Nature advocate puts Ofwat on notice of judicial review over sewage discharge duties

Not-for-profit nature conservation advocate and legal activist Wild Justice has warned Ofwat of its intention to seek judicial review about the regulator’s lack of action on sewage discharges. This concerns planned and unplanned releases of untreated sewage into watercourses, “creating and maintaining excessive nutrient levels which, in turn, is highly detrimental to the health and biodiversity of those watercourses”.

In a letter to Ofwat, sent in accordance with the Judicial Review Pre-Action Protocol under the Civil Procedure Rules, Wild Justice said its initial investigations indicated Ofwat was “unlawfully failing to discharge the obligations falling on it in relation to the Urban Wastewater Treatment obligations” (the UWWT Directive, operating though the UWWT (England and Wales) Regulations 1994).

These investigations consisted of Environmental Information Regulations requests to Defra, the Environment Agency (EA) and Ofwat about their roles. The responses from the three bodies "reveal a confused tangle of finger-pointing; each body suggesting another bears the responsibility for monitoring and dealing with this issue,” Wild Justice said. It continued: “We’ve had a look at what the law says and we believe Ofwat is ducking its responsibilities.” According to the nature group, enforcement of UWWT obligations “is a matter in England and Wales for Ofwat alone”.

Its scrutiny of Ofwat’s response letter led Wild Justice to the view that the regular is unlawfully failing to discharge its obligations appropriately, including because:

• “Ofwat is unlawfully taking an entirely passive stance in relation in enforcement including taking no steps to obtain information relating to compliance with undertakers with those specific obligations in relation to their treatment plants;

• in breach of section 27(2) of the 1991 Act, Ofwat is unlawfully failing to collect information in relation to the performance of those specific obligations.; and

• in breach of section 2(2A) of the 1991 Act, Ofwat is unlawfully failing to discharge its functions so as best to secure that the UWWT functions of undertakers are properly carried out.”

Among the reasons it cited for these views were that Ofwat does not undertake any positive monitoring or assessment of UWWT obligations in relation to individual treatment plants; and relies on EA data on environmental performance despite the fact that “when we asked the EA about its role in relation to the UWWT obligations, it explained that it has no direct function in monitoring or enforcing the obligations, enforcement of which is a matter for Ofwat. Consistent with that, as far as we have been able to establish, the EA does not gather information about compliance with the UWWT obligations”.

Wild Justice has requested a response from Ofwat to its pre-action protocol letter, and has said if the response is not satisfactory, “Wild Justice will, without further notice, commence a judicial review challenge in which it will seek a declaration that Ofwat is unlawfully failing to discharge the obligations falling on it as set out above”.