The High Court has ruled in the Government’s favour in two separate but related applications for a judicial review challenge on the lawfulness of the Storm Overflows Discharge Reduction Plan.

The cases cited the Secretary Of State For Environment, Food And Rural Affairs as the defendant - the not for profit campaign organisation Good Law Project were acting on behalf of Wildfish Conservation, Marine Conservation Society, Richard Haward’s Oysters and surfer and activist, Hugo Tagholm. The Environment Agency and Ofwat were referred to as interested parties,

At a hearing in the King's Bench Division of the High Court last Friday, Mr. Justice Holgate referred to the investigation launched the Office for Environmental Protection June 2022 following a complaint by WildFish into whether the defendant Secretary Of State For Environment, Food And Rural Affairs, Ofwat and the EA were failing to comply with their statutory duties in relation to the regulation of the use of storm overflows.

He explained that the proceedings did not involve any challenge to decisions taken by the EA or Ofwat and that the only decision which was being challenged concerned the publication of the Plan in its final form.

He went on to summarise the three targets set out in the Plan:

1. A target for protecting the environment: Water and Sewerage Companies (WaSCs) will only be allowed to discharge from a storm overflow where there would be no local adverse ecological effect. The target must be met by 2050, save for overflows discharging in or close to certain sensitive areas where the target must be met by 2035, or 2045 at the very latest;
2. A target to protect public health in designated bathing waters: WaSCs must significantly reduce harmful pathogens from overflows either by carrying out disinfection or by reducing the frequency of discharges to meet EA standards by 2035.
3.  A backstop target for 2050, which operates in addition to the first two targets: by 2050 storm overflows will not be permitted to discharge above an average of 10 heavy rainfall events a year.

The judicial review was examining challenges to the Government on a number of issues, including “whether the defendant acted irrationally in approving the Plan.” Explaining that part of the claim brought by WildFish depended upon establishing irrationality, Mr. Justice Holgate commented:

“A minister only takes into account matters of which he has personal knowledge or which are drawn to his attention by officials. He is not deemed to know everything of which his officials are aware. But a minister cannot be expected to read for himself all the material in his department which is relevant to an issue. As a matter of law it is permissible for him to rely upon briefing material.

“Part of the function of officials is to prepare a precis, analysis and evaluation of material to which the minister is either legally obliged to have regard, or to which he may wish to have regard. But it is only if the briefing omits something which the minister was legally obliged to take into account, and about which he otherwise had no personal knowledge, and which was not insignificant, that he will have failed to take into account a relevant consideration so as to render his decision unlawful.”

The Court rejected all the grounds of challenge and dismissed the claims.

A statement issued by the Good Law Project after the final judgement said:

“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 sewage scandal is destroying natural habitats in our rivers, making swimmers and surfers sick and hitting coastal communities hard – as more and more beaches are being closed off due to serious pollution incidents. This is the grim legacy of privatised water companies failing to invest in key infrastructure and instead lining the pockets of their shareholders.

“Today’s ruling is particularly hard to stomach when, only earlier this week, the Office for Environmental Protection said it is looking into potential law-breaking by Ministers and water industry regulators over untreated sewage discharges.”

The not-for-profit added that given the nature of the Court’s findings it was unlikely to appeal the decision.

The Good Law Project is separately 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.