Factual and Procedural Background
Upper Costa Beck ("UCB") in the district of Ryedale in North Yorkshire has suffered pollution from multiple discharge sites, leading to a decline in fish populations. UCB is located within the Humber River Basin Management Plan ("HRBMP") area, which was approved by the Secretary of State for Environment, Food and Rural Affairs ("SSEFRA") on 14 December 2022 under regulation 31(1) of the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 ("WFDR 2017"). The WFDR 2017 transposes the EU Water Framework Directive ("WFD").
The Pickering Fishery Association ("PFA"), an unincorporated association owning fishing rights over much of UCB, challenged SSEFRA's approval of the HRBMP by judicial review, claiming, among other grounds, that the programme of measures ("PoM") did not comply with the WFDR 2017 and WFD requirements, particularly concerning water body-specific measures. The Environment Agency ("EA") is the "appropriate agency" under the WFDR 2017. The Office for Environmental Protection ("OEP") was granted permission to intervene.
The High Court judge, Lieven J, allowed the claim on 19 February 2024, quashing the HRBMP insofar as it related to the PoM for UCB, and ordered the EA and SSEFRA to prepare and approve an updated PoM specific to UCB. Permission to appeal was granted the same day. The EA sought to adduce fresh evidence on appeal, which was refused. The appeal concerns the legal interpretation of whether a PoM must include measures specific to individual water bodies or may be generic at river basin district or national level.
Legal Issues Presented
- Whether regulation 12 of the WFDR 2017 requires the programme of measures to include specific measures for each individual water body within a river basin district, or whether a generic programme at the river basin district or national level suffices.
- Whether the SSEFRA and the EA lawfully discharged their duties under the WFD and WFDR 2017 in approving the HRBMP and PoM without water body-specific measures.
- Whether the public consultation process on the draft HRBMP complied with the statutory requirements, especially regarding information on water body-specific measures.
Arguments of the Parties
Appellant's Arguments (SSEFRA and EA)
- PoMs and RBMPs are intended to be high-level, strategic documents that set a general direction for achieving environmental objectives ("EOs") at the river basin district level rather than at the level of individual water bodies.
- The WFD and WFDR 2017 do not explicitly require PoMs to specify measures for each water body; the term "river basin district" governs the scope of PoMs.
- Implementation of measures specific to individual water bodies occurs subsequently, through other regulatory mechanisms such as environmental permitting under the Environmental Permitting Regulations 2016 and the Water Industry Act 1991.
- The statutory guidance and European Commission documents support a strategic, coordinated approach at the river basin district level.
- Requiring water body-specific PoMs would be administratively unworkable given the large number of water bodies and permits.
- Regulation 32 of the WFDR 2017 provides for supplementary plans for sub-basins or sectors, supporting the view that detailed measures can be addressed separately.
Respondent's Arguments (PFA and OEP)
- The WFD and WFDR 2017 impose detailed and prescriptive obligations to achieve EOs for each individual water body, which requires PoMs to include water body-specific measures.
- The PoM must show how measures, even if generic, apply to and will achieve the EOs for each water body; a wholly generic PoM is insufficient.
- The WFD’s provisions, including Articles 4, 5, 8, 11, and 13, and the statutory guidance (RBPG), require identification, review, and updating of measures at the water body level.
- The public consultation process was unlawful because it did not provide necessary information on measures specific to UCB, denying meaningful participation.
- Administrative impracticality is not a valid reason to depart from the clear statutory requirements.
