Claimants say Government sewage overflow plan contrary to ancient common law rights in pre-action letter

A surfer and an oyster supplier have joined with the Good Law Project to threaten a judicial review of a Government plan they argue will allow the discharge of untreated sewage into water bodies to continue for decades, breaching their "ancient" common law rights under the Public Trust Doctrine (PTD).

The three proposed claimants say that the plan published by the Secretary of State for Environment, Food and Rural Affairs in August 2022 also fails to discharge the Secretary of State's duty under s.141A of the Water Industry Act 1991, and is in breach of the European Convention on Human Rights.

Some sewers in England can become overwhelmed, resulting in the sewer releasing its contents, which include "foul water", into waterways.

In discharging its duty under the Water Industry Act 1991, the Secretary of State must publish a plan that seeks to reduce the rate of these events, known as "storm overflows", in England and reduce their adverse impacts. 

To fulfil this duty, the Secretary of State adopted the Storm Overflows Discharge Reduction Plan in August 2022.

But the claimants say the plan's targets "are not ambitious enough to meaningfully reduce the risks posed by sewage discharges in [shellfish water protected areas]" to marine life and human life in the short to medium-term.

They also criticise "extremely vague, aspirational objectives" in the plan for exploring whether action is needed on the issue.

Hugo Tagholm, who is a recreational swimmer and surfer, and a campaigner for marine conservation, claims the increasing rate of storm overflows where he surfs in Cornwall have a "serious inhibiting impact" on his ability to make recreational use of Cornwall's coastal waters.

The second claimant, Richard Haward's Oysters Ltd (RHO), which is a business that cultivates oysters in and around the creeks of Mersea Island, Essex, says that its operations have to pause in the aftermath of a discharge, which "has a substantial knock-on effect" on supply.

Given the high risk of discharges, the business also has to test its oysters for E. coli and salmonella twice per week, at "significant" cost.

In their letter before claim, the claimants argue that the plan fails to discharge the Secretary of State's duty under s.141A of the WIA 1991, properly understood.

They also claim that the plan breaches Tagholm's and RHO's rights under (respectively) Article 1 of the First Protocol (right to property) to the European Convention on Human Rights (ECHR) and Articles 2 (right to life) and 8 (right to respect for private and family life) of the ECHR.

Under the third ground, the claimants allege that the plan is contrary to the PTD, which provides ancient common law rights for residents to fish, gather food, and navigate over coastal waters and the foreshore of England.

"The PTD also confers collateral obligations on the Secretary of State, since the Crown (acting through the Executive) holds the foreshore and coastal waters 'in trust' for the public, to safeguard those rights. In this context, those obligations include a duty to maintain coastal waters in a fit ecological state to support fisheries and to allow for recreation; but also generally, for the sake of the marine environment," the letter before claim reads.

According to the letter, the PTD appears to have been the basis for the success of the early environmental claimant Juliana the Washerwoman, who in 1299 challenged her neighbour, John de Tytyng, the Mayor of Winchester, when he cut off her use of the watercourse.

Giving judgment, King Edward I held that water had always been common and also decreed that it was unlawful to contaminate it with a number of pollutants, including animal blood and human excrement.

In the 20th century, the PTD was also recognised as underpinning a principle of English common law that subjects of the realm were entitled as of right to navigate and fish in the high seas and tidal waters.

The pre-action protocol letter calls on the Government to respond to the letter by 1 November.

Defra declined to comment on the ongoing legal proceedings.

Adam Carey