Wildfish Conservation, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs & Ors

A storm overflow reduction plan under the Water Industry Act 1991 operates alongside, and may impose requirements exceeding, existing duties under the Urban Waste Water Treatment (England and Wales) Regulations 1994. The statutory scheme does not require the plan to eliminate discharges, enforce existing regulatory obligations, contain quantitative targets, or align with the species-abundance target for 2030.

The Regulations require site-specific assessment. A discharge is unlawful where it occurs outside exceptional circumstances and a remedial solution satisfies the BTKNEEC cost-benefit test. A high-level national plan is not itself a plan requiring appropriate assessment under the habitats legislation where it contains no site-specific proposals. The Secretary of State had broad discretion, and both judicial review claims were dismissed.

WildFish Conservation and the Marine Conservation Society, together with Richard Haward’s Oysters (Mersea) Limited and Hugo Tagholm, challenged the Secretary of State’s Storm Overflows Discharge Reduction Plan published on 26 August 2022. The Plan was prepared under section 141A of the Water Industry Act 1991 and set targets for ecological harm, public health in bathing waters, and the frequency of storm-overflow discharges.

The challenges alleged misunderstanding of the 1994 Regulations, failure to consider existing non-compliance, irrationality, breach of the habitats assessment regime, inconsistency with the species-abundance target in section 3 of the Environment Act 2021, interference with Convention rights, and breach of a public trust doctrine. The central questions were whether the Plan unlawfully displaced existing regulatory duties or required further statutory and human-rights measures.

1. Both claims dismissed. Section 141A of the Water Industry Act 1991 requires a plan to reduce storm-overflow discharges and their adverse impacts, but gives the Secretary of State a broad discretion as to its scope and content. It does not require quantitative targets, elimination of discharges, or measures directed to enforcing existing duties.
2. The Urban Waste Water Treatment (England and Wales) Regulations 1994 impose continuing, site-specific obligations. Applying European Commission v UK (Re Storm Water Overflows) [2013] 1 CMLR 24, a discharge is not necessarily unlawful merely because it occurs outside exceptional circumstances. It must be remedied where the BTKNEEC cost-benefit test is satisfied. The obligation extends to inadequate physical capacity as well as operational failures.
3. The Plan was deliberately additional to those statutory requirements. It contained targets not qualified by BTKNEEC and did not authorise, sanction, or positively approve breaches of the 1994 Regulations. The references to compliance with permits and existing legislation could not fairly be read as postponing compliance until the Plan’s target dates.
4. The Secretary of State was not legally required to determine the national extent of non-compliance, identify any gap between permits and the Regulations, or incorporate enforcement arrangements into the Plan. Those matters were being investigated by the Environment Agency and Ofwat and remained dependent on case-specific BTKNEEC assessments.
5. The Plan was not a plan or project within regulation 63 of the Conservation of Habitats and Species Regulations 2017. It set national, high-level policy targets and did not identify site-specific works or have a clear and direct link with any particular European site. Later permitting decisions could require appropriate assessment.
6. The Plan did not unlawfully undermine the species-abundance target in section 3 of the Environment Act 2021. The statutory scheme did not require storm-overflow targets to align with, or eliminate their contribution to biodiversity decline by, 2030. The Plan addressed ecological harm and included a review mechanism.
7. The Convention-rights grounds also failed. Section 141A did not require the Plan to enforce existing regimes, address specific local dangers, or adopt additional positive measures. The claimants did not establish an infringement of A1P1 or Article 8. The asserted public trust doctrine had no sufficient basis in domestic common law, and the existing public rights to navigate and fish did not imply a right to pollution-free waters.

not stated in the judgment.