Pickering Fishery Association by Martin Smith, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

A river-basin programme of measures must be designed to achieve environmental objectives that are defined for individual water bodies. Measures may be generic where appropriate, but the programme must explain how they relate to the objectives for particular water bodies and how those objectives will be achieved. The duty to review and update the programme therefore requires consideration of water-body-specific measures where necessary. A river-basin management plan may contain only a summary of the full programme. However, the underlying programme must still comply with the statutory scheme. Consultation is unlawful where the plan omits information which the legislation requires. The claim succeeded because the Secretary of State approved the plan on an erroneous construction of the Water Environment (Water Framework Directive) England and Wales Regulations 2017.

The claimant, a fishery association with rights in the Upper Costa Beck, challenged the Secretary of State’s approval of the updated Humber River Basin Management Plan on 14 December 2022 under regulation 31(1) of the Water Environment (Water Framework Directive) England and Wales Regulations 2017. The Upper Costa Beck was a heavily modified water body with moderate ecological potential and objectives extending to 2027.

The claimant alleged errors concerning the periodic review of the programme of measures, the content of the plan, review of measures following extended deadlines, and public consultation. The central issue was whether the programme of measures had to include, or be referable to, measures directed at achieving the objectives for individual water bodies, rather than merely generic national or river-basin measures.

1. Claim allowed. The Secretary of State had approved the updated Humber River Basin Management Plan on an erroneous interpretation of the statutory scheme.
2. The environmental objectives under regulations 12 and 13 of the Water Environment (Water Framework Directive) England and Wales Regulations 2017 are directed to individual water bodies. The programme of measures is established to achieve those objectives. It may contain measures applying across several water bodies, a river basin or the country, but it cannot be wholly generic without addressing whether, when and how the objectives for individual water bodies will be met.
3. Article 11 of the Water Framework Directive 2000, regulation 20 and the provisions concerning extended deadlines reinforce that conclusion. In particular, where monitoring indicates that an objective is unlikely to be achieved, the review of permits and authorisations and the establishment of additional measures under Article 11(5) must be capable of operating at water-body level. Regulation 16(6)(b) likewise requires measures envisaged as necessary to bring the particular body of water to the required status.
4. The court rejected the argument that water-body-specific programming was legally impossible or impracticable. The Environment Agency’s Catchment Planning System already contained water-body-specific material, including proposed review and enforcement of applicable permits. The precise level of detail required in the programme remained for the authorities to determine under the correct legal approach.
5. The statutory guidance supported this construction, stating that programmes of measures were required for each water body. The river-basin management plan itself need contain only a summary of the programme under Annex VII to the Directive.
6. The consultation was unlawful because the approved plan omitted legally required information about the measures needed to achieve water-body-specific objectives. The court applied the consultation principle in R v Brent LBC ex p Gunning, namely that consultation must permit intelligent consideration and response. Had the primary construction been wrong, however, the late disclosure of the Catchment Planning System would not independently have breached the consultation duty.