Judge rejects legal challenge over storm overflows discharge reduction plan

The High Court has dismissed a series of challenges brought against the Secretary of State for Environment, Food and Rural Affairs over the lawfulness of August’s Storm Overflows Discharge Reduction Plan.

Mr. Justice Holgate heard a case brought by ‘rewilding’ group Wildfish Conservation and a related one brought by the Marine Conservation Society, Richard Haward's Oysters (Mersea) and Hugo Tagholm, a former chief executive of Surfers Against Sewage.

In Wildfish Conservation, R (On the Application Of) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2285 (Admin) Holgate J stressed that his task was to decide whether the Government’s actions had been lawful, not the merits of the policy itself.

He said the sewerage system carries both sewage and rainfall and when overwhelmed overflows releasing contents including untreated sewage into waterways, which may cause harm to humans and to the environment. Storm overflows have also been used regularly in dry weather conditions, “a use for which they are not intended”.

The court heard the Environment Agency collects ‘event duration monitoring’ on storm overflow spills in England, which was available to the Secretary of State when the plan was approved.

It showed that in 2022, 52% of storm overflows spilled more than 10 times; 39% more than 20 times; 20% more than 40 times and 11% more than 60 times. The average duration of each spill was 5.8 hours.

The plan set three targets: that water and sewerage companies will by 2050 only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect; that they must by 2035 significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges; by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.

Wildfish’s challenge argued that when setting the first and third targets the Secretary of Dtate failed to understand that reg.4 of the Urban Waste Water Treatment (England and Wales) Regulations 1994 Regulations requires water and sewerage companies to remedy insufficiency of physical capacity in accordance with the decision of the European Court of Justice in European Commission v UK (Re Storm Water Overflows) [2013] or that the plan is unlawful because it has the effect of directing water and sewerage companies to breach reg.4.

It also argued that the Secretary of State failed to take into account obviously material considerations, including the enforcement of reg.4 of the 1994 Regulations.

Wildfish’s final point was whether the plan constitutes ‘a plan’ within reg.63 of The Conservation of Habitats and Species Regulations 2017 by failing to carry out an "appropriate assessment" of its effects on Special Areas of Conservation and Special Protection Areas. It argued therefore approval of the plan had been irrational.

Holgate J said there was no merit in Wildfish’s first ground because it was ”plain that the [Secretary of State] was considering adopting a strategy for dealing with overflows which went substantially beyond existing legislation, in particular the 1994 Regulations.”

The judge said the option of complete elimination of all discharges had been rejected as being far too costly and two alternatives were considered; to reduce spills from all overflows to an average of either 10 or 20 a year.

“There is nothing in the plan or in the material leading up to the plan…to indicate that the secretary of state or Defra have proceeded on the basis that the 1994 Regulations do not require the physical capacity of a collecting system or treatment work to be remedied,” the judge said, adding there was “no merit in Wildfish's contention that the third target in the plan purports to give effect to regs.4 and 5 of the 1994 Regulations and so involves a ‘downgrading' of the force of those statutory requirements.

“That involves a misreading of the plan and the documentation which led up to it. “

Holgate J sam Wildfish's argument was that in preparing and publishing the plan the Secretary of State failed to have regard to whether the standards set by specific ‘flow to full treatment' permit conditions were failing to comply with the 1994 Regulations.

He said: “This argument is misconceived. The defendant was under no legal obligation to do this.”

There was also no merit, he found, in Wildfish’s contention that non-compliance with the 1994 Regulations was an obviously material consideration in formulating the plan, so that it was irrational for the secretary of state not to have addressed the subject in the plan's policies.

The judge found the plan did not fall within the ambit of the appropriate assessment provisions in the 2017 Regulations and so rejected Wildfish’s third ground.

He said Wildfish’s claim that approval of the plan had been irrational “adds nothing to submissions which I have already rejected”.

Holgate J rejected all three grounds argued by the three claimants in the other application, which he said were essentially similar to those of Wildfish, noting the Marine Conservation Society came “nowhere near showing that the defendant's exercise of judgment on these matters was irrational” and that Mr Tagholm “has not demonstrated that his Article 8 rights are engaged let alone violated".

Mark Smulian