the review of discharges could be wholly generic, that could not be correct where the fundamental purpose of the “measures” was to achieve compliance in respect of objectives which were water body specific.
Further, article 11(5) stated that where monitoring showed that objectives were unlikely to be achieved then the member state should ensure that relevant permits and authorisations were reviewed, and then additional “measures” as might be necessary to achieve the objectives were established. That had to be water body specific in order to make sense. Article 11(8) stated that the programme of measures should be reviewed, and any new or revised “measures established under an updated Programme shall be made operational within three years…”. On the defendant’s approach, the “measures” referred to in article 11(5) were different from the “measures” in article 11(8), because those in article 11(8) were necessarily included in the programme of measures.
(4) As with all statutory documents, it was necessary to read the document as a whole and with a view to its mischief. The submission that the water body specific measures in article 11(5) were different from the measures in article 11(8) failed to read the WFD as a whole.
Regulation 16(6)(b) also made clear the linkage between the environmental objectives, which were water body specific, and the measures. That regulation referred to the measures “which are envisaged as necessary to bring the body of water progressively to the required status by the extended deadline”. Again, if the measures were generic and there was no way to refer them to specific water bodies in order to consider their effectiveness in reaching the deadline then that appeared to rob regulation 16(6)(b) of any effect.
In all the circumstances, the defendant had misdirected herself on regulation 12. Given that error of law, the defendant never got to the stage of exercising a discretion as to what water body specific measures were necessary in respect of the UCB.
David Wolfe KC and Raj Desai (instructed by Fish Legal) appeared for the claimant; Nina Pindham (instructed by Government Legal Department) appeared for the defendant; Matthew Fraser (instructed by Environment Agency) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Pickering Fishery Association) v Secretary of State for environment, Food and Rural Affairs
