Ofwat and DEFRA face fresh legal action in decade long fight over Whitburn sewage spills

EXCLUSIVE: Ofwat and DEFRA have been issued with a pre-action protocol (PAP) letter over the “failure to address” repeated sewage spills in Whitburn, a village in South Tyneside.

The statue of justice. Source - GettyImages, SimpleImages

This is the the latest step in a decades long fight being brought by retired engineer Robert Latimer, who first noticed in the 90s that Northumbrian Water was discharging raw sewage regularly onto Whitburn Beach near his home in Sunderland. 


Latimer, who is being supported by The Environmental Law Foundation and represented by Alex Shattock of Landmark Chambers, is bringing the case on the grounds that the regulator’s exercise of its duties under regulation 4(4) of the Urban Waste Water Treatment (England and Wales) Regulations 1994 (UWWTD) is “tainted by a misdirection of law” in respect to sewage discharges at Whitburn. 

In a letter seen by ENDS, they argue that both DEFRA and Ofwat misunderstood the phrase “all normal local climatic conditions” in Regulation 4(4), which should be interpreted in light of an European Courts of Justice (ECJ) case brought in 2012 which ruled that the UK government had failed to comply with its obligations under the UWWTD. 

The legal letters are pre-action protocol (PAP) letters. These explain the conduct and set out the steps a court would normally expect parties to take before proceedings are started. 

In this ruling, it noted that the spills from the Whitburn Interceptor Tunnel in question were far too high for the discharges to be deemed “normal” in relation to the “frequency” and “intensity” of the spills.

Latimer’s legal team argue “misdirection has led to the defendants’ failure to adequately carry out their duties under the regulations”.

As part of the ECJ ruling, in 2017 the government completed an upgrade to the pipe. In the PAP, it is argued it is clear from the spill figures from between 2019 and 2021 that waste water discharges from the tunnel were in fact higher than the discharges the ECJ deemed “exceptional” in 2012.

In 2021 alone, 122 discharges amounting to 821,088 tonnes of sewage was released from the outfall, according to the PAP.

These overflows are directed into the storm interceptor tunnel system and from there discharge to sea through a long sea outfall, according to the letter.

The legal team argue that despite the “exceptional” overflow figures, “it is apparent that DEFRA and Ofwat mistakenly consider that the UK is now compliant with the judgement of the court following the 2017 upgrades to the Whitburn system”.

Latimer, who ran an engineering business which he has now passed on to his son, told ENDS that in his profession a project would not be completed or paid for until it was approved by the engineer. 

He continued: “We have ended up with a system in the UK where the water company decides what has to be done then instead of fixing the problem, they try to vary the permits so it seems as if they are complying – but have not invested the money. 

“In any other walk of life in the UK, if you are paying for a service or a commodity and you did not receive what you paid for, or was not delivered, you would ask for your money back, but not in this case.”

In terms of his hopes for this legal action, he said: “Ofwat and DEFRA have evaded any suggestion that things are very wrong here – we have been showing evidence of this for more than twenty years, so now it is time for them to own up and make sure that all our sewage is treated,  as the regulations demand, not just put it into the sea and the river.  

“This is now a national issue and I hope our legal letter will be joined by many others.”

An Ofwat spokesperson said: "Yesterday we received a letter from The Environmental Law Foundation on behalf of Mr Latimer and we intend to provide a full response in due course. It would not be appropriate to comment further at this time.”
DEFRA has also been approached for comment.
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