Campaign group threatens Government with second legal challenge over alleged attempt to relax water pollution rules “through the back door”

Environmental campaign group Wild Justice has sent a pre-action protocol letter to the Secretary of State for Environment, Food and Rural Affairs, Steve Barclay, over what it says is a bid to relax water pollution rules.

The new rules would permit house building in sensitive water catchment areas without enforcing measures to protect them from sewage pollution, Wild Justice claims.

Represented by law firm Leigh Day, the group said a notice to planning authorities and water companies published 25 January 2024 was an “unlawful attempt” to use guidance to introduce a change that was defeated in the House of Lords last year when Levelling Up Secretary Michael Gove proposed an amendment to the Levelling Up and Regeneration Bill (LURA).

The amendment was voted down after the Chair of the Office for Environmental Protection said it would “permit certain environmentally damaging activity to proceed without appropriate assessment”, said Leigh Day.

The Secretary of State for Environment, Food and Rural Affairs last month published a “Notice of designation of sensitive catchment areas 2024”.

The notice requires water companies to upgrade sewage infrastructure to improve pollution control measures for the removal of nitrogen and phosphorus from discharges into sensitive catchment areas by 1 April 2030.

While welcoming this aspect, Wild Justice warned that the notice also says that planning authorities considering proposals for developments should assume that those pollution control measures will be in place by the deadline of 1 April 2030, even though there is no guarantee that the measures will be in place. 

Wild Justice contends that the notice would therefore have the same effect as some of the LURA amendments that were defeated in the Lords. 

The group is challenging the notice on four grounds: 

1. Unlawfully requiring competent authorities and other local planning authorities to disregard matters which they are required to have regard to in accordance with the Habitats Regulations and planning law generally. A competent authority is required to have regard to any potential adverse impacts which a proposed development may cause to a European site, and is prohibited from granting planning permission for such a development.
2. Unlawful fettering of discretion: By purporting to prohibit competent authorities from considering that a relevant nutrient pollution standard has not been met, the notice unlawfully fetters authorities’ discretion.
3. Ultra vires the statutory power: The notice is made “in accordance with the power in Section 96C” of the Water Industry Act but the act does not give the Secretary of State power to direct what planning authorities may consider in determining a planning application. Those matters are governed by the Habitats Regulations and planning legislation.
4. Irrationality: The notice has the perverse effect of lowering the level of environmental legal protection afforded to the nutrient sensitive catchments. In that sense, the notice is self-defeating and therefore irrational.

Leigh Day solicitor Ricardo Gama said: "After a huge outcry from environmental groups and a defeat in the House of Lords last year our client thought that the government had quite sensibly given up seeking to remove legal protections for internationally important habitats. The latest notice appears to try to achieve the same thing through the backdoor.”  

The Department for Environment, Food and Rural Affairs (DEFRA) has been approached for comment.

Lottie Winson