Wildlife campaign group Wild Justice is challenging a bid by the government to change water pollution rules to permit house-building in sensitive water catchment areas without enforcing measures to protect them from sewage pollution.
Wild Justice says a notice to planning authorities and water companies published on 25th January 2024 is an unlawful attempt to use guidance to introduce a change that was defeated in the House of Lords last year when levelling up secretary Michael Gove proposed an amendment to the Levelling Up & Regeneration Bill (LURA).
The amendment was voted down by the Lords after the chair of the Office for Environmental Protection said it would “permit certain environmentally damaging activity to proceed without appropriate assessment”.
Now, the secretary of state at the Department for Environment, Food & Rural Affairs (Defra), Steve Barclay, has published a “Notice of designation of sensitive catchment areas 2024” in accordance with section 96C of the Water Industry Act 1991. The notice requires water companies to upgrade sewage infrastructure to improve pollution control measures for the removal of nitrogen and phosphorus from discharges into sensitive catchment areas by 1st April 2030. Wild Justice welcomes that bit.
However, the notice also says that planning authorities considering proposals for developments should assume that those pollution control measures will be in place by the deadline of 1st April 2030, even though there is no guarantee that the measures will be in place.
Wild Justice says the notice would have the same effect as some of the LURA amendments that were defeated in the Lords.
Represented by the law firm Leigh Day, Wild Justice has sent a pre-action protocol letter to the Defra secretary challenging the lawfulness of the notice, signalling the start of the judicial review process. The group is challenging the notice on four grounds:
- Ground 1: Unlawfully requiring competent authorities and other local planning authorities to disregard matters which they are required to have regard to in accordance with the Habitats Regulations and planning law generally. A competent authority is required to have regard to any potential adverse impacts which a proposed development may cause to a European site, and is prohibited from granting planning permission for such a development. By requiring authorities to assume that the relevant nutrient pollution standard has been met, the notice would require the authorities to ignore potential impacts to sensitive catchment areas in situations where the relevant pollution standard has not been met.
- Ground 2: Unlawful fettering of discretion: By purporting to prohibit competent authorities from considering that a relevant nutrient pollution standard has not been met, the notice unlawfully fetters authorities’ discretion.
- Ground 3: Ultra vires the statutory power: The notice is made “in accordance with the power in Section 96C” of the Water Industry Act but the act does not give the Secretary of State power to direct what planning authorities may consider in determining a planning application. Those matters are governed by the Habitats Regulations and planning legislation.
- Ground 4: Irrationality: The notice has the perverse effect of lowering the level of environmental legal protection afforded to the nutrient sensitive catchments. In that sense, the notice is self-defeating and therefore irrational.
Wild Justice said: “This appears to be a con. Did the new secretary of state really read this passage which tells regulators to assume the unlikely and unproven will be true? We think Defra is not to be trusted, and quite honestly, we don’t trust them. This is a legal fight that is worth having.”
Leigh Day solicitor Ricardo Gama said: “After a huge outcry from environmental groups and a defeat in the House of Lords last year our client thought that the government had quite sensibly given up seeking to remove legal protections for internationally important habitats. The latest notice appears to try to achieve the same thing through the backdoor.”
Got a story? Email [email protected]
