Wild Justice v The Water Services Regulation Authority

Permission for judicial review requires an arguable ground with a realistic prospect of success. A regulator is not guilty of a wholesale failure to perform statutory monitoring or enforcement duties where it has gathered relevant information, considered possible non-compliance and commenced enforcement action. Information obtained from another regulator, including permit-compliance data, may be relevant to separate statutory duties where non-compliance can provide evidence of related breaches. The court will not assess the merits of a regulator’s particular enforcement strategy where the claim identifies no specific failure and is advanced only as a general allegation of passivity.

Wild Justice sought permission to challenge Ofwat’s alleged failure to monitor and enforce water companies’ obligations concerning sewage collection, treatment and discharge. The proposed grounds relied on sections 2(2A), 27(2) and 94 of the Water Industry Act 1991 and regulation 4 of the Urban Waste Water Treatment (England and Wales) Regulations 1994.

The claim alleged that Ofwat had adopted a passive stance, failed to collect relevant information, failed to secure proper performance of the regulatory obligations, and misdirected itself by relying on Environment Agency data and environmental-permit investigations. The central issue was whether those allegations were arguable and had a realistic prospect of success.

1. Permission refused. The claim was framed as a general or wholesale failure, rather than identifying a specific action which Ofwat should have taken and failed to take.
2. There is substantial overlap between the general sewerage duty in section 94 of the Water Industry Act 1991 and regulation 4 of the Urban Waste Water Treatment (England and Wales) Regulations 1994. Regulation 4 nevertheless imposes distinct requirements concerning treatment plants and their performance.
3. Ofwat’s investigation of flow-to-full-treatment permit conditions was directly relevant to regulation 4. Although permit compliance does not establish compliance with regulation 4, non-compliance with permit requirements may provide evidence of defects in the design, construction or maintenance of treatment plants.
4. Ofwat had gathered information from several sources, including the Environment Agency, price-control processes, performance commitments, complaints and information requested from water companies. It had also commenced enforcement proceedings against five companies, followed by action against a sixth. It was therefore not arguable that Ofwat had failed entirely to turn its mind to its monitoring, information-gathering or enforcement duties.
5. Grounds alleging breach of sections 27(2) and 2(2A) failed for the same reason. The evidence did not establish a complete failure to collect information or to secure proper performance, whatever view might ultimately be taken of the adequacy of Ofwat’s approach.
6. The alleged legal misdirection also failed. The material relied upon by Ofwat was not entirely unrelated to regulation 4, and there was no proper basis for going behind Ofwat’s assertion that it used information from multiple sources.
7. The Office for Environmental Protection’s investigation did not determine the application. In the absence of an arguable ground, permission was refused.

First-instance application for permission to apply for judicial review. An oral hearing was directed by Ellenbogen J on consideration of the papers.