Our colleagues at Fish Legal are in the Court of Appeal today, representing the Pickering Fishery Association in an important case that goes to the heart of the Environment Agency and Defra’s abject failure to meet environmental targets for rivers in England.
The local group of anglers are fighting to save the Costa Beck in North Yorkshire, a former trout stream now plagued by sewage pollution and agricultural run-off from fish farms. In this post, our legal team explain why this case is pivotal in reversing the decline of our rivers.
Fish Legal and Pickering Fishery Association won the first round of their case (Pickering Fishery Association v Secretary of State for the Environment, Food and Rural Affairs and Environment Agency [2023] EWHC 2918 (Admin)) last year. The spectacular result meant that the EA would need to start complying with its obligations to properly detail the actions needed to stop pollution.
But Defra has appealed the ruling and (just as we write) is arguing it out before the Court of Appeal judges.
In their case in 2023, the Pickering anglers argued that the Secretary of State’s approval of the updated Humber River Basin Management Plan (“HRBMP”) under the Water Framework Directive) England and Wales Regulations 2017 was unlawful because it just contained high-level, generic and practically useless commentary instead of waterbody-specific detail.
The HRBMP, they argued, is supposed to set out the pressures on waterbodies within the river basin and a programme of measures for achieving targets of, for instance, good ecological status (GES) or where the waterbody has been heavily modified, Good Ecological Potential (GEP).
Such a programme of measures should include actions to prevent pollution such as reviewing and eventually tightening up permit conditions for point source pollution from sewage discharges.
The Defendants argued that a Programme of Measures didn’t need to be specific as it relates to a river basin district, as opposed to the “environmental objectives” for waterbodies and river basins.
Mrs Justice Lieven agreed with the anglers that the HRBMP document was “generic” and an exercise in “smoke and mirrors” whereas it should have been waterbody-specific. She also found that there were defects in the consultation process.
Roll forwards to 2024 and the Office for Environmental Protection produced a damning report into the EA and Defra’s implementation of the Water Framework Directive entitled Review of Implementation of the Water Framework Directive Regulations and River Basin Management Planning in England.
The report echoed Mrs Justice Lieven’s findings and said, among other things, that the Programmes of Measures for waterbodies were not detailed enough and that public participation and consultation on certain aspects of the HRBMPs is defective – meanwhile, waterbodies are deteriorating.
Presumably, the appellants in the Court of Appeal will need to persuade the Lord Justices of Appeal that Mrs Justice Lieven was mistaken in her interpretation of the law and that Programmes of Measures can be kept vague to save money where there is limited funding to spend on investigation.
We await the outcome – but expect the final judgment to be months away given the seriousness of the issues and the burden on the court to get the decision right.
We wish Fish Legal and the Pickering Fishery Association the best of luck today.
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