Pollution legal challenges update

The High Court has dismissed WildFish’s case against the government’s Storm Overflow Discharge Reduction Plan (SODRP). WildFish chief executive, Nick Measham, said that the “battle has been worth it” because the legal challenge has established the following:

• “the SODRP does not provide a get-out from the 1994 law (the Urban Waste Water Treatment Regulations) which only allows sewage to be discharged in exceptional weather (subject to some cost benefit assessment) and must be enforced immediately;

• it is now clear that Ofwat and the Environment Agency (EA) have a duty (not just a power) to enforce the 1994 law;

• the judge confirmed that the EA has a duty to revise its permits to meet the 1994 law’s exceptional weather requirement and then enforce the revised permits – current EA permits allow sewage dumping in any rainfall or snowmelt; and

• the works to comply with the 1994 law are outside the scope of the plan and must be paid for by the water companies not customers."

WildFish said: “The lengthy timescales in the plan were designed to protect customers from rapid bill increases. There is no need for this anymore. Applying the existing law should now speed up the clean-up of our rivers…Focus must now be on ensuring that Ofwat and the EA enforce the law which has been ignored for almost 30 years.

For the water companies, urgent attention must be given to the works required to comply with the 1994 law. We’ll be watching closely to make sure they deliver. We’ll also do our utmost to ensure that the 2024 Price Review reflects these changes. The recently announced response from the Office for Environmental Protection to our complaint should be extremely helpful in this.”

The High Court also ruled in the government’s favour in the remainder of the case brought by the Good Law Project on behalf of co-claimants the Marine Conservation Society, Richard Haward’s Oysters and Hugo Tagholm regarding whether the SODRP adequately met the Government’s obligation under section 141A of the Water Industry Act 1991 to “reduce adverse impacts on the environment”.

GLP said it was “unlikely to appeal” given the nature of the Court’s findings. It pointed out that is had already had some success in part of the original case. "Before the hearing started, the Government conceded as a result of our legal action that it would consult on extending its Storm Overflows Discharge Reduction Plan to tackle sewage dumping to cover coastal waters, not just rivers – and agreed to pay our legal costs.”

The Good Law Project is still awaiting a decision from the Supreme Court on the question of whether water companies have immunity from civil action for the consequences of sewage dumping. It brought a challenge against United Utilities earlier this year to test the point, regarding accountability for sewage discharges into the Manchester Ship Canal.

Meanwhile, Fish Legal has reported that the first hearing in its private prosecution against Southern Water for polluting the chalk River Test in Hampshire will take place this week, on 28 September. Fish Legal said it had made the Environment Agency aware in March that it was stepping in to take its own private prosecution against Southern Water relating to diesel (not sewage) pollution from an outfall at Nursling Industrial Estate near Southampton in 2021 and 2022 “in the absence of any sign of effective regulatory action”.