High Court agrees to hear ancient common law argument in claim government sewage overflow plan is unlawful
The High Court has agreed to hear two judicial review claims of the government's plan to reduce the discharge of untreated sewage into bodies of water in England, including one claim which argues a seven hundred-year-old common law right has been ignored.
The Good Law Project and WildFish lodged separate legal challenges last year. Both claim that the government's Storm Overflows Discharges Reduction Plan, which gives water companies until 2050 to curb the discharge of untreated sewage into waterbodies, is unlawful.
Mrs Justice Lang DBE ordered the two claims to be joined, as although they have different grounds, they object to the same plan. Legal teams for the two claimants are set to meet to discuss how they will proceed.
Word of the Good Law Project's judicial review application came in October 2022 when it issued a pre-action protocol letter which, among other claims, alleged that the government's plan breached "ancient" common law rights dating back to 1299.
In the pre-action letter, the claimants argued the plan's targets "are not ambitious enough to meaningfully reduce the risks posed by sewage discharges in [shellfish water protected areas]" to marine life and human life in the short to medium term.
It also contended that the Secretary of State's plan, published in August 2022, fails to discharge the duty under s.141A of the Water Industry Act 1991 and is in breach of the European Convention on Human Rights.
The Secretary of State for Environment, Food and Rural Affairs must publish a plan that seeks to reduce the rate of "storm overflows" (when overwhelmed sewers release untreated sewage into waterways) in England and reduce their adverse impacts under s.141A of the 1991 Act.
Under the common law ground, the letter alleged that the plan is contrary to the Public Trust Doctrine (PTD), which provides ancient common law rights for residents to fish, gather food, and navigate over coastal waters and the foreshore of England.
"The PTD also confers collateral obligations on the Secretary of State, since the Crown (acting through the Executive) holds the foreshore and coastal waters 'in trust' for the public, to safeguard those rights. In this context, those obligations include a duty to maintain coastal waters in a fit ecological state to support fisheries and to allow for recreation; but also generally, for the sake of the marine environment," the letter before claim read.
Commenting on the High Court's decision to permit the claim yesterday (14 February), the Good Law Project said: We believe this could be one of the UK's most significant environmental law cases in recent history."
The charity behind the second claim, WildFish, also announced the High Court's decision yesterday, noting that the court gave permission to apply for the judicial review under grounds that argue the government's plan is "confusing and contradictory", fails to deal with the overflows that are causing the problem, and sets targets which would allow companies to continue dumping "unacceptable" amounts of raw sewage over a prolonged period, "in some cases up to 2050".
Commenting on the challenge, Nick Measham, CEO of WildFish, said: "If the Plan is intended to deal with illegal discharges, it is unlawfully encouraging law breaking for years to come."
He later added: "We have no problem with the Plan being used to arrive at an initial rough estimate of the costs required to provide upgrades to storm overflows. However, its failure to deal with the vast majority of relevant outfalls and the production of sub-targets and headline targets, which have no basis in the application of the existing regulations, is unacceptable.
"We want the Government to give the relevant agencies the mandate and the money to enforce and compel the water companies to deliver the infrastructure urgently required to end sewage pollution".
Adam Carey