Wild Justice, R (on the application of) v The Water Services Regulation Authority

A regulator is not unlawfully passive merely because it has not adopted every investigative or enforcement measure suggested by a claimant. At the permission stage, a generic allegation of wholesale failure to monitor or enforce statutory duties is not arguable where the evidence shows that the regulator considered the relevant duties, collected information and began investigations or enforcement action. The court need not assess particular measures unless the claim identifies a specific failure. Duties under section 94 of the Water Industry Act 1991 include the substantive requirements imposed by regulations 4 and 5 of the Urban Waste Water Treatment (England and Wales) Regulations 1994. Information obtained by another regulator may be relevant even where its statutory functions differ.

Wild Justice sought judicial review of OFWAT’s alleged failure to monitor and enforce water companies’ obligations concerning sewage collection and treatment. The claim relied on sections 2, 27(2) and 94 of the Water Industry Act 1991, and regulations 4 and 5 of the Urban Waste Water Treatment (England and Wales) Regulations 1994. It alleged a passive stance, failure to collect information and unlawful reliance on information supplied by the Environment Agency.

Ellenbogen J referred the paper permission application to an oral hearing. Bourne J refused permission for judicial review. The issue before Bean LJ was whether the proposed grounds disclosed an arguable unlawful failure or had a real prospect of success on appeal.

1. Permission to appeal refused. No arguable case of unlawful action or inaction by OFWAT was shown, and the proposed appeal had no real prospect of success or other compelling reason to proceed.
2. It was artificial to distinguish the duties under section 94 of the Water Industry Act 1991 from the requirements imposed by regulations 4 and 5 of the Urban Waste Water Treatment (England and Wales) Regulations 1994. The section 94 duty included the substantive content of those regulations, and the enforcement powers under section 94(3) extended to regulations 4(2) and 4(4), including compliance with regulation 5.
3. Ground 1 alleged a wholly passive approach to monitoring and enforcement, but identified no specific failure. OFWAT had obtained information through its regulatory processes, requested further information, investigated companies and commenced enforcement action. That material showed that OFWAT had addressed its mind to the relevant duties. The court was not required to assess the merits of particular measures which the claim did not specifically challenge.
4. A bare assertion by a defendant would not generally defeat a judicial review claim. In this case, however, OFWAT’s detailed response to the broad allegation provided a sufficient answer. There was no proper basis to disregard its account that it gathered information and used it for enforcement purposes.
5. Grounds 2 and 3, alleging wholesale failures under section 27(2) and section 2(2A) of the 1991 Act, were likewise unarguable because OFWAT had collected information and taken enforcement action, irrespective of whether it had performed those functions well or badly. The Environment Agency’s different obligations under regulation 6 did not make its data irrelevant to OFWAT’s consideration of compliance with regulations 4 and 5.
6. There was no order as to costs. A respondent attending a permission hearing should ordinarily bear its own costs.

1. Court of Appeal (Civil Division): Bean LJ refused permission to appeal on 17 January 2023.
2. High Court of Justice, King’s Bench Division, Administrative Court: Bourne J refused permission to apply for judicial review after an oral hearing on 27 September 2022, in a reserved judgment handed down on 18 October 2022.
3. Administrative Court: Ellenbogen J referred the paper application for permission to an oral hearing.