DEFRA water quality judicial review dismissed

A legal bid to force DEFRA to take action to improve water quality has failed at the High Court, after officials blamed Brexit, the coronavirus pandemic and under-resourcing for the department’s slow progress.

Photograph: Pixabay Photograph: Pixabay

In March, WWF, Fish Legal and the Angling Trust began a bid for a judicial review of DEFRA’s implementation of the Water Framework Directive in relation to the creation of water protection zones.  They claimed that the environment department had failed to comply with a 2015 consent order to produce diffuse water pollution plans (DWPPs) for sensitive sites “as soon as is reasonably practicable”.

The Environment Agency is “expected to produce DWPPs every six years to set out what actions they are going to take to reduce the pollution”, the three organisations said in a statement at the time. A case was originally brought to court in 2015 because DEFRA had “simply not been using the only effective measure to combat pollution: water protection zones (WPZs)”, they said. To date, only four of 37 sites selected by DEFRA have DWPPs.

But judge Mrs Justice Lang rejected the application for judicial review, saying that DEFRA has “complied with the obligation in the Schedule to the court order to set out the results of their site evaluations in DWPPs as soon as reasonably practicable, given the circumstances”. She also said that the evidence indicates that DEFRA “intends to use their best endeavours to continue to comply with the Schedule to the consent order in future”.

Janet Dixon, deputy director for water quality at DEFRA, told the court that she accepted that the work on DWPPs has not been delivered according to the programme anticipated in 2016, but said that the department’s Brexit workload, the Covid-19 pandemic, and under-resourcing had stymied action.

“DEFRA were aware of how the range of pressures risked hampering progress on our priorities and resourcing decisions were made taking into consideration a wide range of factors and priorities needing to be delivered with limited public funds,” she told the court. 

“Ultimately, DWPPs and related work must be carried out within budgetary constraints and it is not open to DEFRA, the Environment Agency or Natural England to apply unlimited funding to these workstreams. 

“Whilst no additional resource was made available for the express purpose of accelerating progress on DWPPs, DEFRA, the Environment Agency and Natural England worked hard to make progress alongside other operational priorities funded from their non-ring fenced budget lines,” she added.

Kevin Austin, deputy director for agriculture, fisheries and natural environment at the department, told the court that with no dedicated funding for the DWPPs, the project had to be funded from within its existing core allocation from government, which has to fund a wide range of activities, and which fell from £117 million to £40 million between 2011 and 2020. Moreover, much of the allocation is ring-fenced, leaving a discretionary fund of only £25 million, he said. 

Austin added: “Despite significant investment in these sites over the years to gather evidence, more still needs to be done to understand sources and pathways of pollution at these Natura 2000 sites.
To carry out option appraisals, as set out in the consent order, requires considerably more work for area teams than can currently be resourced without impacting significantly on the business. To date, there has been no separate funding associated with this work … and areas are having to make decisions to either not carry out this work or drop other essential priorities."

Natural England’s principal specialist for freshwater and pollution Alastair Burn told the court that a range of factors had affected delivery of the programme of work on diffuse water pollution affecting European sites, with the main challenges being: “scientific understanding/capability; resourcing to manage and undertake the necessary analysis and stakeholder work; and a change in approach during the course of the programme towards an adaptive management approach. This led to a focus on action on the ground alongside a business-as-usual approach to evidence gathering and development of plans”.

WWF-UK & Ors, R (On the Application Of) v Secretary of State for Environment, Food and Rural Affairs & Anor is available here.


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