Environmental group fails in challenge over Ofwat actions in relation to sewage discharges

The Court of Appeal has dismissed an application by environmental campaign group Wild Justice for permission to appeal the High Court’s refusal of permission for a judicial review challenge over the way water services regulator Ofwat handles its responsibilities over the discharge of untreated sewage.

Ofwat - known formally as the Water Services Regulation Authority - had been accused by Wild Justice of “failing to properly carry out its environmental regulatory duties in relation to discharged of untreated sewage into rivers and other waters by water and sewerage undertakers”.

Standards for sewage controls are set by the Urban Waste Water Treatment (England and Wales) Regulations 1994.

Bourne J had refused permission for judicial review and Wild Justice took the case to the Court of Appeal but in Wild Justice, R (On the Application Of) v The Water Services Regulation Authority [2023] EWCA Civ 28 Lord Justice Bean concluded the rejection was correct.

In March 2022, Ofwat commenced enforcement processes against five water companies, serving statutory notices which referred to breaches of duty under section 94 of the Water Industry Act 1991.

The next month, Wild Justice sent Ofwat a judicial review pre-action protocol letter that referred to a "lack of action (including monitoring and enforcement action) in relation to the planned and unplanned discharge of untreated sewage into rivers and other water bodies" and alleged Ofwat took an unlawfully passive stance including taking no steps to obtain information relating to compliance from regulated companies.

Ofwat replied in May with an explanation of its functions and those of the Environment Agency in relation to waste water treatment works and denied that it was taking no steps to obtain information on compliance.

It also asserted that no useful purpose would be served by commencing a claim because it was investigating all of the water companies and developing the manner in which wastewater monitoring and compliance assessment takes place.

Bean LJ said part of Wild Justice’s complaint was that Ofwat had been asked to make detailed disclosures of documents to demonstrate that it has actively addressed the sewage discharge issue but had declined to do this.

Bourne J had said: "There is no proper basis on which this court should go behind Ofwat's assertion that, rather than being purely passive, it gathers information in several ways and uses that information for enforcement purposes”.

Bean LJ said this was not a general proposition that a mere assertion by a defendant is enough to defeat a judicial review claim and “rather, he was saying that the detailed information given in Ofwat's letter of 17 May 2022 (which runs to 13 closely argued pages) is a sufficient response to the broad general allegation made by the claimant”.

He said it was not arguable that Ofwat’s attitude was "merely passive”, which would overlook its work in extracting performance commitments from regulated companies during price reviews.

Two more grounds were dismissed as unarguable. These were that Ofwat unlawfully failed to collect information on the performance of the obligations under the 1994 Regulations and failed to discharge its functions so as best to secure that the obligations of water companies under these.

A final ground argued was that Ofwat approached data from the Environment Agency on the basis that this discharged the separate obligations imposed by Ofwat under regulation 4 of the 1994 Regulations.

Wild Justice argued this was unlawful since the agency's obligations are different and arise under a different regulation.

Bean LJ said: “This seems to me extraordinarily technical. Like [Bourne J] I consider it plain and obvious that the data collected by the EA, and by the Ofwat enforcement action set in train by its circular of November 2021 and the subsequent section 203 notices, were and remain relevant to the obligations of water companies under the 1994 Regulations.”

He concluded “no arguable case of unlawful action or inaction on the part of Ofwat has been shown”.

Mark Smulian