Key Facts
- •Two judicial review applications challenged the lawfulness of the Storm Overflows Discharge Reduction Plan (the Plan).
- •Claimants included WildFish Conservation, Marine Conservation Society, Richard Haward’s Oysters, and Hugo Tagholm.
- •The Plan set three targets: protecting the environment, protecting public health in bathing waters, and ensuring storm overflows operate only in unusually heavy rainfall.
- •The Environment Agency (EA) and the Water Services Regulation Authority (Ofwat) were interested parties.
- •The Plan aimed to reduce, not eliminate, storm overflow discharges and their adverse impacts.
- •The Plan's targets were to be met regardless of cost-benefit analysis, going beyond existing legal requirements.
- •The EA's investigation focused on permit compliance, while Ofwat investigated compliance with the 1994 Regulations, including infrastructure capacity.
- •The Plan's estimated cost was £56 billion, with a 2050 completion target for the third target.
Legal Principles
A public authority's decision based on legal misinterpretation is liable to be quashed.
O’Reilly v Mackman [1983] 2 AC 237
Decision-makers are presumed to understand the law correctly unless there is a positive contra-indication.
R (Tarian Hafren Severn Shield CYF) v Marine Maritime Organisation [2022] PTSR 1261
Development plans shouldn't be interpreted like statutes.
Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] 1 WLR 1865
A decision-maker fails to consider a material factor only if legally obligated or if its omission is irrational.
R (Samuel Smith Old Brewery (Tadcaster) v North Yorkshire County Council [2020] PTSR 221
Irrationality review is less intense for high-level policy plans.
R (Spurrier) v Secretary of State for Transport [2020] PTSR
Ministers can rely on briefing material, but omissions of legally required information are unlawful.
R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154
A plan or project under the Habitats Directive requires assessment if it might significantly affect a European site.
Landelikje Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw Natuurbeheer en Visserij (C-127/02)
State has positive obligation to protect individuals against severe environmental pollution posing a serious and substantial risk to health/well-being under Article 8 ECHR.
Taskin v Turkey (2006) 42 E.H.R.R. 50
A1P1 protects possessions, including business goodwill, and the State may have positive obligations to protect enjoyment of this right.
Breyer Group plc v Department of Energy and Climate Change [2015] 1 WLR 4559
Outcomes
Both claims for judicial review were dismissed.
The court found the Secretary of State acted lawfully in setting policy targets that exceeded existing legal requirements, and that the Plan did not contradict or frustrate existing statutory obligations. The court also rejected the claimants' arguments based on the Habitats Directive, the ECHR, and the public trust doctrine.