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

A programme of measures under the Directive 2000/60/EC and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 is not merely a high-level strategy. It must identify actions for each water body to achieve that body’s environmental objectives within the relevant deadline. Generic national legislation or policy may be used only if it is applied to each water body and translated into identified measures or actions. The level of detail remains a matter of judgment for the responsible authorities, subject to challenge on Wednesbury principles. Periodic reviews and updates must likewise examine measures at water-body level, including additional measures where objectives are unlikely to be achieved.

The Secretary of State appealed against Lieven J’s decision allowing the Pickering Fishery Association’s judicial review challenge to approval of the Humber River Basin Management Plan. The High Court judgment, reported at [2023] EWHC 2918 (Admin) and [2024] PTSR 315, held that the programme of measures had to identify measures for individual water bodies, including Upper Costa Beck, and that consultation had been unlawful. The central issue in the appeal was whether the Directive 2000/60/EC and the 2017 Regulations permitted a programme of measures to remain wholly generic or required water-body-specific measures and reviews.

The appeal was dismissed. The Court of Appeal refused permission to adduce the Environment Agency’s fresh evidence because no proper basis for admission had been shown and the evidence could largely have been dealt with by submissions. The discretion under CPR Part 52.21 was governed by the overriding objective, as explained in Terluk v Berezovsky [2011] EWCA Civ 1534.

1. Separate documents. A programme of measures under Article 11 of the Directive 2000/60/EC and regulations 12 and 20 of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 is distinct from a river basin management plan and its summary. The summary cannot substitute for a lawful programme.
2. Water-body level. Environmental objectives are set for individual water bodies. The programme must therefore identify a programme or scheme of actions for each water body to achieve its objectives within the applicable deadline. Generic measures are permissible only where they are related to the individual body and show the actions resulting from applying the generic provision to it.
3. Reviews and additional measures. The same approach applies to periodic reviews under Article 11(8) and regulation 12(6), the review of controls under Article 11(3), and additional measures required where objectives are unlikely to be achieved under Article 11(5) and regulation 25.
4. Level of detail. The responsible authorities retain judgment as to the detail required for each measure. Once the programme identifies measures for each water body, that judgment is challengeable only on Wednesbury principles. Administrative inconvenience did not justify the contrary interpretation, particularly where the legislation was unambiguous and the evidence of unworkability was insufficient. The High Court’s order therefore stood, including the quashing of the plan insofar as it concerned the programme for Upper Costa Beck.

• Court of Appeal (Civil Division). The appeal against the High Court’s order was dismissed: [2025] EWCA Civ 378.
• High Court of Justice, King’s Bench Division, Planning Court. Lieven J allowed the judicial review, quashed the relevant part of the river basin management plan, and ordered preparation and approval of an updated programme and plan section: [2023] EWHC 2918 (Admin); [2024] PTSR 315.