Anglian Water Services Ltd v Environment Agency

Under the bathing-water regulatory scheme, the Environment Agency has a discretion whether to disregard samples taken during predictable short-term pollution. It may lawfully require effective, current public warnings before exercising that discretion, because the scheme protects bathers as well as measuring water quality.

A specialist regulator’s scientific, technical and predictive assessment attracts an enhanced margin of appreciation. The court should not substitute its own view for a tenable expert assessment.

“Abnormal situation” has a broad statutory meaning. Requiring the pollution source to be known impermissibly narrows that definition. The Agency may treat sampling as suspended retrospectively during an abnormal situation when assessing the reliability of samples and deciding whether a realistic classification requires their exclusion.

Anglian Water sought judicial review of the Environment Agency’s classification of three Lincolnshire bathing waters as “good” in 2019, after they had been classified as “excellent” in 2018.

The dispute concerned highly elevated samples taken during heavy rainfall in June 2019. Anglian Water argued that the samples should have been disregarded as short-term pollution under regulation 14(5) of the Bathing Water Regulations 2013, or that monitoring should have been suspended because the rainfall constituted an abnormal situation under Schedule 4 paragraph 2(2).

The central issues were whether the Agency lawfully exercised its discretion concerning short-term pollution, whether its Pollution Risk Forecasting system was legally adequate, and whether it had unlawfully restricted the concept of an abnormal situation.

1. Ground 1 failed. Regulation 14(5) conferred a discretion to disregard samples taken during short-term pollution. The Agency’s published criteria required appropriate warning signage, including a current date, before samples were excluded. That approach was rational and consistent with the public-health purpose of the Directive and the Regulations. The Agency therefore acted lawfully in refusing to disregard the Cleethorpes sample.
2. Ground 2 failed. The Pollution Risk Forecasting system involved scientific, technical and predictive assessments by a specialist regulator. Applying Mott v Environment Agency [2016] 1 WLR 4338, and the related principles discussed in R(on the application of British Union for the Abolition of Vivisection) v Secretary of State for the Home Department [2008] EWCA Civ 417 and R (BACI Bedfordshire Limited) v Environment Agency [2019] EWCA Civ 1962, the court should not substitute its own inexpert scientific judgment for a tenable expert assessment. The Agency was under no legal obligation to establish relevant short-term-pollution procedures at every bathing water, and had no power under regulation 14(5) to disregard samples where those procedures were not in place.
3. Ground 3 succeeded. The statutory definition of an abnormal situation requires judgment on whether an event affects bathing-water quality and would not be expected, on average, more than once every four years. It does not require a known pollution source. The Agency’s additional requirement impermissibly narrowed the definition.
4. Schedule 4 paragraph 2(2) governs suspension of sampling; it does not exhaust the Agency’s separate discretion when subsequently assessing the reliability of bathing-water data. The Agency could consider retrospectively whether a complex pollution event qualified as an abnormal situation and whether the relevant samples should be treated as excluded to achieve a realistic classification. The Agency had misdirected itself in law by concluding that retrospective treatment was unavailable.
5. The parties were directed to seek agreement on appropriate relief. The matter was to be listed for relief and consequential matters if necessary.

First-instance judicial review in the Administrative Court. Grounds 1 and 2 were dismissed; Ground 3 succeeded. Relief was to be agreed or determined at a further hearing if necessary.