- The OEP emphasized the importance of compliance with environmental law and the risks to water bodies if the appeal were allowed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Terluk v Berezovsky [2011] EWCA Civ 1534 |
Discretion to admit fresh evidence on appeal requires a proper basis and application of the overriding objective. |
Refused the EA’s application to admit new evidence (Scott III) as no proper basis was shown and the evidence was largely unhelpful. |
| Marcic v Thames Water Utilities Limited [2004] 2 AC 42 |
Analysis of statutory powers and duties under the Water Industry Act 1991 relating to water undertakers and environmental improvements. |
Considered by SSEFRA and EA to support the distinction between strategic PoMs and detailed implementation regimes, but court rejected this as determinative for PoM interpretation. |
| R (Edison First Power Limited) v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 20 |
Presumption that Parliament does not intend legislation to have absurd or unworkable consequences. |
Considered but held not applicable here because no ambiguity in legislation and no absurd or impossible consequences from water body-specific PoMs. |
| Inland Revenue Commissioners v Hinchy [1960] AC 748 |
Presumption of reasonableness in statutory interpretation applies only where language is ambiguous. |
Applied to reject SSEFRA and EA’s argument that administrative impracticality justified their interpretation. |
| Bund für Umwelt und Naturschutz Deutschland eV v Bundesrepublik Deutschland (Case C-461/13) ("Weser case") EU:C:2015:43 |
Member States must refuse authorisation for projects that would deteriorate the status of individual water bodies or jeopardise achievement of environmental objectives. |
Supported the interpretation that EOs and measures are specific and binding at the water body level, reinforcing the requirement for water body-specific PoMs. |
| European Commission v Federal Republic of Germany (Case C-525/12) |
Environmental objectives must be set for individual water bodies. |
Confirmed that EOs apply at the individual water body level, supporting the need for corresponding measures in PoMs. |
| Commission v Greece (Joined Cases C-235/95 and C-233/95) and Commission v Spain (Case C-214/96) |
Programmes for specific emission limits and quality standards must be established for particular water bodies. |
Referenced to show WFD replaced directives requiring water body-specific programmes. |
Court's Reasoning and Analysis
The court began by distinguishing between the programme of measures ("PoM") and the river basin management plan ("RBMP") as separate statutory requirements under the WFD and WFDR 2017. PoMs are intended to contain the concrete measures necessary to achieve environmental objectives ("EOs"), while RBMPs include summaries of those PoMs and serve broader planning and consultation functions.
The court rejected the appellant's submission that PoMs may be wholly generic and need not specify measures at the individual water body level. It emphasized that the WFD sets EOs for each water body and requires measures to be designed to achieve those objectives. This is supported by various provisions including Articles 4(1), 11(3), 11(5), 11(7), and 11(8) of the WFD and corresponding regulations in the WFDR 2017.
Detailed requirements for analysis, monitoring, review, and updating of measures are prescribed at the water body level. Derogations and extensions of deadlines also require specific justification and measures relating to individual water bodies. The court noted that the statutory guidance (RBPG) and European Commission documents align with this interpretation, requiring PoMs to include water body-specific measures.
The court found that the appellant's reliance on other domestic regimes (e.g., Water Industry Act 1991, Environmental Permitting Regulations 2016) as indicative of the scope of PoMs was misplaced. Those regimes address implementation and enforcement but do not limit the statutory requirement for PoMs to identify water body-specific measures.
The court also dismissed the argument that requiring water body-specific PoMs would be administratively unworkable or impractical. It found no ambiguity in the legislation that would justify applying the presumption against absurdity. Moreover, the absence of evidence substantiating administrative burdens undermined this claim.
The court noted that the EA and SSEFRA had failed to produce any proper PoM beyond a generic summary and had not exercised any lawful discretion as to the level of detail or specificity required. This constituted a fundamental error of law and led to the quashing of the HRBMP insofar as it related to UCB.
Accordingly, the court concluded that compliance with the WFD and WFDR 2017 demands that PoMs identify and include measures or actions for each individual water body within a river basin district to achieve the EOs applicable to that body.
Holding and Implications
The court DISMISSED the appeal.
The court upheld the decision of the High Court judge that the Water Framework Directive 2000 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 require that:
- The periodic review of programmes of measures must be undertaken at the individual water body level, not solely at river basin district or national levels.
- The programmes of measures must set out water body-specific measures to achieve the environmental objectives for each water body.
The direct effect of this decision is that the Environment Agency and the Secretary of State for Environment, Food and Rural Affairs must prepare and approve updated programmes of measures and river basin management plans that include specific measures for each water body, including Upper Costa Beck. No new precedent beyond the immediate parties is established, but the ruling clarifies the statutory interpretation of the WFD and WFDR 2017 obligations in England.