High Court refuses permission for legal challenge accusing water regulator of adopting "passive stance" over raw sewage discharges

The High Court has refused a judicial review claim that contended the water services regulator for England and Wales, Ofwat, had allegedly failed to regulate sewage discharge into rivers, lakes and the sea.

The claimant, campaign group Wild Justice, has vowed to appeal Mr Justice Bourne's conclusion in Wild Justice v The Water Services Regulation Authority [2022] EWHC 2608 that all four grounds advanced were inarguable.

In a pre-action protocol letter sent in the spring, the group outlined a concern that a "lack of action (including monitoring and enforcement action)" on planned and unplanned discharge of untreated sewage into rivers and other water bodies was creating and maintaining excessive nutrient levels.

It added that it believed Ofwat's alleged inactivity put the regulator in breach of the Water Industry Act 1991 and the Urban Waste Water Treatment (England and Wales) Regulations 1994.

Responding to the letter, Ofwat denied that it was taking no steps to obtain information in relation to compliance. It also asserted that no useful purpose would be served by commencing a claim because Ofwat was, in fact, currently investigating all of the water companies, and it was also developing the manner in which wastewater monitoring and compliance assessment takes place.

Despite Ofwat's response, Wild Justice went on to issue a claim on the following four grounds:

1. Ofwat unlawfully took a passive stance in relation to enforcement of the 1994 Regulations obligations "including taking no steps to obtain information relating to compliance with them from undertakers with specific obligations in relation to their [sewage treatment works]".
2. In breach of section 27(2) of the 1991 Act, Ofwat unlawfully failed to collect information in relation to the performance of the obligations under the 1994 Regulations.
3. In breach of section 2(2A) of the 1991 Act, Ofwat unlawfully failed to discharge its functions so as best to secure that the obligations of water companies under the 1994 Regulations are properly carried out.
4. Ofwat "misdirected itself in law that its regulatory obligations can be discharged by reference to data collected by the EA and steps taken to investigate breaches of environmental permits".

The judge found grounds 1, 2 and 3 inarguable, noting that Ofwat has collected information and has taken enforcement action and "[however] well or badly it has done those things, it is not arguable that it has simply failed to do them".

He also found round 4 inarguable, accepting Ofwat's claim that it uses information from a number of sources and of a number of kinds as a potential trigger for enforcement action.

In a statement made on Tuesday (18 October), a spokesperson for Wild Justice announced that the group had instructed its lawyers at Leigh Day to appeal the judgment.

The spokesperson said: "Ofwat simply asserted that it had considered all the matters we raised - but failed to provide any documentary evidence to back that up. Ofwat has claimed that it is doing something about sewage discharges - that is not the same as doing enough."

Leigh Day solicitor Ricardo Gama said: "It is disappointing that the court has not given our clients permission to go to a full hearing. The judge was ultimately persuaded that the very recent moves towards enforcing environmental laws against water companies were sufficient to remove the need for the court’s involvement, even though there have been decades of non-compliance.”

Adam Carey