Kendal wastewater treatment works. Image: United Utilities Kendal wastewater treatment works. Image: United Utilities

Judge quashes wastewater planning consent over lack of appropriate assessment

Permission to use a temporary outflow pipe to discharge treated water into a protected area has been ruled unlawful in the High Court due to a lack of an appropriate assessment.

An extension to a permission for United Utilities to discharge treated waste from its Kendal Wastewater Treatment Works into the River Kent, parts of which are legally protected special areas of conservation, was ruled unlawful last week because it failed to carry out a proper impact assessment under the Conservation of Habitats and Species Regulations 2017.

In October last year, Cumbria County Council granted United Utilities permission to continue to use a temporary outfall pipe at its Kendal Wastewater Treatment Works to release treated water into the protected River Kent – the old one having been washed away by Storm Desmond in 2015.

The plant had been discharging its treated wastewater 1km upstream via a pipeline it built in the wake of the storm.  But the claimant, a trustee of Kent (Westmoreland) Angling Association, challenged Cumbria County Council’s decision to approve a 12-month extension of the use of the pipe until October this year.

Although United Utilities had carried out an “assessment of likely significant effect” (ALSE) in order to determine whether the proposed activities were considered to have a significant effect for the purpose of the Habitats Regulations, the High Court concluded that the company had not looked at what could happen to the water chemistry of the River Kent, which is home to the UK’s protected and native white-clawed crayfish.

Judge Eyre said the ALSE was “expressly confined to considering the potential effects of the construction of the temporary outfall and did not consider the potential impact from the discharge”.

Eyre quashed United Utilities’ permission, arguing its assessments did not stand in place of a habitats assessment legally required by law.

A UU spokeswoman told ENDS that whilst this permission had been quashed the company had recently secured a separate permission to allow it to continue using the outflow pipe for two years. 

She said: “We have had planning permission for the use of the temporary outfall at Kendal Wastewater Treatment Works since 2016 after the original outfall pipe was swept away by Storm Desmond.

"Whilst the 2018 planning permission was challenged and will be quashed, Cumbria County Council granted a new planning permission on 23 May for the continued use of the temporary outfall until October 2021.

“The structure allows us to discharge the treated water from Kendal wastewater treatment works into the River Kent and it is essential to the operation of the treatment process.

"We are committed to finding a permanent engineering solution for the outfall, however there are significant geological and archaeological challenges to overcome and that is why it is taking some time to complete the work.

“We are liaising closely with Natural England, Historic England, the Environment Agency and Cumbria County Council as we develop a permanent solution over the next two years that will continue to protect the River Kent and its fish and wildlife.” 

Cumbria County Council has been approached for comment.

Preston, R (on the application of) v Cumbria County Council [2019] EWHC 1362 (Admin) (31 May 2019)

Compliance Search

Discover all ENDS content in one place, including legislation summaries to keep up to date with compliance deadlines

Compliance Deadlines

Plan ahead with our Calendar feature highlighting upcoming compliance deadlines

News from ENDS Europe

News from ENDS Waste & Bioenergy