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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wild Justice, R (On the Application Of) v The Water Services Regulation Authority [2023] EWCA Civ 28 (17 January 2023) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2023/28.html Cite as: [2023] EWCA Civ 28, [2023] Env LR 27 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE BOURNE
CO/1978/2022
Strand, London, WC2A 2LL |
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B e f o r e :
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THE KING on the application of WILD JUSTICE |
Claimant/ Appellant |
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- and - |
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THE WATER SERVICES REGULATION AUTHORITY |
Defendant/ Respondent |
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Hanif Mussa KC and Natasha Simonsen (instructed by Gowling WLG) for the Respondent
Hearing date : 12 January 2023
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Crown Copyright ©
Lord Justice Bean :
"(1) This section shall have effect for imposing duties on the Secretary of State and on the Authority [ie OFWAT] as to when and how they should exercise and perform the powers and duties conferred or imposed on the Secretary of State or the Authority by virtue of any of the relevant provisions.
…
(2A) The Secretary of State or, as the case may be, the Authority shall exercise and perform the powers and duties mentioned in subsection (1) above in the manner which he or it considers is best calculated–
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(b) to secure that the functions of a water undertaker and of a sewerage undertaker are properly carried out as respects every area of England and Wales;
… ."
"(a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers and any lateral drains which belong to or vest in the undertaker as to ensure that that area is and continues to be effectually drained; and
(b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers."
"The design, construction and maintenance of collecting systems shall be undertaken in accordance with the best technical knowledge not entailing excessive costs, notably regarding–
(a) volume and characteristics of urban waste water;
(b) prevention of leaks;
(c) limitation of pollution of receiving waters due to storm water overflows."
"a. plants built in order to comply with that regulation are designed (account being taken of seasonal variations of the load), constructed, operated and maintained to ensure sufficient performance under all normal local climatic conditions;
b. treated waste water and sludge arising from waste water treatment are reused whenever appropriate; and
c. disposal routes for treated waste water and sludge minimise the adverse effects on the environment."
"(1) This regulation supplements the duty imposed on every sewerage undertaker by section 94 of the Water Industry Act 1991 (general duty to provide sewerage system) and any contravention of the requirements of this regulation shall be treated for the purposes of that Act as a breach of that duty."
"It is for the Environment Agency and Natural Resources Wales to consider how they enforce compliance with individual environmental permits, including in relation to FFT and storm overflow conditions. OFWAT will be keeping abreast of that and any new information that becomes available, to inform the next steps we may need to take using our own regulatory tools. That includes but is not limited to enforcement action.
If we find that use of our enforcement tools is necessary, we will apply the principles set out in our published approach to enforcement, including taking appropriate action to secure compliance, and being proportionate and targeted in focusing our intervention on areas of greatest detriment. We expect companies to come forward if they consider a breach of their obligation(s) is occurring and to take action to remedy the damage that breach has caused. Failure to do so would be considered in our approach to any enforcement.
Alongside further information and steps that may come from the Environment Agency and Natural Resources Wales in due course, I want to hear urgently and directly from companies on this issue. Your response will inform what we do next. Therefore, I expect you to respond to the requests for information set out in Annex 1 and 2 of this letter as soon as possible."
"The accusation of a failure to act is put in a general or generic way, the Claimant has not identified any specific action which the Defendant should have taken and has failed to take. Rather it alleges a general failure to act and relies on an asserted lack of evidence of any such action."
"50. It is …… clear that OFWAT's letter to water companies of 18 November 2021 (which included a requirement to state the causes of non-compliance with FFT permit conditions – which logically could include issues arising from the design, construction or maintenance of treatment plants) related at least in part to compliance with regulation 4 and not merely with the generality of section 94. So does the enforcement action against five water companies which began before the PAP letter was sent (and therefore before this claim was issued) and the action against a sixth which has begun since.
51. That is very important, because the Claimant's case is put in such sweeping terms. What is alleged is the taking of an entirely passive stance and an entire failure to obtain information.
52. In light of these investigation and enforcement steps which have occurred and are continuing, it is simply not arguable that the Defendant has not turned its mind to compliance with its statutory duties or that it is guilty of an entire failure to perform those duties.
53. None of this means that OFWAT has necessarily discharged its investigation and enforcement duties in a sufficient or satisfactory way. This claim does not allege any specific, individual failure to do so (despite some more specific criticism in the supporting witness statements) but is expressed in general terms. This Court may not be well placed to assess, and has not been asked to assess, the merits or demerits of the specific action which OFWAT is taking. Instead, the claim is based on a lack of connection with the regulation 4 obligations but, as I have said, there is plainly a connection with those obligations.
54. Moreover, there is no proper basis on which this Court should go behind OFWAT's assertion that, rather than being purely passive, it gathers information in several ways and uses that information for enforcement purposes, as is demonstrated by the current enforcement action. The Claimant has not shown that each of those types of information (which are listed in the summary grounds) is irrelevant to the potential enforcement of the regulation 4 obligations.
55. For these reasons there is no real prospect that the Administrative Court at a substantive hearing will find that OFWAT is simply not performing its monitoring and enforcement obligations in respect of water companies' section 94 duties."
"Neither of grounds 2 and 3 is arguable. OFWAT has collected information and has taken enforcement action. However well or badly it has done those things it is not arguable that it has simply failed to do them".