‘Important milestone’: High Court grants judicial review into government’s storm overflow reduction plan

Campaigners have been granted permission for a judicial review over the government’s proposed measures to reduce sewage pollution from storm overflows, after lawyers revived a common law legal doctrine dating back to at least 1299.

The Royal Courts of Justice (cc-by-sa/2.0 - © Robert Lamb - geograph.org.uk/p/5117531)

The hearing at the High Court will challenge the environment secretary Thérèse Coffey, over the Storm Overflows Discharges Reduction Plan, published in August last year.

Under the plan, water companies will have to improve all storm overflows discharging into or near designated bathing areas and improve 75% of overflows into high priority nature sites by 2035. By 2050, this will apply to all remaining storm overflows. The plan is due to be reviewed in 2027.

The Good Law Project is supporting the legal action, being brought by the Marine Conservation Society, oyster cultivator Richard Haward’s Oysters, and Hugo Tagholm, a surfer and activist, who argue the government’s current plans will see sewage continuing to be dumped into rivers and coastal waters for another three decades.

The lawyers are challenging the government by using an old common law legal doctrine, the Public Trust Doctrine, which has been recognised by the English courts since at least 1299. It has not been relied on in English courts very much, according to the Good Law Project, but has been successfully deployed in the US.

The doctrine says that the state must hold vital natural resources in trust for the benefit of both current and future generations, and it enshrines the right for people to fish, gather food and navigate shared tidal waters.

The group raised the point that in England alone, there are around 14,500 storm overflows in operation. Under current rules, these should only be used occasionally after exceptionally heavy rainfall, however the group has highlighted that they are drawn on with “alarming frequency”.

Storm overflows in England discharged untreated sewage into rivers and the sea for more than 2.6 million hours in 2021 – a total of 372,544 times – according to Environment Agency data.

The claimants want the government to improve its plan by  bringing forward the deadlines for water companies to act, and to include stronger protections for coastal waters across the country. 

When bringing the challenge last year, government lawyers argued that it is “hopeless” and “unarguable”, according to a letter seen by ENDS. However, Mrs Justice Lang DBE who granted permission for the review said: “In my view, the claimants have raised arguable grounds which merit consideration at a full hearing.”

Jo Maugham, director of the Good Law Project, said: "This could be the most consequential environmental law case in recent history.”

He noted that the decision by the High Court to proceed to a judicial review means it agrees that the English common law principle being drawn on by the lawyers is arguable, and the natural environment must be protected for future generations.

Surfer and activist, Hugo Tagholm, said: “The sewage scandal is now headline news. The writing is on the wall for water companies.

“Their pollution that was for so long hidden in our rivers and streams now flows in full view of the public. A sign of decades of neglect and complacency. The blue spaces so important for wildlife, people and communities should not be treated as dumping grounds for these corporations.”

Chief executive of the Marine Conservation Society, Sandy Luk, described the High Court’s decision to let the case go forward as “an important milestone”.

She said: “We’re now one step closer to compelling the government to re-write its Storm Overflows Reduction Plan, so that the ocean and its inhabitants really are protected from untreated sewage dumping. Raw sewage will continue polluting our seas until action is taken.”

The claim will also be heard in conjunction with a similar claim by the charity Wildfish, who have also been given permission to apply for judicial review.

The group argues that the plan is unlawful on the grounds that it approves continuing unlawful conduct, fails to consider the existing law, breaches the Habitats Regulations, and is irrational. WildFish has instructed environmental law barrister James Maurici KC and Charles Bishop of Landmark Chambers, and Fieldfisher LLP, to bring the challenge.

A DEFRA group spokesperson said: “We’ve put the strictest targets ever on water companies to clean up our water, plus requirements to deliver the largest infrastructure programme in their history to tackle sewage spills.

“We will continue to look at ways to go further and faster and we are determined to hold water companies to account for poor performance.”

The spokesperson also noted “record” fines of more than £102 million were handed out in 2021 following successful prosecutions, and that the department  will launch a consultation on ways to enforce fines and hold water companies to account this spring.