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Water and sewerage undertaking wins judicial review challenge over Environment Agency classification of water quality at three beaches

Anglian Water has won a judicial review challenge over the Environment Agency's classification of the water quality at three popular beaches in Lincolnshire as 'good' in 2019, having classed it as 'excellent' in 2018.

The Agency made the classifications pursuant to the Bathing Water Regulations 2013/1675, which implement Directive 2006/7/EC concerning the management of bathing water quality. The classification scheme grades the water quality as 'excellent'; 'good'; 'sufficient' and 'poor'.

Anglian Water is the statutory water and sewerage undertaker for the Anglian region, including Lincolnshire. It carries out its functions pursuant to the Water Industry Act 1991.

In Anglian Water Services Ltd v Environment Agency [2020] EWHC 3544 (Admin) the company contended that the 2019 classifications were legally flawed because the Agency did not discount water samples taken in June 2019 showing highly elevated levels of faecal contamination. The sampling coincided with periods of heavy rain in Lincolnshire and were said, by the company, to be unrepresentative of the water quality at the bathing water.

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The company noted that there was provision in the Regulations for the Environment Agency to discount samples taken during short term or suspend sampling during unexpected pollution events which the Agency did not employ. The inclusion of the samples in question was said to have led directly to the drop in water quality classification from 'excellent' to 'good'.

In response the Agency contended that its decision not to discount the samples or suspend sampling was an entirely rational exercise of discretion in a complex regulatory area which the Court should be slow to interfere with.

Mrs Justice Thornton said the issue raised by this claim was how the Environment Agency responded to short term or unexpected pollution events in its sampling and grading of bathing waters. In particular:

a. how the Environment Agency exercises its discretion to discount water quality samples taken during short term pollution events pursuant to Regulation 14(5) of the Bathing Water Regulations;

b. the Agency's use of its Pollution Risk Forecasting system to predict short term pollution events;

c. whether the Agency acted unlawfully in failing to declare the heavy rainfall of June 2019 to be an 'Abnormal Situation'.

There were three grounds of challenge to the Agency's classifications:

1) There was no legally defensible basis for the Agency's conclusion that the local authority's failure to put out the "correct signage" on 13 June 2019 at Cleethorpes beach meant that the Environment Agency could not determine that a "short term pollution" event had occurred, permitting it to disregard samples taken during short term pollution from the set of bathing water quality data as required by reg. 14(5) of the Regulations.

2) The Agency's classification of the quality of the three bathing waters was legally invalid as a result of the Agency's failure to have in place an effective means of identifying a "short term pollution" event which would fall to be dealt with as provided for in regs. 14(4) and 14(5) of the Regulations.

3) Further, or alternatively, the Agency's failure to exercise the power under paragraph 2(2) of Part 1 of Schedule 4 to the Regulations to declare an "abnormal situation" rendered their classifications legally invalid.

Mrs Justice Thornton concluded (at paragraph 110) that:

a. The exercise of the Agency's discretion not to disregard the water quality sample taken at Cleethorpes beach on 12th June was lawful. It accorded with published criteria which accord with the purpose of the Bathing Water Directive and Regulations which is to protect public health. Beaches affected by predictable short-term pollution will not be 'marked down' on water quality providing public health is protected through effective provision of information to bathers about the pollution so as to discourage bathing during the pollution event. Ground 1 failed.

b. The Pollution Risk Forecasting (PRF) system used by the Agency to predict short term pollution falls within the category of scientific, technical and predictive assessments by a specialist regulator with which the Court will be slow to interfere. The submissions on behalf of Anglian Water came nowhere close to persuading the Court that it should interfere with the Agency's judgment in these respects. Ground 2 failed.

c. The Agency's requirement that a pollution source must be known in order to qualify as an Abnormal Situation impermissibly narrows the broad definition of Abnormal Situation in the Bathing Water Directive and Regulations so as to close the door to unexpected pollution events with more complex causes.

d. The Agency has misdirected itself in law in considering it has no discretion to take account of an Abnormal Situation in its assessment and classification of bathing water quality in circumstances where the pollution source is not known, and sampling was not therefore suspended. Its approach fails to recognise the distinct regulatory strands in the legal framework. The Agency has ample authority under the legal framework to treat sampling as having been suspended during an Abnormal Situation, when it assesses the reliability of relevant samples, where it is necessary to do so to arrive at a realistic classification for the bathing water in question. Ground 3 succeeded.

The High Court judge decided that it was appropriate to direct the parties to seek to agree appropriate relief. The matter will be listed for a hearing on relief and other consequential matters, if necessary.

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