Saferwaters Limited & Anor, R (on the application of) v Secretary of State for Environment, Food and Rural Affairs

The statutory power to order an inquiry into a draft Water Resources Management Plan is an open discretion. Fairness does not ordinarily require an oral inquiry merely because the plan is technically complex, attracts significant public interest, or contains objections which the decision-maker has rejected.

The fairness assessment is fact- and context-specific. Relevant considerations include the statutory scheme, the opportunity for written representations, the role of specialist technical advisers, the nature of the issues, and the consequences of the decision. A Secretary of State may seek further information from the water undertaker and regulators without reopening consultation.

Where the statutory process provides for written representations and technical advice, a claimant must show material procedural unfairness or irrationality. A desire to make further or more fully tested representations does not, without more, establish either.

The claimants sought judicial review of the Secretary of State’s decisions dated 21 August 2024 authorising Thames Water Utilities Limited and Affinity Water to publish their Water Resources Management Plans.

The plans included the South East Strategic Resource Option, involving a proposed reservoir in Oxfordshire. The claimants argued that the Secretary of State should have ordered a public inquiry or hearing under regulation 5(1) of the Water Resources Management Plan Regulations 2007. They alleged procedural unfairness and, alternatively, irrationality in failing to exercise that discretion.

The Environment Agency and Ofwat had considered the representations, technical objections and further information, and advised that the plans could be published subject to limited amendments. The central issue was whether fairness or rationality required an oral inquiry before publication.

1. The claims were dismissed. The Secretary of State’s decision not to order a public inquiry under regulation 5 was lawful.
2. Fairness is highly fact- and context-specific. The court must consider the statutory framework, the nature of the decision, the interests affected, the consequences, the issues requiring determination and the procedure entrusted to the decision-maker. The court must not substitute a procedure it considers preferable or fairer for one which was not actually unfair.
3. The statutory scheme required publication of the draft plan, written representations, consideration of those representations, and the undertaker’s statement of response. It did not create a presumption in favour of an inquiry. The Secretary of State was entitled to seek further information and technical advice from the Environment Agency and to require amendments without providing a further opportunity for representations.
4. The Environment Agency acted as an independent specialist technical adviser and had considered the objections and technical matters raised. By its second advice, it considered that the material issues had been addressed and that the plan could be published subject to limited matters. The Secretary of State was entitled to rely on that assessment.
5. Significant public interest, technical complexity, expert disagreement and the existence of objections did not themselves require an inquiry. The claimants had made extensive representations on the matters they wished to raise. Their complaint was in substance a wish for a second opportunity to present and test objections, rather than material unfairness.
6. Binney was materially different because it concerned a statutory presumption in favour of an inquiry. The later authorities confirmed that the decision-maker may decline an inquiry where the statutory context provides no such presumption and the written material enables the competing matters to be assessed.
7. The compulsory acquisition argument did not alter the conclusion. Even if the Water Resources Infrastructure National Policy Statement might make it difficult to reopen the need for the scheme at a later development-consent stage, the statutory framework contemplated that need could be determined at the earlier plan stage. That consequence did not require an inquiry in every case involving a nationally significant infrastructure project or section 35 direction.
8. The irrationality grounds failed. The Secretary of State had regard to the Environment Agency’s advice, the public interest, the absence of significant unresolved issues, the need for water-supply resilience and the likely delay caused by an inquiry. His decision was not irrational or otherwise unlawful.

First-instance judicial review claim. The High Court dismissed the claims on their merits.