Permission granted for judicial review of Environment Agency enforcement of regulations at River Wye
A campaign group that claims the Environmental Agency is failing to enforce regulations meant to protect the River Wye from pollution has won permission to have a judicial review claim heard by the High Court.
Campaign group River Action says that pollution in the river, which is a Special Area of Conservation (SAC), from farms in the catchment area could have been "seriously mitigated" if the Environment Agency enforced existing environmental regulations.
The group argues that the river has been polluted because excessive amounts of animal manure are regularly spread across land within the river catchment, leading to a substantial increase in levels of phosphorus in the soil.
It claims the phosphorus runs off and leaches into the river, causing algal blooms that can hurt vegetation and wildlife in the river.
The High Court has agreed to hear the claim on the following three grounds:
- The Environment Agency has adopted an approach to enforcing the Farming Rules for Water (FRfW) that ultimately frustrates the purpose of the legislation it is supposed to enforce.
- By following guidance issued by the Environment Secretary the Environment Agency has put itself in a situation where it is acting unlawfully.
- The Environment Agency has breached regulation 9(3) of The Conservation of Habitats and Species Regulations 2017 in that its policy on enforcement of the FRfW unlawfully fails to follow the requirements of the Habitats Directive.
Ricardo Gama of Leigh Day Solicitors, who is representing River Action, said: "The Farming Rules for Water were put in place in 2018 exactly to address the issue of agricultural pollution in rivers, but the rules are pointless unless they are actually applied.
"The guidelines which the Environment Agency had given to its field officers would encourage them not only not to enforce against breaches of the rules, but not even to tell land managers that they are in breach when they are. Our clients believe that this approach to the rules might make the situation worse not better by encouraging bad practices."
River Action's chairman and founder, Charles Watson, said: "[We] will vigorously make the case that a prime cause for the recent ecological collapse of the River Wye is the EA's decision to slavishly follow DEFRA's guidance to not enforce critical provisions of the 2018 Farming Rules for Water.
"These critically important regulations state that fertilisers and manures must not be spread on soils already over-saturated with excess nutrients. Tragically, due to the uncontrolled growth of what we believe to be the largest concentration of intensive poultry production in Europe, this is exactly what has been allowed to happen, with the horrific environmental consequences for the River Wye being all too plain to see."
The case is expected to be heard in 2024.
An Environment Agency spokesperson said the agency was unable to comment on the litigation, but stated: “The River Wye is a beautiful and important part of our landscape, our resources and community wellbeing. We working with our partners to find solutions to tackle phosphate levels in the catchment by stepping up our farm visits to improve compliance and reduce pollution, enhancing monitoring at high-risk locations, and carrying out a detailed investigation into the management of poultry manure across the catchment.
“Moreover, the Environment Secretary recently held a roundtable with the Environment Agency, Natural England, local farmers, environment groups and others to discuss ongoing and future actions to restore the River Wye.”
Herefordshire Council and Powys County Council have both been the target of judicial reviews over decisions to grant planning permission to poultry farm expansions in or near the river's catchment area.
In the case of Herefordshire, the claimant whose judicial review application was refused by the High Court appealed to the Supreme Court to have his claim heard, but this was also rejected.
Adam Carey
